Using Cases

Structure and Layout of a Case Report

You may have noticed that law reports are not always the same. Some have more sections than others, for example, certain types feature the arguments of counsel and others do not. Some have a particular recognisable format and others look more like magazine articles.

Let us focus on an example from The Law Reports series as these are the fullest reports available and have many features. This video highlights the key features of a case (with thanks to the Incorporated Council of Law Reporting and Westlaw UK).

https://www.youtube.com/watch?v=YBkkSk4XkyQ

Scroll down to find out more about each section of the report, or click on a specific term to go directly there: Parties, Dates, Catchwords, Headnote, Cases cited, Latin or law French, Law reporter.

Parties

• This is spoken as ‘R against’ or ‘The Crown against’ in criminal cases and ‘X and Y’ in a civil context. You should not really say ‘Bloggs v Jones’.
• Where there are multiple parties the case will be indexed only by the first party name.
• In criminal cases R, or the Crown, takes the action. This is part of the title and needs to be used when you are looking for the case in an index. Your lecturers and textbooks may often refer to criminal cases just by the name of the defendant, but you will need to include the ‘R’ when you look in paper-based indexes.
• In criminal cases where the defendant has a very common name, e.g., Smith, the first name will often also be given to help identify the case.
• Ex parte means “on behalf of’ and occurs most often in cases of judicial review. An example of this is the case R v Epsom Justices Ex parte Gibbons where Gibbons was seeking review of the decision of the magistrates.

Dates

The dates on which the court sat may not always be consecutive.

Catchwords or phrases

These are subject headings or descriptions added by the reporters or editors. They should help you to see what a case is about. They can be very useful as keywords in electronic searching.

Headnote

This is written by the reporter. It summarises the issues in the case, what was held and any significant comments in passing (obiter dicta). A quick scan of the headnote will help you to decide whether the case is what you need. If so, you may need to read the whole thing.

Cases cited

Some cases are simply referred to, others may be cited in a more formal sense, e.g., followed, applied, distinguished etc. Remember, if you do not understand these terms they are usefully defined in the front of any volume of The Digest.

Latin or law French

Check for the meanings of this type of phrase in a law dictionary.

Law reporter

If initials only are given this is an experienced reporter. Those in training must give their full names.

Reading a case report

When you read a case, it is a good idea to start off by looking closely at the headnote. This will give you a clearer idea of what is going on in the case than if you skim read or just flick quickly through the entire text. Of course, this is no substitute for reading the whole of the judgment, but it is a good starting point.

If the case you need to look at is very long, you can try to read an ALL ER or WLR version of it, and then focus upon the shortest judgment, using the headnote as a sort of road map or guide. If you have a photocopy or an e-version, you could highlight key words or terms as you go. Do be careful not to pick the judgment of a dissenting judge! If you still find the legal argument difficult to follow, try looking for the case in a textbook since this may help you to contextualise the judgment. If you are really stuck, you can get the bare bones of the case from a digest or summary version and then build up your understanding from there.

Case Law

Case law refers to the creation and refinement of law during judicial decisions. Despite the growing importance of legislation in its various guises in today’s society, and the fact that case law can be overturned by legislation, the UK is still a common law system. The importance and effectiveness of judicial creativity and common law principles and practices cannot be discounted.

Precedent

The doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system. Within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower in that hierarchy. In general terms, this means that when a case is tried the judge will check to see if a similar situation has previously come before a court. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case.

Top tip: See Section 3.6.3 of Slapper & Kelly for more on the doctrine of precedent.

Law reporting

The operation of binding precedent is reliant upon an extensive reporting service which provides access to previous judicial decisions. Law reports are therefore of particular importance to counsel, who are under a duty to bring all relevant case authority to the attention of the court, whether it advances their case or not. Consequently, they are expected to make themselves thoroughly aware of the current reports.

