"The Future of Law Reporting" by Roger Horne, Barrister

Miscellany

T H E F U T U R E O F L A W R E P O R T I N G
by Roger Horne

"6. The legal profession, however, remained unsatisfied with the various reports so that in 1865 a Council of Law Reporting was established with the function of publishing semi-official law reports (which I will call 'the Law Reports' -- which includes the Weekly Law Reports). The work of the council proved to be satisfactory, but other law reports, which were published either more rapidly or contained many otherwise unreported cases, continued publication, so that in 1939 the Law Reports Committee was appointed to consider the situation.

7. It is unnecessary to consider in any detail the report of the committee because shortly after World War II the number of law reports was reduced to such a degree that they no longer constituted a serious problem. It is important, however, to emphasise that the committee recommended that the Law Reports should continue in their established form, as they performed an essential function for the legal profession. In my dissent I suggested that the Law Reports should not only continue but that they should be the only law reports to which the courts would give recognition, but the majority felt that this would be too radical a step. The war, however, carried out most of the reforms suggested in the dissent as no one would now suggest that all the various reports that were suspended should now be restarted.

8. This introduction brings me to the main question that must be considered: Why are the Law Reports not published by the Crown as are the statutes? Both of them are essential parts of the machinery of justice, because the law would not only become uncertain but would also cease to develop, if the cases were not reported. It is, therefore, obvious that if no private persons were prepared to publish the Law Reports then the Crown would have to do so. Thus in the United States judgments delivered by the courts must be published at the cost of the state. There are, of course, private publishers who republish these decisions in various ways, but they all base their publications on the official copy.

9. The duty of the Crown, to see that all precedent cases of importance are published, has failed to be noticed in England because many of the decisions delivered by the Court of Appeal are in oral and not written form. The Evershed Committee reached the conclusion that no change should be made in this practice as many of the appeals from the county courts are of limited importance, but all unpublished judgments of the Court of Appeal are now files and indexed in the Bar library in the Law Courts."

When Professor Goodhart made the Affidavit from which this passage is taken^[1] in 1971 there were, as he says, very few law reports in existence. A few years later, however, a number of others had come into existence -- Simon's Tax Cases, for example, commenced publication in 1973. Now there are dozens of different series of law reports including such exotic titles as Butterworths' Medico-Legal Reports and although the titles are different, their numbers probably exceed those to which Professor Goodhart was referring in Paragraph 7 of his affidavit.

    In the past law reports were prepared from the notes of a particular case taken by a law reporter. Originally these would have been shorthand notes but today it is more usual for them to be prepared from tape recordings. It seems probable that the way in which they are produced in the future will be somewhat different.

    Supreme Court Judgments in America are always produced in written form and are distributed on disc to various interested parties including legal publishers and at least one University. The latter converts the original word processed text into ASCII text and this is then filed. Another University then produces an index to these reports^[2].

    In Australia a slightly different system is used. The Australasian Legal Information Institute^[3] takes the original cases and adds hypertext links to them which can subsequently be indexed and searched. The difference between the two systems is that in America the original judgment remains untouched while in Australia it is marked up by LII.

    In the United Kingdom there is as yet no equivalent of either Cornell University's search engine or the Australian Legal Information Institute. However some academic institutions, most notably the Law Technology Centre at Warwick University^[4] have expressed an interest in doing something similar.

    Of course this will not be possible until much more law is made freely available on the internet. At the moment the only cases that are available are the House of Lords decisions delivered since 14th November 1996. There are several reasons why the House of Lords decisions were the first to became available. The main one is that the House of Lords has never delegated the reporting of its decisions to third parties. All of its decisions are printed and are made available to the parties in that form and it is a simple matter to run the text as prepared for the typesetter through a program which converts it into HTML, the language of the Web.

    The other extreme is the Court of Appeal, some 70 per cent of whose judgments are extempore. There is therefore a need for them to be recorded in some manner and then transcribed. At the moment this is done by the official shorthand writers under a contract which entitles them to sell transcripts to interested parties. They naturally enough are not willing for the transcripts which they have prepared to be put on the internet free of charge.

    In the future the need for manual transcription is likely to disappear. Systems that permit a person to dictate to a computer are becoming widely available and by the turn of the Century it seems probable that the software will be sufficiently advanced to enable all judgments, including those in the lower courts, to be transcribed accurately to disc. The judge can then read the transcript, make any necessary minor corrections, and authorise the transfer of the judgement to the official internet site.

    Once all judgments are made available it will be possible for them to be searched and indexed in the same way as happens in America and Australia. But being able to search judgments is only one part of what a practitioner needs to be able to do with judgements. Another is the ability to refer to them in argument when trying to persuade a Court that they can or cannot be distinguished from the case in which he is appearing. For this purpose simply being able to say, for example, "Harrison-Broadley v. Smith, [1964] 1 WLR 456, cannot be distinguished" is, of course, not enough; the Judge must not only be taken to the judgment but must be referred to the relevant passages in it.

