Looking for past cases in courts or other tribunals

Barristers look at the past written decisions ("judgments") of the higher courts and other higher tribunals because they can set legal "precedents" - i.e. they establish or confirm legal rules which are of general applicability and which lower courts and other lower tribunals are then obliged to follow. It is the legal rules established rather than the detailed facts of the specific case or the identity of the parties which a barrister researches. Consequently a barrister you engage will not look specifically for cases involving your opponent, nor for cases concerning your land or your neighbour's land, so, if this is to be done, you would need to do it.

The anatomy of a case in a civil court or other civil tribunal

1. When a civil court or other civil tribunal case is started the tribunal allocates a case number, and the case is referred to by that number e.g. PT-2026-123456 and by the names of the parties e.g. Smith v Jones. 

2. A case starts with "statements of case" which are documents, sent to the tribunal, in which each party to the case sets out what the case is about and what the key assertions that party is making. Statements of Case may be entitled e.g. Applicant’s Statement of Case but some have other names such as  Claim Form, Particulars of Claim, Defence, Reply to Defence, Defence and Counterclaim, Reply and Defence to Counterclaim, or Reply to Defence to Counterclaim.

3. The judge considers evidence, which consists of documents created in the ordinary course of events in the past - deeds, letters, emails, invoices, photos etc. - and also the testimony of witnesses as to what they saw or heard in the past.

4. The judge gives a reasoned decision ("judgment") setting out the key items of evidence, the judge's evaluation of them, and the conclusions the judge has reached on the legal issues and, therefore, which party has won.

5. In line with the reasoned decision, the judge then makes an order such as that Mr Smith must pay Mr Jones £100,000 within 14 days, or the order might be an injunction (e.g. "Mr Smith shall not obstruct the path leading from...") or a declaration (e.g. "It is declared that Mr Jones has a right of way over...").    

The reasoned decision may be written or the judge may simply announce their reasoned decision in the court room and the parties have to quickly write down what is said. The order will always be in writing.

Finding the case you are interested in

Written reasoned decisions ("judgments") in some cases in England and Wales decided in the 21st Century are available online from the National Archives caselaw.nationalarchives.gov.uk The National Archives is gradually building up its collection of reasoned decisions and it does not yet include all tribunals so some 21st Century written reasoned decisions are only available on the websites of various courts and other tribunals, but the caselaw.nationalarchives.gov.uk  site will signpost you to those websites for cases which it does not have. Not all tribunals have searchable websites of cases and, those which do might only have  more recent cases online with older cases only accessible from the tribunal office itself, so you might need to make an appointment with the tribunal to visit and search at the tribunal office.  

Selected cases, particularly those decided in the last 200 years which are important to lawyers because they help to set legal precedents, are published in commercial law reports. Although not perhaps very likely, the case you are looking for might happen to be in a commercial law report. These law reports are not available online free because the publishers of these reports claim copyright (the  reports contain both the actual reasoned decision and a summary of the arguments and legal conclusions produced by the law reporters). You can, however, search commercial reports free at a law library. Universities and professional associations of lawyers have law libraries containing collections of law reports. Such libraries are not routinely open to the public but you can apply to them for a visitor's pass.

The National Archives have some records of some court cases in the 20th Century and earlier, but these are only quite a small proportion of all the cases decided over the centuries so it is unlikely you will find the case you are looking for there, but you can check. See https://www.nationalarchives.gov.uk/help-with-your-research/research-guides/civil-court-cases-overview/

It should be appreciated that for many cases, particularly cases in the County Court but other tribunals as well,  the judge will simply give their decision orally so that there is no written copy of the reasoned decision, and such cases are not listed at all on caselaw.nationalarchives.gov.uk To search for such cases you need to use the website of the particular court or other tribunal. You can search by case name or case number. Some tribunals do not have a search facility on their website and you may need to visit the tribunal office instead. Or they might have a search facility but it might not encompass all the cases they hold records for so again you may have to visit. Once you have found a case, you should be able to see, as a minimum, the statements of case and the order which, in the absence of a written reasoned decision, should give you some idea of what the case was about and whether it is the one you are looking for. For the last 50 years or so decisions announced orally by judges have been recorded but the audio recordings are not publicly available. You can pay for a transcript but that is very expensive so you first want to make sure by other means - e.g. by reading the statements of case and the order - that it is the case you are looking for.

If you want to look for cases decided by courts and other tribunals outside England and Wales,  you could start with www.bailii.org

Once you have found a case

If you identify a case you are interested in, the next step is to obtain copies of publicly-available documents from the file held by the court or other tribunal.

The offices of some tribunals have an online system which you can use to search for cases and request copies of documents. Otherwise you may have to visit the office of the tribunal which dealt with a case to ask for copies of documents from a case. It helps if you know the number of the case although they might be able to trace cases by the name of one of the parties and the year the case was started. Of course the tribunal can only supply copies of documents it has retained - many documents which were provided by the parties to the tribunal will not have been retained.

Check the full name and address of the parties for the case you have found (which you should find on statements of case) and verify that your opponent really was one of the parties (and it is not just that they have the same name by coincidence), or, if applicable, check that the case concerned the land which you are interested in. 

In the absence of a written decision ("judgment") statements of case show what each side alleged and give a flavour of what the case was about. If it appears to you that something in the case you have found might be relevant to your own case, the next stage is to decide how the information could help in your own case, If you are interested in land and the order includes an injunction or declaration about that land - e.g. declaring that there is a right of way over the land or that the land has the benefit of a right of way over other land, then that would be an example of something which could remain relevant even if the owners of the land have changed. On the other hand, if your interest in the case is simply that your opponent in the current case was involved in a dispute with someone else about some other land or about something else, it may not a simple matter of saying that the tribunal in the previous case has decided some fact, and so that is settled, because you cannot normally rely directly on the reasoned decision in the previous case if neither you nor your predecessor in title was a party to that case. But it could be, purely by way of example, that someone involved in the previous case has a letter written to them by your opponent which might happen to be useful evidence in your case. Legal advice is essential to understand whether, and whether and, if so, in what way, a past case may assist your case. 

If you decide to try to contact someone involved in the previous case and ask them if they would be willing to help by providing information and/or copies of documents you should be aware that they may be in possession of documents which they are not allowed to show you without specific permission from the  tribunal.  In many proceedings each party will have been ordered, as part of the process, to send ("disclose") to the other side copies of all relevant documents they possess whether or not they propose to rely on them at the eventual final hearing. A disclosure order can be quite an imposition on the parties but usually that is tempered by rules which at least prevent the other side, to whom the documents were disclosed, from using the disclosed documents for any purpose outside the proceedings they are disclosed in, without specific permission from the tribunal. It is different if a document is actually read out in full at a public hearing (or is a witness statement taken as read at a hearing) but most litigants will not remember exactly which documents provided by the other side were read out at the hearing so it may be that they only show you their own documents - including any letter or email they received from your opponent before the previous case started (i.e. received in the ordinary course of events rather than "disclosed" to them as part of legal proceedings). 

Disclaimer

The information above is necessarily of a general nature and will not be applicable to every case: it is intended to be used in conjunction with more specific advice to the individual client about the individual case. Contact me for advice about your case.