Crinion & Anor v IG Markets Ltd

The Appellants in this case are father and son. The son, Declan Crinion, opened three accounts with the Respondent, one in his own name and one in that of his father, Tommy Crinion, to enable him to conduct CFD – that is, contracts for differences – trading, and he proceeded to operate those accounts over several months from late 2008 to early 2009. Very substantial debts were run up on all three accounts and the Respondent commenced proceedings for their recovery in the Birmingham Mercantile Court.

The claims were tried together before HH Judge Simon Brown QC. The Claimant was represented by Mr Stewart Chirnside, and Tommy Crinion by Mr James Stuart, both of counsel. Declan Crinion appeared in person. There was a carefully drafted list of issues under fourteen headings – seven common to both claims, four peculiar to the claim against Tommy Crinion and three peculiar to the claim against Declan Crinion. For reasons which will appear, I need not analyse the issues in detail. Very broadly:

The evidence was heard between 8 and 11 November 2011. Both Appellants gave evidence, and the Respondent called one current and one former employee. The case was then adjourned to 13 December for oral submissions, with counsel being invited to submit written submissions in the meantime, as both did. Following that hearing the Judge reserved his judgment, which was formally handed down, having been pre-circulated in the usual way, on 26 January 2012. He upheld the claims in full, giving judgment against Tommy Crinion in the sum of €824,074.18 and against Declan Crinion in the sum of €1,386,045.03. The counterclaims were dismissed. Following submissions at the hand-down hearing he also made orders for costs against the Appellants, on the indemnity basis, and for interest.

The present appeals, for which permission was given by Ward LJ at a hearing, have nothing to do with the merits of the underlying claims. They are based solely on the fact that almost all of the Judge’s judgment is taken word-for-word from Mr Chirnside’s closing submissions. Ward LJ referred to them being “cut-and-pasted” into the judgment, but that does not quite accurately describe what happened. It is in fact apparent that the Judge proceeded by taking Mr Chirnside’s submissions – that is, the Word file that he had been sent – as, in effect, his first draft and revising it to include some, though not much, material of his own drafting. I need to explain what modifications he in fact made.

I start by setting out the structure of Mr Chirnside’s submissions. There was a short section headed “Introduction”: this, among other things, reproduced the agreed issues. There was then a long section headed “Background Facts”, setting out, in effect, the findings of fact which the Judge was invited to make about the underlying facts of the transactions. That was followed by a section containing fairly detailed submissions on the reliability of the various witnesses. Finally Mr Chirnside addressed in turn each of the fourteen agreed issues, setting out the Claimant’s case. The analysis is thorough and carefully structured. Overall, the submissions, which ran to over sixty pages and 163 paragraphs, are, if I may say so, an excellent piece of work.

The Judge made no changes to that overall structure. He retained all the headings. The changes which he made to the actual text were, broadly, of four kinds.

First, he made the purely mechanical changes necessary to convert submissions into a judgment. Apart, of course, from changing the title from “Written Closing Submissions” to “Judgment” and deleting Mr Chirnside’s name at the end, he at numerous points deleted the words “it is submitted that”, so that the substance of the submission in question became his own finding or conclusion; or he made similar changes having the same effect.

Secondly, he added some short introductory material of a kind which had not been necessary in Mr Chirnside’s submissions. Four of the first five paragraphs of the judgment are of this kind; but they are extremely short.

Thirdly, he made a number of small verbal changes throughout the text. Some were apparently for stylistic reasons. Others were in the interests of clarity: for example, when witnesses are named in Mr Chirnside’s document, the Judge adds their job titles. One or two changes add emphasis: for example, Mr Chirnside had referred to a “late change” in Tommy Crinion’s case, to which the Judge prefaces the word “very”.

Finally, there are some more substantial changes. I can summarise these as follows:

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.

The criticisms made by Mr John Cherry QC and Mr Stuart on behalf of Tommy Crinion (which are adopted by Declan Crinion, who has represented himself) of the way in which the Judge constructed his judgment are essentially under two heads, though the two are closely related.

First, they submit that for the Judge to base his judgment to such an extent on Mr Chirnside’s submissions creates the impression that he 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 Mr Chirnside’s arguments as his own. At the hand-down hearing, when Mr Stuart sought permission to appeal, bravely making no bones about the basis on which he intended to do so, the Judge said, in effect, that he had adopted Mr Chirnside’s submissions because he had on his own proper and independent consideration come to the conclusion that they were correct. But the Appellants say that even if that is so – which is of its nature unknowable – what matters is the impression that the judgment gives. Mr Cherry reminded us, inevitably, of Lord Hewart’s apophthegm that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done (R v Sussex Justices, ex p. McCarthy [1924] KB 256 at p. 259). A litigant who sees the other party’s submissions adopted in the wholesale way which occurred here will justifiably not believe that his own side of the case has received any attention.

