On 6 February 2013, I gave a seminar at the offices of Lewis Silkin LLP entitled “The Curious Case of the Judgment Enhancers”. This is a transcript of the seminar I delivered, for those who are interested in such things.
The Curious Case of the Judgment Enhancers
2. Tonight’s seminar is about law reporting: in particular, the brand of law reporting carried out by the ICLR. Now, notwithstanding the fact that I am an employee of the Council, it is worth noting at the outset that the talk I am about to give is based, to a large extent, on my own personal survey of the issues I intend to talk to you about – the contents of this seminar is not, as it were, “ICLR-sanctioned”. That is not meant to strike fear into the heart of ICLR’s CEO, who is with us tonight, I am unlikely to speak disparagingly of an organisation I work and hold a great deal of respect for. But, some of the questions I want to address require me to move my perspective away from that of an ICLR employee looking, from the inside, out into the legal world – to a position where I’m on the outside looking in.
3. I’m going to kick this talk of with a statistic I stumbled upon a few weeks ago that I found rather surprising: in it’s 2011 end of year financial statement, Thomson Reuters reported that 90% of its revenue for that year was derived from the sale of products and services delivered across online and other digital platforms – only 10 per cent of it’s very considerable revenue base was achieved through the sale of print-based products. And, the conclusion I draw from that statistic is that the transition from print to online research habits is in a state of near completion, rather than ongoing development. In other words, the internet, in my view, now well and truly reigns supreme.
4. This shift from print to online media has brought with it considerable changes that you, as information professionals, will be acutely aware of:
- It’s changed where we buy our services from and how much we pay for them;
- It’s changed how and where we access the materials those services make available;
- It’s changed the way in which hitherto disparate materials link to and cross-reference each other; and
- It’s changed how we think about where the material we access originates from.
5. Arguably – the technology – the platforms delivering the content (pre-eminently, in this jurisdiction, WestlawUK and LexisLibrary) – occupy far more of our focus than the content itself. We are prone to concentrate far more, for understandable reasons, on the search capabilities of the various platforms; how we train others to become proficient in their use; and the opportunities the technology offers us to share and mobilise the content we use. The shift from print to online has even modified the lexicon of legal information management: in this paragraph alone, I have used the word “content” three times! To this “vocab-2.0”, we might add words and phrases like: “aggregate”, “disaggregate” and even “algorithm”!
6. All of these changes are symptomatic of the way access to legal information has developed, particularly over the last ten or fifteen years. This isn’t necessarily a bad thing, but it has, in my view, detracted from the attention we give to the “content” itself. And, without wishing to invoke a “Jamie Oliverism” along the lines of “you can’t appreciate a good roast lamb unless you’ve been to an abattoir”, understanding the provenance of the materials we make use of not only enhances the way we use them, it also helps us assess their relative value – and, in an age of content proliferation, an appreciation of provenance, function and value is very useful.
7. So, in this seminar, I want peel back this “platform” layer and take a look behind that veil at one class of legal content in particular: law reports of the decisions of judges.
The sources of English Law
8. The first thing most law students learn at university is that there are two main sources of English law. The first is the law made by Parliament: Acts of Parliament; statutes; primary legislation – it took me a couple of weeks to realise that each of the labels were describing the same thing. We learned that in the English legal system, this source of law was prime, because statutes were enacted by those with a democratic mandate. Parliament, and therefore its “Acts”, was sovereign. This source of law was conceptually quite easy to get to grips with: statutes were no more than a written list of rules bearing on a particular subject.
9. We then learned that the second source of law was the law made by judges in the courts – or the common law. Roughly speaking, we were told that where Parliament had been silent on a particular issue, the judges in the courts were able to create new rules in order to dispense with the legal problems the parties to a dispute presented them with. Where Parliament had spoken on a subject by passing a statute, the court’s job was to give effect to the words of that statute as best it could.
10. The notion of law made by judges in the courts felt conceptually more difficult to grasp than laws made by Parliament in statutes; and things got trickier when we learned that the decisions of judges had to adhere to the doctrine of precedent, the principle that holds that a decision made by a superior court, or by the same court in an earlier decision, was binding precedent that that court itself and all its inferior courts were obligated to follow.
