"English jurisprudence has not any other sure foundation, nor consequently the lives and properties of the subject any sure hold, but in the maxims, rules, and principles, any juridical traditionary line of decisions contained in the notes taken, and from time to time published (mostly under the sanction of the judges), called reports … To give judgment privately is to put an end to reports; and to put an end to reports, is to put an end to the law of England."
These words by the political philosopher Edmund Burke are as true today as when he said them in the House of Commons in the late 18th century. It is a resounding defence not just of the practice of law reporting, but of open justice (of which it is, of course, a part). Yet the recording of those maxims, rules and principles – in short legal precedents – over the eight centuries or so of the English common law has been decidedly uneven.
Regular reporting began with the Year Books, transcribed from the Plea Rolls begun in 1189. The Year Books, which ran from 1285 to 1537, contained notes of cases written up in Anglo-Norman by apprentices to the law. Henry de Bracton, Chancellor of Exeter Cathedral and assize judge, who died in 1268, based his classic work on The Laws and Customs of England in large part on 2,000 or so cases taken from the Plea Rolls.
From the 16th century, once printing became available, individual reporters began publishing volumes or series of case reports under their own names. Often there were two of them: Adolphus & Ellis, Meeson & Welsby, Flanagan & Kelly. There was a series called Dickens’ Reports, but they have nothing to do with the novelist, although Charles Dickens did report in Doctors’ Commons and from Parliament, where he was renowned for the speed of his shorthand. Dickens the law reporter published two volumes covering from 1559 to 1792: it’s unlikely he was in court for all of these cases.
All these various freelance productions are now collectively known as The Nominate Reports. Many are still cited and referred to today (particularly those edited and collected into a series called The English Reports) but they varied enormously in coverage, accuracy and reliability. Occasionally cases reported in more than one series even appear with different holdings.
Certain reporters, in particular, were the subject of astringent comments from the Bench. For example it was said of Espinasse, whose six volumes cover from 1793 to 1807, that he was deaf and that he “heard one half of a case and reported the other.” Lord Mansfield CJ absolutely forbade the citing of Barnardiston’s Reports in Chancery (1726-35), “for it would only be misleading students, to put them upon reading it.”
In 1853 the Society for Promoting the Amendment of the Law published a report complaining of the “glorious uncertainty of the law” in the absence of a comprehensive system of accurate and reliable reports of judicial precedents. It proposed that the process be put on the same footing as statute law: “if it is the duty of the state to make the law of the land universally known, there can be no reason why the publication of the law declared from the bench should be less formal and less complete than that of the law declared by the legislature.”
The report reflected widespread complaints by lawyers and students of the state of law reporting in the mid-19th century, by which time there were no fewer than 16 series of authorised reports. WTS Daniel QC, writing to the Solicitor-General Sir Roundell Palmer in 1863, complained of the “enormous expense, prolixity, delay and irregularity in publication,” of the reports and of their “imperfection as a record, for want of continuity.”
His letter was accompanied by a “Paper on Legal Reports” written by Nathaniel Lindley QC (who went on to become Master of the Rolls and a Law Lord) in which he set out what should be the objects of a law report and the criteria for selection of cases. He was as insistent about what should not be published, as he was on what should.
Those criteria for reportability are still applied in the selection of cases by the Incorporated Council of Law Reporting for England and Wales (ICLR) which was set up soon after, by members of the Inns of Court and of the Law Society. The Council’s first law reports were published in November 1865, and The Law Reports have appeared regularly ever since, setting the standard for accurate and reliable coverage of the cases that matter.
Thanks to BAILII and the National Archives, raw judgments are now almost as widely available as the legislation alongside which the Law Amendment Society proposed they should be published. That serves open justice as well as free access to primary law. But the added value of selection, headnoting and the reporting of counsel’s argument provided by The Law Reports continues to be endorsed both by judicial preference and the Practice Direction (Citation of Authorities) [2012] 1 WLR 780.
Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting for England and Wales. He is also a trustee of the Transparency Project and a co-author of Transparency in the Family Courts (2nd ed, Bloomsbury Professional, 2024)
