Lord Justice Underhill :
Although I have thought it right to go into some detail in explaining what changes the Judge made to Mr Chirnside’s document in creating his judgment, it is important not to lose sight of the fact that the overall impression on comparing the two documents is that the latter is derived almost entirely from the former. 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.
It is the Appellants’ case that those failures by the Judge mean that his judgment cannot stand. In the terms of CPR 52.11 (3) (b) there has been a serious procedural irregularity causing the decision to be unjust. Mr Cherry has steadfastly refused to get drawn into any argument about whether the Judge’s decision was in fact right on the merits. He says that it would be wrong in principle to do so if, as he contends, the Judge’s approach to the whole exercise was flawed.
In my opinion it was indeed thoroughly bad practice for the Judge to construct his judgment in the way that he did, essentially for the reasons given by Mr Cherry. Mr Bob Moxon Browne QC, for the Respondent, submitted that if the Judge accepted the entirety of Mr Chirnside’s submissions, as he evidently did, and believed that they were well expressed, there could be nothing objectionable in his adopting them as the basis of his judgment; to set out to paraphrase them would be a wasted labour. I do not accept that submission. I agree with Mr Cherry that appearances matter. 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, 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 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. An example of a case where “plagiarism” from one party’s submissions was fatal is English v Royal Mail Group Ltd (UKEAT/0027/08), a decision of the Employment Appeal Tribunal, Bean J presiding; and I had occasion to criticise a similar approach in another EAT case – see Newcastle-upon-Tyne Hospitals NHS Trust v Armstrong  ICR 674, at para. 46 (pp. 695-6). 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.
However, to say that the judgment was defective, even seriously so, is not necessarily to say that there has been an injustice which requires the appeal to be allowed. The judgments in the three cases considered by this Court in English were very seriously defective, but the Court was able in the end, by careful analysis of the judgment in the context of the evidence and submissions made, to satisfy itself that the judge had in each case properly performed his or her judicial function. Likewise in this case, if it is possible to demonstrate that, whatever the first impression created by the way he constructed his judgment, the Judge did in fact carry out a proper judicial evaluation of the essential issues and did not simply surrender his responsibility to counsel, then the judgment should stand. This involves no qualification of the principle that justice must be seen to be done; but in deciding whether that is so it is necessary, at least in a case like this, to go beyond first impressions.
In the end, and not without some hesitation, I have come to the conclusion that the judgment in this case does show, when examined carefully in the context known to the parties, that the Judge performed his essential judicial role and that his reasons for deciding the dispositive issues in the way that he did are sufficiently apparent. I take the sections of his judgment in turn.
David Cormack – Brisbane Barrister