In the Fourth Annual BAILII Lecture last night, the Lord Chief Justice was good enough to refer to the part I played in making the judgments that were delivered in the High Court and the Court of Appeal freely available on BAILII.
This was a process which began long before he became a member of the Court of Appeal in July 2003, and indeed, two years before the launch of BAILII. In this blog I describe how it all began.
For seven weeks in April-May 1997 I had been a member of a three-judge court, headed by Lord Justice Saville, which had been trying to make sense of the ill-starred rule which caused actions in the county courts to be automatically struck out if they had not been processed quickly enough in accordance with the requirements of the rule. It was a device the Government had opted to pursue once it had refused to accept the strong recommendation in the Civil Justice Review (1988) that judges and courts should be enabled to manage their court lists with the help of “fit for purpose” software that was already in common use elsewhere.
We started with 100 appeals in our list, and we initially listed 20 appeals for hearing (choosing those which gave rise to an as yet undecided dispute over the interpretation of the rule). At the end of the three weeks, we gave a composite judgment under the name of Bannister v SGB plc  1 WLR 1123 and directed that a hard copy of this long judgment should be sent to every significant county court centre and to all the other litigants whose cases were waiting to be heard. By this very expensive and time-consuming means we ensured that every judge in every county court would now know how to interpret the rule in future and that, as turned out to be the case, most of the cases in the waiting list would then settle, now that the parties knew the law we would be applying. After a space of a week, Lord Justice Waller and I settled down to decide most of the surviving appeals as a two judge court, and Lord Justice Saville rejoined us at the end of this process when we delivered another composite judgment in a case called Greig Middleton & co Ltd v Denderowicz  1 WLR 1164. We said in that judgment:
“We authorised two versions of our judgment in Bannister to be published, one in hard copy transcript form and one on the Internet. Because the page numbering of these two versions differed and because those who downloaded the judgment from the Internet are likely to have different paging systems, we have inserted paragraph numbering into the main text of the original judgment (as opposed to its Schedules). In the Schedule to the present judgment we explain the paragraph numbering we have now adopted. It also seemed to us that it would be very much more convenient if we were to incorporate into the original text of our judgment the corrections and clarifications we have mentioned, and we have directed that it is this revised version of our judgment in Bannister, as clarified and corrected, which should appear in any official law report. We have also directed that the text of the judgment which currently appears on FELIX, the judges’ electronic communications system, and on the Internet on the website of the Lord Chancellor’s Department should be replaced by this revised version, and copies of this revised version should be sent to court administrators for distribution to judges as before. In addition, this judgment should itself be distributed on FELIX and the Internet, and to court administrators for distribution to judges.We also believed that it would be helpful to practitioners if we were to include in our present judgment a summary of the new points decided by two-judge divisions of this court during the four weeks which followed our judgment in Bannister. Most of the cases they heard raised no new points of general interest, but a few of them did, and we are including a summary of these in the final part of this judgment.”
THE SUPPLY AND DISTRIBUTION OF JUDGMENTS IN THE ROYAL COURTS OF JUSTICE
A report of a Working Party of the Judges’ Council composed of Sir Richard Scott (Vice-Chancellor) and Lord Justice Brooke
Introduction and principal recommendations
At its meeting on 22nd October 1997 the Judges’ Council asked us to inquire into questions relating to the supply and distribution of judgments at the Royal Courts of Justice and to report back to their next meeting on 3rd December. We are very grateful to the judges, judges’ clerks and senior officials of the Court Service who have assisted us in our inquiries. One very obvious conclusion from our inquiries is that the cost of obtaining a copy of an approved hand-down judgment is vastly greater in courts to which the official shorthand-writers happen to be attached, and at present large quantities of hard-copy hand-down judgments are being distributed from other courts in an unregulated way without a fee being charged at all.
