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PRACTICE DIRECTION ON THE CITATION OF AUTHORITIES
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Introduction
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| 1. |
In recent years, there has been a substantial growth
in the number of readily available reports of judgments
in this and other jurisdictions, such reports being available
either in published reports or in transcript form. Widespread
knowledge of the work and decisions of the courts is to
be welcomed. At the same time, however, the current weight
of available material causes problems both for advocates
and for courts in properly limiting the nature and amount
of material that is used in the preparation and argument
of subsequent cases.
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| 2. |
The latter issue is a matter of rapidly increasing importance.
Recent and continuing efforts to increase the efficiency,
and thus reduce the cost, of litigation, whilst maintaining
the interests of justice, will be threatened if courts are
burdened with a weight of inappropriate and unnecessary authority, and if advocates are uncertain as to the extent
to which it is necessary to deploy authorities in the argument
of any given case.
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| 3. |
With a view to limiting the citation of previous authority to cases that are relevant and useful to the court, this
Practice Direction lays down a number of rules as to what
material may be cited, and the manner in which that cited
material should be handled by advocates. These rules are
in large part such as many courts already follow in pursuit
of their general discretion in the management of litigation.
However, it is now desirable to promote uniformity of practice
by the same rules being followed by all courts.
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| 4. |
It will remain the duty of advocates to draw the attention
of the court to any authority not cited by an opponent which
is adverse to the case being advanced.
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| 5. |
This Direction applies to all courts apart from criminal
courts, including within the latter category the Court of
Appeal (Criminal Division)
Categories of judgments that may only be cited if they fulfil
specified requirements
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| 6.1 |
A judgment falling into one of the categories referred
to in paragraph 6.2 below may not in future be cited before
any court unless it clearly indicates that it purports to
establish a new principle or to extend the present law.
In respect of judgments delivered after the date of this
Direction, that indication must take the form of an express
statement to that effect. In respect of judgments delivered
before the date of this Direction that indication must be
present in or clearly deducible from the language used in
the judgment.
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| 6.2 |
Paragraph 6.1 applies to the following categories of
judgment:
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Applications attended by one party only
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Applications for permission to appeal
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Decisions on applications that only decide that the application
is arguable
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County Court cases, unless
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| (a) |
cited in order to illustrate the conventional measure
of damages in a personal injury case; or
| | (b) |
cited in a County Court in order to demonstrate current authority at that level on an issue in respect of which
no decision at a higher level of authority is available.
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| 6.3 |
These categories will be kept under review, such review
to include consideration of adding to the categories.
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Citation of other categories of judgment.
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| 7.1 |
Courts will in future pay particular attention, when
it is sought to cite other categories of judgment, to any
indication given by the court delivering the judgment that
it was seen by that court as only applying decided law to
the facts of the particular case; or otherwise as not extending
or adding to the existing law.
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| 7.2 |
Advocates who seek to cite a judgment that contains
indications of the type referred to in paragraph 7.1 will
be required to justify their decision to cite the case.
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Methods of citation.
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| 8.1 |
Advocates will in future be required to state, in respect
of each authority that they wish to cite, the proposition
of law that the authority demonstrates, and the parts of
the judgment that support that proposition. If it is sought
to cite more than one authority in support of a given proposition,
advocates must state the reason for taking that course.
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| 8.2 |
The demonstration referred to in paragraph 8.1 will
be required to be contained in any skeleton argument and
in any appellant's or respondent's notice in respect of
each authority referred to in that skeleton or notice.
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| 8.3 |
Any bundle or list of authorities prepared for the use
of any court must in future bear a certification by the
advocate responsible for arguing the case that the requirements
of this paragraph have been complied with in respect of
each authority included.
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| 8.4 |
The statements referred to in paragraph 8.1 should not
materially add to the length of submissions or of skeleton
arguments, but should be sufficient to demonstrate, in the
context of the advocate's argument, the relevance of the authority or authorities to that argument and that the citation
is necessary for a proper presentation of that argument.
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Authorities decided in other jurisdictions.
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| 9.1 |
Cases decided in other jurisdictions can, if properly
used, be a valuable source of law in this jurisdiction.
At the same time, however, such authority should not be
cited without proper consideration of whether it does indeed
add to the existing body of law.
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| 9.2 |
In future therefore, any advocate who seeks to cite
an authority from another jurisdiction must
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| (i) |
comply, in respect of that authority, with the rules
set out in paragraph 8 above;
| | (ii) |
indicate in respect of each authority what that authority adds that is not to be found in authority in this jurisdiction;
or, if there is said to be justification for adding to domestic authority, what that justification is;
| | (iii) |
certify that there is no authority in this jurisdiction that precludes the acceptance by the court of the proposition
that the foreign authority is said to establish.
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| 9.3 |
For the avoidance of doubt, paragraphs 9.1 and 9.2 do
not apply to cases decided in either the European Court of Justice or the organs of the European Convention of Human
Rights. Because of the status in English law of such authority,
as provided by, respectively, section 3 of the European
Communities Act 1972 and section 2(1) of the Human Rights
Act 1998, such cases are covered by the earlier paragraphs
of this Direction.
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The Lord Chief Justice of England and Wales
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9th Day of April 2001
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