A plea for all judgments to have headnotes

Family Law|August 12th 2015

This is something of a fixation of mine, so please indulge me.

The legal system in this country uses the system of precedent, under which courts are generally required to follow previous decisions by courts of a higher or equal level. The system is sometimes still referred to by the Latin term stare decisis (‘let the decision stand’). Obviously, for such a system to work it is essential that judgments, particularly those handed down by the higher courts, are recorded, so that all will know how the law stands on a particular point.

So written judgments are a fundamental part of our legal system. Now, as one can imagine judgments can be very long and complex. It would be extremely time-consuming and inconvenient if entire judgments had to be read in order to ascertain the point or points of law that they deal with. Accordingly, when judgments are published by a law reporting organisation they are given a brief headnote, explaining what the case is about.

The problem with this system is that the headnote is usually added some time after the judgment is published by the court, and many judgments are never published by a law reporting organisation, so never get a headnote. Further, many such organisations charge for their service, particularly where the judgments are published in paper form. The result of all of this is that, for many people, the only version of a judgment that they get to see is the ‘raw’ original court version, without any headnote.

The primary place where such ‘raw’ judgments may be found these days is, of course, Bailii. Bailii is free to all (with an internet connection) and most judgments are published on it, often on the same day that they are handed down. Now, Bailii is a wonderful resource, and nothing I say in this post should be considered in any way as a criticism of the excellent job that it does. However, Bailii law reports do not have a headnote, and so require reading to find out what they are about.

The problem of a lack of headnotes in judgments has become much more acute since the President of the Family Division issued his publication of judgments guidance in January 2014. As intended, that guidance resulted in the publication of many more family court judgments. That is bad enough, but many of those judgments have no precedent value and therefore do not get picked up by law reporting organisations. There is therefore a growing body of judgments that will never get a headnote. Of course, one cannot tell whether a judgment has a precedent value unless one knows what the judgment is about, so much time can be wasted reading ‘valueless’ judgments.

And the problem of lack of headnotes is not just an issue for lawyers. In these post-legal aid days more and more people are having to represent themselves, and that of course entails reading (freely available) judgments, most of which will be on Bailii. Simple, plain English headnotes could be of great help to litigants in person searching for judgments relevant to their cases.

The whole problem of lack of headnotes could, of course, be easily resolved if the court (i.e. the judge) adds a short headnote to the judgment. This would be a simple matter – obviously, the judge knows what the case is about (hopefully!), and it would take him or her just a moment to write a headnote. In that way, as soon as the judgment is published (anywhere), it will be instantly obvious to all what it is about.

It does occasionally happen. It happened the other day (which is what prompted this post). In KCC v S & B Her Honour Judge Cameron at my local county court added a very helpful headnote to her judgment (I assume it was her doing) that informed us that the judgment related to an “Application by Local Authority for Emergency Protection Order where there is concern regarding mother’s emotional well-being and partner not co-operating with Supervision Order”. Simple, yet informative, making it easy for the reader to decide whether the entire judgment merits reading.

So there is the answer: please, family court judges, I know you are hard-pressed, but just spare a minute to add a headnote to your judgments. Thank you.

Image by Janet Lindenmuth via Flickr

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  1. Andrew says:

    Anyone else remember Mr Gohoho who in 1964 protested against the order of the Court of Appeal ordering him to give security for costs of an appeal (those were the days) by stripping naked on the bench reserved for litigants in person?

    Current Law reported it, as was and is its wont, with a series of snappy phrases, one of which was “bare-faced cheek”!

  2. Danhlawreporter says:

    Interesting post, John.

    The only thing I’d pick you up on here is that the example of a judge-authored “headnote” you provide (from KCC v S&B) is actually more akin to what we call “catchwords” rather than a headnote.

    The example in KCC isolates the primary subject matter and issue before the court. This is what catchwords do.

    A headnote, however, provides significantly more detail: first, it provides an account of the factual matrix of the case and the issues before the court; and second, it provides a distillation of the holdings in relation to those issues.

    I agree that judges could bring themselves to draft simple catchwords to help highlight the subject matter of a case. But, headnote writing is a different ball game.

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