There are a number of fairly well-known problems, some of which can be addressed by the judiciary immediately, and some of which will take a little longer to resolve. A particularly serious problem arises from the widespread dissemination of unapproved hand-down judgments, sometimes without any warning about their unapproved status. We make recommendations which should mitigate this nuisance and result in approved versions being available very much earlier than is possible at present.
We also recommend that in those courts not covered by the official shorthand-writers, approved hand-down judgments should be available from a central distribution point (probably the Mechanical Recording Department (“MRD”)), eventually on payment of a modest fee. This recommendation, if approved in principle by the Council, will take a little longer to implement, so far as fee-charging is concerned.
Our third main recommendation is that although more generous spacing should still be adopted for drafts of judgments, the official approved judgments of the court should be published in a standard single-space format of a type similar to the example in Annex 3 to this Report [not reproduced here]. This would not only lead to uniformity, making an official judgment more easily recognisable, but would also result in significantly lower copying charges for those ordering a hardcopy judgment, and a great saving in paper.
The three categories of judgment
There are three categories of judgment to be considered:
(1) Ex tempore judgments which require transcribing
(2) Hand-down judgments in first instance courts (other than the Crown Office).
(3) Hand-down judgments in the two divisions of the Court of Appeal and Crown Office List.
Category 1 Ex tempore judgments which require transcribing
Smith Bernal produce the transcripts for approval automatically for the two divisions of the Court of Appeal and for the Crown Office List. In courts dependent on mechanical recording a request is made to the MRD which supplies the applicant with a list of approved transcribers. In both cases, once the judge has approved the judgment, the approved transcriber/shorthand writer is authorised to issue it as the approved judgment against an approved scale of charges.
We have had two problems drawn to our attention. The first is that judges are often asked to approve transcripts which have been requested for the first time long after judgment is delivered, and long after they have forgotten all about the case. They are also asked, from time to time, to approve transcripts where the transcriber has not been provided with copies of the documents to which the judge referred, or the cases he/she has cited. This makes the judge’s task much more irksome than usual, and it is likely to take him/her longer than usual to approve the judgment: one judge has described to us “the laborious process of correcting punctuation, grammar and forms of expression”, which “can take a long time”!
We agree with the President of the Commercial Court, and we so recommend, that a Practice Direction should be issued to the effect that if a transcript is required, it should normally be bespoken within a set time of the judgment being delivered, and that no judge should be invited to approve any such transcript unless the transcriber has been provided by the party ordering the transcript with copies of all the material from which the judge has quoted.
The other problem relates to delay. Delays by judges in approving transcripts create difficulties from time to time. Nobody knows whether Heads of Division have ever given any guidance to judges about the speed with which they should try to return approved transcripts, and such guidance would be extremely welcome. Without any guidance of this type, it would be virtually impossible to set up an effective system for ensuring, so far as possible, that approved judgments are delivered to the parties within an acceptable timeframe. We therefore recommend that Heads of Division should give guidance to judges about the speed with which they should endeavour to return approved transcripts. The guidance should make it clear that if for any reason a judge finds it impossible to meet the deadline set out in the guidance, his/her clerk should inform an identified person of this fact. Agreement would have to be reached as to the precise point of contact before the guidance could be issued.
We have been told that there have been no formal complaints about Smith Bernal’s performance. The various contractors let the Court Service know if they experience delay in receiving approval of a transcript by a judge, but in the absence of any indication as to the speed at which a judge is expected to approve a transcript, there is little the Court Service can properly do about this at present. In any event, any such complaint should be made to the Head of Division, who can then communicate appropriately to the judge involved.
In the Civil Division of the Court of Appeal there are periodic checks to see what is missing, but the position is not constantly monitored. Missing transcripts tend to be followed up ad hoc. The Deputy Director of the Supreme Court Group is sure that a regular monitoring system could be achieved – for instance, by asking for a monthly report of all judgments outstanding and monitoring this against the contract and any agreed timetable for the judges’ part in the approval process. He believes that Smith Bernal would probably welcome some liaison in the cases that get stuck, and the Court Service would be able to judge their performance as well.
