One in five judgments by the senior courts and tribunals of England and Wales are not being published, the Incorporated Council of Law Reporting in England and Wales (ICLR) has found.
It said the “main problem” was the failure by judges to send their judgments to The National Archives (TNA) for publication, a problem “most noticeable” in the High Court.
TNA took over as immediate online publisher of senior court judgments in April last year, with courts required to use its portal for publication, rather than send cases by email to a range of publishers, such as BAILII (the British and Irish Legal Information Institute), the ICLR and commercial legal publishers.
An interim report by ICLR published in January this year found that, in its first three months of operation, TNA failed to publish judgments in over a quarter of cases.
In its final report on the subject, ICLR said the average publication rate for the new system’s first year was just under 80%.
Though this “might appear to be an improvement” on the 75% figure from January, it was because statistics from the lower courts, whose judgments were not normally expected to be published, were excluded from the final report.
The main problem, it said, was that “not all courts and tribunals are routinely sending their judgments” to TNA for publication.
Among deputy High Court judges, the non-publication rate was highest, at 26%, compared to 17% for the High Court as a whole.
The ICLR said deputy High Court judges were “senior practitioners, usually at KC level” who were sitting part-time and “do not enjoy the same support services as full-time members of the senior judiciary whose numbers they supplement”.
The report went on: “The same cannot perhaps be said for full-time High Court judges, who were responsible for the next highest numbers of failure to publish.
“Although the rate of non-publication, at around 17%, may have been lower than the overall average, it affected the largest number of cases.”
Despite its “equally high case load”, the Court of Appeal (Civil Division) recorded a non-publication rate of only 3%.
The report continued: “What the report shows is that wherever the problem lies, it is not confined to deputy judges, and remained consistent throughout the year, so was not simply a teething problem or training hurdle. It is, in short, systemic in nature.”
ICLR recommended that HMCTS and the judiciary improve support for judges in preparing and submitting their judgments for publication.
New versions of judgments should be clearly identified, the system for the allocation of neutral citations should be reviewed “to avoid accidental duplication or mis-allocation”, and judges should be encouraged to use “structural formatting available from an appropriate template”.
ICLR said that, when TNA’s database was launched, there was “a sense that the new system had gone live before everyone involved was quite ready for it”.
Since then “a lot has changed, or at any rate settled down”, with speed and efficiency of publication improving if not the volume of content, and the service establishing itself as “an integral part of the legal information ecosystem”.