Since 2013, questions were asked:
A judge hears a case and accepts one party’s version. That party provides a convincing submission. The judge lifts, makes some modifications, and circulates as his judgment.
What is wrong with that? Put it another way, does the judge have to re-invent the wheel by paraphrasing the arguments of the parties?
In 2013, the Supreme Court of Canada gave its judgement in Cojocaru v. British Columbia Women’s Hospital and Health Centre [2013] 2 SCR 357:
As a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. However, including the material of others is not prohibited. Judicial copying is a long‑standing and accepted practice, although if carried to excess, may raise problems. If the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision‑making process was fundamentally unfair, in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment can be set aside.
Alain Roussy in his paper Cut-and-Paste Justice: A Case Comment on Cojocaru v. British Columbia Women’s Hospital and Health Centre. 52 Alta. L. Rev. 761 (2014-2015), summarised the principle as follows:
Indeed, the reasons of the trial judge were copied extensively from the submissions of the plaintiffs. For this reason alone, the majority of the Court of Appeal for British Columbia ordered a new trial. The Supreme Court, dealing with the issue of copied reasons for the first time, disagreed. It found that “judicial copying” may not be something to be encourage, but is nonetheless generally fine. It was only when “the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law.”
In the magistrate’s appeal in Lim Chee Huat v. Public Prosecutor [2019] SGHC 132, the High Court judge summarised the general principles:
- … The presumption [of judicial integrity and impartiality] is rebutted if it is shown that a reasonable person would conclude that the judge failed to deal with the issues independently and impartially. In the present case, the issue was not only whether the reasons given by the trial judge were sufficient; this was a complaint about process and whether the presumption of judicial impartiality had been rebutted.
The judge then compared the law regarding judicial copying in Canada, Hong Kong, United States and England and Wales.
See also Tan Weiming. The Perils of Judicial Copying and the Presumption of Judicial Integrity: Lim Chee Huat v. Public Prosecutor [2019] SGHC 132 (2020). Civil Justice Quarterly 39 (1):12-22.
This discussion should be ended with the English Court of Appeal decision in Crinion and another v. IG Markets Ltd [2013] EWCA Civ 587, paras 6 to 10.
Underhill LJ:
The Judge made no changes to that overall structure. He retained all the headings. The changes which he made to the actual text were, broadly, of four kinds.
First, he made the purely mechanical changes necessary to convert submissions into a judgment….
Secondly, he added some short introductory material of a kind which had not been necessary in Mr Chirnside’s submissions. …
Thirdly, he made a number of small verbal changes throughout the text. Some were apparently for stylistic reasons. Others were in the interests of clarity …
Finally, there are some more substantial changes ….
In my opinion it was indeed thoroughly bad practice for the Judge to construct his judgment in the way that he did … For the Judge to rely as heavily as he did on Mr Chirnside’s written submissions did indeed risk giving the impression that he had not performed his task of considering both parties’ cases independently and even-handedly. I accept of course that a judge will often derive great assistance from counsel’s written submissions, and there is nothing inherently wrong in his making extensive use of them … But where that occurs the judge should take care to make it clear that he or she has fully considered such contrary submissions as have been made and has brought their own independent judgment to bear. The more extensive the reliance on material supplied by only one party, the greater the risk that the judge will in fact fail to do justice to the other party’s case – and in any event that that will appear to have been the case… But I have never before seen a case where the entirety of a judgment has been based on one side’s submissions in the way that occurred here.
Sir Stephen Sedley:
Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.
Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done….
Longmore LJ:
- But we trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it. It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.