The Appellants’ associated submission is that in following the course that he did the Judge failed to address their own case, and more particularly the various arguments advanced by Mr Stuart on behalf of Tommy Crinion, in any adequate way. Mr Stuart had produced full and thorough written submissions. In contrast to his wholesale adoption of Mr Chirnside’s submissions, the Judge at no stage quotes from these: such references as he makes to them are summary, not to say perfunctory, paraphrases. It was his obligation to address at least the central arguments raised by the losing party and to explain why they were rejected: see, classically, Flannery v Halifax Estate Agencies [2000] 1 WLR 377 and English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409. The procedure which the Judge followed meant that he failed to discharge that obligation, because Mr Chirnside’s written closing submissions were – unsurprisingly, since submissions were exchanged and were not consecutive – not able at every point to anticipate and answer Mr Stuart’s contentions.

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 [2010] 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.

So far as the “Background Facts” section is concerned, the matters set out by Mr Chirnside were, as the Judge said, not seriously contentious, and the changes made by him of the kind described at paragraph 9 above demonstrate that he read with attention the passages which he was adopting.

In the section relating to the evaluation of the witnesses, although the Judge did indeed largely reproduce Mr Chirnside’s drafting, including his criticisms of Tommy Crinion’s credibility, he did also, as I have said, set out Mr Stuart’s response to those criticisms, together with a passage, albeit short, saying why he rejected that response. It cannot fairly be said that he simply adopted Mr Chirnside’s submissions without any independent consideration, and it is clear why he regarded Tommy Crinion as an unreliable witness.

So far as the section addressing the various specific issues in the case is concerned, it is necessary to take it in stages.

Issue 1 incorporated all the ways in which Declan Crinion was said to have authority to act on Tommy Crinion’s behalf – express, implied or by way of ratification. In relation to express authority, the Judge at paragraph 76 of the judgment gave a (relatively) full summary of Mr Stuart’s submissions as to why he should accept Tommy Crinion’s evidence that he had never authorised Declan to open and operate the account on his behalf. This is followed by two paragraphs of his own drafting (save for one phrase borrowed from Mr Chirnside) saying why he rejected that case; and of course he had already made a separate finding about Tommy’s credibility generally. It is adequately clear both that the Judge considered the essential points for himself and that he gave reasons for his conclusion. It followed from that conclusion that the issues of implied authority and ratification did not arise; but the Judge went on to deal with them nonetheless. (It is not of course uncommon for judges to deal with points which are rendered academic by their other findings, but they generally acknowledge that they are doing so – typically “out of deference to counsel’s submissions” or “in case the matter goes further”. Here it looks more as though it was simply a consequence of the fact that Mr Chirnside, whose submissions formed the Judge’s template, had been obliged to deal with every issue since he was the advocate and not the judge.) I will myself consider briefly how the Judge dealt with those two issues since they form part of the overall picture of how he approached his task.

In relation to implied authority the Judge again, after reproducing Mr Chirnside’s submissions, gives a short summary of Mr Stuart’s response and gives reasons, in his own words, for rejecting it (paragraphs 81 and 84). The paragraphs are short but they are sufficient to demonstrate that he had addressed Mr Stuart’s submissions and to explain why he rejected them.

The position as regards ratification is a little different because, although the Judge recites (paragraph 86) Mr Stuart’s submission that Tommy Crinion did not have sufficient knowledge to be able effectively to ratify the agreement which Declan had purported to make on his behalf, he does not include a passage of his own drafting responding to that submission. However, the passages from Mr Chirnside’s submissions which follow adequately deal with the point. In my judgment it is clear here too that the Judge had considered the case made on behalf of Tommy Crinion and what his reasons were for rejecting it – though of course, as I say, the issue was in any event academic.

Issue 2 concerned whether the power of attorney on which Declan Crinion forged his father’s signature was effective to confer authority on him notwithstanding that on its face it was intended to be entered into as a deed. The Judge summarised Mr Stuart’s case very briefly at paragraph 95. Most of his answer to it derived from Mr Chirnside’s drafting, but he added two sentences (at the end of paragraph 99) referring to a paragraph in Bowstead and Reynolds on Agency which Mr Chirnside had cited in the course of oral argument (though in fact he gives an inaccurate paragraph reference): the passage says, with reference to the case-law, that an appointment which is ineffective as a deed may in some circumstances nevertheless be effective to confer authority. Thus the Judge did address Mr Stuart’s submissions. The Appellants say that he did so so shortly that it is impossible to understand his reasoning. I agree that the Judge’s drafting is minimalist, but in fact the parties will have been in no doubt what Mr Stuart’s argument was, since it was developed in both his written and his oral submissions, and why the Judge rejected it, since the passage from Bowstead was directly in point.