He is doubtful whether anything could be done, other than in a fairly crude way, in High Court cases where the contract is between the party ordering the transcript and the transcriber. The MRD send out a list of approved transcribers, and the parities then agree a contract with the transcriber they select. The MRD is then told the identity of the chosen transcriber and forwards the tapes to them. The transcribers liaise with the judge direct, and advise the Court Service when the job is complete. The MRD only assists if there is a problem locating the judge’s whereabouts. A pilot record system has been in operation for about seven months and this would provide information about overall timescales.
The Criminal Appeal Office and the Crown Office are under separate management. Master Mackenzie has told us that although performance monitoring has been somewhat hit or miss, due to lack of staff resources, the change of contractor two years ago has resulted in a much improved service. They now have the facility to accept electronic transfer of approved judgments from Smith Bernal, but this change has meant that they hardly ever see the cover sheets completed by the judge and his/her clerk which are returned to the contractor with the approved judgment. They therefore have no means of understanding the reasons for any delay problems at the approval stage, or indeed of knowing whether there are any such problems. Discussions were initiated six months ago with the contractor to identify some mutually acceptable means of monitoring performance which did not have significant staff resource implications.
Category 2 Hand-down judgments in first instance courts (other than the Crown Office)
The present arrangements follow no uniform pattern. We have been able to obtain the following information about practices in different courts:
(i) Handing Down
When a judge of the Commercial Court hands down a judgment, its frontispiece contains an endorsement signed by the judge that certifies, pursuant to Order 68 Rule 1, that no further note or transcript be made.
Copies of the judgment are made immediately available to the parties. Other copies are circulated to the MRD and to the Admiralty and Commercial Court Registry. Most judges’ clerks retain the original as the master copy, although others send the master copy to the MRD.
The judge normally issues a revised version of the judgment in due course, taking account of all typos/corrections that are drawn to his attention.
Queen’s Bench Non-Jury List
May J told us he has followed the procedure adopted in the Commercial Court. If there is a shorthand writer in court, he provides him/her with a copy on disk. He declines thereafter to correct any version the shorthand writers may produce on the footing that he has already given them his judgment in its final form.
The Patents judges
Counsel receive a copy of the handed down version the night before. Corrections are supplied either at the time of judgment or shortly afterwards. A corrected final version is then issued with a certificate that no other transcript is needed. The key to the avoidance of the circulation of uncorrected copies is said to be the very early corrections the judges receive from Counsel. We understand that other Chancery judges simply issue a list of corrections, to be attached to the original judgment, without re-issuing a corrected judgment.
The Official Referees provide unapproved judgments in hard copy to counsel and solicitors in advance of delivery, and to anybody else attending court (who asks for one) at the time judgment is delivered. The judge can, and in the experience of one Official Referee, does provide an authorised copy for circulation on the day judgment is delivered. A hard copy of the approved judgment is sent to the MRD.
They follow the policy that the principle of open justice requires that copies of the judgment should be available without charge to those attending court, even though this practice potentially increases the number of uncorrected unapproved copies in circulation. Some take the view that “spectators” at court should not be allowed to take away the copies provided, but should only be allowed to take notes of them. One Official Referee takes the view that this practice is most unsatisfactory, because it increases the chances of inaccurate reporting, by word of mouth or otherwise. It is said to be possible in most cases to predict fairly accurately the number of copies likely to be required by members of the public attending – at all events in courts not favoured by language school tourists.
