Laurie West-Knights
QC, head of the Hailsham Chambers Commercial Group Laurie West-Knights
QC, head of the Hailsham Chambers Commercial Group
Vendor Neutral Citation and allied matters explained and discussed
Vendor Neutral Citation, or VNC, is the unique designator nowadays assigned to each decision of the Courts. Here is an example: [2010] EWCA Civ 1234. It exists because of BAILII.
The date in square brackets speaks for itself - almost. It is in square brackets partly for historic and partly for purist reasons. In paper law reports there always was, and is, a distinction between round and square brackets. Round brackets are used where the date is for information only, and without it there is still a unique designator. A fictional example might be (1989) 63 ILR 41. In that instance it would be enough to know that the case was to be found in volume 63 of the Immigration Law Reports at page 41. The date is additional information. To take a real example the other way, [1999] 1 AC 123, the date is essential to the citation, as the case is to be found in the first volume of the Appeal Cases for the year in question. Without the date the case cannot be found.
In the VNC example at [1] above, EWCA is "England & Wales Court of Appeal". "Civ" is the Civil Division. It is a bit cumbrous, but when we were setting up BAILII there were practical problems in distinguishing more briefly or less confusingly the Civ Div on the one hand and the Crim Div on the other.
The number is not, unlike conventional law reports, a page number but a case number, for the simple reason that HTML and its reproduction on the WWW does not lend itself to fixed page numbering. In fact, BAILII also publishes its cases in RTF which are more readily printable, but the page numbering would still be a function of the font chosen by the user or their computer.
So far so good. But what of the litigant in person, or indeed lawyer, citing a case which has only thus far appeared on BAILII - there being a significant delay between judgment being given and a case appearing in print anywhere, if it ever does - direct the Court to any given passage? In conventional law reports there are page numbers, and (usually) letters in the page margins. And, as significantly, what if one party wants to cite the case from the official Law Reports and another has only the BAILII transcript? Or indeed one side is citing from one set of law reports and another from another? Chaos.
In the pre-BAILII days there was a strict rule to avoid this latter happening. That rule still applies, in fact, though it is observed (certainly in lower courts) in its breach. There is a hierarchy. If a case has been reported in the official Law Reports, that is the source to be used rather than any other such as, for instance, the proprietary All England series, or the various Lloyds' Law Reports, Building Law Reports, Butterworths' Company Law Cases etc. The source of this hierarchy is Practice Direction 52PD.66 Appeals, which supplements CPR Part 52, and section 8 of the Practice Statement (Supreme Court: Judgments) [1998] 1 WLR 825. In particular: that the bundle of authorities should be copied from the official Law Reports, and only if not available in that series should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. (And Bailii reports (with neutral citation numbers) should only be used if no other recognised reports are available and the case really needs to be cited). See also (Judgments: Form and Citation) (Supreme Court) [2001] 1 WLR 194 Citation of judgments in court "3.1 For avoidance of doubt, it should be emphasised that both the High Court and the Court of Appeal require that where a case has been reported in the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales it must be cited from that source. Other series of reports may only be used when a case is not reported in the Law Reports. Lord Woolf CJ". The Court of Appeal has recently reminded the professions of this rule: see TW v A City Council & Ors [2011] EWCA Civ 17 (20 January 2011) But what are these "official" Law Reports?
They are, as stated by Lord Woolf, the reports published by the Incorporated Council of Law Reporting (ICLR), a charity of which I was a trustee for some time. They are divided as between the courts with which they deal. Appeal Cases, for the House of Lords (now the Supreme Court) and the Privy Council. Queen's Bench, Chancery, Family for the High Court. And in each year several volumes of the Weekly Law Reports (WLR)
Even lawyers have lost the plot on the status of the WLRs. They have their genesis in the relatively rapid publication by the ICLR in weekly, paperback, format of cases of significance. It goes without saying but is sometimes forgotten that by no means all cases are "reported" - whether officially by the ICLR or otherwise. The ICLR pre-selects at the WLR stage which cases in "the Weeklies" will find their way into the Law Reports, and those that will not.
