Court Directions Relating to Legal Research
| Author | Emily Allbon/Ian Hunter/Peter Clinch |
| Pages | 375-393 |
Appendix 3
Court Directions Relating to Legal Research
UNITED KINGDOM: SUPREME COURT Citation of unreported judgments
Practice Direction 6:
6.3.5 Transcripts of unreported judgments should only be cited when they contain an authoritative statement of a relevant principle of law not to be found in a reported case or when they are necessary for the understanding of some other authority.
Provision of authorities and hierarchy of law reports
Practice Direction 6:
6.5.1 A joint set of authorities, jointly produced, should be complied for the appeal. This set should include a primary volume, agreed between Counsel for the parties, containing those legislative provisions and case law authorities to which frequent reference is likely to be made during oral argument. Seven sets of the primary volume, and three copies of all other volumes of authorities, should be filed in hard copy at the same time as the core volumes referred to in paragraph 6.4.3. All these authorities must also be filed electronically and included in the electronic bundle prepared for the hearing in accordance with Practice Direction 14. Respondents should arrange with the appellants for the delivery to them of such volumes of authorities as the respondents’ counsel and solicitors require. The following paragraphs give guidance on the arrangement and order of the volumes but where the parties consider that a different order or arrangement would be of greater assistance to the Court, that order or arrangement should be adopted.
Form and content of authorities volumes
6.5.2 The authorities should appear in alphabetical order in the primary volume as well as in other bundles or categories within bundles. The primary volume should include an index to all authorities in all the volumes of authorities, and, where there is a large number of volumes, this index should also be reproduced separately. Every volume of authorities other than the primary volume should contain an index of its own contents. (The indexes must be included in the pagination.)
376 Legal Research: A Practitioner’s Handbook
6.5.3 Authorities should (where appropriate) be further divided into the categories: domestic, Strasbourg, foreign and academic material. Where the parties consider that a different arrangement would be of greater assistance to the Court, that arrangement should be adopted. The volumes of authorities should
a. be A4 size reproduced as one page per view (with any authorities smaller than A4 being enlarged);
b. [separate each authority by numbered dividers;]
c. be numbered consecutively on the cover and spine with numerals at least point 72 in size for swift identification during the hearing;
d. have printed clearly on the front cover the title of the appeal and the names of the solicitors for all parties;
e. have affixed to the spine a sticker indicating clearly the volume number in Arabic numerals and short title of the appeal.
Where an authority or other document extends to many pages, only those pages that are relevant to the appeal should be copied. In cases where it is necessary to cite substantial members [sic, numbers] of Strasbourg authorities, the Court should be provided with an agreed Scott schedule: see Lord Reed’s judgment in R (Faulkner) [2013] UKSC 23 at paragraphs 99– 103.
6.5.4 Copies of cases that have been reported should be of the case as reported in the Law Reports or Session Cases, failing which copies of the case as reported in other recognised reports should be provided. In Revenue appeals, copies of the case as reported in the Tax Cases or Simon’s Tax Cases may be provided, but references to any report of the case in the Law Reports or Session Cases should be included when the case is listed in the index. Unreported copies of the judgment should only be included if the case has not been reported in any of the recognised reports.
6.5.5 The Court has on numerous occasions criticised the over-proliferation of authorities. It should be understood that not every authority that is mentioned in the parties’ printed cases need be included in the volumes of authorities. They should include only those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in the Law Reports.
6.5.6 All the volumes of authorities should be filed in the Registry, preferably in separate containers from the core volumes.
6.5.7 In order to produce the volumes of authorities, parties may download text from electronic sources. Where online versions of textbooks or academic authorities are used, the front sheet or first page must be included so that the date of the relevant edition and other such information is provided. See Practice Direction 14 for provisions in relation to electronic volumes.
