What is the 'it'?

If you have looked at an English law report in recent years, and in particular one of the many reports published by Sweet & Maxwell, you may have noticed that some of them have taken to giving each reported case its own case number.

The Criminal Appeal Reports is a good example; it is a commonly cited specialist report which includes many cases that don’t end up in the “authorised” Law Reports series. The European Human Rights Reports is another frequently referenced report that does this. The Reports of Patent Cases is yet another example. (The last of those happens not to be published by Sweet & Maxwell, suggesting that the practice is more widespread than I had previously thought.)

This feels like an attempt at setting up some kind of unique-identifier system, similar to court-sanctioned medium neutral citations – albeit proprietary. I wish the publishers well in this endeavour; but I also wish they could have just not. We survived the last couple of hundred years of legal citation with nothing more than volume and page numbers to guide us. Has something changed? And, more to the point, how should judges cite one of these cases – by opening page number or by case number?

Whenever I find myself having to think about this kind of thing – like, Every Freaking Day – I find that it helps to see what approach is being taken in the courts (and law reports) of relevant jurisdictions. As this business of proprietary case numbering seems to be largely a United Kingdom phenomenon, I recently took a meander through some recent volumes of the Law Reports – Appeals Cases, Chancery, King’s Bench etc. It seems that their recent practice is to cite cases bearing proprietary case numbers by way of the case number. Fine; that’s a decision for the editors to make. But they have gone one step further: pinpoint references are given by way of the relevant paragraph number only – ie, the corresponding page number for that paragraph isn’t included. In fact, this seems to be their approach to any reported case that contains paragraph numbers: only paragraph numbers are given as pinpoint references; there is not a page number to be found.

This, in the context of a congenitally backward-facing legal system – the doctrine of precedent! – feels like an uncharacteristically bold leap into the future. We might have embarked on the long transition from thinking of law reports as a row of physical books on a shelf to thinking of them as digital folders of separate, individually downloadable cases. I suppose that is where we are going to end up. But I don’t think we are there yet.

(Incidentally, if that is the direction publishers see things heading in, why don’t they take it one step further and abandon consecutive pagination altogether? Why not start each individual case at its own page 1 (which, incidentally, some online journals have taken to doing)? Or dispense with pagination entirely? I probably shouldn’t be saying any of this out loud; it will only give them ideas.)

But, I hear you ask, what does all of this actually mean? Well, it means that someone reading a judgment in, say, the Appeals Cases who stumbles across a reference to a case cited to one of these reports can’t simply take the relevant report off the shelf and turn to the paragraph that is being cited. No, that would be much too easy. Rather, they will find themself taking a journey of (too) many steps: first, they will have to find the table of cases for that volume, in order to ascertain the page on which the case starts; then they will have to turn to that page; and, from there, they will have to flick forwards until they get to the paragraph they were looking for – carefully, lest they flick too far and wind up in the next case in the report. That seems like a lot of effort to put a reader to, just for the slight efficiency dividend of the typesetter not having to enter the two or three keystrokes that would have been required to add a page number to the pinpoint.

Added to this, in my experience many (perhaps most) readers will instinctively misread the case number as the opening page number for the case. After all, that is what we are used to. Let’s imagine you had found a reference in the Appeals Cases to the case of Ennis v Lovell. (This is unlikely to actually happen; the case is probably less interesting as a legal precedent and more interesting as an example of the narrow but fertile field of litigation known as Aging Band Members Suing Each Other.) The juicy bits are at paragraphs 3 to 7. The Appeals Cases would cite this as follows:

Ennis v Lovell [2014] RPC 32 at [3]-[7].

If I saw this citation, I would turn to page 32 of the 2014 volume of the Reports of Patent Cases, expecting that to be where the case starts. More fool me. I won’t find the case there; I will find myself instead in the middle of a discussion about monoclonal antibodies, which sounds like much less fun than the antics of elderly rockers.

On the other hand, if you are a whippersnapper with a law degree who has never in your short life had to leave your desk in order to take a physical law report off a physical shelf, you are probably going to be looking at a PDF of the case. You will have no problem navigating your way to the cited paragraphs by just a couple of mouse clicks. The page numbering is wholly irrelevant to you. This is called “evolution”.

Pivoting to the task at hand, you as a judge’s associate might one day find yourself proofing a judgment and wondering how you should be citing one of these cases: should you use the opening page number or the proprietary case number?

Assuming your court doesn’t have a rule about this, the choice is yours (scil, your judge’s) to make. Of course, the publisher wants you to use the case number – otherwise why would they have gone to the trouble of introducing them? – but that doesn’t mean you have to.

Choose wisely.