We have been told by the Deputy Director of the Supreme Court Group that there is at present no facility for charging for a judgment, whether it is obtained from the judge’s clerk or from the MRD, either on disk (with the applicant providing the disk) or in hard copy, although the clerks to the Official Referees apparently levy a charge in certain cases. The actual process of copying a judgment onto a disc is simple, takes little time, and is therefore relatively inexpensive, although there are dangers associated with virus contamination. The provision of a judgment in hard copy is much more expensive both in real terms (ie the cost of the paper and of photocopying) and in man-hours. Some judgments exceed 100 pages. At present, except for the limited practice adopted by the clerks to the Official Referees, all Category 2 hand-down judgments appear to be being distributed free of charge, although one judicial informant told us that he understood that the MRD were making a “substantial” charge for supplying copies of judgments. We have also been told that where a transcriber is not involved the Supreme Court library is willing to provide, for a charge, copies of hand-down judgments in its possession, although we have no details of this, and we have been told that this service is “too slow” (whatever this means) to meet the needs of practitioners.
It now seems to be agreed between leading counsel and High Court judges specialising in copyright law that the copyright in a handed down judgment vests in the judge. But the judges would never assert such copyright. Some reliance is still being placed within HMSO on some earlier advice from the Treasury Solicitor to the effect that judges are Crown Servants and that copyright in all judgments vests in the Crown. The Court Service, which accepts the position expressed at the beginning of this paragraph, is trying to ensure that a common approach to copyright issues is adopted throughout Government, so far as hand-down judgments are concerned.
There is a regular demand for Commercial Court judgments from legal sources, and clerks to Commercial Court judges circulate their judgments to these publishers free of charge. Journalists from legal journals, specialising in Commercial and Admiralty Court cases, frequently request, and are sent, copies of the more high profile or significant decisions. If requests for judgments are received from other reputable publishers and forms of solicitors, these are also acceded to, free of charge.
Some of the recipients simply incorporate the judgments into “in house” libraries and databases. A more recent trend, given the advances in modern technology, is to republish the judgments, sometimes with value-added features (such as a headnote or other analysis of the case or a search engine) for distribution to subscribers to electronic legal information services.
The Patents judges
The Patents judges cause their judgments to be e-mailed free of charge to New Law Publishing and to some academic institutions as soon as they have certified them.
If the judge considers the case worth reporting, he supplies it to law reporters on a list approved by the Official Referees and to the Supreme Court Library. Some judges supply approved judgments on disc to the few reporters who ask for them.
Approved discs are sent for posting on the Court Service website if the judge considers this appropriate, and approved hard copy judgments are supplied by the Official Referees’ clerks to anyone who asks for a copy (if readily available) at the Fees Order cost of £1 per page for the first five pages and 25p per page thereafter. If the judgment is no longer readily available, the inquirer is referred to the MRD.
One Official Referee takes the view that law reporters should continue to be supplied with judgments without charge, in the interests of speedy accurate reporting. He believes that to make a charge to reputable law reporters (including giants like Butterworths) would at best result in increased prices to practitioners and the courts, and at worst might drive some of the smaller law reporters out of business: the small specialist reports, although often deplored, do perform the service of reducing the number of typed copy judgments in use.
(iii) Our Recommendations
We consider that it would be desirable to adopt common practices, so that all judgments published from the Royal Courts of Justice have a common house style and are instantly recognisable as such. We recommend the adoption of corporate practices along the following lines:
Unapproved hand-down judgments should only be made available to the parties’ lawyers, on a restricted basis, in advance of delivery, with the rubric “UNAPPROVED JUDGMENT: NEVER TO BE USED IN COURT” as a header on every page;
Counsel/advocates should be instructed to submit a written list of typos/corrections to the judge in court at the time the judgment is handed down (if not before);
The judge’s clerk (or the Associate, in relation to a deputy judge) should prepare the official frontispiece of the judgment to an approved template, and the published judgment (as opposed to earlier drafts) should be in single-space format, after the style adopted by the Patents judges. Templates should be prepared for this purpose in WordPerfect 5.1 and 6, and Word 6;
The judge should announce in open court the order he/she is disposed to make, and say that he/she is making it for reasons set out in the official judgment which will be available for collection within an hour at a central distribution point (almost certainly the MRD);
The judge should initial in court any typos/corrections furnished by the parties or added by him/herself, and unless he/she wishes to have the opportunity to reconsider anything before approving the official version, the judgment (once the typos/corrections have been taken into account by the judge’s clerk in the final version) will be the official judgment available for distribution forthwith. If the judge wishes to have more time for consideration, an unapproved judgment should be issued on an interim basis, with the appropriate heading rubric on each page (see above);
The official judgment should contain on its frontispiece the rubric “This is the official judgment of the court and I direct that no further note or transcript be made”. (This will cover the requirements of Order 68 Rule 1, in the cases to which that rule applies, and will provide for certainty in all other cases.)
