"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, December 14, 2009

Excessive Citation


I remember reading in Justice MC Chagla's autobiography, Roses in December, his contempt for excessive citation of cases. To enable the judge decide, a counsel needs to cite an authority to merely communicate to the judge that the judge is bound to decide that issue in his favour because the authority he has cited is binding on the judge. However, we see that excessive citation has become a rule, and limited but apt citation, an exception. (I have observed this trend in cases relating to arbitration where judges tend to cite several cases, including those irrelevant decisions rendered under the 1940 Act, wholly ignoring the object for which and the context in which the 1996 Act was enacted). Recently the English Court of Appeal (Civil Division) has censured a counsel for being guilty of excessive citation.The case can be found here. For simplicity of the reader, the relevant paragraph 19 is quoted below:

"It seems to me a matter of considerable importance to the conduct of international arbitration in London that the law should be simple and clear. Where it is set out in a statute, a court should be very reluctant to construe that statute in a manner that does not follow the clear language of the statute. In his detailed argument to us, Mr Gee QC, on behalf of the respondent charters, felt compelled to commence his citation of authority with the Civil Procedure Act 1833 (and other succeeding Limitation Acts), the Arbitration Act 1889 (and other succeeding Arbitration Acts), legal textbooks commencing with the First Edition of Preston and Newsom on Limitation of Actions and cases commencing with Ex Parte Caucasian Trading Corporation: Bankruptcy Petition [1896] 1 QB 368. The bundle of authorities encompassing the materials which he considered necessary to have available for the court contained 25 separate authorities. Although Mr Gee QC plainly placed all this before us out of abundance of caution, it is a good illustration of what can happen if statutory provisions relating to arbitration (and limitation periods associated with it) are not simply set out in statute and the words of the statute carefully followed by the court. It would have been no credit to the law of arbitration of England and Wales if it had been necessary to rely on all this authority on what is a simple point. The Court of Appeal Criminal Division has recently in Erskine [2009] EWCA Crim 1425 at paragraphs 66 and following pointed to the problems that arise out of the excessive citation of authority in the administration of the criminal law. It cannot be said that the great learning displayed by Mr Gee QC in putting before us so many authorities is an example of excessive citation, but it demonstrates a similar danger to the law of arbitration."


As can be discerned from the above quote, the court refers to another case R.v. Erskine [2009] EWCA Crim 1425, wherein the English Court of Appeal (Criminal Division) has considered the problem and has stated that it is not necessary to cite a case which illustrates or restates a principle. What is necessarily to be cited is the case which "establishes the principle".I quote the relevant paragraphs  64- 76 (without the paragraph numbers) for the convenience of the readers:

