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ABSTRACT
For some seventy years, rulings made by judges sitting at nisi prius were regularly reported, despite those reports being held in low esteem by the legal profession and such rulings being regarded as of little value as precedents. This article considers why those rulings, at least on matters of substantive law, were rejected as authorities, and sets out the reasons why they were nevertheless reported and cited. The article explains that the principal purposes of these reports were to introduce new members of the profession to the practicalities of preparing cases for trial, and to provide some authority, however slight, to cite in court. The article also explains that, while nisi prius rulings on substantive law were cited by nineteenth century judges, they were used differently to decisions of courts in banc. The greater authority of such rulings on points of evidence, at least up to the mid-nineteenth century, is also explored. The article concludes by examining the tendency of more recent judges to ascribe greater weight to nisi prius rulings than their nineteenth century counterparts, due to the modern profession’s ignorance of the former difference in the treatment of nisi prius rulings and the decisions of courts in banc.
Acknowledgements
This article is extracted from work done for my doctoral thesis on the origin, reputation and effect of nisi prius reporting. I would like to thank my supervisor, Professor Michael Lobban, for his advice and encouragement, and for the opportunity to present an earlier version of this paper to the Oxford Legal History Forum. I would also like to thank the attendees of the Forum for their feedback and the anonymous reviewers of this article for their helpful comments. Further thanks are due to my wife, Emily Campbell, for her comments on this article and for her general forbearance.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Peter Luther, ‘Campbell, Espinasse and the Sailors: Text and Context in the Common Law’, 19 Legal Studies (1999), 526; James Oldham, ‘Law-making at Nisi Prius in the Early 1800s’, 25 Journal of Legal History (2004), 221.
2 R v Faulkner (1835) 10 L.O. 228, 230 per Lord Abinger CB; Ex parte Fernandez (1861) 10 C.B.N.S. 3, 38–57 per Willes J.
3 James Ram, The Science of a Legal Judgment, London, 1834, 67.
4 See, generally, ibid., 98; and see Sir Frederick Pollock, A First Book of Jurisprudence for Students of the Common Law, London, 1896, 322–323.
5 See the judgment of Sir Orlando Bridgman CJ in the great case of Manby v Scott (1662) O. Bridg. 229, 251–252.
6 Johnson v Lawson (1824) 2 Bing. 86, 90.
7 See, e.g. Steel v Houghton (1788) 1 H. Bl. 51, 55 per Lord Loughborough CJ and 63 per Wilson J.
8 Parton v Williams (1820) 3 B. & Ald. 330, 341 per Best J; Ward v Const (1830) 10 B. & C. 635, 653–654 per Parke J.
9 Anon, ‘Railway Litigation: The Nisi Prius Sittings’, 33 Legal Observer (1846), 169.
10 See Readhead v Midland Railway Co (1866–67) L.R. 2 Q.B. 412, 438 per Blackburn J.
11 Tomkins v Willshear (1814) 5 Taunt. 431.
12 George Kenyon, The Life of Lloyd, First Lord Kenyon, London, 1873, 391.
13 Oldham, ‘Law-making’, 227.
14 Anon, ‘Mr Baron Garrow’, 1 Law Review and Quarterly Journal of British and Foreign Jurisprudence (1845), 318 at 326.
15 Lord Kenyon CJ apparently never brought a book with him into a nisi prius court to refer to, a common practice amongst the other judges: William Townsend, The Lives of Twelve Eminent Judges of the Last and Present Century, 2 vols., London, 1846, vol.1, 114.
16 Anon, ‘The Divisional Court Deposed’, 89 Law Times (1890), 302 at 303.
17 Henry Brougham, Historical Sketches of Statesmen who Flourished in the Time of George III, 3rd ser., 2 vols., London, 1845, vol.2, 21–22.
18 Peter Campbell Scarlett, A Memoir of the Right Honourable James, First Lord Abinger, London, 1877, 49.
19 See Taff Vale Rly Co v Nixon (1847) 1 H.L. Cas. 111, 125–126 per Lord Campbell and 127 per Lord Brougham.
20 Anon, 3 The Jurist (O.S.) (1839), 1089.
21 Bright v Eynon (1757) 1 Burr. 390, 393.
22 See the description of Sir John Holker QC in W.D.I. Foulkes, A Generation of Judges, by their Reporter, London, 1886, 123.
