1 Garden Court

Jonathan Sumption was the next significant joiner. He too had been rejected by 4 Essex together with David Neuberger,70 and was rejected by 3 Essex as well. He had been a fellow in mediaeval history at Magdalen College, Oxford and amongst his other talents he was a speechwriter for Keith Joseph, who was Margaret Thatcher’s mentor. Joseph was expected to challenge Heath for the leadership in 1975 until an unfortunate speech about eugenics (not written by Sumption) led to a media furore and put him out of the 1 Garden Court running, leaving the way open for Thatcher’s ultimate success.

Chambers had by now outgrown 1 Brick Court. There was an annexe originally in Middle Temple Lane where Nicholas Phillips had shared a room with Nicholas Lyell. In the mid-1970s chambers acquired rooms in an annexe at 1 Garden Court. It had two floors. The second floor housed Bob Alexander and Roger Buckley in the larger rooms. Richard Aikens and Peregrine Simon shared a very small room, and Julian Malins had a tiny room which was difficult to enter because of the problematic air quality caused by the constant smoking of cigars. The first floor had Nick Phillips, Nick Lyell, Hilary Heilbron, and Jonathan Hirst in the box room.

By now Burley worked with three assistants. His able deputy was Simon Perry. Nigel Connor was next in seniority and there was also Fred Mason whose particular claim to fame was that he had driven the first

70 One talks about the man who turned down the Beatles – this seems more like turning down the Rolling Stones and Elton John as well.

tank into Belgium when it was liberated in 1944.71 Some chambers at that time had a chambers tea, but that was never done at Brick Court. However, the pouring of gins and tonics at an appropriate hour of the late afternoon was important and often delegated to Simon Perry.

Chambers still had an old-fashioned plug-in telephone system. It was said that Burley liked it because it enabled him to listen in to his barristers giving advice to solicitors: Jonathan Hirst once received a call from Burley, after he had put the phone down to a solicitor, who said, “I was very surprised, sir, to hear the advice you have just given Mr Y.” There was a message book which contained notes from Burley to individual members of chambers but could be (and was expected to be) seen by all members of chambers. It normally named and shamed defaulters who had failed to complete sets of papers when promised. There was not generally much administrative back up in chambers at the bar. Some work was sent out in manuscript although most was typed and copies were made with carbon paper.

There was no exchange of witness statements, and the consequent lack of notice as to what the other side’s witnesses would say made witness examination a rather different exercise. Witnesses needed to be taken through examination in chief, which was the first time opposing counsel had any idea what they would say. Consequently, cross-examination was inevitably much shorter. There was no pre-reading by the court. The law reports were all looked at by the court and practitioners in bound volumes. In the Court of Appeal counsel for the appellant would often open the appeal for most of a day before showing the court the judgment of the first instance judge, trying to prejudice the court in favour of the merits of the appeal as much as possible before the court had sight of all the reasons given by the judge for rejecting those arguments. There were two principal Commercial Court judges. Alan Mocatta, despite having been an outstanding advocate at the bar, was slow, long-winded and diffident and about whom it was mischievously said that his retirement speech was adjourned part heard. But he was rarely overturned. He had been a far better advocate than his colleague in chambers, Eustace

71 Mo Rehmatullah, who was a junior clerk in the 1980s under Burley, subsequently returned to chambers and now works as the credit controller.

Roskill, but Roskill reached the House of Lords, whereas Mocatta never progressed beyond the Commercial Court. He was an exception, as most of the Commercial judges in the 1970s and 1980s found their way to the Court of Appeal and a significant number to the House of Lords. John Donaldson was the other Commercial judge, whose judicial career stalled somewhat unfairly as a result of being President of the disastrous National Industrial Relations Court under the Heath government. Thatcher made up for it by making him Master of the Rolls on Denning’s retirement. Donaldson was quick, incisive, good to appear in front of, and often wrong.

A number of the judges were difficult and unpleasant. The Chancery judges were often sticklers for the minutiae of procedure and regarded form as more important than substance. If that could be said about High Court judges, circuit judges were much worse. It was difficult to complain about judicial conduct or bias. Judge McIntyre sat at West London County Court: he had been in a Japanese prisoner of war camp in the war and had a well-known and obvious bias against any Japanese litigant. Mr Justice Melford Stevenson was notorious. Whilst Melford Stevenson was sitting at St Albans Crown Court the following occurred, explained in Lord Denning MR’s distinctive prose:

There is a new Court House at St. Albans. It is air-conditioned. In

May of this year the Crown Court was sitting there. A case was being tried about pornographic films and books. Stephen Balogh was there each day. He was a casual hand employed by solicitors for the defence, just as a clerk at £5 a day, knowing no law. The case dragged on and on. He got exceedingly bored. He made a plan to liven it up. He knew something about a gas called nitrous oxide (N2O).

