The National Archives (TNA), which took over as the immediate online publisher of senior court judgments last year, failed to publish judgments in over a quarter of cases in its first three months of operation, a report has found.
Paul Magrath, head of product development and online content at the Incorporated Council of Law Reporting for England and Wales (ICLR), said it was “alarming” that so many listed cases “just disappear”.
Under the new system introduced in April, courts are required to send cases to TNA by using the TNA portal, rather than sending them by email to a range of publishers, such as BAILII (the British and Irish Legal Information Institute), the ICLR and commercial legal publishers.
Researchers from ICLR logged all of the cases listed for judgment in the daily cause list for May to July 2022 and checked TNA to see how many went on to be published, and how quickly.
In May, 69% of cases (121) were published, all but three of them on the day of delivery from the courts. However, 51 were not published at all.
The following month, the proportion of judgments published fell to 57%, while the number of late publications shot up to 30. The rate recovered slightly in July, to 60%, but 39 were published late.
Researchers said the main reason why TNA had struggled to meet its target of publishing all handed down judgments on the day of delivery was because they were “not all being sent” by the courts, which have to use the TNA portal.
The “least productive” of the major courts was the property, trust and probate list in the Chancery Division, with an average publication rate of less than half (46%).
This was lower than the Family Division and Court of Protection, where 55% of listed cases were published.
“While there might be good reasons for non-publication of cases involving confidential matters affecting children and vulnerable parties, particularly since most of them would have been heard in private, the lack of publication in other courts raises questions about transparency and open justice.”
Some courts in the study, such as the Central London County Court, produced no published judgments at all, “yet the fact that its judgments are listed in the daily cause list suggests they must be substantial enough to reserve and deliver in writing”, meaning there was “still a transparency gap waiting to be filled”.
Researchers said a “large number” of published judgments were unlisted, which “raises a question” about the fate of those neither listed nor published.
“While there were delays in publishing around 17% of the listed cases, it is of far more concern that so many judgments were not published at all.”
Some courts which had “very few cases”, like the Patents Court, with eight cases over the three months, achieved a publication rate of 100% over the three months.
The civil division of the Court of Appeal had more than 95% of its listed cases published, the criminal division 88%. The Technology and Construction Court came third with 84%.
Mr Magrath said: “They’ve created quite a restricted system, where everyone depends on TNA, which means that the expectations that this new system will be effective are very high.
“The situation has improved since the first three months of last year, but I’m not sure the system as a whole is working as it should.
“It’s alarming that a lot of cases listed just disappear. You wonder about the cases which are not listed.”