The 1980s

THE 1980s

Nick Phillips took silk in 1978, followed by Roger Buckley in 1979 and John Phillips and Nick Lyell in 1980. At last 1 Brick Court had a reasonable number of commercial silks.

From his early days when Nick Phillips devilled for Bob Alexander, through the days when they did county court and matrimonial work, Bob would often lead Nick before the latter took silk and they were close friends. Nick was the better lawyer, but Bob’s skills as an advocate were unrivalled. One such case was The Diana Prosperity83 which went to the House of Lords on the question whether the vessel referred to in a charterparty as “Hull 354 to be built in Osaka” failed to comply with its description because in fact it was (irrelevantly) built at Oshima and was denominated Hull 304. So too Evans Marshall v Bertola, a case about the importation of Spanish sherry which went to the House of Lords.84 When at the trial their Spanish law expert was asked how he distinguished a case of the Spanish Supreme Court which said precisely the opposite to his evidence, the expert’s simple answer was “That was a case about sheep, this is a case about sherry.”

Sydney Kentridge and his wife Felicia had worked tirelessly in South Africa to do what they could within the confines of the partisan legal system to undermine the apartheid regime. Sydney had been junior counsel to Nelson Mandela in his trial in the late 1950s. In Mandela’s autobiography85 he recounts an occasion when during the trial Sydney started the day’s proceedings with a complaint about the prison food which led to the judge sampling it himself (and with the benefit of the prison authorities putting in extra beans and gravy, declaring it well cooked and tasty). It is easy to imagine that, even at a relatively young age, the wily Sydney recognising in view of the way things were going, a diversion was needed. He also represented Steve Biko’s family at the 1978 inquest into his death in police custody when his devastating cross-examination of the police officers meant that the whitewash

83 [1976] 1WLR 989 84 [1973] 1WLR 349 CA, (No 2) [1976] 2 Lloyd’s Rep 17 HL 85 Nelson Mandela, Long Walk to Freedom (1995) Abacus p232

verdict was recognised as such across the world. When the inquest was re-enacted at the Mermaid theatre, with Albert Finney playing Kentridge, it is said that it was so realistic that when on the first night the magistrate opened the proceedings “Mr Kentridge” Sydney stood up in the audience.

Sydney could boast what probably no one else today can say, that he had met Prime Minister Attlee. Sydney’s father was a minor South African politician who was granted an audience with the then Prime Minister whilst Sydney was at Oxford in 1947. He asked if his son could attend the meeting. During that same year in Oxford, Sydney and some South African friends persuaded an American student, who had the important attribute of owning a motor car, to take them to Trent Bridge in Nottingham to see the South African cricketers play England in the test match. Cricket is a game that the uninitiated rarely enjoy or understand, and the American was persuaded to take them after being told that no year in England could be treated as complete without attending a test match. They stopped by at a pub on the drive back to Oxford at the end of the day to buy the bemused American a steak for his kindness in taking them. But this was England in 1947: Sydney said of this meal “I suspect he was eating horse.”

Sydney came to 1 Brick Court on the recommendation of Michael Kerr, then a Court of Appeal judge, who thought his own former chambers (4 Essex Court) more specialised than would suit Sydney. He joined in 1978, and initially came over from South Africa only for short periods of the year, but by the mid-1980s he had left South Africa and was practising full time in London. Sydney got to know various members of 1 Brick Court whenever he was in London, including when he was in the midst of an 88-day trial, in 1969, defending two journalists who had been charged after publishing articles chronicling the dreadful prison conditions in which black South Africans were held.86 1980 was the Lonrho case. Lonrho had brought proceedings against BP and Shell based on alleged breaches of Rhodesia sanctions which were said to have kept Ian Smith’s all-white regime afloat. The sanctions had been imposed by the Wilson government after Smith