11. As a new law student, still wet behind the ears, all of this struck me as being rather strange. Between them, these two vast pools of law contained the rules that governed everyone’s rights, obligations and liabilities. One of those pools, statutes, felt manageable – if I wanted to find the definition of a “theft”, I could look up the Theft Act 1968 and I would quickly see at section 1(1) that a theft was where a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
12. But, the first pool overlapped with the second pool – the common law. And, because of this, a lawyer (or a law student), couldn’t take the words of that section at face value – the meaning of the words in that short sentence all bore meanings that had been defined by the courts. So, one also has to look at this unwieldy body of judge made law. To understand what the word “dishonestly” means, one has to look to the decision of the Court of Appeal in R v Ghosh  QB 1053. To define the phrase, “belonging to another”, one has to look to the House of Lords’ decision in Lawrence v Metropolitan Police Commissioner  AC 626.
13. What I found puzzling as a law student was the fact that such a huge part of our corpus of law was made up by a combination of written rules, on the one hand, and a vast web of judgments, handed down at different times, by different courts, on the other. All of this remains the case today – technology hasn’t changed this.
14. And this moves me to make what will hopefully be a relatively uncontroversial proposition: if so many of our rights, obligations and liabilities are to be found in the decisions of judges, it is vital that the decisions of judges are made accessible. But, to this proposition, I add another: it is not enough that the decisions of judges be accessible. What is also required is that they be organised and rendered into a system. If the decisions of judges are not made accessible in a systematic way, it becomes far more difficult to identify what the law actually is and doubt, in any legal structure, is seldom a good thing.
15. The strands that make up the English common law are many and they are in constant flux. And, as the then Lord Chief Justice Lord Bingham said at the First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millennium in 2000, in a common-law system, where the decisions of judges are a sources of law and there is a doctrine of precedent, the public must have access to the products of judicial decision-making, and the end product of that process should be in the public domain, even if not entirely free of charge.
16. Since 1865, in lieu of a state funded and state organised alternative, the organisation responsible for bringing the product of judicial decision-making to order has been the Incorporated Council of Law Reporting.
The Establishment of the Incorporated Council of Law Reporting
17. To be in a position to assess whether the role ICLR plays in bringing order to the common law is still of value, we need to understand a bit about what brought the Council into being in the first place.
18. The regular practice of law reporting dates back to the late 12th century, but the really interesting period for present purposes is the period of law reporting carried on by private individuals between the 16th century and the mid-19th century. This is the period of the Nominate Reports and there are certain features of this period of legal information dissemination that are echoed today.
19. Even in the 21st century, cases reported by the Nominate reporters are still cited before the courts. An example includes Pinnell’s Case (1602) 5 Co Rep 117a, a case decided and reported by Sir Edward Coke on the part payment of contractual debts. This period of law reporting was marked by a vast number of individual reporters publishing volumes or series of case reports under their own names. And, often, there were two of them, sounding like comedy duos: we had the reports of Adolphus & Ellis, Meeson & Welsby, Flanagan & Kelly, French & Saunders…
20. The Nominate reports worked well enough for a while, but over time a number of problems started to emerge:
- The various series varied enormously in coverage, accuracy and reliability: occasionally cases reported in more than one series reported different holdings and outcomes.
- The vast number of different reports on offer made it difficult to cultivate anything resembling a comprehensive library of material without enormous expense.
21. Of these vices, standards of accuracy and reliability gave rise to the most concern. In 1849 a report of the Law Amendment Society complained that although the decisions of the courts were the formal constituents of the common law, they were in no respect officially promulgated. The report went on to observe, somewhat scathingly, that it had long been considered a practicable scheme for any barrister and bookseller who united together with a view to notoriety or profit, to add to the existing list of law reports. The result of all of this, in the Law Amendment Society’s view, was that even if all of the reports which were published were correct and given to competent persons, they were then so numerous that they couldn’t be known to one tithe of the practitioners of law. The decisions of the courts were beyond not only the reach of the public, but, more worryingly, perhaps, most of the legal profession.
22. In order to ameliorate the risks of inaccuracy, inconsistency and expense, a better system for bringing the common law together was needed. The Incorporated Council of Law Reporting was established in 1865 to do just that and the series known as The Law Reports was launched.
