The Importance of Unreported Judgments

 As every barrister knows, precedents matter. To see just how much, you only have to visit the original courtrooms of the Royal Courts of Justice. Next to the bench of each High Court judge, the weighty bound volumes containing the law reports are on full display, adorning the walls, symbolically underpinning the precedents of the common law system which they faithfully record.

Their usage may have declined dramatically in the last twenty years as they have been gradually superseded by their online counterparts. But The Law Reports for the Superior & Appellate Courts of England & Wales remain as the lifeblood of the common law system, providing judges, lawyers, law students and legal academics with summaries of the most important judgments, stretching as far back as the reign of Edward the Second.

Since his rule in the early 14th Century, there have been assorted sets of case reports decided in the higher English courts right down to the present day. Until the nineteenth century, the quality of these reports was frequently variable. But since the 1860s, the Law Reports for England and Wales have been published to a very high standard, providing certainty and clarity for all concerned. Today, these are supplemented by senior court websites that regularly publish high-quality, well-formatted judgments while neutral citations facilitate their online publication making them easy to classify and identify.

This much is common knowledge. What is somewhat less well-known is that approximately 80% of all cases in the higher courts have gone unreported during that time. More surprising still is that even in the digital age, a very high percentage have also not been reported, even at the appellate level. Since 1999, the figures are as follows:

                                  No. of reported cases      No. of unreported cases    % Unreported

SC/HL/PC                             2,859                                      740                                   20

CA (Civ) &HC                     21,985                                 59,355                                  73

CA Crim                                5,474                                 49,887                                  90

——————————————————————————————————————

Total                                   30,318                               109,982                                  78.4

 

During the era of exclusively printed law reports, the upper limit of how many cases could be reported was dictated by circumstance, most notably the physical limitation of available space for printing. In the digital era, the issue of space constraints has disappeared, only for other problems stubbornly to remain which limit the number of cases reported.

Figures for the last five years show that, since 2012, 44% of all cases in our superior courts have gone unreported, including 304 cases in the Supreme Court and Privy Council.  Despite having the latest available digital technology, it would appear that the production cost of delivering high quality law reports detailing lengthy judgments continues to be both onerous and uneconomic. Reporting of cases remains an extremely expensive undertaking.

In some ways, we are still in the pre-digital age, unnecessarily wedded to paper: almost every law report publisher in the UK continues to produce a corresponding hard copy set. For now, they remain constrained by cost and by the publishing cycle.

Looking back, the problem was not limited to available publishing space. At every stage in the history of law report publication since the Victorian era, judgement has always been a key element in the armoury of a skilled law reporter, particularly in selecting which cases should be reported. And which should not. The assumption is automatically made that certain criteria have always been applied: every case reported will have inherent merit either because it sets a precedent in some respect, or it has other important distinguishing features.

But without knowing the criteria applied by each reporter, it is impossible to know the thinking behind the selection process applied, or whether it is, and always has been, entirely valid. It is simply a matter of trust that in the vast majority of cases which have gone unreported in the last 150 years, nothing of any significance has ever been missed, or has been left out because it did not fit the mores of the time, or those of the reporter. What was selected a hundred years ago may not have been selected today. And vice versa.

Perhaps more likely is that subjective judgment in the qualitative selection process has sometimes been flawed. The social and cultural attitudes of say the 1870s, the 1920s or the 1950s are certainly far removed from those which we share today. As indeed, no doubt, attitudes will change again in the coming decades.

It is therefore still more likely that the attitudes of past law reporters, when compiling those reports, shared in the establishment groupthink of the period: they would not have taken much account of dissenting judgments, then considered irrelevant or too liberal, but which later may have been shown as an attempt to move the law in a more progressive direction.

How many potentially important precedents may have slipped through the net? Does a quick online search automatically provide you with every relevant authority to find out, and potentially support your submissions in court, or your skeleton argument? We simply do not know. But these are more than just hypothetical questions. They are genuine concerns. And they have been central to the work done by Justis over many years to help make the answers available.

This is exactly why we host a comprehensive database of judgments from the superior courts of previous generations. These provide access to the forgotten cases of the past – the silent majority – so that today’s lawyers, legal scholars and law students can decide for themselves what really matters, and what does not.

To ensure that our case law database is the largest available, we have searched exhaustively in physical court records and archives across the country, enabling the digitisation of judgments that are not available anywhere else. The aim is to be as comprehensive as possible including previously unreported cases alongside those which have been reported. The result is that the Justis archive makes available online more than three times the number of judgments since 1950 than any other publisher.

In addition to England & Wales, Justis has undertaken the same task for all historical law reports in other common law jurisdictions: Ireland, Canada, Australia and in the Caribbean. In total, more than 700,000 unreported cases across these jurisdictions are now online. There are future plans to add India and South Africa to the list.

For law schools which teach international and comparative law, this is a perfect way of showing how precedent works regardless of whether something is reported or not.

Cases are identified through categorisation, and looking at case relationships across jurisdictions.

How can lawyers take advantage? Services such as BAILII hold the data, although searching for specific arguments is almost impossible. To make better use of it, legal research needs to innovate, providing tools for practitioners to analyse the newly available resources effectively.

Once these tools are in widespread use, lawyers that do not have access could be at a significant disadvantage, with an inferior more limited set of data to build and support their arguments. Having easy access to these judgments going forward will therefore be of paramount importance: innovation among providers of these databases will be vital.

To address the bespoke needs of researchers and practitioners, a new suite of tools makes the best use of available technology by adding in layers of analytics to make accessing the archive collection quick and easy-to-use. Deploying vast amounts of unstructured content and creating order from chaos is achieved through intelligent software.

Natural language analysis and data-mining can identify and extract legal concepts and arguments. Algorithms can isolate the critical passages in legal texts based on how they have been subsequently cited: which sentences and which paragraphs in each case. This dynamic element allows users to identify the real legal substance of the case and how that may have changed or evolved over time with different citations.

Every judgment in the Justis collection is consistently classified using a uniform legal taxonomy, making it possible to identify related authorities or supporting arguments. The taxonomy is huge, covering one and a half million entries: the largest taxonomy for legal information that anyone has ever created.

The opportunity to read and extract key information from a wealth of previously unreported legal judgments can add real value in identifying every authority, conducting comparative research, exploring precedent maps, discovering related cases, and distinguishing case treatments.

For practitioners and researchers alike, having access to unreported judgments, now and in the future, can form an important part of their work and study. By making more common law cases available than ever before across each relevant jurisdiction, the Justis research platform also makes them easily accessible.

How and when you choose to use them is entirely a matter for you.

Masoud Gerami, Managing Director of Justis

www.justis.com

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