An Old Question in a New Dress

A judgment is not a lawyer’s brief with the names changed, though it is sometimes difficult to tell the two apart.

Every legal system that prizes reasoned adjudication has had, at some point, to ask the same unglamorous question:

How much of a judgment must actually belong to the judge who signs it?

Hong Kong’s Court of Appeal was asked that question recently, and answered it by setting a judgment aside.

It is not the first court to be asked. It will not be the last.¹ “Appeal court overturns ruling after judge copied lawyer’s submissions”, The Standard (Hong Kong) — the report prompting this piece; the underlying case name and neutral citation are not independently verified and should be confirmed before republication.

The question sounds narrow. It is not. It sits at the meeting point of two related Commonwealth doctrines, developed independently, from opposite directions, without either apparently noticing the other.

The first asks what follows when a judge borrows too much of somebody else’s words.

The second, cultivated in England over two decades with considerably more patience, asks what follows when a judge commits too little of his own reasoning to paper at all.

Each illuminates the other; together they answer the question properly.

The Governing Principle

State it once, plainly, and the rest of this essay is commentary upon it.

A judgment may borrow words without borrowing judgment.

Copying, without more, is not misconduct.

The vice lies elsewhere — in reasons so wholly derivative, or so thin, that no independent judicial mind can be seen to have grappled with the evidence and the law.

On the narrower question of copying, that is the ratio of the modern authority most often reached for, the Supreme Court of Canada’s decision in Cojocaru v British Columbia Women’s Hospital and Health Centre² Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 SCR 357 (per McLachlin CJ for a unanimous Court) — cited from recollection of the reported reasons; the primary text has not yet been sourced and should be checked before publication. .

On the broader question of thin reasoning, it is the accumulated teaching of three decisions of the English Court of Appeal, spanning very nearly a generation.

A Trial Ten Weeks Long

The trial in Cojocaru occupied ten weeks of court time.

It concerned a birth injury, a hospital, and the doctors who had attended the delivery, and it produced, in the fullness of time, a judgment running to hundreds of paragraphs finding for the plaintiffs.

Defence counsel compared the judgment with the plaintiffs’ own written closing submissions.

They found that some three hundred and twenty-one of its paragraphs matched those submissions almost verbatim — down, in at least one instance, to a shared typographical error.³ Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital, 2009 BCSC 494, being the trial decision under appeal.

The British Columbia Court of Appeal took the view, understandably, that this would not do.

It set the judgment aside and ordered a new trial, holding that a reasonable observer, confronted with reasons so thoroughly derived from one party’s own advocacy, could not be satisfied that the trial judge had performed his task independently.

The Supreme Court of Canada took a different view, and restored the judgment at first instance.

The reasoning bears repeating, because it is the whole of the doctrine in miniature:

Copying, by itself, disqualifies nothing.

What matters is whether the reasons, however they came to be composed, disclose a judge who has independently found the facts, weighed the credibility of witnesses she alone observed, and applied the governing law to reach the result she reached.

The pen may have moved in more than one hand.

The mind, the Court insisted, need not have.

England’s Answer to a Neighbouring Question

England never developed a doctrine of judicial copying as such. It developed something wider, and arguably more exacting: a duty to give adequate reasons at all, irrespective of whose words eventually carry them.

Three decisions trace its growth, and each rewards being read in full rather than taken on trust.

The doctrine begins, appropriately enough, with cracks in a wall. ‘

In Flannery v Halifax Estate Agencies Ltd, a valuer had been sued for negligently reporting no structural movement in a flat that later proved to be affected by it.

At trial the case turned entirely on a contest between two experts.

The judge, having heard both, said simply that he preferred the defendant’s witness, and offered nothing further.

The Court of Appeal allowed the appeal on that ground alone, and ordered a retrial.⁴ Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA), 381-382 (Henry LJ).

Henry LJ’s four propositions in that judgment became, in time, the doctrine’s foundation.

A losing party is entitled to know why it lost.

The duty to explain concentrates the judicial mind, and a decision arrived at under that discipline is the more likely to be soundly based for it.

A straightforward contest of credibility may require little beyond a stated preference; an intellectual contest — expert against expert, argument against argument — requires the judge to enter the issues and explain the choice made between them.

“Transparency”, he wrote, “should be the watchword.”⁵ Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA), 381-382.

Three years later, in English v Emery Reimbold & Strick Ltd, the Court of Appeal, in a judgment delivered by Lord Phillips MR, confirmed that the common law’s own duty already matched what Article 6 of the European Convention required, and refined the test accordingly:

A judgment need not account for every factor that weighed with the judge, but it must identify the issues vital to his conclusion and explain how each was resolved, so that the losing party — and any court sitting in review — can follow the reasoning to its end.⁶ English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, at [19] (Lord Phillips MR).

