Using Law Reports
| Author | Andrew Goodman |
| Pages | 199-213 |
CHAPTER 8
USING LAW REPORTS
8.1 FUNDAMENTALS AND DIFFICULTIES
The doctrine of stare decisis and the order of precedent mean that judgments of the superior courts are primary sources of law. It should not take a whole section of this book to remind you, when reading a law report, it is only the judgment which constitutes the source material, yet the point is so important and so often overlooked that it requires more than a line or two. The headnote is no part of the judgment: it is merely an editorial summary of the facts, the decision and the reasoning, entirely the subject of the law reporter’s views, and is an innovation thought to have commenced in Burrow’s Reports c. 1765. Likewise, any legal taxonomy provided to assist with searching for authorities in the same area is only editorial guidance.
The law reporter performs three useful functions. He selects judgments of sufficient importance to publish; he categorises them; and he analyses judgments by producing a headnote summary, so that, on the face of it, you do not have to. This results in considerable convenience and time saving, particularly if the series of reports are readily searchable or have a half-decent index.
To that extent, law reports should be regarded as aided discovery – they are edited to draw the attention of the reader to vital passages. In certain series of reports editorial policy takes this function literally. In Lloyd’s Law Reports (extended to all LLP reports), key passages in the judgments are marked with a bold marginal line. This is a useful feature when you are presented with such an authority at the last minute, and consistent too with the Practice Directions
Direction (Court of Appeal: Citation of Authorities) [2001] 1 WLR 1001; CPR 1998, PD 52,
200 How Judges Decide Cases: Reading, Writing and Analysing Judgments
marking up the passages of judgments relied upon in argument, which judges are encouraged to pre-read. Editorial markings are intended to be instructive but are in fact matters of opinion. In the final analysis you must analyse the judgment yourself.
Reading law reports to support or undermine argument is the most common process of syntopical reading (see Chapter 4) in which lawyers engage. However, even the most instructive of opinions that form the headnote of a report has editorial limitations due to the need for condensation. As a matter of course, you should always question the authority and accuracy of the headnote, since any reliance upon headnotes for convenience should be made sparingly. They may be wrong. They may not be exhaustive. You may be able to discover important meanings that the editor of the commentary has not discovered or has consciously suppressed as being subsidiary to the main thrust of the case, but which are of great importance to you. And we have already considered the debate about multiple rationes and their impact on the status of an authority.
8.2 THE FUNCTIONALITY OF LAW REPORTS
Lawyers who come to read law reports usually have one of two aims in mind. They are either searching for support for a legal proposition: the support they seek may be positive or negative; it may be directly on the point or tangential; it may be a fair comparable, a fortiori or an illustration of reductio in absurdum; it may, in fact, not exist. Or, second, practitioners will have been alerted to a specific authority, which they need to assess to decide whether it will support their position or impair that of their opponent.
For those searching for authority they:
• need to have some idea of what they want to know;
• must have at least some idea of where to find out what they want to know;
• must know what kind of questions they are asking and in which kinds of law reports the material can be found;
• must know how the particular work is organised.
para 15.11(2)(a) (effective 30 June 2004); and see Scribes West Ltd v Relsa Anstalt (No 1) [2004] EWCA Civ 835, [2005] 1 Costs LR 18 per Brooke LJ.
Those reading an identified authority should:
• read the substantive judgments before the headnote;
• failing that, they should identify the leading majority judgment and read that before reading the headnote;
• form a view of the ratio or rationes decidendi before reading the headnote;
• not read a commentary before reading at least the leading judgment.
Refusing the temptation to read the headnote or commentary first in order to save time is a difficult discipline to master in practice. However, it follows one of the rules of intrinsic reading:
8.3 ACCURACY IN LAW REPORTING
The practitioner should have two particular concerns with the accuracy of law reporting: first, the accuracy with which judgments are recorded and reproduced; second, the reliability of the editorial opinion expressed in the headnote.
The precision with which early law reporting was conducted is highly questionable. In the absence of the court rolls, you are properly entitled to consider whether, before 1865, any reported judgments under consideration were in fact themselves subject to editorial opinion. Many important cases dating up to the mid-19th century contain judgments which are extremely short, and are fairly obviously a précis based solely on the reporter’s note.
The system of freelance law reporting was haphazard at best, and at worst dangerously anecdotal. It is certainly apparent that judgments were neither handed down in written form nor dictated for the benefit of the
Schuster, New York, 1972) at p 174.
202 How Judges Decide Cases: Reading, Writing and Analysing Judgments
law reporters present. The contents and subject matter varied between the many hundreds of reports named after the reporter or occasionally after particular judges,
Beyond that, the reliability of many reporters was questionable. Key facts that it was essential for the reader to know were often missed out.
The accuracy and substance of Kelyng (Pleas of the Crown 1789) has also been much argued over.
You may rightly be concerned about the frequency with which Nominate Reports are still cited today. As long ago as 1925 there was a movement to discard the use of many of the older reports and decisions. Carleton Kemp Allen wrote in the Law Quarterly Review: ‘We have more to fear from an exaggerated respect for antiquity than from innovating judges.’
In 1849, a report of the Law Amendment Society observed that ‘even if all the reports which are published are correct and given by competent persons, they are now so numerous that they cannot be known to one tithe
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