Judge copied ‘almost all’ his decision

Posted: 29th May 2013

In the context of a £1.8 million debt recovery claim, a senior judge has been heavily criticised by the Court of Appeal for lifting the vast majority of his judgment, word for word, from one of the parties’ closing submissions. Observing that ‘appearances matter’, the court noted that such heavy reliance by a judge on written arguments drafted by one party’s lawyers was ‘unacceptable’ and must not happen again.

In finding for a city broking company (the claimant) in respect of debts run up by a father and son (the defendants) who invested heavily in ‘contracts for difference’ derivatives, the Mercantile Court judge had taken ‘almost all’ of his judgment from the written submissions put before him in digital form by the claimant’s lawyers.

RCJDespite a number of small changes to the text, the overall impression was that the judge’s decision was ‘derived almost entirely’ from the document. The judge had entirely adopted the structure of counsel’s submissions and it had been calculated that, when setting out the facts of the case, he had used ‘some 94%’ of the words originally drafted by the claimant’s legal team.

Remarking that the defendants had been left with the understandable impression that the judge had not engaged with their case, Lord Justice Underhill said: “In my opinion, it was indeed thoroughly bad practice for the judge to construct his judgment in the way that he did."

Although there was ‘nothing inherently wrong’ in judges placing substantial reliance on counsel’s written arguments, the judge added: "I have never before seen a case where the entirety of the judgment has been based on one side's submissions in the way that occurred here".

Sir Stephen Sedley added: "The possibility of something approaching electronic plagiarism is new and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge's true thinking, it reflects poorly on the administration of justice...appearances matter…I hope that a judgment like this one now before us will not be encountered again".

Those criticisms will come as little comfort to the defendants after the court ruled that the judge had reached a justifiable conclusion on the evidence. Dismissing their appeal, the court ruled – ‘not without some hesitation’ – that the judge had ‘performed his essential judicial role’ and that the reasons for his decision were ‘sufficiently apparent’ from his judgment.