23 Henry Bliss, On Practice at Nisi Prius, London, 1864, 61.
24 John Baker, An Introduction to English Legal History, 5th ed., Oxford, 2019, 96–98; W.S. Holdsworth, ‘The New Rules of Pleading of the Hilary Term, 1834’, 1 Cambridge Law Journal (1923), 261, at 266–270.
25 Second Report of HM Commissioners on the Practice and Proceedings of the Superior Courts of Common Law, London, 1830, 46.
26 Preston v Carr (1826) 1 Y. & J. 175, 179 per Garrow B.
27 See, generally, Clare Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914, Aldershot, 2003.
28 J.S. Cockburn, A History of English Assizes 1558–1714, Cambridge, 1972, 53–54, 66–67.
29 George Butt, A Peep at the Wiltshire Assizes, Salisbury, 1819, 42.
30 A problem even for judges sitting at Westminster Hall: Anon, ‘Removal of the Courts from Westminster’, 29 Law Magazine (1842), 162 at 165.
31 Anderson v Shaw (1825) 4 L.J. (O.S) C.P. 53, 54 per Best CJ.
32 This point was made by Henry Brougham in his great 1828 speech to the House of Commons on civil law reform: series 2, vol.18, cols. 232–233, 7 Feb. 1828 (HC).
33 William Wright, Advice on the Study and Practice of the Law: with Directions for the Choice of Books Addressed to Attorneys' Clerks, 3rd ed., London, 1824, 118.
34 Evidence from John Evans, a Welsh Barrister, to a royal commission on the common law courts, recorded in First Report of HM Commissioners on the Practice and Proceedings of the Superior Courts of Common Law, London, 1829, vol.1, 432.
35 Isaac Espinasse, Reports of Cases Argued and Ruled at Nisi Prius, 6 vols., London, 1796, vol.1, iii.
36 Robert Raymond, Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas, 2 vols., London, 1743.
37 John Strange, Reports of Adjudged Cases in the Courts of Chancery, King’s Bench, Common Pleas and Exchequer, 2 vols., London, 1755.
38 J.W. Wallace, The Reporters Arranged and Characterised with Incidental Remarks, 4th ed. rev. by Franklin Fiske Heard, Boston, 1882, 401–403; Lynall v Longbothom (1756) 2 Wils. K.B. 36, 38 per Willes CJ.
39 For example, more than a dozen nisi prius cases from Raymond’s reports were cited in Geoffrey Gilbert, The Law of Evidence, 3rd ed., London, 1769.
40 Francis Elrington Ball, A History of the County Dublin, Dublin, 1902, 52.
41 R v Carlile (1834) 6 C. & P. 636 n.1.
42 Michael Lobban, ‘Espinasse, Isaac (1758–1834)’, Oxford Dictionary of National Biography, 60 vols., Oxford, 2004, vol.18, 604.
43 John Burke and John Bernard Burke, A Genealogical and Heraldic Dictionary of the Landed Gentry of Great Britain and Ireland, 2 vols., London, 1857, vol.2, 1024.
44 C.J.W. Allen, ‘Peake, Thomas (1771?–1837)’, Oxford Dictionary of National Biography, vol.43, 276.
45 Gareth H. Jones and Vivienne Jones, ‘Campbell, John, first Baron Campbell of St Andrews (1779–1861)’, Oxford Dictionary of National Biography, vol.9, 825–830.
46 Mary Scarlett Hardcastle, Life of John, Lord Campbell, 2 vols., 2nd ed., London, 1881, vol.1, 193–211.
47 Ibid., 213.
48 The first formal reference to such a restriction was in an obscurely-reported 1834 bankruptcy decision of Lord Brougham C: Ex parte Hawley (1834) 2 Mon. & Ayr. 426, 435. It was not given official recognition as a rule of practice until a speech of Lord Westbury C in the House of Lords in 1863: John Fraser Macqueen, ed., Speech of the Lord Chancellor on the Revision of the Law, London, 1863, 9.
