Conference room in Devereux Court, c.1994

smell became so vile that the entire building had to be evacuated until remedial action could be taken.

In 1990 chambers took on 17/19 Devereux Court. The premises had previously been leased by a firm of solicitors, Lawford & Co, that specialised in labour law, and the offices initially were something of a rabbit warren. After refurbishment, this provided space for a large clerks’ room on the ground floor, four floors of rooms, and space for a large conference room on the top floor, where chambers meetings and parties could be held. Sydney Kentridge had taken on Bob Alexander’s old room in 11 Essex Street.

When the main part of chambers was located in Devereux Court, it was difficult to refer to chambers as 1 Brick Court, albeit rooms were retained there. However, the Brick Court name was a symbol of the chambers inheritance, so chambers became Brick Court Chambers. 1990 saw the British & Commonwealth trial. B&C was a conglomerate run by John Gunn which had been very successful in the heady days of the late 1980s. Their fall was dramatic, partly because of a problem in the purchase of a dodgy outfit called Atlantic Computers. In 1987 B&C wanted to purchase Mercantile House on the basis that it would sell off the money

Left to right: Nicholas Green, Hilary Heilbron QC, Richard Aikens QC, a pupil in chambers, Helen Davies and Richard Slade in a conference room in Devereux Court, c.1994

broking operation of the business, and accepted an offer for that part of the business from Quadrex Holdings, a moneybroker run by the American entrepreneur Gary Klesch. Klesch never found the money and B&C lost a vast amount when he failed to complete the deal and the market fell. This led to a long trial against not merely the penniless Quadrex but also the brokers BZW (represented by Jonathan Sumption and Mark Howard) and Samuel Montagu. Quadrex had themselves sued two of the Mercantile House moneybroking subsidiaries for fraud but these claims never came to trial because in one case (William Street) the court set aside leave to serve out (a notable win by a young Paul Walker against Derry Irvine leading the then commercial junior Philip Sales) and in the case of the second subsidiary MW Marshall (represented by Christopher Clarke and Charles Hollander) Quadrex’ s case, which was hopeless, was discontinued before trial. The main trial which was heard by Mr Justice Gatehouse largely turned on the representation by Samuel Montagu to B&C at the key moment of the negotiations that “funds were available” which was relied on by B&C in accepting the Quadrex offer rather than another. In fact, funds were never available. Samuel Montagu argued that in context this statement meant “My client Mr Klesch tells me funds are available,” rather than “We have satisfied ourselves that funds are available”. After a long trial the judge unsurprisingly held the latter meaning to be correct.

A Christopher Clarke107 success was Britoil v Hunt, 108 a case where the parties had agreed non-binding heads of agreement, and instructed lawyers to formalise the document. Neither party intended any material change from what had been agreed in the heads in the final document, but Britoil (Christopher’s clients) drafted the final document according to their understanding which it transpired many years later was different from Hunt’s understanding in a fundamental respect and Hunt’s lawyers at the time failed to appreciate the problem. There was a dispute about what the final document actually meant as a matter of construction, but Hunt’s argument was that Hunt was right about what the heads actually meant and (if the argument as to construction of the final document did not go Hunt’s way) the court should rectify the final document in favour of the true meaning of the heads. After a trial before Mr Justice

107 Leading Charles Hollander. 108 [1994] CLC 561

Saville, the Court of Appeal consisted of Lords Justices Glidewell (the chair), Hoffmann and the newly promoted Hobhouse. Hoffmann had strong views (not universally accepted) about both rectification and construction and spent the entire appeal sidling up to Glidewell on the bench seeking (metaphorically) to seduce him to his (anti-Britoil) view. Whenever he thought Glidewell was failing to follow the point he would say “Mr Pollock, what I think you are trying to say is this…” Hobhouse seemed entirely to lack these soft skills and although all his comments in argument favoured Britoil, there was a worry that the swing vote (Glidewell, whose field this was not) would fall for the Hoffmann blandishments. Indeed, the Hobhouse judgment contained the words:

Speaking for myself, I would have regarded the defendants’ submitted construction as unarguable had it not been for the fact that it has been so ably and persuasively argued for by Mr Pollock

QC for the defendants.

This tactfully fails to mention the subtext that it had been accepted enthusiastically by his brother Hoffmann. In the event Glidewell simply said he agreed entirely with Hobhouse and the House of Lords refused leave to appeal. Hoffmann succeeded in persuading the House of Lords to go along with his minority view subsequently in Chartbrook v Persimmon109 but Britoil was finally reinstated by Leggatt LJ in the Court of Appeal judgment in FSHC Group Holdings v GLAS Trust Corp Ltd110 which treated the Hoffmann view expressed in Chartbrook as obiter and rejected it.