It gives an exhilarating effect when inhaled. It is called “laughing gas”. He had learned all about it at Oxford. During the trial he took a half cylinder of it from the hospital car park. He carried it about with him in his briefcase. His plan was to put the cylinder at the inlet to the ventilating system and to release the gas into the court. It would emerge from the outlets which were just in front of counsel’s row. So the gas, he thought, would enliven their speeches. It would be diverting for the others. A relief from the tedium of pornography.

The plan was in fact foiled, but Melford Stevenson nevertheless sentenced Mr Balogh to six months in prison for contempt, a sentence quashed by the Court of Appeal.72

If one reviews Lloyd’s law reports for the early 1970s, one is struck by the explosion in shipping litigation at the Commercial bar. All the leading figures at the Commercial bar would regularly argue shipping cases. The reports are also full of the somewhat turgid GAFTA appeals, particularly after the Mississippi floods. Almost all of the stars of the Commercial bar ultimately left it to go on the bench. The one exception was Robert McCrindle, probably the star of the Commercial bar in the late 1960s and early 1970s, who left to become a partner with Shearman and Sterling in Paris, a decision which no doubt was financially very rewarding but left him open to charges of having sold out. When Michael Kerr left 4 Essex Court to become a judge in 1972 he was earning £38,000 as a top silk, whereas a judge’s salary was £11,500.73 Given that a judge could retire after fifteen years on a pension of half salary index linked, and few QCs would earn as much as Kerr, 74 the differential between a judge’s salary and that of a QC was far less significant than it is today.

These were the last years of Lord Denning’s tenure as Master of the Rolls. In his younger years a brilliant judge and reformer, who had made an enormous contribution to the law, by the late 1970s he was almost 80, had largely replaced analysis with prejudice and was famously overturned by the House of Lords thirteen times in succession. He used to tell adoring student audiences that he had every Christian virtue except resignation. He would pick colleagues to sit with who would be likely to agree with him. His resignation in 1982 occurred after one of his many books was withdrawn for libel reasons.

An example was the Camilla M.75 In the dying days of the Callaghan government strikes were ubiquitous and it was joked that on the rare occasions when employees at British Leyland went into work they had to

72 Balogh v St Albans Crown Court [1975] QB 73. Balogh’s response to his sentencing was to tell the judge “You are a mindless automaton, you should self destruct”. 73 Kerr p271 74 He does not make clear whether his figure was after expenses. 75 [1979] 1 Lloyd’s Rep 26

sign the visitors’ book. Ship blacking, preventing vessels from unloading in support of a sometimes remote objective, was common and whether it was permissible depended on the interpretation of “industrial dispute”. Roger Buckley started arguing the case for an injunction on a Friday before John Donaldson, who was manifestly hostile to his argument. At lunchtime Burley said to Buckley “The MR is free on Monday, but you’ll have to get in quick.” At 2pm Buckley continued his submissions (he was only part way through) as follows: “I think it is apparent that your lordship is against me, so I don’t think there is any point in me making further submissions, those are my submissions.” That was speedy enough to enable the appeal to be booked before Denning, with his well-known anti-union views, on Monday morning. The appeal was allowed by Lord Denning and his colleagues. The big question, probably the most important issue in the case, was whether the House of Lords would give leave to appeal. They declined to do so, leaving Buckley with an enormous triumph. The Camilla M was expressly overruled by the House of Lords in their judgment in a different ship-blacking case one year later.76

Summer 1977 saw the Packer litigation.77 The Australian Kerry Packer launched World Series Cricket as a rebel series and signed up many of the top English cricketers including the captain Tony Greig. The cricketing authorities were appalled and issued lengthy bans on all those who had signed up. Packer moved to challenge the bans. A speedy trial was ordered to start in September 1977. Bob Alexander led with Andrew Morritt QC,78 John Phillips and Jonathan Hirst. The 1 Brick Court team was instructed by Linklaters whose litigation department, run by Bill Park, had previously been accustomed to send work to John Phillips in his former chambers and moved with him when he came to 1 Brick Court. Park became an enormous fan of Alexander. History does not record the brief fees of the senior barristers but the youthful Hirst received £500 plus £85 per day refreshers. Amongst Hirst’s pre-trial

