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Early case law available online

By: Mark Tottenham BL

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Many in the legal profession have benefited from the Free Access to Law Movement without necessarily being aware that there was a Free Access to Law Movement. Like running water, or street lighting, the free availability of statutes and judgments online is now taken for granted, without much thought for how they got there.

This was not always the case. When the ‘world wide web’ became widely used in the mid-1990s, it was clear to a number of far-sighted members of the legal profession that this might democratise the availability of legal source material. As outlined by Dr John Mee in the Bar Review of April 2005, the first ‘Legal Information Institute’ (LII) was launched in Cornell University in 1992. AustLII was launched in Australia in 1995, and this was followed by the development of BAILII in 2000. In some countries, there was resistance from some members of the legal profession, but the BAILII initiative was supported in Ireland by the Attorney General’s office and the courts.

Now some of the founders of AustLII have turned their attention to historical case law. Professors Graham Greenleaf, Andrew Mowbray and Philip Chung are developing CommonLII, which aims to be “the most comprehensive historical legal resource for the first 800 years of the whole common law world (1215 to 1914)”. This has received extensive financial support from Austrialian universities and some of the other LIIs.

A prototype of CommonLII went live on 3 October 2018, and is available on: commonlii.org. It includes several cases from the 16th century onwards, and quite a number from earlier. Usefully, it links to LawCite, and tells users which later cases have cited the earlier common law.

Previously in this journal, I have written about the first edition of Halsbury’s Law of England, and its value to Irish legal practitioners. With the materials available on CommonLII, the cases cited in Halsbury and in the English and Empire Digest will be far more readily accessible to practitioners.

Of course, there are dangers in citing case law from earlier times. In the recent case of Willers v Joyce [2016] UKSC 43 (20 July 2016), it was held that a person could sue for malicious prosecution arising from a civil action, and not just a criminal action. The discussion involved an extensive consideration of pre-19th century cases, including that of Savile v. Roberts (1698) 1 Ld Raym 374 and Bulwer v. Smith (1583) 4 Leon 52. As Lord Neuberger (dissenting) wrote:

These old judgments, at least in the form in which they are reported, (i) are sometimes hard to interpret, (ii) often refer to, and may depend on, procedures and rules which have long since ceased to exist, (iii) at least in some cases, are not entirely reliable, as is apparent from differing reports of the same case, and (iv) do not, on any view, speak with one voice. Accordingly, it is perhaps understandable that there is disagreement as to their precise effect in terms of the overall legal position.”

CommonLII will be a very valuable resource for practitioners in all common law jurisdictions. It is to be hoped that it will be used sparingly, to assist with the clarification of the law rather than its obfuscation."

First Published in Law Ireland in October 2018

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