CITING LEGAL AUTHORITIES IN COURT

Citation(2004) 16 SAcLJ 168
Date01 December 2004
Published date01 December 2004

This article addresses the recent phenomenon of indiscriminate citation of authorities by counsel. The author first explores the basic principles of citing legal authorities in court, before turning to examine, in particular, the use of extrinsic material in the area of statutory interpretation. The article concludes by suggesting a series of guidelines for counsel to consider when choosing legal authorities to cite in their arguments.

A. Introduction

1 As the legal industry becomes progressively more competitive, practitioners should constantly seek to reduce unnecessary costs to their clients. The recent practice of filing excessively large bundles of authorities is therefore an unfortunate trend. While it is axiomatic that every proposition of law should be supported by some form of legal authority, counsel should exercise their discretion judiciously when deciding which authorities to cite in court. The citation of irrelevant or unpersuasive authorities not only adds to the already hefty fees that clients must pay, but may also, in an extreme case, expose the offending practitioner to a special order for costs. This article outlines the basic principles of citing legal authorities in court, considering first the citation of primary and secondary authorities generally, before examining the citation of extrinsic material in the specialised area of statutory interpretation. It concludes by offering practitioners a number of guidelines to assist them in their choice of material.

B. Legal authorities
Primary and secondary authorities 1

2 Generally, any material which a court can rely on in reaching its decision can be referred to as an “authority”. Authorities are classified into two categories:

(a) Primary authority is any law that the court relies on, such as cases, statutes, regulations, constitutional provisions, etc.

(b) Secondary authority is any non-law that the court draws on, such as legal encyclopaedias, textbooks, periodicals, dictionaries, loose-leaf services and other legal treatises.

3 Primary authorities can be mandatory or persuasive. Mandatory primary authorities consist either of enacted law (such as statutes, regulations or constitutional provisions) or judgments that are binding on the presiding court under the principles of stare decisis. Persuasive primary authorities would comprise of judgments that the presiding court is not bound by, such as decisions of a lower court, or those of another jurisdiction.

4 Secondary authorities are, by their very nature, never mandatory. Although they may in certain cases be highly persuasive, they must be used with caution as primary authorities should be relied on as far as possible.

C. Citing primary authorities
Basic principles

5 Mandatory primary authorities should always be cited, as the presiding court is bound to rely on them.2 The citation of persuasive

primary authorities could also be useful if exercised prudently, as the presiding court may then draw on the wisdom of other eminent judges in Singapore and in other jurisdictions.

6 In fact, counsel has a duty to cite all relevant authorities to the court, to enable it to arrive at an informed decision. Rule 56 of the Legal Profession (Professional Conduct) Rules3 states that “an advocate and solicitor shall not knowingly deceive or mislead the Court”. Rule 60(c) also imposes a duty on an advocate and solicitor to “inform the Court of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable” to his case. The significance of this duty was illustrated most recently in Sutanto Henny v Suriani Tani(also known as Li Yu).4 In this case, counsel had referred Belinda Ang Saw Ean J to the dictum in an English decision to support his argument. Unfortunately, he failed to draw the judge’s attention to the fact that this dictum was later disapproved in another English decision, prompting her to comment that “this remiss is unsatisfactory as the dictum was an added reason for ruling in the plaintiff’s favour.”5

Excessive citation

7 At the other extreme is the growing problem of excessive citation of primary authorities by counsel. Many appeals now come with voluminous bundles of authorities which include repetitive, unnecessary or irrelevant materials.6 The problem has become increasingly pressing today, with the proliferation of more comprehensive reporting of cases in Singapore and other jurisdictions, and the growing availability of new research databases. As the amount of readily available material grows, the danger of excessive citation of such primary authorities also correspondingly increases.

The practice in the United Kingdom

8 As early as 1983, the English courts had already expressed concern over the indiscriminate citation of cases.7 In Re Freudiana Holdings Ltd,8 although only three authorities were significant, the Court of Appeal was supplied by both sides with bundles of twenty or so other authorities, “few of which were relevant and none of which was referred to”.9 Rose LJ, with whom Millett LJ agreed, opined:

The proper conduct of litigation does not require every point to be taken and every stone to be turned. The proper, efficient and effective conduct of litigation requires all involved to concentrate on the real issues in the case.

The legal profession in general, and the Bar in particular, must re-learn, or at least reapply, the skill which, historically, has been the hallmark of the profession, but which, in too many types of litigation, appears to be fast vanishing. I refer to the ability to identify and present to the Court, in however complex a case, the few crucial determinative issues and to discard, as irrelevant or immaterial dross, the minor points and excessive detail. This, of course, requires the exercise of discretion, judgment and skill, which are all qualities to be expected of those who practise in a learned profession.10

9 The excessive citation of authorities was deplored again by all three judges of the Court of Appeal in Hamblin v Field.11 In A v B plc,12 the same court noted that “the citation of authorities on the present scale adds hugely to the costs of litigation which is already inevitably high. It also creates huge problems for the judges hearing the applications.”13

10 The most penetrating analysis of the problem was provided by Laddie J in Michaels v Taylor Woodrow Developments.14 In the postscript to his judgment, which merits reproduction in some detail, the judge noted that:

[T]he recent growth of computerised databases has made [the reference to unreported decisions] an ever 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. The courts were only taken to cases which had been published in a limited number of sets of law reports after selection by legally qualified editors … Logistics problems helped to lessen the enthusiasm for over-citation of authority.

Now there is no preselection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. Lawyers frequently feel that they have an obligation to search this material. Anything which supports their clients’ case must be drawn to the attention of the court. This is so even when it is likely that the court which gave the judgment probably never intended it to be taken as creating a new legal principle. A number of consequences flow from this. First, … it is the client who eventually has to pay for all this searching … Further, it is a fact of life that sometimes courts go wrong, or at least not conspicuously right … A poor decision of, say, a court of first instance used to be buried silently by omission from the reports. Now it may be dug up and used to support a cause of action or defence which, without its encouragement, might have been allowed to die a quiet death. Thirdly, it is a common experience that the courts are presented with ever larger files of copied law reports, thereby extending the duration and cost of trials, to the disadvantage of the legal system as a whole. 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, not just from this country but from other jurisdictions … 15

11 The courts attempted to address this problem with a series of Practice Directions and Statements. In April 2001, the Court of Appeal laid down a number of rules as to what material could be cited, and the manner in which the cited material should be handled by counsel, in Practice Note (Citation of Authorities):16

(a) Certain categories of domestic judgments may not be cited unless they clearly purport to establish a new principle or to extend the present law. These categories of judgments are: applications attended by one party only; applications for permission to appeal; decisions on applications that only decide that the application is arguable; and county court cases.

(b) Domestic judgments that only apply decided law to the facts of the particular case, or otherwise indicate that they were not extending or adding to the existing law, should not be cited without justification by counsel.

(c) Cases decided in other jurisdictions may only be cited if counsel indicates what the foreign authority adds that is not to be found in any domestic authority, or, if there is justification for adding to domestic authority, what that justification is. Counsel must also certify that there is no domestic authority that precludes the acceptance of the proposition that the foreign authority is said to establish.

(d) Counsel are required to state, in respect of each authority they wish to cite (domestic or foreign), the proposition of law that the authority demonstrates, and the parts of the judgment that support that...

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