76 In NWL Ltd v Woods [1979] 1WLR 1294 77 Greig v Insole [1978] 3All ER 449 78 Alexander had another case towards the end of the trial so Morritt completed the case.

duties was to go to the Grand Hotel, Brighton, where John Phillips was playing in a croquet tournament, to obtain his sign off on a pleading. The cricketing authorities underestimated the quality of the opposition and were poorly prepared. They ended up having to produce some damaging late discovery including a minute that recorded one committee member saying that Packer must be killed. A principal argument was that the bans were in restraint of trade. When a Mr Chidambaram from the Indian cricket board was asked by Alexander whether the point of the ban was to punish the cricketers, the witness paused for two or three minutes and answered “Yes”. The trial lasted thirty-one days culminating in a judgment from Mr Justice Slade finding for Packer on pretty well every point and declaring the bans unlawful.

The other matter which engaged the Commercial bar in the late 1970s was the Crown Agents Inquiry. The Crown Agents were a government owned body who ventured from property investment into somewhat more volatile investments and lost vast amounts of public money in the 1973 secondary banking collapse. Judge Edgar Fay produced a decent report into their failure and the real culprit was in any event dead, but an outraged House of Commons insisted there should be a public inquiry. The inquiry, chaired by Mr Justice Croom-Johnson, took four years to report and after costing almost as much as the Crown Agents lost, came to pretty well exactly the same conclusions as Fay. Its publication was during the Falklands War and passed almost unnoticed. It was fourteen years before anyone again suggested a public inquiry of this nature. Bob Alexander led for the New Crown Agents. His opening statement on the first morning made all the newspapers and he was never seen again in the inquiry. Bob Gatehouse was counsel to the inquiry. Many members of chambers were involved for the various participants. The attraction of a brief in the inquiry was that as some parts were inevitably more relevant to your particular client than others, you could within reason come in and out of the inquiry and fit it in nicely with the rest of your practice. And Burley had negotiated special fees with the usually parsimonious Treasury.

Although there was an increasing amount of good work in chambers as 1 Brick Court built a reputation in the late 1960s and 1970s, there was still much ordinary common law work, as Christopher Clarke’s outing

on a divorce petition79 demonstrates. There was a time of the year when money was to be made on renewal of bingo club licences. At the bottom end of chambers junior tenants and pupils appeared in the magistrates’ courts doing “Stevies”. Stevensons was a small firm which handled all the driving cases for Zurich Insurance. This involved defending motorists on careless driving charges, sometimes at risk of being banned under the “totting up” provisions, and occasionally attending inquests where there had been motor accidents. The instructions were virtually non-existent so it was necessary to take instructions from the client at court. Few were winnable although one or two junior members of chambers boasted of occasional successes. Although the fees altered with inflation over the years they were typically £10–£15 (it was sometimes possible to do two in a day) and apart from providing advocacy experience for the younger members of chambers, it enabled one to get to know the courts in and around London.

A top QC could earn £100,000 in a good year. Jonathan Hirst in his first year of practice earned about £5,000 including expenses of £4,000. In 1977 the top rate of tax was 83%, but 98% on unearned income. Tax avoidance schemes were rife. Senior members of chambers owned their own forests in Wales, as there was an obscure forestry exception which was tax-efficient. Others at the bar owned houseboats, also advantageous for tax. Those who went on the bench at that time sometimes subsequently resented that they had had their best years at the bar in this tax regime, unlike slightly younger colleagues who had benefited from the (slightly) friendlier tax environment of the early 1980s.

Much advocacy was done by relatively junior members of chambers. This was not just “Stevies”, there were County Court hearings or trips to the Monday morning crush in the Companies Court to ask for “the usual order”. One unfortunate youth there held briefs on two petitions listed consecutively. On the first he was instructed to ask for an adjournment and on the second for the usual order (winding up the company). Unfortunately he confused the order of the two briefs and when he came to the second he realised he had just procured the winding-up of the company whose petition he should have adjourned.

79 See p25

Members of chambers were conducting, on their own, shipping arbitrations with witnesses after a year or two of practice. Whilst no one did what Rose Heilbron had done in the 1940s, defending capital charges after four years’ call, juniors would often conduct cases on their own in the Court of Appeal. It meant that those who grew up professionally in that era developed a confidence and dexterity on their feet in court at an early age. There were also Friday morning Commercial Court summonses, master summonses, and outings before the judge in chambers in the “bear garden”, and plenty of injunctions, not merely freezing injunctions and search orders, these relatively novel jurisdictions being somewhat unrestrained at this stage, but also many Cyanamid type injunctions.