You will often need to find reports of cases. There are many possible sources of these and various ways to find them in both paper and electronic formats. For more on this, see the Legal Research Skills Guide.

A history of law reporting

The Year Books (1272–1535)

The earliest reports of particular cases appeared between 1275 and 1535 in what are known as The Year Books. These reports are really of historical interest. They were originally written in the peculiar language that was, and to a degree still is, the bane of law students, Legal French. As with common law generally, the focus is on procedural matters and forms of pleading.

Those who are engaged in the study of legal history will find the most important cases translated and collected in the Seldon Society series or the Rolls series but, for the most part, they are little used by those concerned with modern law.

Private reports (1535–1865)

These reports were produced by private individuals and cited by the name of the person who collected them. They were published commercially for public reference. The accuracy of these reports varies. Of particular note among the earlier reports are those of Plowden, Coke and Burrows, but there are many others of equal standing in their own right, with full and accurate reports of the cases submitted by counsel, together with the reason for the decisions in the particular case. A substantial number of the private reports have been collated and published as the English Reports. The series comprises 178 large volumes including two index volumes.

Modern reports (1865 to present)

The variable accuracy and cost of private reports was remedied by the establishment of the Council for Law Reporting (ICLR) in 1865, subsequently registered as a corporate body in 1870 under the name of The Incorporated Council of Law Reporting for England and Wales. The Council was established under the auspices of the Inns of Court and The Law Society with the aim of producing quicker, cheaper, and more accurate reports.

Try it yourself! Explore the ICLR website. Did the creation of the Council solve the problems with earlier methods of law reporting?

Law reporters

Given the vital role that law reports play in the doctrine of biding precedence, it is perhaps useful to look at the people who compile law reports. In the 1800s it was declared that a barrister’s version of a case report would be considered accurate. The Courts and Legal Services Act 1990, s115 extended that privilege to solicitors and persons with rights of audience to all proceedings in the Supreme Court of Judicature.

Try it yourself! Consider the people who are qualified to be law reporters. Do you think the list is satisfactory?

Choosing a Law Report

This section considers the various types of law reports and suggests the circumstances in which they might be used.

You may have noticed that some cases are reported in more than one place, for example, the same case may be reported in the All England Reports, in the Weekly Law Reports, the Law Reports and in Solicitors Journal. Which one do you choose, and does it matter?

The choice depends on your needs. The Law Reports are the fullest, longest and most authoritative reports. Due to this, they take the longest to be published (approximately 12–18 months). Next are the All England Reports and the Weekly Law Reports. Note that ‘Weekly’ does not mean that it contains reports of cases heard that week, rather that WLR is a weekly publication. Then there are many shorter and less authoritative reports in journals, specialist publications and newspapers. These are often the first to be published. Selection must depend upon availability, on your needs (whether they are academic or professional) and the circumstances with which you are faced.

For professional lawyers, practice directions issued by the Lord Chancellor’s Department stipulate that if a case report is available in the Law Reports then this must be the one that is used in court. Otherwise, a version from the All England Reports or Weekly Law Reports may be used.

Try it yourself! Find these three cases:

• R v Clarence [1888] 22 QB 23
• R v C NLJ 1990 1497
• The Times Dec 5th 2006 Rape victim passed out after binge drinking

Scan through each one and consider:

1. The language. Is it:
   • easy to read?
   • dense?
   • archaic?
2. Are the judges’ attitudes anachronistic? Does this matter to the legal argument?
3. Is there any evidence of personal bias, subjectivity, or gender bias?
4. In which circumstances would you use each of these reports and why?

Case Citations

It is vital that you learn how to interpret the abbreviations used for the various law reports so that you can locate and refer to cases.

Scroll down to read through the key issues, or click on one of these terms to go directly there: Year, Brackets, Neutral citation, Paragraphs, Hierarchy, Periodicals and newspapers, Abbreviations, Unreported cases, Case history.