6.5.8 In certain circumstances (for example, when during the hearing it becomes apparent that a particular authority is needed but is not in the volumes of authorities), the Supreme Court Library can arrange for copies of authorities to be made available at the hearing. Parties must
themselves provide ten copies of any other authority or of unreported cases. They must similarly provide copies of any authority of which notice has not been given.
6.5.9 The cost of preparing the volumes of authorities falls to the appellants, but is ultimately subject to the decision of the Court as to the costs of the appeal.
Filing documents in the Registry of the Supreme Court by electronic means
Practice Direction 14:
ENGLAND AND WALES: ALL CIVIL COURTS
Authorities which should not be cited and certification of those to be cited
Practice Direction (Citation of Authorities) [2001] 1 WLR 1001
The following authorities should not be cited unless they establish a new principle or extend the law:
Applications attended by one party only
Applications for permission to appeal
Decisions on applications that only decide that the application is arguable
County court cases, unless (a) cited in order to illustrate the conventional measure of damages in a personal injury case; or (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available. (paragraph 6.2)
Advocates who seek to cite a judgment that contains indications given by a court delivering the judgment that it was to be seen by that court as only applying decided law to the facts of the particular case; or otherwise as not extending or adding to existing law, will be required to justify their decision to cite the case (paragraphs 7.1 and 7.2).
Cases decided in another jurisdiction ‘should not be cited without proper consideration of whether it does indeed add to the existing body of law. Any advocate who seeks to cite an authority from another jurisdiction must (i) comply with rules on the certification of authorities set out in paragraph 8’ (of which an extract is given below); ‘(ii) indicate in respect of each authority what that authority adds that is not found in authority in this jurisdiction; or, if there is said to be justification for adding to domestic authority, what that justification is; (iii) certify that there is no authority in this jurisdiction that precludes the acceptance by the court of the proposition that the foreign authority is said to establish.’ (paragraphs 9.1 and 9.2).
The rules stated in paragraphs 9.1 and 9.2 do not apply to cases decided in either the Court of Justice of the European Communities or the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such authorities are covered by the rules stated in paragraphs 6.2 and 6.3.
‘Advocates will be required to state, in respect of each authority they wish to cite, the proposition of law that authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite
378 Legal Research: A Practitioner’s Handbook
more than one authority in support of given proposition, advocates must state the reason for taking that course.’ (paragraph 8.1).
The Practice Direction also states how the certification required by paragraph 8.1 is to be provided, and the detail to be included (paragraphs 8.2–8.4).
Citation of unreported judgments of the Court of Appeal (Civil Division)
Practice Note (Court of Appeal: Transcripts) [1978] 1 WLR 600
The mode of citation of unreported decisions of the Court of Appeal (Civil Division) was changed to, for example:
Smith v Fraser, July 19, 1977, Court of Appeal (Civil Division) Transcript No. 178 of 1977, CA.
Note: from 1951 an official note was taken of all judgments in the Court of Appeal (Civil Division), indexed and filed in the Bar Library. From the beginning of 1978 these copies have been held in the Supreme Court Library.
Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192
The House of Lords decided:
in future to decline to allow transcripts of unreported judgements of the Court of Appeal (Civil Division) to be cited on the hearing of appeals to the House unless leave is given to do so; such leave will be granted on counsel giving the assurance that the transcript contains a statement of some principle of law, relevant to an issue in the appeal to the House, that is binding on the Court of Appeal and of which the substance, as distinct from the mere choice of phraseology, is not to be found in any judgment of that court that has appeared in one of the general or special series of reports. (Headnote at pages 194 and 195)
The two weekly series of general law reports referred to in the judgment of Lord Diplock were, on the one hand, the Weekly Law Reports, parts 2 and 3 of which are later reproduced in the Law Reports and, on the other hand, the All England Law Reports.
Practice Statement (Court of Appeal: Authorities) [1996] 1 WLR 854
Re-iterated the principle set out in Roberts Petroleum (paragraph 3).
Practice Direction (Citation of Authorities) [2012] 1 WLR 780
This...
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