23. That series of reports is still published on a monthly basis today (under the four divisions of Appeal Cases, Queen’s Bench, Chancery and Family). It is this series of law reports, which contain a note of the arguments advanced by counsel, that are required to be cited in preference to any other, including ICLR’s secondary generalist series of reports, The Weekly Law Reports, which were launched in 1953 to cater for the demand for more rapid publication of judicial decisions.
The law reporters
24. Many aspects of the ICLR are much the same today as they were in 1865. Now, as then, the purpose of the ICLR can be reduced to two core pillars: the first is to identify which cases to report and which cases to reject. The second is to find a way of defining and articulating the principle or principles for which each case reported stands as authority. The achievement of both of these pillars of purpose rests now, as much as it did in 1865, on the highest standards of legal scholarship. ICLR’s most important asset, therefore, is its team of law reporters – the largest of its kind in the English jurisdiction.
25. Even though most of us will be familiar, to greater or lesser degrees, with the law reports published by ICLR – it’s fair to say we are generally far less familiar with the work carried out by those writing them. In fact, it wasn’t until I became a law reporter myself that I had any idea of what these “law reporters” spent their time doing. But, it’s my belief that to fully understand the work of the ICLR, and, by extension, whether it is still of value, we need to understand what the law reporters do.
26. The ICLR covers the full range of superior courts in England & Wales, from the Employment Appeal Tribunal, to the three divisions of the High Court, up to the Supreme Court. Apart from the European Court of Justice, which we cover from London, our reporters are assigned their own courts, which they cover full time. All of the reporters are lawyers: all having qualified as barristers or solicitors.
Law reporters as journalists
27. Law reporters are a niche breed of legal journalists, indeed we share some similarities with our Fleet Street contemporaries. If a law reporter’s job could be divided three ways, the first third of their role is journalistic in nature.
This is a good opportunity to distinguish between “court reporters” and “law reporters”, because the terms are often confused. A “court reporter” is there to report upon what happens in court. We read their coverage in the mainstream press. A “law reporter”, on the other hand, does exactly what it say’s on the tin – he or she is there to report the law as decided by the courts. The law reporter’s first duty is to cover the courts. This, at its simplest, means being physically present in court to listen to the cases unfold. But, unlike our Fleet Street colleagues, we are not in court to solely cover sensational cases – we are there to cover all substantive hearings.
28. The reporter’s first job, once in court, is to quickly identify what the case is about, who are the parties, what are the issues in dispute, what is the legal framework governing the resolution of the dispute. Even before the hearing starts, the reporter will inevitably have spoken to counsel for all of the parties to get a flavour for what’s happening. The next job is to get a copy of the papers: the skeleton arguments filed by the parties, together with procedural documentation such as the claim forms or appeal notices. This information enables the reporter to isolate the terms upon which the claim, appeal or application (whichever it may be) is being advanced on.
29. The second job is to cover the argument – that portion of the proceedings where counsel for the parties make their legal and factual submissions to the court. Here, the reporter will take a close note of the argument orally delivered. A sceptical approach is sometimes taken to the contents of the skeleton arguments filed with the court: it’s important we record the argument counsel actually delivers, rather than that which counsel intended to deliver. Here, as well as recording the substantive propositions made in argument, the reporter will record each and every case cited to support those propositions.
30. The final component of the journalistic phase of the reporter’s role is probably the most critical – to take a close note of the judgment, if given ex tempore, or to be their to collect a copy of the judgment if it is handed down in written form, as is often the case in more complex cases. This concludes the reporter’s journalistic function, the next exercise is more academic.
31. Before I move onto the next phase of the law reporter’s role, I want to launch a pre-emptive strike on a question I have been asked many times before: “why do the reporters bother going to court when they can just read a transcript of the judgment?” There are three answers to this question:
- If law reporters relied on transcripts, we would miss those judgments given ex tempore and read into the record – a transcript of which will not necessarily ever materialise on BAILII, for example.
- If law reporters didn’t physically attend court, it would be impossible to accurately reflect the arguments the court heard. We could only rely on the summary of argument set out by the judge in the judgment (if there is one) or rely on the skeleton arguments (if they are available). And, as I have already said, skeleton arguments are not a full proof guide to the argument the court actually heard.
