Judicial Plagiarism OK If Not Excessive

Two decisions in one week on 'judicial plagiarism'. At home, Cojocaru v British Columbia Women's Hospital and Health Centre, 2013 SCC 30, a medical malpractice case. The Chief Justice, for her fellow Supremes, held that while judicial copying is 'a longstanding and accepted practice', it cannot be taken to the point where a reasonable member of the public, apprised of the circumstances, would conclude that a judge had, in reproducing or incorporating large portions of counsel's submissions, abdicated the judicial function. It will be difficult, however, to show that a judge has not acted with the presumed integrity and impartiality. On the Cojocaru facts, it was plain that the trial judge had adopted a great deal of the plaintiff's brief in his decision, but had also rejected some significant aspects. The judgment in favour of the plaintiff could not, then, be set aside for excessive judicial copying. There were, however, bigger problems: the judge had made a palpable and overriding error in his analysis of the causation of the infant plaintiff's injuries in finding the doctor liable. The judge did not screw things up, though, in determining that the doctor was liable for failing to obtain the informed consent of the plaintiff's mother or in his assessment of the quantum of the plaintiff's damages.

​Meanwhile in another part of the forest, the English Court of Appeal addressed similar issues in Crinion v IG Markets Ltd, [2013] EWCA Civ 587. There, the trial judge in an action on an allegedly unauthorised debt to a securities dealer had largely adopted the closing submissions of the dealer's counsel as his judgment. The judge added a little prefatory material of his own, as well as making some 'mechanical changes' to make the submissions look more like a decision and some stylistic edits. There were also insertions of substance. While counsel had provided 'an excellent piece of work' and the...