Year

Note that the year in the citation is the year the case is reported rather than the year it is heard in court, although usually the two years will be the same. It may also be that a case is reported in a particular year in one series of law reports but does not feature until the following year in a different series. For example, the case of:

L v Birmingham City Council
YL v Birmingham City Council

Also known as:
R. (on the application of Johnson) v Havering LBC
Johnson v Havering LBC
(CA (Civ Div)) Court of Appeal (Civil Division)

was heard on the 11th, 12th and 30th January 2007. It is included in a range of different law reports, each using a different form of citation:

• [2007] EWCA Civ 26
• [2008] Q.B. 1
• [2007] 2 W.L.R. 1097
• [2007] H.R.L.R. 15
• [2007] U.K.H.R.R. 645
• [2007] B.L.G.R. 241
• (2007) 10 C.C.L. Rep. 7
• (2007) 95 B.M.L.R. 33
• [2007] M.H.L.R. 69
• (2007) 151 S.J.L.B. 199
• [2007] N.P.C. 12
• Times, February 2, 2007
• 2007 WL 2905

Top tip: Note that some of the reports above use square brackets to encompass the year, whilst others use round brackets.

Try it yourself! Find out when you should use round brackets to enclose the year appearing in a case citation (do not peek at the answer below!).

Square vs round brackets

Round brackets are used when the report publication is identified by a volume running number. In the example above, the numbers 10, 95 and 151 that appear after the year in brackets refer to the volume numbers of the respective law reports which use round brackets to encompass the year. So, if the year is not essential to helping you find the case reported, it is placed in round brackets. If on the other hand it is an essential piece of information and it would be impossible to locate the case without knowing the year, then it is placed in square brackets.

Try it yourself! Find out how you should cite cases if there is more than one place in which the case is reported (do not peek at the answer below!).

Neutral citation

Where a neutral citation is available this should be cited first. In the example above, the neutral citation is [2007] EWCA Civ 26. The obvious thing which distinguishes a neutral citation from a paper-based source is that it has no volume number indicated in the citation.

The Lord Chief Justice issued a practice direction on 11 January 2001 (Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194) which introduced a new form of citation for judgments of the Court of Appeal and the Administrative Court. A similar system of citation was introduced by the House of Lords shortly afterwards. On 14 January 2002 the system was extended to all judgments given by judges in the High Court in London (Practice Direction (Judgments: Neutral Citations) [2002] 1 WLR 346).

This new system of citation uses the year, details of the court the case was heard in and a unique number. For example, the 10th House of Lords judgment of 2007 takes the form of [2007] UKHL 10.

The abbreviations for each court are:

• Administrative Court: EWHC (Admin)
• Admiralty Court: EWHC (Admlty)
• Chancery Division: EWHC (Ch)
• Commercial Court: EWHC (Comm)
• Court of Appeal (Civil Division): EWCA Civ
• Court of Appeal (Criminal Division): EWCA Crim
• Family Division: EWHC (Fam)
• House of Lords: UKHL
• Immigration Appeal Tribunal: UKIAT
• Patents Court: EWHC (Pat)
• Queen’s Bench Division: EWHC (QB)
• Technology and Construction Court: EWHC (TCC)

A neutral citation only helps someone find an electronic version of the case. To find it in print, they need to trace its printed citations in either a printed index or on a legal database such as Westlaw UK. So, when you use the neutral form of citation, it should be accompanied by an indication of where the reader can find the hard copy judgment in question. This usually means following the neutral reference with a traditional law report reference, for example: L v Birmingham City Council [2007] EWCA Civ 26, [2008] Q.B. 1.

Paragraph numbers

Previously, printed law reports used page number references, a convention which makes no sense when case reports are also available electronically. The Lord Chancellor’s Department has issued a practice direction concerning the citation of law reports, and nowadays, both printed and electronic reports, should use paragraph numbering rather than page numbers.

Paragraph numbers should be cited in square brackets, for example:
Smith v Jones [2007] EWCA Civ 10 at [59].