The judge’s clerk (or the Associate in the case of a deputy) should deliver a predetermined number of copies of the official judgment to the MRD as soon as possible, together with a disc, from which the MRD would copy the judgment, using a suitable virus-checker. (Until a system of fees is introduced, the MRD may well have to contact the judge’s clerk if more copies of the judgment are required, if it is not equipped to do all the necessary photocopying itself.)
Within 24 hours the judge should be invited by his/her clerk to sign a clean copy of the official judgment, beneath the rubric mentioned above, and a deputy should do the same. This signed copy should then be delivered by the judge’s clerk (or the Associate, for a deputy) to the MRD.
The Deputy Director of the Supreme Court Group has welcomed in principle the idea that a distribution point (almost certainly the MRD) should be established within the RCJ which should be responsible for the dissemination of all official judgments in this category. We see no reason why a small fee should not be charged in due course for each such judgment. This fee would have to be paid at the Supreme Court Accounts Office. At present the Supreme Court Fees Order prescribes a fee for copy documents of £1 per page for the first five pages, and 25p per page thereafter. We recommend that a fee of 25p for each page of a judgment should be introduced in the context of the Review of Fees which is currently in progress, unless it would be found more convenient to charge a single fee, say £5 (which would represent a 20-page single-spaced judgment at 25p per page) for all judgments, as in the House of Lords. A lower fee could be charged for each judgment supplied on disc. In this instance the MRD would issue the discs itself, to minimise the risks of virus contamination.
We see no reason why this fee should not be charged to everyone except the parties to the litigation. Paper and photocopying costs money. Arrangements should be made for bulk orders, along the lines adopted in the House of Lords. Arrangements also need to be devised for the copying of further hard copies of the judgment. We would welcome the early introduction of arrangements for the distribution of the judgment from the MRD by e-mail, on payment of the fee by electronic means: this would be likely to lead to considerable savings in staff time, photocopying and paper.
These arrangements would standardise practice throughout RCJ, eliminate the proliferation of unapproved judgments, accelerate the appearance of official approved judgments in a recognisable format, and remove the present anomalies whereby hard-copy judgments, some of them of considerable length, are being issued on request, often in an unapproved form and without any charge at all, in a completely unregulated way. We recommend that we should be invited to continue discussions with the appropriate authorities (and to consult more widely) about the possible introduction of fees, with a view to reporting back to the first meeting of the Council in 1998.
Some judgments in this category may, in the judge’s opinion, qualify for immediate publication on the Court Service website, or to the judiciary via FELIX. The same considerations apply to Category 3 judgments below. We recommend the creation of a standard procedure, which should be made known to the judges, whereby they could give appropriate directions to the Associate in court in relation to judgments they consider worthy of posting on the Court Service website, or to the judiciary via FELIX, and the Associate would then be responsible for putting these instructions into effect. The MRD would be ideally placed as the focal point for electronic transmission to the appropriate site. Arrangements are already in train, on a pilot basis, for the posting of certain judgments by Commercial Court judges, Patents judges and Official Referees on the web.