In relation to issues 3 and 4, which raised different aspects of the question of authority, the Judge reproduces Mr Chirnside’s submissions in their entirety, making no reference to Mr Stuart’s submissions. But Mr Stuart had acknowledged in his oral submissions that his case on these issues stood or fell with his case on issues 1 and 2. In those circumstances, though the Judge should have explained the position, it was not necessary that he should have said more than he did as regards the substantive points.

Issues 5-7 were peculiar to Declan Crinion’s case. Neither Mr Cherry nor Declan Crinion himself advanced any submission based on how the Judge dealt with this aspect.

The remaining seven issues concerned regulatory compliance. In relation to these the Judge makes no express reference to Mr Stuart’s submissions, written or oral. The Appellants submit that that demonstrates that they had simply not been considered at all. I do not think that that can be inferred simply from the absence of any express reference. Although it is generally better to do so, it is not essential that a judge should refer explicitly to the submissions of a party if it is in fact clear from his or her expressed reasoning why they are not accepted. To the extent that Mr Chirnside had in his written submissions correctly anticipated and addressed the points which Mr Stuart would be making (which he should in principle have been able to do) the adoption of the relevant passages would sufficiently meet the Judge’s obligation to give reasons.

Mr Cherry and Mr Stuart said in their supplementary skeleton argument that “the most blatant example” of the Judge not addressing Mr Stuart’s submissions was in relation to issue 10. Mr Stuart, as counsel who had actually argued the point below, was accordingly invited to take us in detail through his written submissions to the Judge on this issue and the relevant passages in the judgment, with a view to making good that assertion.

Issue 10 was formulated as follows:

“Did the Claimant correctly classify the Defendants as intermediate customers or take reasonable steps to do so under COB rule 4.1.4 and/or COBS ?”

The reference is to the Conduct of Business ("COB") Rules issued by the Financial Services Authority (“the FSA”) and to the Conduct of Business Sourcebook (“COBS”) which succeeded it. COB rule 4.1.4 required the Respondent before conducting designated investment business to “take reasonable steps to establish” whether the client was a “private customer”, an “intermediate customer” or a “market counterparty”: broadly speaking, those descriptions connote different levels of sophistication as an investor, and there was published guidance as to the matters to be taken into account, including the client’s “knowledge and understanding” of the markets and the risks involved and how long they had been transacting business of the kind in question. In fact, accounts of the kind opened in the present case could only be operated by an intermediate customer, and both Appellants were so classified. Before the Judge the argument proceeded wholly by reference to COB rule 4.1.4, rather than COBS, as I understand it because the transitional provisions in COBS meant that it was the position under the COB Rules that determined classification.

The Respondent’s system for classifying customers depended on their answers to a drop-down list of questions which they were required to answer as part of the automated online application process for opening an account. When opening an account in his father’s name Declan Crinion had answered the questions by reference to his own experience of CFD trading, which was considerable. It was the Respondent’s case that it was entitled to classify Tommy Crinion as an intermediate customer on the basis of those answers, even if they were not in fact accurate as applied to him. There were additional arguments (a) that, having authorised Declan to act on his behalf in applying for an account open only to intermediate customers, Tommy Crinion was “contractually estopped” from denying that he was correctly classified as such, and (b) that Tommy had in any event subsequently signed a “declaration” making essentially the same representations about his knowledge and expertise as in the online application.

It was Mr Stuart’s case before the Judge that rule 4.1.4 on its true construction was concerned with the experience and understanding of the client himself and not of any broker or other person acting on his behalf; that Tommy Crinion personally did not have the necessary experience or understanding to qualify as an intermediate customer; that that would have been immediately apparent if anyone on behalf of the Respondent had made any direct contact with him; and that its reliance on what Mr Stuart characterised as a system of online “self-classification” could not constitute the taking of reasonable care. These points were vigorously developed in his written and oral closing submissions. He referred to answers given by one of the Respondent’s witnesses, Mr Soliman, to the effect that “glaring” cases of self-misclassification would be detected and that normally there would be a telephone call to a new client; to the admitted oddity that the contact details submitted for Tommy Crinion were identical to those submitted for Declan, including the same mobile phone number; and to recent decided cases – specifically, Spreadex Ltd v Sekhon [2009] 1 BCLC 1136, Wilson v MF Global UK Ltd [2011] EWHC 138 (QB) and Bank Leumi (UK) Ltd v Wachner [2011] EWHC 656 (Comm). (It appears that the only case to which Mr Stuart wished to take the Judge in detail was Wachner, which he said demonstrated that other institutions operated more effective systems for establishing the correct classification of their clients: the Judge said that he was doubtful whether that was a proper use of authority, but that he would read the passages relied on out of court.) As regards the “contractual estoppel” argument Mr Stuart argued that there was no evidence of reliance on the part of the Respondent; and he contended that the probabilities were that the signature on the declaration had, like that on the power of attorney, been forged by Declan.