49 Isaac Espinasse, ‘My Contemporaries: From the Note-book of a Retired Barrister’, 6 Fraser’s Magazine (1832), 417.
50 Isaac Espinasse, Digest of the Law of Actions and Trials at Nisi Prius, 2 vols., 2nd ed., London, 1794. This work was described as in extensive circulation (Anon, 3 Law Journal (1807), 265) and eventually ran to four editions.
51 Francis Buller, An Introduction to the Law Relative to Trials at Nisi Prius, 2nd ed., London, 1772.
52 Espinasse, Digest, 3rd ed., London, 1798, vol.1.
53 Thomas Peake, A Compendium of the Law of Evidence, 1st ed., London, 1801. This ran to five editions.
54 Ibid., 172–179.
55 William Nelson, The Law of Evidence, London, 1717; Gilbert, Evidence: see Henry Horwitz, ‘The Nisi Prius Trial Notes of Lord Chancellor Hardwicke’, 23 Journal of Legal History (2002), 152, at 154–155.
56 Anon (1672), Middle Temple Library MS Treby 2B 717.
57 Baker, Introduction, 95.
58 4 Geo. II, c.26
59 Baker, Introduction, 95.
60 Ibid., 96–97.
61 Michael Lobban, ‘The English Legal Treatise and English Law in the Eighteenth Century’, in Serge Dauchy et al, eds., Juris Scripta Historica XIII: Auctoritates Xenia R.C. Van Caenegem Oblata, Brussels, 1997, 69, at 82.
62 Ibid., 84–85.
63 See, e.g. William Blackstone, Commentaries on the Laws of England, 4 vols., Oxford, 1765, vol.1, 72.
64 Lobban, English Legal Treatise, 84.
65 The claim was originally made by W.T.S. Daniel in The History and Origin of the Law Reports, London, 1884, 265, but was contested by P.H. Winfield in Chief Sources of English Legal History, Cambridge, MA, 1925, 192.
66 Anon, ‘Reports and Reporters’, 9 Monthly Law Magazine (1841), 20, at 26–27.
67 Christopher Brooks, Lawyers, Litigation and English Society since 1450, London, 1998, 36.
68 Hardcastle, Life, vol.1, 214.
69 Cockburn, Assizes, 143.
70 Hardcastle, Life, vol.1, 298.
71 Daniel, History, 268.
72 Ibid., 12–13.
73 Ibid., 402.
74 Thomas Duffus Hardy, Memoirs of Henry Lord Langdale, 2 vols., London, 1852, vol.1, 280.
75 Lord Hanworth, Lord Chief Baron Pollock: A Memoir, London, 1929, 22.
76 The Oracle, 1 May 1795, 7.
77 The Oracle, 4 February 1796, 1.
78 St James’s Chronicle, 10 November 1796, 2.
79 Morning Chronicle, 7 November 1811, 2.
80 Hugh F. Murray, ‘The Late Lord Campbell’, 27 Albany Law Journal (1883), 364, at 366.
81 Hardcastle, Life, vol.1, 298.
82 James Stewart, Suggestions as to Reform in some Branches of the Law, 2nd ed., London, 1852, 82–83.
83 Campbell was not the first to do this. There were some earlier isolated examples (such as Ayliff v Scrimsheire (1689) 1 Show. K.B. 46, Skinner v Kilbys (1689) 1 Show. K.B. 70 and Wilkes v Wood (1763) Lofft. 1) and the practice of doing so throughout a volume of reports was instituted by Henry Clifford in his 1802 reports of Southwark Election Cases.
84 Anon, ‘Law Reporters and Law Reporting’, 100 Law Times (1896), 338.
85 Attributed to Serjeant Storks in William Ballantine, Some Experiences of a Barrister’s Life, London, 1882, 213.
86 Hardcastle, Life, vol.1, 215.
87 Ibid.
88 Ibid, vol.1, 294.
89 Anon, 1 Legal Review (1813), 330 at 332.
90 J.P.T, ‘Modern Common Law Reports of Decided Cases’, 27 Law Magazine and Review (1842), 320, at 335.
91 Michael Cababe and Charles Gregson Ellis, Reports of Actions Tried in the Queen’s Bench Division of the High Court of Justice, London, 1885.
