A guide to using case law

Case law is law created from the decisions of judges in court cases, from judgements made in the lower courts right up to those made in the highest courts. 

It is an important part of how law is made and changed in Scotland. Cases can change the law by setting ‘precedents’. Precedents are important decisions that make a statement about the law and affect how it is applied.

Advisers should be aware of relevant case law and how it could affect their clients. Advisers should take account of both older cases and also new cases where relevant.

It is not necessary to know the precise detail and legal argument in every case but it is a good idea to be aware of the main facts in some cases and the ways in which decisions have affected the law in practice. Advisers will already have a good working knowledge of the law and an awareness of the broad principles arising in significant cases is sometimes enough to support advisers in their job.

Case law can be helpful in several ways in practice including:

• clarifying an unclear point of law or ambiguous drafting in an Act of Parliament or Act of Scottish Parliament

• constructing an argument to test or challenge existing practices

• strengthening an argument on behalf of a client or to persuade another party to change their practices or take action in favour of a client

• enhancing an individual's own understanding of the law

• clarifying what the black letter law will actually mean in practice (this particularly applies to new laws brought in by parliament)

• helping to gather appropriate information from a client to present to their solicitor if the intention is to go to court (for example, case law may help an adviser to work out which features of a client's situation would be relevant evidence for a court case, and which would be superfluous). This can assist the case when handed over to solicitors

• giving an indication of any changes in direction in the way in which laws are to be interpreted and applied

• building confidence in negotiations and preparing advisers to support an argument in more detail if necessary.

As mentioned above, the level of detail provided in different case reports varies greatly and this can be confusing. It is important to be aware that the majority of cases are not reported in formal volumes or journals as there are simply too many to be recorded. For example, daily and routine court business that is not significant in terms of the law is not recorded formally as a case report. The clerk of court will record the decision and produce a formal record of it (called an ‘interlocutor’).

The solicitor acting for the client will also note the outcome and inform the client. The solicitor will also keep a note of the outcome on file but there are specific rules about solicitors’ files. Firstly, they are confidential and, secondly, they only have to be kept for a specific time period so they are not kept forever. Obviously, professionals working with clients will gain experience of court outcomes and this information can be shared amongst colleagues to improve practice but these ‘day-to-day’ cases, although significant for clients, will probably not be formally recorded as a public document.

The ‘golden rule’ is that cases are generally only reported formally and published in a journal if:

• they deal with a new law or a law which has not previously been tested in the courts before (for example, when the Human Rights Act [1] came into force, many cases were brought to court as no one was sure how the new law would be applied by the UK courts)

• they contain significant, different or unusual facts

• they change or alter the law in some way

• the judge has applied an existing law in a new way

• the judge makes a comment about a previous case

• the case is an appeal from another court (whether or not the appeal is successful).

Case law is reported in several different formats. The main formats are:

• hard copy bound volumes in law libraries

• legal journals (usually journals concentrate on a particular area of law, for example, ‘Greens Housing Law Reports’ and ‘Family Law Reports’. Sometimes journals are concerned with all areas of law in a particular jurisdication. For example, ‘Scolag’ deals with Scots law).

• Subscriber online databases (for example, Westlaw, Lexis Nexis)

• Free online websites (for example, the British and Irish Legal Information Institute (BAILII)

• Case commentary books [2]

• Other legal textbooks[3]

• Newspaper coverage[4] (for example, some newspapers contain regular specialist legal supplements).

There are many different official case report publications that record the official transcript of a case. These publications include lots of specialist volumes dealing with particular areas of law such as family law and maritime law. Official case reports can be found in hard copy paper format or online.

In general, full case reports are recorded either formally in official bound volumes or on the internet. Formal reports of recent cases are usually published in journal format first of all. Journals are produced at different times but can be as regular as monthly or quarterly, depending on the publication. Cases are then bound into yearly volumes and can be found in law libraries. Formal case reports can be found online on specific websites, details of which are provided below.

Sometimes, shortened case synopses are given in legal journals. These are factual and summarise the main arguments and the outcome of case but it is not the same as the official case report – it is additional to it. Journals that contain synopses usually also contain other articles of interest to reader and are different from the type of journal that report official transcripts.

Furthermore, Scottish and English cases tend to be reported in different places. It is important to be aware that some, but not all, English cases affect Scottish law.

There are several sources of case law that are most relevant to housing law in Scotland. The main sources of formal reports are:

• Greens Housing Law Reports (abbreviated to ‘GHLR’ , ‘HLR’ or ‘Hous LR’)

• Justiciary cases (abbreviated to ‘JC’)

• Session Cases (often split into different volumes for House of Lords decision and Privy Council decisions. Abbreviated to ‘SC’ following by ‘HL’ if it is a House of Lords case)

• Scots Law Times (abbreviated to ‘SLT’).