For a series of sequential paragraphs, cite as:
Smith v Jones [2007] EWCA Civ 10 at [59]–[61]

And for non-sequential paragraphs:
Smith v Jones [2007] EWCA Civ 10 at [30], [35] and [41]

Hierarchy of law reports

In older cases, if a case is reported in several different places you should use a Law Reports reference as your first choice (e.g. Queen’s Bench, Family etc.). If there is no such report available, use a Weekly Law Reports reference. If this is not available, use an All England Reports reference.

Other reports which may be cited include specialist publications or those in newspapers (although these should only be referred to in the last resort). Some of the more commonly used law reports include:

• A.C. Law Reports: Appeal Cases
• All E.R. All England Law Reports
• B.C.L.C Butterworths Company Law Reports
• C.L.R. Commonwealth Law Reports
• Ch. Law Reports: Chancery Division
• C.M.L.R. Common Market Law Reports
• Com.Cas. Commercial Cases
• Cr. App. R. Criminal Appeal Reports 1909
• Crim. L.R. Criminal Law Review
• E.C.H.R. European Commission of Human Rights Decisions and Reports
• E.C.R. European Court Reports (Court of Justice of the European Community)
• E.H.R.R. European Human Rights Reports
• Fam. Law Reports: Family Division
• F.L.R. Family Law Reports
• I.R.L.R. Industrial Relations Law Reports
• K.B. Law Reports: King’s Bench Division
• Lloyd’s Rep Lloyds Law Reports
• L.T.R. Landlord and Tenant Reports
• Q.B. Law Reports: Queen’s Bench Division
• R.T.R. Road Traffic Reports
• U.K.H.R.R. United Kingdom Human Rights Reports
• W.L.R. Weekly Law Reports

When citing any of these, the volume number is inserted before the abbreviation for the law report series if there is more than one volume of the reports for a particular year. For example — [2007] 2 W.L.R. 1097 — is the second volume of the Weekly Law Reports for 2007, page 1097. If there is only one volume for any year of that law report series, then the volume number is left out, so the same case was also reported as — [2007] U.K.H.R.R. 645 — which is the United Kingdom Human Rights Reports for 2007, page 645.

Legal periodicals and newspapers

The Solicitors Journal (Sol Jo or SJ) has been reporting cases since 1851 and some cases are only to be found in its reports. In such circumstances, the reports may be cited in court. The same is also true for cases reported in other journals such as the New Law Journal.

Reports in the broadsheet newspapers, The Times and The Independent, may also be cited in such circumstances, if they have been produced by appropriately qualified individuals. You should recognise, however, that some of these reports are rather insubstantial in nature, and there is often a large difference between the cases reported in newspapers as stories and those which appear in the law reports.

Abbreviations

The Cardiff Index to Legal Abbreviations is an extremely useful website that helps you search for the meaning of abbreviations in legal citation. You can search for the meaning of abbreviations in English language legal publications from the British Isles, the Commonwealth and the United States, including those covering international and comparative law. A wide selection of major foreign language law publications is also included. Publications from over 295 jurisdictions are featured in the Index. The database mainly covers law reports and law periodicals, but some legislative publications and major textbooks are also included. Note though that the Index is still under development.

Try it yourself! In which court was the following case heard? Sutherland v Hatton [2008] EWCA Civ 76, [2008] 2 All E.R. 1.

Unreported cases

Only about 2% of cases heard before all the courts each year are formally reported. Cases are selected for reporting if they satisfy any of these criteria:

• introducing a new principle or rule of law
• materially modifying an existing principle of law
• settling a doubtful question of law
• interpreting statutes
• illustrating new applications of important principles.

It used to be difficult to find information about cases which were unreported. However, online databases and the Internet have now widened access to such unreported judgments. Some of these resources may be organised like formal law reports while others may publish mere transcripts, containing the facts, legal arguments and judgments of the case but missing the headnotes and catchwords usually found in law reports.