92 Anon, 18 Law Journal (1883), 664: the review was of the first part of those reports, published in 1883.
93 For example, one volume of parliamentary and military cases was produced in 1792, twenty-one volumes of Bail Court cases between 1820 and 1854 and sixteen volumes of ecclesiastical cases between 1822 and 1865.
94 Hardcastle, Life, vol.1, 214.
95 Espinasse, Reports, vol.1, ii–iii. See also F.A. Carrington and J. Payne, Reports of Cases Argued and Ruled at Nisi Prius in the Courts of King’s Bench and Common Pleas and on The Circuit, 9 vols., London, 1825, vol.1, iii–iv.
96 See, e.g. Richard Whalley Bridgman, Reflections on the Study of the Law, London, 1804, 89.
97 Dr Williams’s Library (DWL) Henry Crabb Robinson Archive (HCR). See, e.g. the entries for 1 December 1817 (HCR/1/6), 23 February 1819 (HCR/1/7) and 18 September 1819 (ibid.).
98 Joseph Chitty, The Practice of the Law in All its Departments, 3 vols., London, 1836, vol.3, 7n.(c).
99 See Joseph Chitty, Prospectus of a Course of Lectures on the Commercial Law, London, 1810.
100 Sir George Stephen, Adventures of an Attorney in Search of a Practice, London, 1839, 194.
101 Hardcastle, Life, vol.1, 215–216.
102 Lord Eldon recounted the story of Serjeant Hill, who began his submissions by asking for the Court’s pardon that he had seventy-eight cases to cite, to which Lord Mansfield CJ replied: ‘you can never have our pardon, if you cite seventy-eight cases’: A.L.J Lincoln and R.L McEwan, eds., Lord Eldon’s Anecdote Book, London, 1960, 42.
103 (1826) 5 B. & C. 547, 573–580.
104 In 1911 it was said that there were around 100 nisi prius cases that should be included in a general digest of case law, because ‘there existed no other authority upon the point ruled, and the direction of the Judge was likely to be endorsed’: A.E. Randall, ‘Digest of English Case Law’, 27 Law Quarterly Review (1911), 187, at 189.
105 See, e.g. Folkingham v Croft (1795) 3 Anstr. 700, 701 per MacDonald CB; Garland v Jekyll (1824) 2 Bing. 273, 301 per Best CJ; Hall v Wright (1859) E. B. & E. 765, 781 per Bramwell B.
106 Abraham Hayward, ‘Reports and Statutes’, 4 Law Magazine (1830), 1, at 18.
107 See, e.g. Small v Nairne (1849) 13 Q.B. 840, 844 per Lord Denman CJ.
108 R v The Inhabitants of Eriswell (1790) 3 Term Rep. 707, 711 per Grose J.
109 See, e.g. Doe d Pile v Wilson (1834) 6 C. & P. 301, 306 per Lord Denman CJ.
110 Cited in Francis Buller, An Introduction to the Law Relative to Trials at Nisi Prius, 2nd ed., London, 1772, 137.
111 Many years later Mansfield upheld this ruling in banc: Payne v Bacomb (1781) 2 Doug. K.B. 651.
112 (1810) Wight. 112. See also Berkeley Peerage (1811) 4 Camp. 401; Gomersall v Serle (1827) 2 Y. & J. 5.
113 See, e.g. Duke of Somerset v France (1725) 1 Stra. 654.
114 (1792) 14 East 327n.(a).
115 (1813) 1 M. & S. 679, 687. This judgment was described as ‘remarkable for the light it throws on the history of the Law of Evidence’: Sir James Fitzjames Stephen, A Digest of the Law of Evidence, 1st ed., London, 1876, 148–149.
116 (1850) 15 Q.B. 791, 811–812.
117 Circuit practice would still occasionally be regarded as relevant where there was no authority to support the judge’s view on the evidential issue: see, e.g. Andrew v Motley (1862) 12 C.B.N.S. 514, 532 per Williams J.
118 (1825) M’Cle. & Y. 397. See also Sayer v Garnett (1830) 7 Bing. 103.
119 (1834) 2 Cr. & M. 477.
