Proceedings of the Second International Symposium on Official Law Reporting
9, 12-15 (July 30, 2004)

Robert C. Williams, Editor, The Law Reports and Weekly Law Reports
Incorporated Council of Law Reporting for England and Wales
Accessibility of reports and the selection of cases are not new issues. They have been thrown into sharp focus by advances in technology, and the speed of modern communications encourages people to think that a comprehensive system of information recording and retrieval is both more imperative and more attainable.
In 1849 a report of the Law Amendment Society complained that the decisions of the courts and tribunals were "the formal constituents of the common law," but in no respect were they officially promulgated. The report also drew attention to the fact that "It has long been considered a practicable scheme for any barrister and bookseller who unite together with a view to notoriety or profit, to add to the existing list of law reports."
By 1863 it was apparent that there was widespread dissatisfaction with the then current system of law reporting. So it came about that in 1865 the Council of Law Reporting was set up, and the first Law Reports were produced in November 1865.
In a paper on legal reports by Nathaniel Lindley, who later became Master of the Rolls, a senior judge in the Court of Appeal, the following remarks appeared with regard to reporting of cases:
"With respect to subjects reported, care should be taken to exclude –
"1. Those cases which pass without discussion or consideration, and which are valueless as precedents.
"2. Those cases which are substantially repetitions of what is reported already.
"On the other hand, care should be taken to include  –
"1. All cases which introduce, or appear to introduce, a new principle or a new rule.
"2. All cases which materially modify an existing principle or rule.
"3. All cases which settle, or materially tend to settle, a question upon which the law is doubtful.
"4. All cases which for any reason are peculiarly instructive."
The criteria for reporting of cases in the Weekly Law Reports have not changed since Nathaniel Lindley wrote his paper. To the objection that that is not a very helpful definition of reportable cases, I can only say that while it may be difficult to arrive at a satisfactory definition in the abstract, in practice there is, in most cases, not much doubt – cases are either clearly reportable or clearly unreportable. Perhaps, too, it is worth remembering that Lindley was as definite on the subject of cases that should not be reported as those that should. By excluding what is clearly valueless as a precedent it is possible to reduce considerably the number of cases where a decision whether to report or not is a hard one to take. It may be worth noting that, in my experience, the universal view among judges is that too much, rather than too little, is reported.
We publish a general series of law reports and therefore a certain amount of selecting out of specialist cases is inevitable.
We report somewhere in the region of 350 cases per year in the Weekly Law Reports, of which roughly a third are subsequently published in the Law Reports. Although the initial decision as to reportability is that of the reporter, all transcripts and handouts in cases where the reporter decides a report is not called for are sent to the editor for confirmation of the decision. We have on our database about 1,500 cases each year. That includes all the cases that we report in our own publications and various other journals for which our reporters submit reports. In addition that number includes all the cases we have decided not to report anywhere, for most of which we will have received a copy of the reserved judgment, and any cases sent in by judges or practitioners for consideration for reporting. It does not include extempore judgments which our reporters have rejected as unreportable, cases from outside London which we have not been notified about specifically, or cases heard in the Employment Appeal Tribunal which are not reported in the Industrial Cases Reports. Altogether the number of potentially reportable cases, i.e., those delivered by courts whose decisions are capable of being binding precedents, might be in the region of 5,000 to 8,000 a year.
The actual process of producing a report is time-consuming, which inevitably involves some delay between judgment and report. Instant availability in transcript form poses no problems, and the time taken by the reporting process is thus highlighted. Once a judgment which will be reported has been delivered the reporter must take time to read it carefully in order to identify the point at issue. The preparation of summary reports for The Times and other journals will assist in this process. For a Weekly Law Report the reporter will have to write a headnote, summarising the facts and the holding in the case, and compile lists of the cases cited in the judgment or referred to in argument. It is also necessary to draft the catchwords and to prepare a short summary of the facts and procedural progress of the case. The report is sent to the judge before publication to allow a final opportunity for him or her to make minor adjustments and corrections to the judgment. Cases which appear in volume 1 of the WLR are likely to be nearer the borderline of reportability, cases illuminating, rather than developing, principle, and points of practice. The more important cases are published in volumes 2 and 3 of the WLR, and subsequently appear in the Law Reports with the addition, in most cases, of a note of the legal argument. The report of legal argument is valuable because sometimes points are raised which the judge does not deal with, and it may be important on a future occasion to know whether a particular point was raised. It can also help in giving an idea of the emphasis of a case.
It is clear, I think, that law reports fulfil a function very different from a database consisting solely of transcripts of judgments. A case may contain no point of new law, and be of no value as a legal precedent, but it is not difficult to imagine research projects in legal or nonlegal contexts where it might be relevant to know at least of its existence and the result. The extent and category of the need to know defines the use that can be made of data, but uncontrollable access to unlimited data is unhelpful to most people because they have not got the ability or the expertise to manage it or to interpret what they can obtain. A law report has had considerable time and energy expended on it in checking and annotating it and in producing a summary of what it decides. Above all, the selection of cases as being suitable for report is a valuable process, provided that the criteria applied in the selection are clear and consistently applied. This process of selection is, in itself, an important part of the process of making practitioners, and through them, the courts, aware of new developments in the law. The process of adding value to the basic raw material of judgments by selection, checking and styling, and the addition of headnotes and catchwords, has, I believe, a vital place in the development of the law.
The Law Amendment Society said in its Report in 1849, "But even if all the reports which are published were correct and given by competent persons, they are now so numerous that they cannot be known to one tithe of the practitioners in the law. They are beyond the reach not only of the public, but of the great body of the profession." With the increasing numbers of specialist series of reports now available and the addition of unselective databases of raw judgments, it might be tempting to say something similar today. However, it is to be hoped that the developments in electronic manipulation of data that are making available the flood which we fear may drown us will also give us the means of controlling it and making it manageable, so that, by setting proper limits, judges and courts will be able to prevent time-wasting reference to useless material, while those who, for whatever reason, want access to unsifted raw material will be able to have it.