Pistols at dawn

In 1807 England was at war with Napoleon.

In the graveyard of St Laurence’s Parish Church in Stroud, Gloucestershire a plain stone carries the inscription:

Here lie the remains of Lieutenant Joseph Francis Delmont, of His Majesty’s 82nd Regiment, born November 25, 1785, died August 18, 1807.

On August 14^th 1807 Delmont and Lieutenant Benjamin Heazle fought the last recorded pistol duel in England. A (relatively) recent article in Stroud’s local paper by Dave King describes the duel and the events leading up to it: Stroud – the venue for England’s last pistol duel, [Stroud News & Journal, 21 Nov, 2009]

The article makes for fascinating reading about events more than 200 years ago. Whether or not it was in fact the last pistol duel in England, duelling of any sort eventually died out and the last duel fought on English soil is believed to have been in 1852.

Duelling may have gone out of fashion in favour of less terminal forms of conflict resolution but other ancient practices still persist.  I was reminded of this by the recent reminder from the Court of Appeal about the citation of Law Reports. Published in The Times (and yes I know I cannot give you a link because of their paywall) dated January 25th 2011 the case of  TW v A City Council was the opportunity for the President of the Family Division, Sir Nicholas Wall, sitting with Lords Justices Wilson and Aikens to remind the profession that “relevant authorities should be copied from the Law Reports published by the Incorporated Council of Law reporting”.

The case involved care proceedings and the details are not relevant for my purposes but the court was at pains to emphasise that regard must be had to Practice Direction 52PD-66 in Part 52 of the Civil Procedure Rules: (see: Practice Direction (Judgments: Form and Citation) [2001]1 WLR 194).

Not a practice direction with which I have had recent experience, I must admit, but what struck me was how old fashioned it all sounds. Perhaps I am far too removed these days from the minutiae of the law (although I like to think that I spend a fair amount of time on PD31B!) but the admonition from the Court of Appeal about the right form of copying authorities for use in court seemed to me to be unnecessarily restrictive. Of course, I accept that there may well be contractual arrangements in place which led to the implementation of PD 52, but, that aside, I was surprised by the outright condemnation of not only the All ER but particularly of reports taken from the British and Irish Legal Information Institute website www.bailii.org

When Bailii was first drawn to my attention, I was impressed by the ease with which you can find a case or other legal reference and by how quickly and comprehensively the site covers the law reports. I now use it as my default search tool when looking for the judgments in cases and I have often used the references when telling others about cases and referring them to the relevant judgments of interest. It was strange, therefore, to see this excellent site being sidelined by one of our most senior courts in terms which could not be misinterpreted. For those of you who like the detail, the President said “BAILII reports, with neutral citation numbers, should only be used if no other recognised reports were available and the case really needed to be cited.”

Not only must BAILII reports not be used except in the last resort but the case must REALLY need to be cited.

If there are any reasons for this of which I am unaware (and I recognise there may be reasons of contract) I hope that those reasons can be overcome and contracts, if they exist, renegotiated. Lawyers are being deprived of a useful and easily adaptable resource and I do not see how that can be of benefit to their clients.

Time for pistols at dawn? Perhaps not, but just as duelling died out, perhaps the practice of reserving court reports to one organisation will go the same way in the light of the other easily accessible (and free) services which exist.