Christopher, leading Andrew Popplewell, was also in Ventouris v Mountain. Mines had been attached to the Italia Express in Piraeus harbour and the vessel had sunk. Underwriters contended that the vessel had been scuttled (i.e. sunk deliberately) by the owner. The evidence was some secretly taped conversations with the perpetrators. The other side called an individual thought to be the go-between, who turned out to be the grandson of a member of the Athens Court of Appeal, which latter fact made a huge and favourable impression on the trial judge, Mr Justice Hirst. Unfortunately the Court of Appeal111 then ruled that the taped recordings were inadmissible as statements under the Civil Evidence Act

109 [2009] 1AC 1101 110 [2019] EWCA Civ 1361 111 [1992] 1WLR 887

because the persons speaking did not know they were being recorded and in consequence underwriters were forced to abandon the case. Mr Justice Hirst wanted the parties to agree that the grandson could leave court “without a stain on his character”, to which Christopher demurred, as the only reason the grandson was leaving court without a more formal stain on his character was because the Court of Appeal had declared the incriminating tapes inadmissible in evidence. This led to an explosion from the judge.

Sydney Kentridge was approaching seventy in the early 1990s but had lost none of his skills. In 1991 he led for the record companies in a four-week case before the Copyright Tribunal against the music publishers and composers.112 The composers were seeking an increase in their royalty rate by about 1.5%. It was said that a 1% increase would cost the record companies £100m per year. The principal argument was that it was unfair that the rate was higher in Europe (a point that might be seen as somewhat circular). Apart from expert evidence, there was some evidence from Europe and a number of prominent industry figures gave evidence. Sydney was leading Vivien Rose113 and Charles Hollander. It was never clear to anyone whether Sydney’s apparent complete ignorance of the pop music industry was genuine. At a conference with the two most important record company executives in the UK, he spent the entire meeting referring to the pop star “Mike” Jackson.

The then current royalty rate was 7.8% on singles, different for other formats, but few remembered exactly what the figure was. Sydney had to cross-examine Pete Waterman, of Stock Aitken and Waterman, a record producer then at the peak of his fame who was much more intelligent than he liked to pretend, who wanted to provide industry support for the proposed rate increase. As preparation for the cross-examination, Sydney was provided with “the beginner’s guide to Kylie Minogue”, Waterman’s star act. The cross-examination started as follows:

112 BPI v MCPS (No 2) [1993] EMLR 86. The chair was Robin Jacob, shortly before he became a judge. 113 Now Lady Rose of Colmworth. She left the bar shortly thereafter to work for the

Government Legal Department and was appointed to the High Court bench from this unconventional route after sitting as a chair of the Competition Appeal

Tribunal. She was appointed to the Supreme Court in 2021.

SK: Mr Waterman, I understand you are in favour of an increase in the royalty rate.

Waterman: Yes, absolutely. I think it is incredibly important that the contribution of songwriters is properly recognised.

SK: What is the current royalty rate?

Waterman: Sorry?

SK: What do you understand to be the current royalty rate?

Waterman: Well, I can’t recall precisely what the figure is?

SK: Can you not tell us what the current figure is?

Waterman: No.

SK: How you can you be in favour of an increase if you do not know what the current figure is?

The cross-examination bears more than a passing resemblance to the famous cross-examination by Sir Norman Birkett as to the coefficient of the expansion of brass.114 Nor was it the only dramatic moment in the hearing. Sydney was cross-examining the president of the European

114 Birkett appeared for the prosecution in 1930 when Sidney Rouse was charged with the murder of a passenger in his car by setting fire to it. The defence was that the fire was an accident. The defence called an expert engineer and fire assessor who claimed to have vast experience of fires in cars. Birkett’s cross-examination started as follows:

What is the co-efficient of the expansion of brass? – I beg your pardon?

Did you not catch the question? – I did not quite hear you.

What is the co-efficient of the expansion of brass? – I am afraid I cannot answer that question off-hand.

What is it? If you do not know, say so. What is the co-efficient of the expansion of brass? What do I mean by the term? – You want to know what is the expansion of the metal under heat?

I asked you, what is the co-efficient of the expansion of brass? Do you know what that means? – Put that way probably I do not.

You are an engineer? – I dare say I am.

Let me understand what you are. You are not a doctor? – No.

Not a crime investigator? – No.

Nor an amateur detective? – No.

But an engineer? – Yes.

What is the co-efficient of the expansion of brass, you do not know? – No, not put that way.

In fact no one knew what the coefficient of the expansion of brass was. Nevertheless, the credibility of the expert never recovered and Rouse was duly hanged.

licensing society, who was a slippery individual who might be described as economical with the actualité:

I want you to listen to my next question very carefully and think about your answer. Because, depending on your answer I may have to put to you something I have not had to put to a single witness before this tribunal.

