People often ask us, how do you decide whether or not to report a case? What are the criteria for assessing precedential value?
1. Reportability: general principles
The principles set out by Nathaniel Lindley (later to become Master of the Rolls and a Law Lord) in his “Paper on Legal Reports”, are as sound today as when they were written in 1863.
According to these principles, cases should not be reported which pass without discussion or consideration, and which are valueless as precedents; or which are substantially repetitions of what is reported already.
On the other hand, cases should be reported which:
- introduce, or appear to introduce, a new principle or a new rule;
- materially modify an existing principle or rule;
- settle, or materially tend to settle, a question upon which the law is doubtful;
- for any reason are peculiarly instructive.
If the judgment involves the construction of a statute it is very likely to be reportable.
Included will be cases which:
- illustrate the application of established rules or principles to particular factual situations in such a way as to be of practical value to counsel or solicitors
- helpfully bring together and summarise the established rules or principles applicable in a particular area of law
- articulate principles to guide the exercise of judicial discretion conferred by statute, rules of court or the inherent jurisdiction
- indicate the level of general damages awarded in particular factual situations in a way which may assist courts assessing damages in similar cases
- indicate the level of sentence to be imposed for particular offences in a way which may assist courts sentencing for similar offences
A case will not be “peculiarly instructive” if it:
- is purely interlocutory and decides only that a point is arguable
- is an application for permission to appeal or to proceed with a claim for judicial review and the court does not indicate that it may be cited
- determines a question of procedure or costs which could only ever apply to the case in question
