Origins in England


The practice of recording and publishing notable proceedings in common law courts commenced in England in the medieval period.  The earliest reports (the Year Books) were not official publications or attributed to any particular reporter.  They were brief manuscript notes of proceedings which, before the advent of printing, were copied by hand, and were later printed and distributed in sets.

 

At the conclusion of the Year Book era, came a period of “personalisation” of law reports (1535-1865).  This began to occur when volumes of private case notes of judges and barristers began to be circulated (often after their death) in printed or manuscript form. These casenotes, which bore the name of their author (“nominate reports”), came to be accepted by the courts as an authentic record of the judgments noted.

 

As was later explained by Lord Westbury (1863), the rule of practice became that:

“as soon as a report is published of any case with the name of a barrister annexed to it, the report is accredited, and may be cited as an authority before any tribunal.”

With the passage of time, the nominate reports became more expansive and introduced the style and approach which has become characteristic of modern law reporting.  The reports came to be divided into distinct components – with a headnote, a statement of facts, a statement of argument and the text of a reasoned judgment.  They began to focus upon key decisions which settled or clarified the law.  They also began to be published as a professional undertaking, with reporters attending court as observers and publishing an ongoing series of volumes shortly after the date the relevant judgments were delivered.

 

By the 1790s, a sharp division had emerged between two distinct classes of law reports.The division was between those reports which were “authorised” and those which were not.  The authorised reports were prepared by particular barristers who had been specifically authorised by a court to prepare and publish a set of reports of its decisions (eg the Adophus and Ellis reports of the King’s and Queen’s Bench for the period 1834-1852).  These reporters were conventionally given access to the Judges’ manuscript notes of the cases being reported, and their reports were often subject to review and correction by the deciding Judges.  As this system of authorisation created the potential for different versions of same judgment to be reported in different sets of reports, the English superior courts began to require citation from the sets of “authorised” reports.

 

By the early 1830s, however, the rigour of this citation practice had diminished and a large number of competing sets of reports began to be published.In particular, new sets of reports began to be prepared by the major legal publishers, including the Law Journal Reports.

 

The proliferation of law reporting during this period led to serious problems of “expense, prolixity, delay and imperfection in the then system of law reporting”: R v Erskine [2010] 1 WLR 183 at [66]. The problems were numerous:

“Discrepancies between reports was one, but worse was the proliferation of reported cases. Selecting cases worth reporting had always required nice judgment but commercial imperatives drove the publishers of non-authorised reports to enhance the attractions of their volumes by encouraging their reporters to adopt lax criteria. Acceptance (however reluctant) that any case vouched for by a barrister might be brought before the court marked the abandonment of any hope of confining citations, and the economy of relying on a single set of reports was offset by insecurity. On circuit and in the county courts, this explosion of reports became a problem for judges as well as counsel, and Campbell sighed for the time when a good-sized bookcase could hold all the law reports worth consulting. No longer was the chief criticism of the common law system that the law might not be known because it was not properly reported; rather, it was reported so extensively and indiscriminately that its guiding principles were submerged in a welter of fact-dependent, incoherent precedents, denounced by Westbury as ‘a great chaos of judicial legislation’. It was compounded by ‘too facile adoption of anything as authority, however contrary it may be to common sense and legal principle, provided only it be or purported to be, a judicial determination.’”.

Oxford History of the Laws of EnglandVol XI at 1215

To deal with this problem, a number of options for reform were considered, including the introduction of a system of “official” law reporting by the courts or the government.  However, it was a proposal advanced by a barrister, WTS Daniel, and supported by the Attorney-General, Sir Roundell Palmer, which ultimately prevailed. In its final form, this proposal involved the establishment of an independent Council of Law Reporting, comprising representatives of the various Inns of Court and the Law Society.  The role of the Council was to publish the key decisions of the superior courts in an authorised form (the Law Reports) –  and also to provide the profession with advance notice of these decisions through a weekly series (the Weekly Notes).  By convention, these reports became the preferred reports for citation before the courts of England and Wales.

 

The Law Reports began publication in January 1866 – with the various sets of nominate reports ceasing further publication at about this time. Commercial publishers, however, continued to produce other sets of reports, including reports of a specialised nature, which adopted their own case selection and reporting practices without the constraints of authorisation.

 

See further:

W Cornish, S Anderson, R Cocks, M Lobban, P Polden and K Smith Oxford History of the Laws of England(2010) Vol XI at 1211 ff.

W Holdsworth A History of English Law (1952) Vol XIII at 424 ff.

WST Daniel The History of the Law Reports (1884)

JW Wallace The Reporters (4th Ed, 1882)