Now, here's the trick. Those cases in the Weeklies that will find their way into the Law Reports are given the citation, say, [2008] 2 or 3 WLR [followed by page number). 2 WLR are the first half of the year, 3 WLR the second. But what of cases in, say, [2008] 1 WLR? The answer is that they will remain as "1 Weeklies". So a practitioner with the ICLR set will eventually have all the cases that had been in the Weeklies - in bound volumes: [2008] AC, QB, Chancery, Family and in a separate volume: [2008] 1 WLR. Slightly confusingly, 1 WLR frequently runs to more than one physical volume in which case, nowadays (this being a relatively recent development) it will be [2008] 1a WLR, 1b WLR.
If a practitioner cites a case today as being in, say, [2008] 2 WLR then he or she is not citing from the "best" source. By now, that case will have been published in one of the Law Reports proper. This is not just a question of using a physical volume which the Court will not have (which in principle matters a lot less thanks to VNC). More work is done on the case between its being in the Weeklies and being published in the Law Reports. Counsel's arguments are in the Law Reports in summary form, and more time has been available to remove any infelicity in the judgment(s). This last too led to controversy, the extent to which Law Reporters (who are highly skilled) "improved" judgments, and it gives rise to questions of copyright that are beyond this summary.
I digress. Assume that Counsel has the Appeal Cases version of a case, and a litigant in person has come armed with a printed BAILII transcript. Or that all parties have a BAILII transcript, there being no other version or source. How is everyone concerned to find the same passage?
There are several answers, and without them the usefulness of BAILII would have been severely circumscribed. Part of it also removes the difficulty where, rightly or wrongly, one party cites the case from one law report and another from another (note that, strictly, capital letters for Law Reports means the official ICLR Reports).
The first is that it is mandatory for all courts to produce judgments which have paragraph numbers and for them to bear a VNC. That was effected by a Practice Direction in 2001, promulgated at the instigation of Lord Justice Brooke (one of the co-founders with me of BAILII). Another is that all law report publishers include the paragraph numbering and the VNC in the printed report. The paragraph numbers are not necessarily logical as to where they are applied, in terms of syntax: they just need to be frequent.
The result is that, regardless of the page number, if any, of the source being cited, anyone can go straight to the same case by referring to the unique designator and the same place by referring to the paragraph number.
Hence VNC. The citation is neutral as regards the vendor, if any, of the report being cited. Another name for it was "medium neutral citation" which I preferred but VNC appears to be the accepted term.
It may seem obvious now, but the whole idea of BAILII was revolutionary - indeed highly unpopular in some quarters - in the late 90's. There was a significant, and respectable, body of opinion that if a case was not sufficiently important to survive the filtering of the ICLR (and the more established proprietary series), and therefore never saw the light of day, so be it. It was mooted that there would be a dreadful flood of cases, deciding no new point of principle, which might lead to the citation of yards of unnecessary material.
Indeed, it was not just unpopular. I vividly recall a meeting with a certain former MP who shall remain nameless, then a Parliamentary Secretary in the Lord Chancellor's Department and who subsequently rose to become the Secretary of State for Defence before being struck by "the curse of gnome", at which he described the suggestion that the underpinning principle of what became BAILII was pro bono publico, when we were seeking Government help to fight through the thicket of Crown copyright, as "disingenuous". My having devoted 100s of hours of my own time to endeavouring to make the vision (then known as the "Austlii Paradigm" as we were following in the groundbreaking steps of the Australian model) a reality, you may imagine that that was not a welcome response from HMG. The meeting did not last long. I should perhaps add that the whole climate has changed beyond recognition. Following unsuccessful attempts by the Court Service, as it then was, itself to publish key judgments, HMCS is now a positive and active facilitator of BAILLI (the running costs of which come from its generous sponsors and a subvention from HMCS). Overall, there has been a massive liberalisation of HMG's attitude to Crown copyright.
In fact, the Courts have not been faced with a flood of such material. Not only is there a (rightly) fierce Practice Direction as to the citation of unnecessary material, but also there is built in to the way English Courts operate a self-limiting availability of "free" judgments.