Sixteen years later, the doctrine encountered a case rather more colourful than cracked plaster.

A Scheme in Thirteen Pages

Simetra Global Assets Ltd v Ikon Finance Ltd concerned investors who claimed to have been the victims of a Ponzi scheme, and a finance company they accused of dishonestly confirming account balances it knew to be fictitious.

The evidence at a thirteen-day Commercial Court trial included correspondence of a candour rarely preserved in a law report.

One conspirator thanked another for a particularly useful letter of confirmation:

“Don’t have enough words to thank you my man! US$250m maybe is enough … he heh.”[mfn] Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112, at [78]. [/mfn] A later letter, in the same vein, was described as “the Key to the Kingdom”.

The trial judge dismissed the claim in a judgment of only thirteen pages.

He had copied nothing from anyone — the failing here ran the other way.

He offered no chronological account of the facts, made almost no reference to the contemporary documents that dominated the trial, and left it genuinely unclear whether he considered the scheme’s architect dishonest or merely careless.⁷ Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112, at [50]-[51], [139]-[143] (Males LJ).

Males LJ, allowing the appeal and — with evident reluctance — ordering a retrial before a different judge, distilled two decades of authority into four working propositions, each worth keeping close at hand.

Succinctness is as desirable in a judgment as it is in counsel’s own submissions, but a short judgment must still be a careful one.

A judge need not address every point raised, but must say enough to demonstrate that care was taken.

The surest way to demonstrate that care is to identify the issues, marshal the evidence bearing upon them, and explain why the principal evidence was accepted or rejected.

And a judge must, in particular, confront evidence that appears compelling and runs the other way, and say why it does not persuade.[mfn] Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112, at [46]-[47] (Males LJ). [/mfn]

Two Doctrines, One Question

Set Cojocaru beside the English line and a single Commonwealth principle emerges, reached from two directions that never converge on paper but converge in substance.

Wholesale, unexamined adoption of a party’s submissions may leave a judgment unable to show engagement with the case actually tried.

So may a judgment simply too brief to show engagement with anything at all.

Neither vice is truly about word count, and neither is truly about authorship.

Both are about whether the losing party, and the court that reviews the decision, can see that the judge did the work the office requires.

Malaysia has not yet produced a reported decision squarely testing either question, so far as the available record shows.

That silence deserves to be noted rather than smoothed over.

When the question is tested — and questions of this kind are eventually always tested — this is the framework a Malaysian court would most naturally reach for.

The Case for the Judges

Fairness requires the opposing case to be put at its strongest, and it is a real one.

Judges carry lists that would break a less disciplined mind.

Good counsel write good submissions, carefully structured and thoroughly researched, and there is no discredit in a busy judge adopting sound analysis rather than reconstructing it from nothing.

Nor is brevity itself a vice — Males LJ said as much, in terms: succinctness is as desirable in a judgment as it is in counsel’s own submissions.

Three answers meet that case, and each does real work.

First, efficiency is not the offence here; abdication is.

To borrow language, or to write briefly, is not the same act as failing to think.

Second, the missing ingredient is never mysterious.

A judgment that identifies the issues, marshals the evidence bearing on them, and explains why the principal evidence was accepted or rejected carries its own proof of an engaged mind, whatever its length and whatever its parentage.

Third, a judgment lacking all of that — whether because it reads as somebody else’s argument restated in the first person, or because it simply says too little — invites precisely the doubt that the Hong Kong Court of Appeal and its English counterpart, on entirely different facts a hemisphere apart, each independently entertained.

The Better View

It is submitted that the Commonwealth has reached the correct answer from both directions, and for a single underlying reason.

A rule striking down every judgment that shows textual overlap with a party’s submissions would punish clear, disciplined advocacy and reward the vague.

A rule tolerating any degree of brevity or borrowing, however extreme, would let the judicial function dissolve into a formality.

The functional test threads that needle with some elegance.

It asks the only question that ultimately matters: did the judge think, whatever the length of the document, and whatever the origin of its prose?

What Follows From It

Three practical propositions follow for those who appear before the courts, and they bear repeating at the close of any hearing.

Draft every submission as though it might, one day, become the judgment itself — because in a crowded list, it occasionally does. Precision is not merely a courtesy extended to the bench; it may be carrying more of the eventual reasoning than is generally supposed.

If a judgment reads suspiciously like an opponent’s closing argument, or suspiciously like very little at all, the same fingerprints are worth searching for either way: an identification of the issues, a marshalling of the evidence, and an engagement with the strongest point on the losing side.

And where those fingerprints are genuinely absent, the complaint should be raised as what it truly is — inadequacy of reasons, argued upon the authorities set out above — and never as a personal accusation against the judge who wrote, or failed to write, them.

What happens next, to the judgment, and separately to the judge who signed it, is a question this essay leaves to its sequel.

 

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This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Junior Verhelst of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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