    The question of citing electronic documents and in particular law reports is something which has given rise to a considerable amount of discussion. In America the American Bar Association has recommended^[5] that --
courts adopt a universal citation system using sequential decision numbers for each year and internal paragraph numbers within the decision. The numbers should be assigned by the court and included in the decision at the time it is made publicly available by the court.

The question that may be asked is why should paragraphs be numbered, rather than lines. The answer to this is that how a particular Web browser breaks a paragraph up into lines is up to it: one may break it into say six lines while another while divide it into four. In practice, since modern judges seem to break their judgments into short paragraphs this should give rise to no problems^[6].

    At the moment the House of Lords decisions do not have numbered paragraphs but for this to be done would be very simple. One case that can be found on the internet site is Shimizu (U.K.) Ltd. v. Westminster City Council^[7]. I have taken that case and added paragraph numbers to it in a form which can be linked to using HTML.

    Within a few years it will be commonplace for pleadings and similar documents to be supplied on disc or via email and it appears to me that it is probable that the common format for this will be HTML. In America in one high-profile case an Amicus has already filed a lengthy "brief" in HTML form^[8].

    If the ABA system of paragraph numbering was adopted here it would be possible, to use an extremely artificial example, for a skeleton argument to say --
In Shimizu^[9] Lord Hope of Craighead said --
It is not said either in section 91(1) or in section 1(5) of the Act that the expression "listed building" includes any part of a listed building. The word "building" where it appears on its own must, of course--unless the context otherwise requires--be given the extended meaning which it has in terms of section 336(1) of the Principal Act. So the word "building" in the first line of section 1(5) must be read as including any part of a building. Thus the entry which is included in the list may refer to a whole building or to a part of a building according to what is necessary in the opinion of the Secretary of State to achieve the purposes of the Act.
and the Appellants adopt this statement.

This leads to another interesting concept, that is to say, that of the virtual law report. If cases are made available on the internet it will not be necessary for a law report to contain the text of the judgment: all it need do is contain links to it. Separate series of law reports might arise each of which would link to the same judgment but would have differing headnotes, depending on the audience at which they were aimed. Eventually the arguments of Counsel might be found on yet another site.

    A very simple example of such a virtual law report can be found in the first (and last) issue of a new law report called "rHLR"^[10]. This is a report of the Shimizu case but should not be considered to be an authoritative law report.

Comments to:
    Roger Horne
    11 New Square
    Lincoln's Inn
    London WC2A 3QB

"6.	The legal profession, however, remained unsatisfied with the various reports so that in 1865 a Council of Law Reporting was established with the function of publishing semi-official law reports (which I will call 'the Law Reports' -- which includes the Weekly Law Reports). The work of the council proved to be satisfactory, but other law reports, which were published either more rapidly or contained many otherwise unreported cases, continued publication, so that in 1939 the Law Reports Committee was appointed to consider the situation.
7.	It is unnecessary to consider in any detail the report of the committee because shortly after World War II the number of law reports was reduced to such a degree that they no longer constituted a serious problem. It is important, however, to emphasise that the committee recommended that the Law Reports should continue in their established form, as they performed an essential function for the legal profession. In my dissent I suggested that the Law Reports should not only continue but that they should be the only law reports to which the courts would give recognition, but the majority felt that this would be too radical a step. The war, however, carried out most of the reforms suggested in the dissent as no one would now suggest that all the various reports that were suspended should now be restarted.
8.	This introduction brings me to the main question that must be considered: Why are the Law Reports not published by the Crown as are the statutes? Both of them are essential parts of the machinery of justice, because the law would not only become uncertain but would also cease to develop, if the cases were not reported. It is, therefore, obvious that if no private persons were prepared to publish the Law Reports then the Crown would have to do so. Thus in the United States judgments delivered by the courts must be published at the cost of the state. There are, of course, private publishers who republish these decisions in various ways, but they all base their publications on the official copy.
9.	The duty of the Crown, to see that all precedent cases of importance are published, has failed to be noticed in England because many of the decisions delivered by the Court of Appeal are in oral and not written form. The Evershed Committee reached the conclusion that no change should be made in this practice as many of the appeals from the county courts are of limited importance, but all unpublished judgments of the Court of Appeal are now files and indexed in the Bar library in the Law Courts."