86 Sackar p212

had unilaterally declared independence from Britain in 1965. Lonrho claimed that, because the breaches had kept the regime afloat, they had suffered massive damage to their African interests. The claim was an ambitious one in any view, with allegations of conspiracy to injure. The particulars of unlawful acts in relation to the conspiracy to injure included an allegation of treason. Bill Park, who was responsible for building up Linklaters’ litigation practice to a market leader, was the instructing solicitor, assisted by a youthful Christopher Style. It is said that Alexander was reluctant to take the case and suggested to Burley that he propose a fee which would be bound to be rejected. However, Burley’s proposed fee was accepted immediately. It was the first occasion on which Burley had managed to negotiate non-returnable stage payment fees. The underlying claim was heard in arbitration, an entire summer being set aside. Alexander led Roger Buckley (newly in silk), Jonathan Sumption, Stephen Ruttle and Charles Hollander. A summer of arbitral hearings at the Piccadilly Hotel involved occasional lectures from Alexander to the younger members of the team comparing their lavish lunches, which were served at the hotel every day, with his own formative experiences partaking of the rather more austere fare available at Willesden County Court.

The problems with Lonrho’s case surfaced shortly before the arbitration started when Tiny Rowland sacked his team of counsel and claimed Lonrho needed a long adjournment so new counsel could be instructed. New counsel were instructed to argue an adjournment but the arbitrators were shocked when told that they had been instructed only to argue the adjournment and no one had been instructed on the substantive claim for which the entire summer had been booked. When this tactic failed Rowland instructed the elderly John Platts-Mills who tried to play out the rest of the summer by reading documents to the tribunal in opening rather than leading evidence. Eventually the tribunal rebelled against this stratagem, and ordered Lonrho’s opening to be completed by a specified date and made Lonrho lead oral evidence thereafter.87 Lonrho hinted that Ian Smith himself would be called to give evidence, which

87 Lonrho’s team included a youthful Michael Briggs (now Lord Briggs), just out of pupillage.

led to weeks of research from 1960s newspapers archived in a library in Colindale to show that Smith’s political situation gave him no room to manoeuvre whatever the conduct of the oil companies (Smith never appeared). The case involved two visits to the House of Lords, and was ultimately killed off when the arbitrators identified a number of points of law for the courts to determine and the House of Lords struck out the entire claim.88

During the first instance hearing on the legal issues with the 1 Brick Court team in the Commercial Court before Mr Justice Parker, Bob Alexander returned to chambers at lunchtime. Burley said there was an urgent Mareva injunction to be obtained and Stephen Ruttle (who had been part of the Lonrho team in court) would be his junior. At 1pm Bob had been on his feet and neither he nor Ruttle knew anything of this new brief. By 1.20 they were back before Mr Justice Parker, making use of the luncheon adjournment to obtain the order. If there were any affidavits or statements at this stage, they were rudimentary, and had not been seen in advance by Parker. Parker asked Bob how much the injunction was for and Bob answered that the claim was for £600 million. Parker winced slightly on hearing this astronomical sum, but granted the injunction and by 2pm Bob was continuing his submissions in the Lonrho case.

By 1980 1 Brick Court needed more space. Middle Temple had purchased the lease of 11 Essex Street but found they could not let it because the rent was higher than the subsidised rents in the Inns, so chambers took the building. Additional space also became available on the first floor of 1 Brick Court. The libel set in 1 Brick Court also wanted the rooms, so the Treasurer of Middle Temple, Lord Roskill, asked both sets to put their case before him orally. David Hirst appeared for the libel set, but when Alexander was stuck in court, Jonathan Hirst had to put the case for his set. His success in prising the rooms from his father’s chambers caused considerable ructions in the Hirst household.

Consequently, the lease on the Garden Court annexe was determined and 1 Brick Court became one of the first sets of chambers to move, albeit

88 [1982] AC 173; the first visit to the House of Lords was on the meaning of “control” for the purpose of discovery obligations: [1980] 1WLR 627.