The pernicious habit

In 1963, the Lord Chief Justice of England, Baron Parker of Waddington, traveled halfway around the world to warn Aotearoa New Zealand of the perils of unreported judgments.  At the 12th Dominion Law Conference, Baron Parker spoke on “The Problem of Precedent”, an address which seemed largely to lament the fact there were too many reported cases flying about (“The Conference Begins” [1963] NZLJ 155).  His Lordship cautioned (at 162):

To these difficulties there is an additional hazard in England, the use of unreported cases. I hope this has not become customary here since I believe it is a pernicious habit. It has unfortunately been positively encouraged in England as a result of the transcription of the shorthand notes of every judgment given by the Court of Appeal and the placing of a copy of the transcript in the London Bar Library.

The “pernicious habit” has, I think, never affected Aotearoa New Zealand so badly.   Not because we never had the habit, but rather because New Zealand courts have never been quite so convinced of its perniciousness.

New Zealand courts have been pretty good at realising that the problem of poor lawyering isn’t going to be solved by forbidding the use of unreported judgments.  We are stuck with both.

Twenty years after Baron Parker warned Aotearoa New Zealand, the House of Lords got the pip and prohibited the citation of unreported Court of Appeal civil decisions, except by leave (Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 (HL)).  Lord Diplock described the use by counsel of unreported decisions (which were transcripts of mostly ex tempore judgments) was “a growing practice and one which, in my view, ought to be discouraged” (at 201).

But the reasons for doing so fundamentally related to poor lawyering (or, perhaps, short-tempered judging).  The unreported cases were only ever application of principle to a particular set of facts, Lord Diplock explained.  And you can get the principle itself first-hand from the reported cases.  In the meantime, counsel keep bombarding us with unreported judgments which (a) aren’t helpful; and (b) we have to read which takes a lot of time.

At the 12th Dominion Law Conference, Lord Parker had put it this way (at 163):

Precedent1

But Lord Parker’s example used books, which rather tends to suggest they were reported cases!  The complaint isn’t that unreported cases are the problem.  The problem is lawyers failing at the basics of legal reasoning such that they provide unhelpful cases.

And while the United Kingdom’s response was to forbid (for a time) the use of unreported decisions (at least in the House of Lords), Aotearoa New Zealand never did the same thing.  And I was interested in why.  So I went looking.

The first thing to note is that New Zealand courts of roughly the same vintage as Roberts Petroleum had an identical complaint.  When Cooke J became Cooke P, his Honour said (“Court of Appeal President: An interview with Rt Hon Sir Robin Cooke” [1986] NZLJ 170 at 173):

In this Court for a good many years now we have required a synopsis, but that has been expanded by many Counsel. Particularly in the bigger cases we get wads of paper, which come in not always at the same time but perhaps at different stages in the argument. Some of these I regret to say tend to ramble on. They tend to spend too much time in stating the obvious and further to go through, unless they can be stopped, a plethora of authorities, including a range of unreported cases at all levels, cases which do not necessarily throw any new thoughts on the subject. Generally speaking there is a tendency to be too prolix.

The report of Re Pennell (1991) 8 FRNZ 458 (HC) omitted the facts and reasoning of the case, and reported only Eichelbaum CJ’s lament that (at 458):

Before parting with the case I wish to comment on what I regard as the undesirable tendency in Family Protection Act cases of counsel placing before the Court numerous unreported first instance decisions where the circumstances of the claimants, the estate, or the awards are thought to bear similarity to the case before the Court. The making of an award under the Act involves a judicial discretion, to be exercised by the application of well established principles to the facts of the case. Access to unreported judgments now being a relatively simple matter, no doubt the temptation to scour the indices for such material is strong; but decisions should be cited for the principles they establish or support, not the view taken by other Judges on a particular set of facts. For my part, I gain little assistance from such exercises.

And the desire for brevity from counsel is probably shared by every member of the judiciary that graced the bench anywhere in the world.  Here is Eichelbaum CJ again in R v H CA434/96, 18 February 1997 at 4:

… if the point cannot be made by reference to a few decisions of this Court, generally it cannot be made at all.

So if New Zealand counsel were just as prone to injudicious citation of cases why didn’t we forbid unreported cases, at least in our Court of Appeal?

I can’t give a comprehensive answer, so I’ll settle for suggesting a mildly interesting one.

Aotearoa New Zealand suffered a reporting bottleneck in the 1980s.  Over the 1970s and 1980s, more litigation and more judges meant more decisions.  But the number of report series did not increase with it.  We had the New Zealand Law Reports, the Magistrate Court Reports, some other small specialised series like the Matrimonial Property Cases.  That led to a “an explosion in the number of unreported decisions of courts circulating within the legal community and being relied upon in argument before the courts” (Daniel Laster “Unreported Judgments and Principles of Precedent in New Zealand” (1988) 6 Otago Law Review 563 at 563).