". Although each of the cases referred to in this present judgment was included in the bundles of authorities with which we were provided in one or other or both of these appeals, yet, as we have seen, some of them were unreported, and others were reported because they threw light on issues other than diminished responsibility. Time and time again the court has endeavoured to summarise the guidance given by the earlier decisions yet each of these cases has emphasised the fact specific nature of the decision whether to admit evidence under section 23 of the 1968 Act, and somehow or other, notwithstanding the repeated attempts to provide comprehensive guidance, time and time again the court has been invited to and has traversed many, and sometimes all of the previous decisions. This process can no longer be justified.
    The problem is not new: it is just getting worse.
      In 1863, WTS Daniel QC, who led the movement which resulted in the founding of the official Law Reports, set out in a letter to the Solicitor General, the problems of expense, prolixity, delay and imperfection in the then system of law reporting that then existed. He continued:
        "To these I would add a further evil…. That of reporting cases indiscriminately without reference to their fitness or usefulness as precedents, merely because, having been reported by rivals, the omission of them might prejudice circulation and consequently diminish profit."
        Nathaniel Lindley (later Master of the Rolls) in a supporting paper expressing the view of the Chancery Bar suggested that the cases to be reported were:
        "1. All cases which introduce, or appear, to introduce a new principle or a new rule.
        2 All cases which materially modify an existing principle or rule
        3 All cases which settle or materially tend to settle a question upon which the law is doubtful.
        4 All cases which for any reason are peculiarly instructive".
        He urged that there should be excluded:
        "Those cases which are substantially repetitions of what is reported already"
      These guidelines were those which the official Law Reports published by the Incorporated Council of Law Reporting have endeavoured to follow.
        In 1939, concern expressed as to the increase in the number of law reports led to the establishment of a Committee under Simonds J which reported to the Lord Chancellor in 1940. Among the topics it considered was the suggestion that too many cases were reported. It referred to the difficulty in deciding what should be reported, but rejected a suggestion that cases which had not been reported in the official reports should not be cited. Professor Goodhart's dissenting report recommended that all judgments should be transcribed, indexed and held centrally.
          In 1977, Lord Diplock spoke of the "superfluity of citation" and followed up his concerns in Lambert v Lewis [1982] AC 225 at 274 where he observed :
            "…the respect which under the common law is paid to precedent makes it tempting to the appellate advocate to cite a plethora of authorities which do no more than illustrate the application to particular facts of a well-established principle of law that has been clearly stated …in those cases that are no more than illustrative, however, there are likely to be found judicial statements of principle that do not follow the precise language in which the principle is expressed…, but use some paraphrase of it that the judge thinks is specially apt to explain its application to the facts of a particular case. The citation of a plethora or illustrative authorities, apart from being time and cost-consuming, present the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase".
            Lord Roskill made the same point in Pioneer Shipping v B.T.P. Trioxide [1982] AC 724 at 751, where he stated:
            "I hope I shall not be thought discourteous or unappreciative of the industry involved in the preparation of counsel's arguments if I say that today massive citation of authority in cases where the relevant legal principles have been clearly and authoritatively determined is of little or no assistance, and should be firmly discouraged."
            The consequence was lengthened hearings and increased costs "without in any way leading to the avoidance of judicial error".
          In Roberts Petroleum Limited v Bernard Kenny Limited (In liquidation) [1983] 2 AC 192 at 201, and with the enthusiastic support of each member of the House, Lord Diplock identified the nature of the problem in yet greater detail, and imposed significant limits on the deployment of unreported judgments of the Court of Appeal (Civil Division) before the House of Lords. There was some criticism of this approach. Alternative suggestions, such as allowing a case to be citable only if the court directed that it was citable were made. There was no consensus. Nevertheless in 1996, the Court of Appeal Civil Division laid down a similar rule to that in Roberts Petroleum in its Practice Direction (Court of Appeal: Authorities) [1996] 1 WLR 854.
            Undoubtedly the problem of excessive citation of authority grew with the ready availability on the internet of most High Court and all Court of Appeal decisions. In Michaels and another v Taylor Woodrow Development Limited and others [2001] Ch 493, Laddie J pointed out that
              "…the recent growth of computerised databases has made it an even more frequent and extensive occurrence. There are now significantly more judges, more cases and more databases than there were even two decades ago. Until comparatively recently, this was not a substantial problem…now there is no pre-selection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed…it seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material…"
            After consideration of the issue and consultation, a further Practice Direction was issued in relation to all civil courts: Practice Direction (Citation of Authority) [2001] 1 WLR 1001. It did not appear to have solved the problem. Moreover, in any event, it did not apply to criminal courts.
              Speaking extra judicially at the First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millennium in March 2000, Lord Bingham, then Lord Chief Justice, observed
                "The quick, effortless and relatively inexpensive availability of vast new swathes of material hitherto inaccessible, unorganised, unfiltered, unedited, presents a very real risk to the system which may…simply succumb to the weight of the materials presented. "
              There is no doubting the problem. It is not confined to this particular type of case, but is a feature of all types of appeal against conviction and sentence. Repeating that we imply no criticism of counsel in either case, these appeals illustrate it. The question is whether this judgment will merely be one more plaintive lament against what has become an irreversible process, or whether action should be taken to avoid the impending crisis identified by Lord Bingham. If that is the choice, the answer is self-evident. We must do more than complain. Even if, long term, this issue must be examined again and the various differing views considered, there can be little doubt that firm measures are immediately required, at least in this court, to ensure that appeals can be heard without an excessive citation of or reference to many of its earlier, largely factual decisions.
                The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.
                  It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it..."

                  Hope the Bar and the Bench in India take cognizance of the developments in the English Law and do something about it here in India.
                  [See also, Sir Rupert Cross, J. W. Harris, in their book Precedent in English law (4th ed.) at page 207] 

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