Citation and the Oxford Standard for the Citation of Authorities

Legal writing generally involves discussing authority, in the form of case-law or statutes. To make this easier, lawyers have developed a system of citation — a shorthand system for identifying authorities.

So we write ‘Miles v Gilbank [2006] ICR 1297′ rather than ‘the case of Ms Miles against Ms Gilbank reported in the 2006 volume of the Industrial Cases Reports at page 1297.’ The shorthand is briefer and clearer than the long form.

The basics of case citation are straightforward. Even if you have never encountered it before, you probably know 95% of what you need from the example above. The name of the case (conventionally in italics) is followed by the year it was reported (in square brackets) then the standard abbreviation of the law report it was reported in and finally the page number.

There are, however, all sorts of complexities. How does one refer to an Advocates General’s Opinion in a European Court of Justice case? What is the proper way of providing a ‘pinpoint’ citation (a reference to a particular page or paragraph in a case)?

Similarly, references to legislation are generally straightforward. We refer to the Employment Rights Act enacted in 1996 as the Employment Rights Act 1996. But how should one reference a rule in the Civil Procedure Rules or pre-1972 European Union legislation (which did not have an official English translation)?

To answer that sort of question, we need a formal system of citation. For UK lawyers, this is the Oxford Standard for the Citation of Authorities. This sets out a set of rules for how to cite any authority you are likely to refer to.

Nothing even mildly awful will happen to you if you don’t follow the Oxford Standard. Many Judges and lawyers do not. They manage perfectly well with a mixture of habit and common sense. And, even if you don’t use a citation system at all, provided the tribunal can work out what case you are talking about, it will make no real difference. These are all points of detail.

But the OSCOLA is useful for two reasons. First, it provides a consistent and well known system. If you follow it, you will use the same approach on page 57 of your skeleton argument that you did in your notice of appeal. That approach will be one that the tribunal will be familiar with and will therefore find easy to understand. Second, it allows you to delegate something quite hard. The authors of the Oxford Standard have spent a long time working out a good legal citation method, so you don’t have to.

OSCOLA, however, is primarily designed for academic lawyers, rather than practitioners. In general, this makes no difference. But there are a few points where you may wish to diverge from it.

Where to put the citation

The Oxford Standard provides a simple answer to this:

OSCOLA is a footnote style: all citations appear in footnotes. OSCOLA does not use endnotes or in-text citations.

Outside of blog posts and letters, I put all citations in footnotes. But many lawyers do use in-text citations (in fact, they are probably somewhat more common than footnotes). I think footnotes are better. They keep the reference out of the way, but easily accessible. But if you prefer in-text citation you will be in good company.

Neutral citations and the ‘best report’

The Oxford Standard includes the neutral citation for a case and requires that you use the ‘best report.’

The neutral citation is a reference, set by the court, that identifies each case by reference to the year of judgment, the relevant court and the judgment. It is neutral, in that it does not refer to any particular set of law reports.

The concept of ‘best citation’ arises from the unofficial hierarchy of law reports. At the top are the Law Reports, produced by the Incorporated Council of Law Reporting. They include the arguments made to the court as well as the judgment, and both the lawyers and the judge see the report before it is published to confirm its accuracy. Partly for these reasons, and partly out of tradition, they are regarded as the senior reports. Below them are the All England Law Reports and the Weekly Law Reports. And then the specialist reports, such as those relating to employment cases. Finally, there are the condensed reports, which contain a summary of the decision, such as the Times Law Reports.

I, in common with most employment practitioners, ignore both of these rules. During litigation, copies of the relevant cases will be provided by the parties. So there is no need for a neutral citation. Also, like many employment practitioners, I have easy access to the Industrial Cases Reports and the Industrial Relations Law Reports. Getting the other law reports means a trip to a library. Even if I did have the other reports at my fingertips, others involved in a case might not. So it is easier to stick to the specialist reports.

It is conventional to cite the Industrial Cases Reports in preference to the Industrial Relations Law Reports where a case is available in both. I follow this rule, but it is not worth worrying about if it is easier to get the IRLRs.

SI Numbers

The Oxford Standard includes the SI number when referring to statutory instruments. For example, ‘National Minimum Wage Regulations 1999 SI 1999/584.’

I don’t, because, like the neutral citation, it is unnecessary in litigation. Legislation is either in Butterworths or a copy is provided by one of the parties.

Latin Gadgets

The Oxford Standard advises against ‘gadgets’, the fragments of latin used in academic footnotes.

They make an exception for ‘ibid’, which means ibidem, which means ‘in the same place’. It can be used to repeat the immediately previous citation. So, if a footnote reads ‘Marks and Spencer v Williams-Ryan [2005] ICR 1293,’ and I wanted to refer to a particular page of that case in the next footnote I could write ‘ibid 1306’ rather than writing the full reference.

I don’t like ‘ibid,’ because it strikes me as either fussy or unclear. If it is obvious that I am still writing about the same case, I simply write ‘1306’ or possibly ‘p1306.’ If I’m concerned that it might not be obvious, it’s better to repeat the reference in full to avoid any confusion.

They also make an acception for ‘cf’, meaning confer, meaning compare. I’ve never encountered a situation in practice where it would be sensible to use this.

Paragraph numbers and the pilcrow

The previous points arise primarily from the difference between academic writing and writing in the context of litigation. But this final point is purely personal preference.

The Oxford Standard cites paragraphs in two different ways.

In pinpoint citations, it used square brackets, for example, Hussain v Acorn Independent College Ltd [2011] IRLR 463 [31]-[32]. Elsewhere, for example, where referring to an article or book, it uses the abbreviation ‘para’, for example, ‘Naomi Cunningham and Michael Reed, Employment Tribunal Claims: Tactics and Precedents (3rd edition, Legal Action Group 2010), para 8.43.’

I find this inconsistent and I don’t like either method. Using square brackets for both the year and the paragraph looks odd to me, and the use of two sets of square brackets to show a range of paragraphs looks ugly. ‘Para’ is fairly unobjectionable, but takes up too much room.

In any event, I think there is a better way — the pilcrow (¶) — a convenient typographical character used, among other things, to indicate a reference to a paragraph. So I would write Hussain v Acorn Independent College Ltd [2011] IRLR 463 ¶31-32. This, to my eye, looks better and it’s shorter (6 characters, compared with 9 using either square brackets or ‘para’).

I suspect one of the reasons that the pilcrow is not used is that people don’t know how to produce one on their wordprocessors. If you are using a mac, the keyboard shortcut is alt-7; if you are using windows, it is alt + 0182.