These are the most commonly used sources but this list is not exhaustive.

Relevant English cases can mainly be found in:

• All England Law Reports (abbreviated to ‘All ER’)

• Appeal Cases (abbreviated to ‘AC’. These are reports of the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council)

• Queens Bench (abbreviated to ‘QB’. These are reports of decisions in the Queen’s Bench Division of the High Court in England and Wales and the Court of Appeal on appeal from that Division)

• Weekly Law Reports (abbreviated to ‘WLR’)

• Times Law Reports (abbreviated to ‘TLR’).

These are a variety of online sources of case law. Some websites are accessible only to subscribers for a fee and many have different ways of operation. It is a good idea to try a variety of sources to find out which is easiest to use. (It also depends on what is available to advisers in their workplace.)

Official transcripts of all major case law in the UK can be found on the website of the British and Irish Legal Information Institute (BAILII). This resource is free to the public and is accurate and comprehensive.

Shelter Legal is the only online resource for professionals specialising in housing, homelessness and all related areas of law. Other sources of online case law include Westlaw and Lexis Nexis.

In order to find a reported case, it is best to have a note of the name of the case, the year in which the case was reported and the full citation. A 'citation' is the reference information that can be used to find the full report of a case in a particular journal or book. This is particularly relevant if looking for a case in a law library or in a legal journal. However, when looking for case law online, it may be sufficient to know the name of the case or some of the main facts. This is because some online databases have useful search functions that allow users to search by topic, for example, instead of using the full citation. The information required will depend on the online resources available to advisers:

In general, the following points can be useful when looking up case law:

• Some cases are reported in different publications and, therefore, one case may have citations for different sources. For example, a case may be reported in ‘SLT’ (which stands for ‘Scots Law Times’. Another citation for the same case may refer you to a ‘HLR’ (which stands for ‘Housing Law Reports’.

• If cases are appealed, there may be different reports of the decisions of each court. Again, this can mean that a case has more than one citation. For example, a case may have gone to the Court of Appeal and then the House of Lords. Advisers should make sure they are looking at the decision of the correct court if this is the case.

• If using a hard-copy journal or bound volume, it is important to know the relevant year in order to go to the correct issue.

• If there have been a lot of cases in a particular year, there may be several volumes pertaining to the same year. If this is the case, the citation will also contain the volume number (usually listed after the year of the case) and it is important that advisers ensure they are looking at the correct volume if appropriate.

Some publications split reported cases into sections depending on which court the case was heard in. For example, a citation for R. v Smith [5] 2 All ER (HL) 65 indicates that:

• The name of the case is R. v Smith. ‘R’ refers to ‘rex’ or ‘regina’ and means the Crown in the name of the monarch of the time. In other words, in this example, the case has been brought to court by a public authority or public prosecution service against an individual called ‘Smith’.

• The case was officially reported in 1985. This does not mean that the case was necessarily heard in 1985.

• The case is reported in the second volume of the ‘All England Law Reports’ as indicated by the reference to ‘2 All ER’.

• It is a decision of the House of Lords (as indicated by the reference to ‘HL’) so, within the correct volume, it is important to look for the section recording House of Lords cases and, within, that section, the case will start on page 65.

When searching for a case online, it is not always necessary to have the full citation: it is possible to search using the name or keywords if only part of the name is known. If only part of the name is known and a hard-copy of a case is required in order to read the full detailed report (and it cannot be found online), an adviser can go to a law library and ask for help. Law librarians are skilled in finding case law and have a detailed knowledge of all sorts of reports. Law libraries may charge a small fee for this so it is best to ask about any costs in advance.

Reading case reports can be daunting. Some case reports are very long and use specialist legal terms, phrases and concepts that can be confusing. Sometimes the reasoning in the case is not clear to people who have do not have a legal background or experience of interpreting case law. Sometimes, it will be enough to read a short summary of a case in a newspaper. However, for more detailed information, or to understand the judgement fully, it is always best to read the official case report.

It is not always necessary to read the entire case report to find the required information. Several factors can assist advisers when reading case law:

• To find out what the case is about, read the summary at the beginning of the report. This gives a brief synopsis and the main points in the case and can assist when deciding whether or not the case is relevant.

• Take note of which court the case was heard in (for example, Sheriff Court, Court of Appeal, House of Lords).

• Take note of the facts of the case. Again, this can help to determine whether or not the case is relevant.

• Take note of any legislation or other cases referred to as relevant.

• Read the decision (this will be contained in the summary at the beginning of the report)

• If further information is required, read the full case report.