Category 3 Hand-down judgments in the two divisions of the Court of Appeal and the Crown Office List
All official judgments in this category are issued by the official shorthand writers (currently Smith Bernal). It is a term of their contract that they are given the right to market all official transcripts in these courts. They are authorised to charge £1.20 per folio (72 words), except for handed-down judgments, for which they are authorised to charge 85p per folio. This means that for a 4-page single-spaced handed down judgment containing 28 folios, the charge would be nearly £24. They are also authorised to charge £1.10 per folio for transcripts of proceedings.
For copies of judgments already transcribed they are authorised to charge a copy rate of 25p per A4 page (20p for LCD, Court Service, and the judiciary). They are also allowed to supply a copy of a judgment on disc at an approved fee of £25 to anyone who has been granted leave by the relevant Head of Division to receive one. Heads of Division can prescribe terms or conditions for such supply.
This rate of charging is very substantially higher than the rate of charging now current in the House of Lords. Except in relation to those who are supplied free copies, the House of Lords currently charges £5 per copy regardless of the size of the judgment. Special arrangements can be made, eg for bulk orders. We are told, for instance, that Lloyd’s of London Press pay £200 a year to receive copies of every judgment delivered by the House of Lords. All judgments are now posted on the House of Lords website within two hours of delivery, from which they can be drawn down free, and a search engine has now been provided for this site.
There are still a few transcripts/ copies being handled by the previous contractors, John Larking, and their approved rate of charging is slightly lower. The Crown Office charges at the Fees Order rate in respect of judgments delivered prior to January 1992.
Given the high charges which Smith Bernal is authorised to levy, unapproved hand-down judgments are entering into circulation in very large quantities (because they are circulated to counsel beforehand or made available in court free of charge when the judgment is handed down). New Law Publishing and Butterworths publish these unapproved judgments to subscribers to their electronic legal information services. When Butterworths launched this service four weeks ago, it was not even apparent that a judgment was an unapproved version, and it could therefore be drawn down and copied by a subscriber without any evidence of its unapproved status.
Master Mackenzie has told us that they sometimes see dozens of members of the Press in the CACD, and this has led to a complaint being made by Smith Bernal that dozens of copies of an unapproved hand-down judgment are being distributed free to the Press, having been photocopied at RCJ rather than by Smith Bernal.
In the Court of Appeal different formats are used by different presiding lords justices for unapproved hand-down judgments.
We encountered some a difficulty in making recommendations here, because of the high charges Smith Bernal is permitted to levy for hand-down judgments even though all they are doing is to republish (with minor corrections and the addition of a frontispiece) a judgment in a form already prepared by the judge or his/her clerk. The Court Service is obviously nervous about seeking to renegotiate Smith Bernal’s permitted charging rates mid-contract.
Ideally, we would wish to recommend that similar arrangements are made as for stages (1) to (4) in relation to Category 2 judgments. The judge’s clerk would then continue to have the carriage of the judgment until he/she has corrected the typos etc, and should then deliver the disc containing what is now the text of the approved judgment to Smith Bernal (preferably by electronic means from some appropriate point in RCJ).
There would then be no need for any further delay: Smith Bernal would have in its hands the approved judgment, to which it can add its own name on the frontispiece. By this means, the dissemination of unapproved judgments would be ended, and Smith Bernal would have the official version of the judgment available for distribution very soon after the judgment is handed down. If there is a need for the judge to correct any discussion which follows the delivery of the judgment, this could be dealt with in the usual way.
In the absence of any movement in Smith Bernal’s charging rates in relation to hand-down judgments, it may be premature to go too far along this path, although Smith Bernal has told us, without commitment, that if the judge was able to approve a written list of typos/corrections in court, they could so arrange things that an official version would be available within 48 hours, and ideally much more quickly.
This is a subject which warrants further discussion with the Court Service before any firm recommendations can be made, but if the Judges’ Council approves the principles, it may be able to make some progress towards an agreed solution on an interim basis before the end of term. We recommend that we should be invited to continue to pursue issues relating to the acceleration of approved copies of these judgments, and their format, with the appropriate authorities, with a view to reporting back to the first meeting of the Council in 1998.