Whilst commercial chambers were seen as specialists, the range of work was broad. A number of members of chambers ventured into defamation.80 There was a significant amount of straightforward common law work. There was plenty of County Court work done by the juniors: plenty of good experience was to be had arguing small cases before some often rather unreliable judges. Employment law was an important and burgeoning area of the law. The Heath government’s (otherwise disastrous) Industrial Relations Act had created industrial tribunals, now renamed employment tribunals, and this had led to a new area of work for the junior bar, interesting because it was novel and the boundaries had to be established by caselaw. It was rather more important under the 1974–79 Labour government than the subsequent Thatcher administration which sought to marginalise industrial tribunals’ importance.

Marketing was not on the agenda. Marketing was regarded as straightforward unethical touting. In his standard work on advocacy, written in 1946 Sir Malcolm Hilbury said: the first commandment which the barrister finds he must obey is

“thou shalt not advertise or solicit work”... this is in the highest degree improper. It is beneath the dignity of the Bar… This rule…protects the public by helping to ensure that their work is

80 It was often wondered whether some of the defamation work came to 1 Brick Court through confusion with the 1 Brick Court libel set. The confusion was exacerbated because there was a Stephen Ruttle in one set and a Stephen Suttle in the other.

obtained and done by men for no other reason than that they are competent.81

By 1968 the Bar Council had announced that there was no longer any objection to practising barristers associating freely with solicitors or other professional persons who were in a position to send work to counsel either socially or in the course of attending professional conferences. As late as 1984 it ruled: it is inappropriate for chambers to use compliments slips on which the names of all members of chambers are printed. but that: there was no objection to chambers informing regular solicitor clients that a facsimile machine has been installed.

By 1989 the Code of Conduct still specified what information a barrister’s visiting card might contain, forbade the use of the word “barrister” on chambers or private stationery and regulated when solicitors could be invited to chambers’ parties.82

Law reports were used in book form and not photocopied for hearings. In the law reports there were often little stickers which the publishers provided “Followed in...” and then the name of the case that followed, approved or reversed the decision. This sometimes was significant. A last minute addition to the other side’s list of authorities was a case that appeared to be dead against Peregrine Simon’s client. The law report was passed up to the judge, Peregrine not having had a chance to read it in detail. Mr Justice Saville noticed the little sticker and helpfully commented “it states that this decision was reversed on appeal.”

The bar was seen as very much the senior legal profession. The Law Courts contained one restaurant (although the word probably flattered it) for counsel only, and one for solicitors and counsel only. Admittedly much of the work of solicitors who practised litigation was quite low grade (“counsel has herewith one lorry load of documents, counsel will advise”) but many solicitors strongly resented the arrogant approach

81 Hilbury, Duty and Art in Advocacy pp2–3, quoted in David Pannick, Advocates (1993) Oxford University Press (“Pannick”) p180 82 Pannick p181

of the bar and in particular of some silks. The solicitors would usually not have contact with counsel prior to a conference, but would then have to listen to learned counsel telling the lay client that all the points made in counsel’s instructions, which they had drafted, were a load of rubbish. The Chancery bar were often the worst offenders, with stories going the round such as the senior silk asked to advise on a number of points relating to a trust arrangement, who fulfilled his instructions but because he was not asked to “advise generally” in his instructions found it unnecessary to point out that a defect in the trust rendered it unenforceable.

By now Burley was in his prime and a dominant personality in chambers. His car was always parked immediately outside 1 Brick Court. He had no right to park it there. However, £10 per week for the attendant secured the place. To members of chambers he was just “Burley”, to members of staff “Mr Burley”. His ability to handle important City solicitors with authority was second to none. Together with “my Mr Alexander” he brought chambers to a position where its prestige at least rivalled the traditional shipping sets, 3 Essex Court and 4 Essex Court. He was able to persuade others that they had obtained a bargain when it was not immediately obvious that they had done so. On one occasion he booked Alexander for an individual client for a short hearing for the not insignificant fee of £1,500 on the basis that “one had to do something for the small man”. The client was so thrilled that he paid him £2,000. On another occasion Burley returned one of Alexander’s opinions to him with the manuscript comment “How can you expect me to charge the client a substantial fee for this if you do not give definitive advice – one way or the other.” Although Owen was nominally Head of Chambers, it may be said that the real head was Burley, working with Alexander, Phillips and Gatehouse.