- Being physically present for argument and judgment assists the reporter, to a very significant degree, in understanding what the case is about. This first hand knowledge of the case is worth its weigh in gold when it comes to summarising the factual matrix of the case and extracting the ratio of the decision.
Law reporters as academics
32. Whereas the first phase of the reporter’s role is journalistic, the second phase is academic. Having collected the judgment in any given case, the reporter’s next job is to assess whether that judgment should be reported.
33. Selectivity, for reasons I will come onto in more depth later, is at the core of ICLR’s reporting ethos. Casting our minds back to one of the problems during the days of the Nominate reports, we’ll recall that the sheer volume of reports was becoming an issue. Even today, it is arguable that there is a strong feeling in the judiciary that too much, rather than too little, is reported.
34. But, how are we to decide whether a judgment is reportable or not? The answer is through the application of the reportability criteria laid down during the establishment of the Council, by Nathaniel Lindley QC (who later became the Master of the Rolls).
35. First, we need to be clear about what should not be reported. On this, Lindley said:
“With respect to subjects reported, care should be taken to exclude –
- Those cases which pass without discussion or consideration, and which are valueless as precedents.
- Those cases which are substantially repetitions of what is reported already.
36. So, the law reporter will be keen to weed out those cases that are, for example, decided purely on their facts, or those cases decided upon the application of existing principle and reject them for reporting: they have little or no value as authority.
37. But, what are the hallmarks of a reportable case? Again, Lindley provides guidance to the law reporter:
“On the other hand, care should be taken to include –
- All cases which introduce, or appear to introduce, a new principle or a new rule.
- All cases which materially modify an existing principle or rule.
- All cases which settle, or materially tend to settle, a question upon which the law is doubtful.
- All cases which for any reason are peculiarly instructive.”
38. Lindley’s criteria are a guide to the qualities a reportable case may possess, rather than a definition of reportability. But, in an effort to reduce that criteria into a straightforward, modern format, it is safe to say that ICLR strives to identify and report cases that make new laws, change existing laws or explain existing laws.
39. Naturally, one of ICLR’s primary concerns is that practitioners and the public have access to precedent setting cases – but that isn’t our only concern. Looking through the prism of the reportability question, ICLR can also be seen to be performing a higher function: the analysis of the constant ebb and flow of the corpus of law known as the common law. When a case registers a shift or fluctuation in the common law by making new laws or modifying existing ones, ICLR’s primary role is to record that shift or fluctuation in the form of a law report.
40. This is a point Lord Neuberger made when giving the first annual BAILII lecture last November. His Lordship said:
“Scholarly law reporting, judgment enhancement, is of particular importance because of the role it plays in developing the corpus of law. This is especially true of the common law, which is of course judge-made law. The common law develops gradually through precedent, which is of course contained in Judgments, and precedent is refined over time. It changes as society changes; principles are adapted and applied. The common law could not do this without scholarly law reporting.”
41. So, when the law reporter, having carefully read and considered a judgment, turns to the question of whether it is reportable or not, she is not merely making an editorial decision of to publish or not to publish – she is herself making a judgment about whether the judgment represents a “common law event” significant enough to be recorded, analysed and communicated as a published law report.
42. These decisions require a great deal of skill. In order to make an informed decision on reportability, the reporter needs to be able to isolate the essential facts of the case; extract the ratio of the decision with sufficient precision and assess, against the background of existing law (be it in statutes or other cases), whether the case in question is doing something novel. On top of this, the reporter will need to consider whether the case in question has affected the value of earlier authorities – has it applied or followed an earlier decision, distinguished the ambit of an earlier authority, overruled it altogether?
On judicial consideration
43. I want to focus on this concept of judicial consideration for a few moments, because the evaluation of how new law affects existing law is critical. New technology has given rise to an algorithmic approach to the determination of whether a case is good law or not. A number of legal information vendors around the world are starting to making use of computer programmes that are seemingly capable of determining whether a case is still good law or not. This is all well and good if the shades of judicial consideration can be reduced to good treatment, bad treatment, neutral treatment or “approach this case with caution!”, but, in my view, the concept of judicial consideration is far more complex than separating cases into the good, the bad and the ugly.
