Trawling for case law

Those of us who work in the legal profession, or interact with it regularly, are mostly familiar with the ‘legal update’ documents that many law firms produce. Nowadays these documents tend to be available online or emailed to a circulation list. Or they are found through a commercial aggregator such as Lexology, whose daily offerings pop into IP Draughts’ inbox early each morning.

Often, IP Draughts finds that these articles are of limited interest. So much English case law is now available online, eg through the excellent and free BAILII, that cases of very little importance are trumpeted as major news. Law firms need to get better at filtering their case reports. And they also need to get better at explaining the context of the case, and why the reader should care about it. Just because a lot of money is at stake, and parties have thrown every legal argument they can think of at the judge, doesn’t make it a landmark case.

The real “added value” that a law firm could bring to these reports is an editorial one of explaining the longer term significance of the case, eg in the development of legal principles. It seems as though many of these case reports are produced by a lowly researcher or support lawyer, when really they should be issued in the name of a leading practitioner within the firm, whose commentary can be trusted. But of course, this costs more in time and judgment than simply churning out a case summary.

IP Draughts tries to keep abreast of the BAILII reports, but doesn’t have the time or interest to read every case that is reported. A quick scan today revealed nothing that seemed to raise important issues for IP contracts. But without reading every case you just don’t know. The titles of the cases aren’t necessarily conclusive, but he applies his own, rough-and-ready filtering system. For example, he tends to avoid those that name an individual and the Home Office as parties – these cases are more likely to be about immigration than commercial law. Cases in the Commercial Court should, in principle, be of interest, but often they concern procedural issues such as whether the English court has jurisdiction, or whether an arbitrator’s decision should be enforced.

Today on BAILII, he spotted a case called Bubbles & Wine Limited v Lusha, but it wasn’t a dispute between someone who likes a drink and his supplier. Nor was the case of Reynard v Fox an Anglo-French dispute between small-to-medium sized, omnivorous mammals. And he was disappointed to see that in the case of Fish & Fish Ltd v Sea Shepherd UK, neither party had instructed Bird & Bird as their solicitors. Ah, the joys of legal research.