Electronic plagiarism? The dangers of the cut-and-paste

26 May 2013 by

CutandPasteCrinion v. IG Markets [2013] EWCA (Civ) 587  read judgment

and R (o.t.a. Mustafa) v. The Office of the Independent Adjudicator, Queen Mary College Interested Party [2013] EWHC 1379 (Admin) read judgment

A judge hears a case and accepts one party’s version. That party provides a convincing closing speech (in a Word document) which the judge lifts, makes some modifications, and circulates as his judgment. 

What is wrong with that? Put it another way, does the judge have to re-invent the wheel by paraphrasing the arguments of the parties?

What is wrong is the appearance that the judge has not really engaged with the arguments of the losing party – as the Court of Appeal emphatically pointed out in their judgment.

My second case reminds us what happens when students do this.

The facts of the first case matter little. A father and son came up with differing accounts as to why they should not be liable for some “contracts for difference” trading with IG Markets which had gone horribly wrong – to the tune of over €2m. The son said that he had not authorised his accounts to be opened – his father had done it all. The father said his accounts were really trading by a company, not by him personally. Counsel for IG Markets did an effective demolition job on the credibility of both Crinions, and the judge accepted it.

The problem came is how the judge accepted it. He took counsel’s Word file of his closing, and tweaked it. On appeal the Crinions demonstrated that 94% of the content was lifted from counsel’s submissions. Hence, they said, justice had not appeared to have been done. The judge had not explained why he had dismissed their defences. All he had done was to copy out why the other side said they were wrong.

The Court of Appeal were unsparing in their criticism of this. Excuse the cut-and-paste, but according to Underhill LJ

In my opinion it was indeed thoroughly bad practice for the Judge to construct his judgment in the way that he did….. For the Judge to rely as heavily as he did on [counsel’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….. 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. …. 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.

Or Sir Stephen Sedley:

Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.

Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done.

Or Longmore LJ:

But we trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it. It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.

So what the Court do on this appeal? They dismissed it. They thought that there was just about enough of the judge’s own material to suggest that he had engaged with the defendant’s arguments. But it is plain that they thought it was a “damn close run thing”

Mr Mustafa, the Masters student at QMC in the second case, did rather less well; he  tried to get a finding of plagiarism reversed by the Independent Adjudicator. Males J, after commencing his judgment on a judicial review from this refusal thus:

The Harvard academic and songwriter Tom Lehrer recommended plagiarism as the route to academic success, wealth and fame, but his tongue was firmly in his cheek,

proceeded to decide that

(a) most questions of plagiarism involved some degree of academic judgment;

(b) where such judgment arose there was no recourse to the Independent Adjudicator;

(c) academic judgment arose on the facts because it was not clear from Mr Mustafa’s work where attributed quotation ended, and his own work began;

(d) Mr Mustafa had no recourse to the Adjudicator.

For those interested, there is a very helpful review at [40]-[48] of the judgment, summarising the cases in which the circumstances in which one can and cannot seek review of university decisions before the Adjudicator.

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  1. Prof R Provost says:

    The Supreme Court of Canada decided exactly the opposite last week, in a unanimous judgment: http://www.canlii.org/en/ca/scc/doc/2013/2013scc30/2013scc30.html:
    “As a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. However, including the material of others is not prohibited. Judicial copying is a long‑standing and accepted practice, although if carried to excess, may raise problems. If the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision‑making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment can be set aside.”

  2. Graham Milne says:

    English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605 (30th
    April, 2002)
    URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/605.html

    at 6:

    ‘But where the dispute involves something in the nature of an
    intellectual exchange, with reasons and analysis advanced on either
    side, the judge must enter into the issues canvassed before him and
    explain why he prefers one case over the other.’

    Similarly, the tribunal is under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Kraska v Switzerland (19 April 1993) and Bulgakova v. Russia (18 January 2007), paras 33-44).

  3. According to the(ignored) argentine law 23.187 no lawyer can represent opposite interests (both parties). Apqrt,if a judge ignores one party is in fact commiting prevaricate, which is a crimme. Very fashionable nowadays.

  4. Lofthouse Jnr. says:

    Allegations of academic plagiarism tend to involve lecturers running essays through SEO tools like http://smallseotools.com/plagiarism-checker/ but these rely on other content being posted on the internet (like the ‘dodgy dossier’ was)

    1. Lofthouse Jnr. says:

      ..any similar judgements that were not available online would just slip through the net…I’d wager there had been thousands in the past…

  5. A100plus says:

    one should see how in Spain the “press releases” of the Police are copied and pasted in its entirety (typos included) by the press. In another 6 to 9 months an interesting case will come up – where the prosecutor’s demand for condemnation will be published 72 hours before the jury is formed. Watch Strassbourg on that one :-) in another 3 or 4 years …

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