44. ICLR’s law reporters still approach the question of judicial consideration as an intellectual exercise that can only be performed well by closely analysing judgments followed by the application of legal knowledge. Is the court adopting the decision of a higher court where the factual matrices of the cases are substantially the same? If so, the earlier decision may be said to have been “followed”. Is the court adopting the decision of a court of coordinate or superior authority where the factual matrices of the cases are not substantially the same? If so, the earlier decision may be said to have been “applied”. Has a case really been “considered” merely by reason that it was mentioned once in a 100-paragraph judgment? Has dicta in an earlier decision been distinguished or explained? If so, what dicta has been so treated?
The law reporter as judgment enhancer
45. The last phase of the reporter’s role is that which users and readers see when they select a volume from a library shelf or select a case from a list of results. The reporter’s last duty, having decided to report, is to enhance the judgment: to convert the raw transcript of what the judge has said into a law report.
46. There is a note of irreverence in saying that law reporters enhance judgments, but of course no irreverence is intended. By enhancing the judgment I really mean two things:
- First, the process of putting the case into its common law context for later retrieval: carefully crafted catchwords, which appear at the head of the report, permit the case to be indexed into a rational taxonomy.
- Second, the addition of value that increases the utility of the judgment as a source of authority and learning.
47. Here, the reporter moves from academic to draftsman. She will, as I have mentioned, craft a set of catchwords encapsulating the subject matter of the case and the questions the court answers. A headnote is drafted setting all of the critical facts necessary to support the identified ratio of the case. Care must be taken to include all that is relevant, but equally, care needs to be taken to exclude ephemera. You may notice, on close inspection of the factual section of a headnote that it is rare for the names of the parties or dates of events to be included. This is because, more often than not, names and dates are not relevant to the propositions of law the cases stand as authority for.
48. Next, an arguably the most important element of value, comes the summary of the court’s decision. This can be the most challenging aspect of the drafting process, particularly where there are assenting and dissenting judgments, or where, as often happens, a panel of three or more judges arrive at similar conclusions via different routes.
49. A good example of such a case is the House of Lords’ decision in R (on the application of Pinochet Ugarte) v Bow Street Magistrates’ Court  1 AC 147. The case is fairly well-known, and was concerned with the question, inter alia, of whether General Pinochet had immunity under customary international law from allegations of torture by reason of that fact that he was, at the material time, a head of state and/or that the alleged conduct had taken place in the context of his functions as head of state. The decision was reported in Appeal Cases and the reporter was Ms Bobby Scully, who still reports from the Supreme Court and is also the editor of the Times Reports.
50. To give you a flavour of the scale of the task Ms Scully had in summarising the ratio of the decision in that case, it will help you to know that:
- Seven Law Lords presided, each giving their own speech. On the point of whether extraterritorial torture was a crime in the UK before the passing of the Criminal Justice Act 1988, Lord Millet dissented.
- On the point of whether a former head of state had immunity from the criminal jurisdiction of the UK for acts done in an official capacity as a head of state, Lord Goff dissented.
- On the point of whether there was universal jurisdiction to prosecute crimes of torture, Lord Hope, Lord Browne-Wilkinson and Lord Saville all offered up their own obiter dicta, dicta falling outside the ratio of the case, but nevertheless relevant.
- There were over 80 authorities cited in the speeches and over 50 authorities cited in argument.
- So complicated was the legal argument, that Ms Scully’s note of argument ran on for 30 pages, one of the longest notes of arguments ICLR has ever published.
- The speeches ran on for over 100 pages.
- Despite the complexity and volume of the material, thanks to the precision with which Ms Scully encapsulated the various decisions in that case, a reader of the report is only required to read four paragraphs to understand the decision, instead of over 100 pages of complex judicial speeches.
51. When we think of making information ‘accessible’, we often think in terms of cost and ease of location and retrieval. But, information accessibility is wider than this. The law reporter’s efforts, in drafting a precise and accurate headnote, makes the contents of the judgments intellectually accessible. Without that headnote, readers, regardless of their seniority and experience, have to wade into the text of the judgments utterly unaided.
