"I thank counsel for their helpful submissions"

Kevin Glover                 As an advocate you want the Judge to understand your client's position and, ideally, find in their favour. It is uplifting to read a passage of a judgment where the Court has agreed with your argument and adopted it in the judgment, and in fact some advocacy experts susggest that submissions should be prepared so that the Judge can use them as a basis for judgment.

By Kevin Glover, Barrister

As an advocate you want the Judge to understand your client’s position and, ideally, find in their favour. It is uplifting to read a passage of a judgment where the Court has agreed with your argument and adopted it in the judgment, and in fact some advocacy experts suggest that submissions should be prepared so that the Judge can use them as a basis for the judgment.

A recent decision from the English Court of Appeal, however, illustrates the danger of this approach being taken too far, at least by a Judge.

Crinion v IG Markets Limited

The appeals in Crinion v IG Markets Limited [2013] EWCA Civ 587 were brought after His Honour Judge Simon Brown QC found for the claimant IG Markets in debt proceedings. 

The claim had been brought in the Birmingham Mercantile Court, which is part of the Queen’s Bench Division of the High Court. Declan Crinion represented himself while the other defendant, Tommy Crinion (Declan’s father), and the claimant were both represented by counsel.

The Crinions’ defences to the debt claims were not successful and the Court ordered that Declan pay the amount of €1,386,045 and that Tommy pay €824,074.

The Crinions appealed those decisions, but rather than being based on the underlying merits of the claim the appeals were based on the fact that almost all of the Judge’s judgment was taken word-for-word from the written closing submissions of IG Markets’ counsel.

The appellants argued that the approach taken by the Judge meant that his judgment could not stand, since there had been a serious procedural irregularity causing the decision to be unjust (in terms of Civil Procedure Rule 52.11(3)(b)).

How the judgment was written

As noted by the Court of Appeal, in granting leave to appeal Ward LJ had described the submissions as being “cut-and-pasted” into the judgment. 

In fact what happened was that the Judge took the submissions (the Word file which he had been sent) as a first draft and revised that particular file to include some (“though not much”) of his own drafting.

The Court of Appeal went through the various changes made by the Judge, but noted that the judgment bore a fundamental resemblance to the submissions:

“...the overall impression on comparing the two documents is that the [judgment] is derived almost entirely from the [submissions].The Appellants have calculated that (ignoring the passage on the evaluation of evidence) some 94% of the words of the judgment represent Mr Chirnside’s drafting – and there is no alteration whatever to the structure.

“The Appellants point out that in the “properties” file in the Word version of the judgment the “author” is shown as “SChirnside”. That may be something of a debating point, but the Appellants say that it reflects the reality.”

What the appellants argued

Perhaps understandably, the Crinions objected to this approach. This was for two reasons:

(1)  It created the impression that the Judge had abdicated his core judicial responsibility to think through for himself the issues which it was his job to decide, and that he had simply slavishly adopted the arguments of the claimant’s counsel as his own.

(2) The Judge failed to address the defendants’ case in any adequate way. The full and thorough written submissions of the defendants had not been dealt with in the claimant’s submissions (since they were exchanged rather than filed consecutively), and this meant that the Judge had not discharged his obligation to address at least the central arguments raised by the losing party and to explain why they were rejected.

The Court of Appeal’s findings

Lord Justice Underhill in the Court of Appeal described it as “thoroughly bad practice” for the Judge to construct his judgment in the way that he did:

“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, with proper acknowledgement, whether in setting out the facts or in analysing the issues or the applicable legal principles or indeed in the actual dispositive reasoning.

“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 Court of Appeal reviewed each aspect of the High Court’s judgment and ultimately reached the conclusion (although “not without some hesitation”) that the Judge performed his essential judicial role in the case and that his reasons for deciding the dispositive issues were sufficiently apparent. On that basis it declined the appeals.

Lord Justice Underhill noted that the appeals were limited to whether the appellants’ cases had been considered, rather than the merits. Underhill LJ observed that in the course of the review there was nothing which led him to think that the Crinions ever had a real defence to the claim.

Comment

Judgments are given in order to bring finality to disputes. Longmore LJ noted in a short concurring judgment that failure by a Judge to demonstrate engagement with the material makes it difficult for an appellate court, but is also likely to lead to dissatisfied losing parties:

“In these days of written final submissions and computer literacy it must be tempting for a judge who has formed a clear view of a primarily factual dispute to frame his judgment by lifting large parts of the written submissions of the party he has decided should win and incorporating them in his judgment.

“But to do so without (or with only minimal) acknowledgment and without making reference to the submissions made by the other side inevitably leaves a deep sense of grievance with the losing party. He or she will understandably feel that the judge has never properly engaged with the case when forming his judgment.”

It is for this reason that some Judges prepare judgments as a letter of explanation to the losing party rather than a letter of congratulation to the victor.

The interests of justice are served by parties accepting that they have had their day in court and their claim or defence understood, so that they can move on with their lives even if they do not agree with the substantive decision.

Kevin Glover practises as a barrister from Shortland Chambers in Auckland. He works in the area of civil and commercial disputes, with specialist expertise in intellectual property matters. His website is www.iplawyer.co.nz.

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