The Judge did not, as I have said, expressly set out any of those particular arguments. However, the question which I am here considering is whether it is apparent from his reasoning why they were not accepted or in any event why they were not regarded as material. In my view it is. The single most important point is that the Judge adopted Mr Chirnside’s submission that Tommy Crinion was correctly classified as an intermediate customer in his own right: see paragraph 172. He gave his reasons almost entirely in Mr Chirnside’s words, but he did add to the beginning of the paragraph the phrase “despite protestations to the contrary”. That can hardly be said to be a full summary of Tommy Crinion’s evidence on the point or of Mr Stuart’s submissions, but it is at least an acknowledgment of them; and the reasoning that follows – reinforced by the Judge’s earlier findings about Tommy’s credibility – shows with some particularity (albeit derived from Mr Chirnside) why the Judge regarded him as meeting the criteria for classification as an intermediate customer. This finding entirely undermines the basis of Mr Stuart’s case, which depended on the proposition that if the Respondent had taken reasonable care it would have ascertained that Tommy Crinion did not have the necessary experience and understanding.

It follows that the various other points made by Mr Stuart did not arise for decision. In fact, most of them are, it seems to me, addressed in Mr Chirnside’s submissions, which the Judge again adopts without any modification at paragraphs 166, 170 and 171 of the judgment. In particular, on what would in other circumstances have been the crucial question – namely whether the use of an automated self-classification system was capable of constituting the exercise of reasonable care – Mr Chirnside pointed out that it was the evidence that such a system was standard industry practice and had never been questioned by the FSA (paragraph 170 (c)), and that it appeared from the decision in Wilson that an institution was entitled to take at face value information submitted by a client unless there was some reason for further scrutiny (paragraph 170 (b), picking up paragraph 166 (f)). Curiously, the Judge does not say in terms that the submissions reproduced in paragraph 170 are accepted – though he does so in relation to paragraphs 166 and 171. I suspect that this was a slip and that he meant, as in the rest of the judgment, to adopt them. Fortunately, however, it is unnecessary to decide that question for the purpose of this appeal: as I have said, his finding that Tommy’s classification as an intermediate customer was correct renders the point moot. For the same reason it is unnecessary to consider whether such of Mr Stuart’s points as are arguably not covered in these paragraphs were of sufficient substance to require to be explicitly dealt with – though I am bound to say that I do not believe that they were.

It was not suggested by Mr Cherry that if we were not persuaded that the Judge had failed properly to address Mr Stuart’s submissions in relation to issue 10 the Appellants could succeed as regards the other issues relating to the alleged regulatory breaches. For the reasons given above, I am not so persuaded, and accordingly I believe that the challenge in relation to this section of the judgment fails.

I should emphasise that it is no part of our task to decide whether the Judge was right in the conclusions that he reached in relation to each of the issues. As I have said, Mr Cherry (in submissions which Declan Crinion adopted) made it very plain that he was not seeking to challenge the Judge’s decision on the merits. The appeals stand or falls on whether he properly addressed the Appellants’ case at all. I am prepared to say, however, that I have seen nothing in Mr Stuart’s submissions below, ably though they were evidently advanced, that leads me to think that the Appellants ever had a real defence to the Respondent’s claims.

It follows that in my judgment this appeal should be dismissed. Wrong though the way in which the Judge constructed his judgment was, I believe that it can be seen from a careful examination that he did in fact bring an independent judgment to bear on the decisive issues in the case, and it is sufficiently clear why he decided those issues in the case in the way he did.

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. In principle, no doubt, it differs little from the modus operandi of the occasional judge, familiar to an earlier generation of counsel, who would pick up his pen (sometimes for the first time) and require the favoured advocate to address him at dictation speed. But in practice, for reasons which Lord Justice Underhill has described, the possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for, as Lord Justice Underhill says, appearances matter.

Although I agree, even so, that enough can be teased out of the judgment to satisfy the legitimate demand of the Appellants for reasoning which deals with their respective cases otherwise than through the prism of the Respondent’s argument, I hope that a judgment like the one now before us will not be encountered again.

I agree with both judgments.

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 also puts this court in a position of considerable difficulty because it has to make a detailed examination of underlying factual material to see whether the judge has truly engaged with the losing party’s case when the judge could easily have shown that he had so engaged, by reciting the main points made by the losing party and stating why he rejects them. Having made that detailed examination, all of us are satisfied that the judge has in fact engaged with the defendants’ cases and has rightly seen that they have no substance; it would therefore serve no purpose to order a new trial before a different judge.

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.