It is only "handed down" judgments which are, and can in practice be, published on BAILII. Such a judgment is one which has been prepared in word-processed form by the Court in question. Many judgments are given ex tempore i.e. are spoken only. BAILII does not have the resources to acquire a transcript of such judgments, most of which are never reduced into print (though some are transcribed by law reporting agencies including the ICLR), and nor does it have the mechanisms to distinguish wheat from chaff if I can put it that way. There is an exception to this question of availability in relation to older cases, which were in effect donated by generous commercial transcribers. Further, there has been under way a project to add very much older cases.
Finally, and before leaving this, two more points. It may have been noted that the VNC for High Court cases is different in form from that for EWCA. There are various subsets of the High Court, as already mentioned. Some go beyond those conventionally delimited by the Law Reports. QB Reports include "ordinary" QB cases, as well as those in, for instance, the Administrative Court (formerly and confusingly known as the "Divisional Court") and the Commercial Court. BAILII distinguishes all High Court cases by a taxonomy with the basic root EWHC (England & Wales High Court) which is then subdivided thus: [year] EWHC [number] (Court).
The percipient will note that the actual court - say [2010] EWHC 800 (Admin) - is in round brackets. This is for the same reason as the historic one for dates. Unlike EWCA cases, where each of EWCA Crim and EWCA Civ come before the number and where there can be a [2010] EWCA Crim 1234 and a [2010] EWCA Civ 1234, EWHC cases have a unique designator from the date, EWHC and the number alone. The court part - Admin here - is for information only (though it is very important information on a practical level). There cannot be [2010] EWHC 100 (Admin) and [2010] EWHC 100 (Comm).
As I recall this was for pragmatic reasons, and I think I am right that the final proposals for the VNCs were resolved between Sir Henry (Brooke) and me over the breakfast table.
Lastly, back to the matter of the plethora of cases. As I say, it was a risk inherent in BAILII that there would be a flood of irrelevant material, and it is a risk which I believe has not in the end turned out to be a problem. But in any event there was, and is, a problem with the reporting of cases generally which has yet to be solved.
In the "good old days" there were the Law Reports (since 1865, and rationalised in their current form after the Judicature Acts of 1875). Then the All Englands and the Lloyds' Law Reports, to name two highly respectable commercial operations. However, the past decades have seen the emergence of literally dozens of "specialist" reports, published and promoted (obviously) for profit. One effect of these series has been to make "more" law available, in the sense of more judgments seeing the light of day, whilst at the same time requiring practitioners to subscribe to ever more publications. What may be, say, a building or company law case to one person may turn out to contain a dictum or decision of general application. There is no central index for all cases in all such publications, so not only is there more law but it is also more difficult to find. Long past are the days when anything that mattered was to be found in the Law Reports and 1 WLR (which are strictly not part of the Law Reports). Indeed, there is a school of thought that one effect of the array of commercial reports is that the Law Reports have tended more to be a repository of "non-specialist" cases i.e. ones that do not obviously fit elsewhere. I do not myself detect this, but it needs to be guarded against.
There are two small ironies in, or at least observations worth making on, this phenomenon. One is that that the existence of BAILII mitigates the problem. The other is that one of the key objects of the ICLR was to reduce the vast and disparate (as to subject-matter and quality) array of law reports in existence at the time of its formation over 150 years ago. In my view, never before has that object more needed to be attained. Lawyers and other subjects and citizens alike are faced with a common-law, highly precedent-based system where the law is hard to find. It may be that nothing can be done to reverse the process, but I hope that the effect of BAILII is, and will be, more than that achieved by King Knut.
How I saw all this, before it happened, was published as a paper - The AustLII Paradigm, (1997) 3 JILT - by the University of Warwick way back in 1997 in the Journal of Information, Law and Technology. For those interested in the detailed background (and the extent to which I got it right or wrong all those years ago) that paper can be read here. I apologise for the (obvious) lack of paragraph numbering. It will be seen that the comprehensive vision - all cases back to 1865, the rationalisation of statutory amendment (and the chaotic state of English statutes is a whole other subject, as they say) - has not been and may never be achieved. Perhaps one day I will return to the fray...
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Laurie West-Knights QC
29 January 2011
mail: LJW-K QC