52. And, in this respect I speak from personal experience: I wasn’t always a law reporter – I started out in the law as a user of law reports, rather than a writer of them. And I still vividly remember an afternoon about five years ago where I was sitting in UCL’s library trying to get my head around the decision of the House of Lords in Pinochet for my international law seminar the following day. Without that headnote on the face of the report, that exercise of comprehension would have taken me far, far longer and I daresay would have led to an inferior understanding of the decision.
The note of argument
53. In addition to setting out the procedural background of all the cases we report, and subjecting every aspect of the judgment to rigorous checking, the other piece of substantial value the reporter enhances judgments with is the note of argument.
54. To my knowledge, The Law Reports is the only series in England & Wales to incorporate this feature. In fact, I believe there is only a handful of reporters worldwide that make a point of including a note of the argument.
55. The note of argument is a valuable research resource and this is because, in the context of the English adversarial system, advocates play a central role in judicial decision-making. If you visit the Royal Courts of Justice to observe proceedings as they take place, you’ll see that, in discerning what elements of the facts of a particular case attract a particular rule of law, the judges look to counsel to tell them – it doesn’t work the other way round. Counsel play a central role in defining the scope of the proceedings in question and play a critical role in defining the sphere of material the court looks to in order to make a decision. If only for this reason, the contribution counsel makes in argument is an invaluable tool for understanding judicial decisions.
56. The point of all this, I would suggest, is these various elements of value added by the reporter means that a great deal of the work in understanding cases is done – where users of law reports are concerned, it’s fair to say that a fair amount of the intellectual legwork has been done. These are features that are probably easy to take for granted the more we get used to having them, but any suggestion that lawyers would find raw transcripts more effective would be a difficult one to sensibly maintain.
The ICLR in the digital age
57. This brings me neatly on to consider the final issue I want to explore in this seminar: namely whether, in the context of the vast quantity of free-to-air law now available online, ICLR is still relevant: to bring the question down to its simplest, in the words of The Clash, should we stay or should be go?
58. This is obviously a difficult issue to grapple with and it’s probably best viewed initially from afar and then to zero in on the difficult questions. But, I’m going to preface this enquiry with a number of propositions:
- Judicial decisions are constituents of the common law and as such belong to the body of laws that govern every aspect of our lives, be they professional or personal, civil or criminal.
- Whether or not legal materials are free at the point of access, there is always a cost attendant to their production and dissemination.
- Lawyers are still the principal users of legal information, and for lawyers, knowing how to find the law is often more important than knowing the law itself.
- Nevertheless, public demand and consumption for legal information is higher than it’s ever been and continues to rise
BAILII and legislation.gov.uk
59. The new online environment has opened up the market to providers of free information, as well as making things potentially very profitable for subscriber-based suppliers.
60. In the context of legislation, the work being done by the National Archives and the Ministry of Justice on the legislation.gov.uk website represents a very exciting development. The critical task for publishers of legislation is to ensure that the information they are making available is accurate at the time of access, but it is equally critical to give users the ability to move backwards to see earlier versions of enactments as well as to move forwards to see upcoming amendments.
61. Legislation.gov.uk, in my view, is quickly moving into a position where it will be able to offer a service of a similar quality to that which is already offered by paid-for subscriber services. The important difference is that legislation.gov.uk is totally free of charge, and virtually free of copyright constraints.
62. This means that the paid-suppliers, if they wish to continue to be able to charge for their legislation services, will need to think carefully about how they can add value to their current offering and how the benefits of that value can be conveyed to their subscriber base.
63. Things have moved further along the road in the context of case law. BAILII has now established itself as a mainstay of access to the products of judicial decision-making in the United Kingdom.
64. I strongly doubt that BAILII requires much introduction, but this from their About page sums things up nicely:
“The British and Irish Legal Information Institute (BAILII) provides access to the most comprehensive set of British and Irish primary legal materials that are available for free and in one place on the internet. In August 2012, BAILII included 90 databases covering 7 jurisdictions. The system contains around 36 gigabytes of legal materials and around 297,513 searchable documents.”
65. For publishers of legal information, including ICLR, to underestimate BAILII’s scale and appeal would be to their peril. And, this necessarily invites the questions, is BAILII a threat to ICLR? Are the two organisations in competition?