The year after Cooke P (as he then was) lamented unhelpful unreported decisions he said this (Sir Robin Cooke “The New Zealand National Legal Identity (a speech to the New Zealand Law Conference, October 1987) (1987) 3(2) Canterbury Law Review 171 at 171-172):

It is very hard to form a reliable picture of what is actually happening in our courts without an adequate system of law reporting. The basic problem is that the output of judgments from all courts has increased enormously, far out of proportion to the limited increased space allowed by the division of the New Zealand Law Reports into two annual volumes. The Court of Appeal now disposes of some 500 cases a year. Of course only a fairly small minority of the judgments are worth preserving in the official reports. But the fact is that a smaller percentage of the judgments is being reported there than ever before; and then reported tardily, although well.

As at late September 1987 no decision given this year had appeared in the New Zealand Law Reports, and only a handful of last year’s. Collateral specialist series with more limited circulations are no substitute. Still less are loose copies. Most contemporary case notes are published while the judgment is unreported, so the serious reader would have little chance of perceiving whether or not the commentator was riding a hobby horse.

His Honour went on to call for more law reporting, including a dedicated appeal cases report series for New Zealand.

So Aotearoa New Zealand was stuck with unreported cases to cover the gaps, at least for a while.  Insisting on reported decisions would limit the pool of available cases to paddling depth, at best.

Then quite a lot began to change at the same time.  The mid to late 1980s saw the advent of the first electronic databases.  Courts continued getting busier, more judgments were delivered and we end up at the point today where we can access and search unreported cases more easily than ever before – either through NZLII or, for the masochists among us, JDO.

The result is that (it seems to me, at least) that law reporting never really caught up to a point where a rule to cite only reported cases could ever be practical.  Even the advent of the Criminal Reports of New Zealand and the Family Reports of New Zealand in the mid 1980s wasn’t enough to keep up with the onslaught of decisions from the courts.

Law reporting is an exercise in talent-spotting: what cases are going to be the stone-cold classics?  Gerard McCoy QC famously described the New Zealand Administrative Reports as the “‘first slip’ to NZLR to catch the ones that almost got past” (Gerard McCoy QC, Preface to the New Zealand Administrative Reports Cumulative Index 1976-2015, 14 February 2016).  Indeed, one of the early motivations of the NZARs was reporting all of the unreported constitutional and administrative law cases in Philip Joseph’s footnotes.  (Alas the NZARs have fallen into temporary abeyance on McCoy’s passing, and the NZLRs are obliged to report every substantive Supreme Court decision reducing the available page count for reported cases from the Court of Appeal and High Court.)

If law reporting cannot cover everything important, what does that mean for practice, and what does it mean for law reporting?

For practice at least, nothing has changed.  Current-day courts in Aotearoa New Zealand continue their long-standing approach of not requiring reported cases while seeking to avoid a deluge of citations.  The Practice Note for Civil Appeals advises (in an extremely Stephen Kós voice) synopses of written submissions should “eschew needless citation of authorities – one usually suffices…” (Practice Note for Civil Appeals, 1 February 2019 at [4(k)]).  That is all consistent with contemporary criticism of Roberts Petroleum by Francis Bennion ([1983] Gazette, 29 June 1983 at 1635):

No extra authority is conferred on any judicial decision by the fact that a law reporter has chosen to include it in his reports. Unreported cases have equal authority with reported cases, and therefore should be equally accepted in citation … True the Court should not be overwhelmed by unnecessary citations. The right of counsel to cite any authority he thinks fit is a vital one, however, and needs to be insisted on by the Bar.

It’s still very likely that a leading case will be reported in the NZLRs or a specialist series.  There’s a Venn diagram to be drawn of the “important cases” and what’s in the reports.  But reporting is not a guarantor of wisdom nor longevity.  Conlon v Ozolins is in the Law Reports.  So too is Vector Gas.  For my money one of the best decisions on the general approach to name suppression under the Criminal Procedure Act 2011 – Robertson v R [2015] NZCA 7 – has never been reported, not even in the CRNZs.  And sometimes you have to go searching for gold: R v Holt [2006] NZCA 105, [2006] DCR 669 is a fascinating Court of Appeal decision of high principle about amending charges outside statutory time limits that incorporates United Kingdom case law into New Zealand, but it’s slumming it in the District Court Reports!

Of something close to necessity, Aotearoa New Zealand doesn’t view the citation of unreported cases as pernicious.  But the habit of citing a long string of cases as individual examples of an accepted general principle is looked on just as dimly.  The danger of “unnecessarily extensive bundles of authorities” is ever present (Hay v LSG Sky Chefs New Zealand Ltd [2017] NZCA 153 at [23]).

As for law reporting, the questions are more existential.  If law reports can’t be everywhere, then can they justify sufficiently a partial coverage?  If they functioned as a current awareness service in a paper-only world, can they serve that function when a tweet can tell you about a new case?  Do the summaries of the facts and holdings assist in the age of Ctrl-F?  I dearly love law reports, and wrote headnotes for several years.  I would fight for them on the landing grounds, but my reasons for doing so are probably found more in my heart than my head.  But maybe that’s for a longer piece.

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