	When Professor Goodhart made the Affidavit from which this passage is taken^[1] in 1971 there were, as he says, very few law reports in existence. A few years later, however, a number of others had come into existence -- Simon's Tax Cases, for example, commenced publication in 1973. Now there are dozens of different series of law reports including such exotic titles as Butterworths' Medico-Legal Reports and although the titles are different, their numbers probably exceed those to which Professor Goodhart was referring in Paragraph 7 of his affidavit.
	In the past law reports were prepared from the notes of a particular case taken by a law reporter. Originally these would have been shorthand notes but today it is more usual for them to be prepared from tape recordings. It seems probable that the way in which they are produced in the future will be somewhat different.
	Supreme Court Judgments in America are always produced in written form and are distributed on disc to various interested parties including legal publishers and at least one University. The latter converts the original word processed text into ASCII text and this is then filed. Another University then produces an index to these reports^[2].
	In Australia a slightly different system is used. The Australasian Legal Information Institute^[3] takes the original cases and adds hypertext links to them which can subsequently be indexed and searched. The difference between the two systems is that in America the original judgment remains untouched while in Australia it is marked up by LII.
	In the United Kingdom there is as yet no equivalent of either Cornell University's search engine or the Australian Legal Information Institute. However some academic institutions, most notably the Law Technology Centre at Warwick University^[4] have expressed an interest in doing something similar.
	Of course this will not be possible until much more law is made freely available on the internet. At the moment the only cases that are available are the House of Lords decisions delivered since 14th November 1996. There are several reasons why the House of Lords decisions were the first to became available. The main one is that the House of Lords has never delegated the reporting of its decisions to third parties. All of its decisions are printed and are made available to the parties in that form and it is a simple matter to run the text as prepared for the typesetter through a program which converts it into HTML, the language of the Web.
	The other extreme is the Court of Appeal, some 70 per cent of whose judgments are extempore. There is therefore a need for them to be recorded in some manner and then transcribed. At the moment this is done by the official shorthand writers under a contract which entitles them to sell transcripts to interested parties. They naturally enough are not willing for the transcripts which they have prepared to be put on the internet free of charge.
	In the future the need for manual transcription is likely to disappear. Systems that permit a person to dictate to a computer are becoming widely available and by the turn of the Century it seems probable that the software will be sufficiently advanced to enable all judgments, including those in the lower courts, to be transcribed accurately to disc. The judge can then read the transcript, make any necessary minor corrections, and authorise the transfer of the judgement to the official internet site.
	Once all judgments are made available it will be possible for them to be searched and indexed in the same way as happens in America and Australia. But being able to search judgments is only one part of what a practitioner needs to be able to do with judgements. Another is the ability to refer to them in argument when trying to persuade a Court that they can or cannot be distinguished from the case in which he is appearing. For this purpose simply being able to say, for example, "Harrison-Broadley v. Smith, [1964] 1 WLR 456, cannot be distinguished" is, of course, not enough; the Judge must not only be taken to the judgment but must be referred to the relevant passages in it.
	The question of citing electronic documents and in particular law reports is something which has given rise to a considerable amount of discussion. In America the American Bar Association has recommended^[5] that -- courts adopt a universal citation system using sequential decision numbers for each year and internal paragraph numbers within the decision. The numbers should be assigned by the court and included in the decision at the time it is made publicly available by the court.
	The question that may be asked is why should paragraphs be numbered, rather than lines. The answer to this is that how a particular Web browser breaks a paragraph up into lines is up to it: one may break it into say six lines while another while divide it into four. In practice, since modern judges seem to break their judgments into short paragraphs this should give rise to no problems^[6].
	At the moment the House of Lords decisions do not have numbered paragraphs but for this to be done would be very simple. One case that can be found on the internet site is Shimizu (U.K.) Ltd. v. Westminster City Council^[7]. I have taken that case and added paragraph numbers to it in a form which can be linked to using HTML.
	Within a few years it will be commonplace for pleadings and similar documents to be supplied on disc or via email and it appears to me that it is probable that the common format for this will be HTML. In America in one high-profile case an Amicus has already filed a lengthy "brief" in HTML form^[8].
	If the ABA system of paragraph numbering was adopted here it would be possible, to use an extremely artificial example, for a skeleton argument to say -- In Shimizu^[9] Lord Hope of Craighead said -- It is not said either in section 91(1) or in section 1(5) of the Act that the expression "listed building" includes any part of a listed building. The word "building" where it appears on its own must, of course--unless the context otherwise requires--be given the extended meaning which it has in terms of section 336(1) of the Principal Act. So the word "building" in the first line of section 1(5) must be read as including any part of a building. Thus the entry which is included in the list may refer to a whole building or to a part of a building according to what is necessary in the opinion of the Secretary of State to achieve the purposes of the Act. and the Appellants adopt this statement.
	This leads to another interesting concept, that is to say, that of the virtual law report. If cases are made available on the internet it will not be necessary for a law report to contain the text of the judgment: all it need do is contain links to it. Separate series of law reports might arise each of which would link to the same judgment but would have differing headnotes, depending on the audience at which they were aimed. Eventually the arguments of Counsel might be found on yet another site.
	A very simple example of such a virtual law report can be found in the first (and last) issue of a new law report called "rHLR"^[10]. This is a report of the Shimizu case but should not be considered to be an authoritative law report.
	Comments to: Roger Horne 11 New Square Lincoln's Inn London WC2A 3QB