Of the 5,408 unique judgments given by the Administrative Court from 1 January 2015 to 31 December 2020, only 55% (3,001) are available to the public on BAILII, research has suggested.
The remaining 45% (2,407) are presumed to be available only via subscriber-access platforms, researchers from the University of York and law firm Mishcon de Reya said in an article, How public is public law?, for the UK Constitutional Law Association published last month.
They suggested that who can access which judicial review judgments, and which judgments can be accessed, matters a great deal in various ways.
“Access to judgments can shape legal advice given to private and public parties. It can also influence and shape how cases are litigated and how judgments are crafted. Similarly, the availability of judgments can shape the cases that researchers draw upon for their work, and thus the broader understanding of public law,” the authors said.
The article added: “While BAILII provides free access for the public to a significant number of judicial review judgments through its website, the BAILII database is not comprehensive. If one needs access to judgments not included on the BAILII database, the only way to secure access is by paying a subscription fee to a commercial provider, such as vLex Justis, Lexis Library, WestlawUK, and ICLR Online.”
The authors examined a sample of Administrative Court judgments from 1 January 2015 to 31 December 2020, starting with a dataset of unique judgments provided by vLex Justis.
The authors said: “It is clear that there is a significant gap between the number of Administrative Court judgments that are freely available and those which can only be found behind a paywall.”
The research suggested those judgments not freely available generally represented the quantity of judgments that were given ex tempore and that BAILII did not have the spending power to obtain the transcript of ex tempore judgments in the same fashion as commercial providers.
“Crucially, there is currently no infrastructure in place to enable HM Courts & Tribunals Service to acquire the resulting transcripts from the appointed transcription agencies even though the contracts with these agencies are paid-for from public funds,” the authors added.
They said it was “important to caution against any suggestion that ex tempore judgments are somehow inherently less important or otherwise matter less. While some judgments may be recognised immediately as important, it is, particularly given the multi-layered value of judgments, not always apparent which judgments may be deemed valuable at some future point.”
The authors said: “Ultimately, access to judicial review judgments is something that everyone has a stake in, but public lawyers, whether in research or practice, should be paying close attention to this issue, particularly as the government is reshaping how judgments are managed and made available through its initiative to make judgments available via The National Archives.
“The gap in the availability of judgments we have examined in this post shows that an important part of public law is not meaningfully public, and ongoing changes ought to be seen as an opportunity to progress from that unsatisfactory position rather than entrench it.”
The authors were: Cassandra Somers-Joce, a researcher at the University of York; Daniel Hoadley, Head of Litigation Data at Mishcon de Reya; Editha Nemsic, a Data Scientist at Mishcon de Reya; and Dr Joe Tomlinson, Senior Lecturer in Public Law at the University of York.