66. Let’s start by considering what the two organisations, BAILII and ICLR, hold in common:
- Both organisations hold charitable status – they are both not-for-profit and they both divert any financial surpluses straight back into the organisation. Neither organisation is answerable to a board of shareholders – BAILII has it’s board of trustees, ICLR has it’s Council.
- Both organisations are free from judicial and political interference and hold, as their core charitable objects, the maintenance of the rule of law and the administration of justice.
- Both rely on the legal community for their financial survival, BAILLI through charitable donation, ICLR through the sale and licensing of its publications.
67. In last year’s BAILII lecture, Lord Neuberger dealt with the issue head on. To quote his Lordship a second time:
“It might be said though that with the growth of Bailii that scholarly law reporting is to a certain extent no longer necessary. This view would see Judgment-enhancement and Judgment-dissemination as competitors, with the latter driving out the former. I disagree with this view. The two types of law reporting complement each other…”
68. There are undoubtedly those who do agree with this view, however. On more than one occasion, I have heard it said that the ICLR should consign the entirety of its archive, spanning almost a century and a half, to BAILII. This of course would spell the end of the ICLR as a going concern because as I have already said, we rely on revenues from the sale and licensing of our reports to keep the organisation afloat.
69. My view is that the theory that BAILII represents a real and present threat to the survival of the ICLR rests on a flawed or incomplete understanding of what the two organisations do and whom they serve. But, one needs to take care not to fall into complacency.
70. The better view is that ICLR and BAILII are two-sides of the same coin and are complementary of one and other. BAILII’s forte is speed and comprehensiveness. Fast, free access to raw transcripts of judicial decidion-making. ICLR’s forte, on the other hand, is selectivity and expression. To quote Lord Neuberger again:
It seems to me that the relationship which Bailii and the ICLR have just entered into [a relationship whereby the respective online platforms of the two organisations link into one and other] demonstrates clearly the symbiotic relationship that exists between the two types of law reporting. One is compendious and readily and speedily accessible to all. The other is selective, fundamental to the development of the law, and primarily directed to legal academics and professionals.
71. The extent of BAILII’s wide and free accessibility supports the rule of law, because undoubtedly the decisions of the judicial branch of state should be available to all. But, in order to prevent a flood of case law of no precedential value hitting the courts, the need for selectivity is heightened, rather than reduced by the presence of free-to-air services. The freer the contents of the common law, the greater the need for control. I appreciate the contradiction implicit in that remark. But the fact remains that the common law is not only there to be accessed by all who are interested, it is one half of the legal standards that govern the conduct of everyone within and sometimes beyond Britain’s borders. For that reason, and that reason alone, it still remains the case that the cases that change the law, the cases that really matter, need to be identified, explained and disseminated in an authoritative way, by an authoritative institution that is in possession of the most skilled people to do that job. In England & Wales, that institution is the ICLR, the official publisher of precedent setting case law.
72. Until a time comes when lawyers, academics and judges would prefer to have to understand cases like Pinochet without the assistance of a legally qualified law reporter’s headnote, until there is a preference for judgments where typographical, factual and legal errors remain within the text and until no one really minds if the law they are citing is still good law or not, ICLR will remain in symbiosis and partnership with BAILII.
73. There is no doubt that this new age of digital information has caused ICLR, as an organisation, to stop and do a bit of soul searching. We are fundamentally a generator of content, not a collector or aggregator of it. Where the practice of scholarly law reporting, judgment enhancement is concerned, we are thoroughly at home.
74. But, the Internet has changed the dynamic of the legal information market considerably and we need to change with it if we are to survive. In 2011, we launched our own online platform, ICLR Online, because it became clear that we could no longer depend on the sale of printed law reports for financial health. Whereas we have previously been happy for a range of third-party platforms to distribute our reports in cyberspace, we are gradually transforming ourselves into an organisation that can participate, and hold it’s own, in an ever more commercially competitive environment.
75. It’s difficult to picture how things are going to look in twenty or thirty years time. But, I hope, for the benefit of the English common law, ICLR’s judgment enhancers are still roaming the halls of the Royal Courts of Justice and the Supreme Court and making sense of English judicial decision-making for the benefit of lawyers, students, judges, academics and law librarians here and further afield.