120 W.F. Finlason, Our Judicial System, London, 1877, vii; see also Smith v Clench (1865) 4 F. & F. 578, 585 n.1. This practice began in the middle of the eighteenth century: David Ibbetson, A Historical Introduction to the Law of Obligations, Oxford, 1999, 161–162.
121 Thomkins v Hill (1702) 7 Mod. 64. It had long been the practice to grant a new trial in the case of misconduct by juries, such as where a member of the jury had previously been a juror in the same cause: see Argent v Darrell (1699) 2 Salk. 648. Since the thirteenth century, a party who objected to the trial judge’s ruling on a point of evidence could include this in a bill of exceptions, but this process suffered from limitations, in particular its non-application to cases to which the Crown was a party: W.S. Holdsworth, History of English Law, 17 vols., 3rd ed., London, 1922, vol.1, 224.
122 Thomas P. Gallanis, ‘The Rise of Modern Evidence Law’, 84 Iowa Law Review (1999), 499, at 509–511.
123 See, for example, Horford v Wilson (1807) 1 Taunt. 12, 14 per Mansfield CJ; Tyrwhitt v Wynne (1819) 2 B. & Ald. 554, 559 per Abbott CJ.
124 Wright v Doe d Tatham (1837) 7 Ad. & El. 313, 330 per Lord Denman CJ, adopting the practice of the Court of Exchequer.
125 John H. Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law, 4 vols., 1st ed., Boston, 1904, vol.1, 26–27. See also Holdsworth, History, vol.9, 222.
126 Wigmore, Treatise, vol.1, 26.
127 John H. Langbein, ‘Historical Foundations of the Law of Evidence: A View from the Ryder Sources’, 96 Columbia Law Review (1996), 1168.
128 Gallanis, ‘Modern Evidence Law’.
129 Stephen Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’, 75 Cornell Law Review (1990), 496.
130 An example was the admissibility as primary evidence of statements made by a party against their interest, on which there were many so conflicting rulings at nisi prius that, according to a leading contemporary treatise, ‘there is probably not one [issue] to be found in the whole law of England, which has caused greater difference of opinion’: W.M. Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law, London, 1849, 396.
131 James B. Thayer, A Preliminary Treatise on Evidence at the Common Law, Boston, 1898, 4.
132 William Twining, ‘The Rationalist Tradition of Evidence Scholarship’, in Enid Campbell and Louis Waller, eds., Well and Truly Tried, Sydney, 1982, 222.
133 See, e.g. Admiralty Commissioners v Owners of the SS Amerika [1917] AC 38, 51 per Lord Sumner; Everett v Griffiths (No.1) [1920] 3 KB 163, 214 per Atkin LJ; Brown v Dagenham UDC [1929] 1 KB 737, 745 per McCardie J.
134 [2020] Ch 621 at [54] and [61] per curiam; [2023] UKSC 4 at [97] per Lord Leggatt.
135 (1800) 3 Esp. 253.
136 Lampleigh v Braithwait (1615) Hob. 105; Walker v Chapman, cited by Buller J in Lowry v Bourdieu (1780) 2 Doug. K.B. 468, 471.
137 Theron Metcalf, ‘Law of Contracts’, 22 American Jurist (1840), 258.
138 Elliott v Richardson (1870) 39 L.J. C.P. 340, 343 (arguendo).
139 [1918] 2 KB 241.
140 [1988] QB 448.
141 Ibid., 458.
142 Marlwood Commercial Inc v Kozeny [2006] EWHC 872 (Comm), at [182].
143 [2004] 2 Lloyd's Rep. 26, at [95] and [101].
144 W. Cornish, S. Anderson, R. Cocks, M. Lobban, P. Polden and K. Smith, Oxford History of the Laws of England, vol. XI: 1820–1914, the Legal System, Oxford, 2010, 768.
145 By s.17 of the Appellate Jurisdiction Act 1876, the trial judge was required finally to dispose of the case, subject to any appeal.
146 Anon, review of Cababe and Ellis, Reports, 2 Gibson’s Law Notes (1883), 381.
147 Cababe and Ellis, Reports, iii.
148 The Revised Reports, 152 vols., London, 1902, vol.67, v.
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Paul Newman
Paul Newman KC is a barrister at Wilberforce Chambers, London and a doctoral candidate at the London School of Economics.