Top tip: Should you be relying on an unreported case when it was not deemed important enough to be reported?

History of a case

Cases do not necessarily stay as ‘good law’ forever. Case law constantly evolves, and cases may later be overruled. You need to be sure that any case you rely on as authority is still regarded as ‘good law’, meaning knowledge of the history of the case is important. For the purposes of binding precedent, a case can have direct as well as indirect history.

Direct history of a case refers to other court decisions of the same case, either subsequent or precedent. Indirect history of a case refers to how the case has been affected by other cases.

Any of these events may apply to a case in its history:

• Applied: A subsequent court has used the same principle with a new set of facts.
• Approved: A subsequent court has approved of the decision of the original case.
• Considered: The decision in the original case was discussed, but not actually applied, followed, distinguished, etc.
• Doubted: A subsequent court doubted the decision of the original case but had no authority to overrule it.
• Disapproved: Like doubted above, but where the court expressly states that the decision in the original case is disapproved.
• Distinguished: A subsequent court chooses not to follow the original decision by demonstrating that there are significant differences between the two cases, even though the subsequent court is otherwise bound by the doctrine of binding precedent.
• Explained: A subsequent court further elaborates on what was meant in the original decision.
• Extended: Similar to ‘applied’ above.
• Followed: A decision is followed by a court of inferior or co-ordinate jurisdiction.
• Not followed: A decision is not followed by a court of co-ordinate jurisdiction.
• Overruled: A superior court subsequently declares that the decision in the original case is wrong.
• Referred: A subsequent court deals with the point of law in the original case without comment on any definite correctness or otherwise of the original case.

Electronic sources of law, such as Westlaw UK, Lawtel UK or Lexis+, tend to provide the history of a case, including whether it has been subsequently overruled, distinguished, applied, followed, etc. The Current Law Case Citator and its sister publication, the Current Law Year Book, provide similar information if you do not have access to electronic sources.

Top Tips

Top 10 tips for using cases:

1. Reading the headnote of a case provides a clearer idea of what is going on in the case, and whether you should read in more detail, or skim-reading the part or all of entire text.
2. Digest or summary versions of cases can be a good starting point if you find the legal argument of a case difficult to follow.
3. Counsel are under a duty to bring all relevant case authority to the attention of the court, whether it advances their case or not.
4. If a case report is available in the Law Reports then this must be the one that is used in court or referenced first. Otherwise, a version from the All England Reports or Weekly Law Reports may be used.
5. If you need a very recent report, a newspaper law report may be the best place to find it. But make sure it is written by an appropriately qualified individual.
6. The same case may be reported in different years in different law reports.
7. If the cited year is enclosed in round brackets, then you should use the volume running number to find the report.
8. The neutral citation system uses the year, details of the court the case was heard in and a unique number. For example, the 10th House of Lords judgment of 2007 takes the form of [2007] UKHL 10.
9. Only about 2% of cases heard before all the courts each year are formally reported.
10. You must be sure that any case you rely on as authority is still regarded as ‘good law’, meaning a knowledge of the history of the case is important.

Weblinks

Cardiff Citing legal documents
http://www.cardiff.ac.uk/insrv/resources/guides/

Cardiff Index to Legal Abbreviations
http://www.legalabbrevs.cardiff.ac.uk/

Citing the Law using OSCOLA
https://ilrb.cardiff.ac.uk/citingreferences/oscola/tutorial

ICLR on Reading Cases
http://www.lawreports.co.uk/Newsletter/OnlineArticles/RCart.htm

JustCite search engine
http://www.justcite.com/

LawNerds on Reading Cases
http://www.lawnerds.com/guide/reading.html

Practice Direction on the citation of authorities
http://www.hmcourts-service.gov.uk/cms/814.htm The Times Law Reports
http://business.timesonline.co.uk/tol/business/law/reports/