You could have heard a pin drop. The witness started backpedalling frantically and Sydney did not need to call him a liar.

Burley retired in 1991. He stayed on for a transition period as a consultant, although he continued to use the senior clerk’s room which he had previously occupied. When John Major won the 1992 election he promoted Nick Lyell from Solicitor General to Attorney General and Burley went with him to be his clerk, as Jowitt’s clerk had done in 1929. Burley, who in any event was delighted by the election result given his oft-stated fear of dying under a socialist government, waived his fee for serving as the Attorney’s clerk as “his contribution to the nation”.

Burley died in 2010 aged eighty-six. He has a decent claim to be the greatest clerk the Temple has ever had. Certainly he was an enormous part of Brick Court’s success, his partnership with Alexander legendary. He was a workaholic, never taking holidays (claiming to be too busy doing the VAT returns). He gave rise to many stories, some of them no doubt apocryphal. He never came to chambers’ Christmas parties. Burley memos (such as the one complaining that the number of new babies in chambers gave rise to concerns that many members were not working hard enough), often placed in the red diary he kept open which could be seen by all, provided an effective means of naming and shaming defaulters. These themselves led to a range of spoof Burley memos such as the one advising that in order not to wear out the carpet on the stairs in 11 Essex Street, juniors should walk up the stairs on the left side and descend on the right side (silks being exempt from this rule). Burley is one of the small number of figures who played a pivotal part in chambers’ success over the last hundred years.

Nick Lyell remained as Attorney General until the 1997 election. Attorney General is often a difficult position and he was unfortunate to be in the midst of the Matrix Churchill controversy where directors

of the machine tools engineering firm were put on trial for illegally selling equipment and technical information to Saddam Hussein. The prosecution collapsed when it emerged that the company had been advised by the government on these sales. Lyell had been involved in advice given to President of the Board of Trade, Michael Heseltine, about the public interest immunity certificate. Criticism was made by the Scott Report into Lyell’s advice, which was unfair as Scott took a very different view of the law from the then conventional view and Lyell had followed what most thought was the law at the time. After 1997 Lyell came back briefly to chambers but by this time was increasingly deaf and left soon after. He died of cancer in 2010 aged seventy-one.

On Burley’s retirement, Douglas Neave was appointed senior clerk. Neave was a clerk at the Scottish bar, although the system there was very different and, with hindsight, rather less demanding. He had impressed at interview with his charm, light touch and apparent unflappability. Others had been impressed that he played golf with a nil handicap and had in his youth played rugby for the Scottish junior squad. But it might be said that following Burley was a near impossible task. Sadly, he never really made the transition from the different environment in his previous job and struggled with the command of detail required to be an effective clerk at the Commercial bar and eventually was asked to leave in 1996 (see below).

When Robert Maxwell fell (or perhaps jumped) from the side of the Lady Ghislaine on 5th November 1991 it was probably not his intention to create a mountain of work for the Commercial bar, but it certainly had that effect. He had previously provided a bit of defamation work to chambers where a template Statement of Claim was used (“The plaintiff is a publisher and holder of the Military Cross”) but this was of completely different order of magnitude. It is amusing now to read the laudatory obituaries for the old rogue given what became obvious shortly thereafter. Very large sums of monies were found missing from the Mirror Group pension funds. There was a DTI inquiry and many sets of civil proceedings. Jonathan Hirst led for Coopers & Lybrand who had audited the companies, but many others in chambers were involved. Other litigation arose from the mammoth claim by his companies on their directors’ and officers’ policy. To the surprise of many Kevin

Maxwell was acquitted in his first criminal trial and the judge in the intended second trial, Mr Justice Buckley, stopped the trial as an abuse of process given the strain on his family.

In place of the shipping work that had dominated the 1970s and 1980s came insurance and reinsurance work. The problems in the insurance market and at Lloyd’s in the late 1980s and early 1990s produced new litigation. If one looks at Lloyd’s Law Reports in this period one can gradually see the change. Thus Christopher Clarke led Mark Howard and Helen Davies for the auditors in Henderson v Merrett, 115 which had already been to the House of Lords in advance of the trial on the question whether the underwriting agents owed a duty of care to the members. Reinsurance was intrinsically less interesting than shipping work: instead of the colourful characters who often turned up in shipping arbitrations, evidence was given by underwriters, rarely the most cerebral or interesting of characters. There were notable points, such as whether the 2001 attack on the twin towers constituted a single incident or two, but they were often hard to find. Nevertheless, the catastrophic losses at Lloyd’s in the 1990s spawned much insurance and reinsurance litigation involving many members of chambers, and Brick Court and the rest of the Commercial bar benefited from the problems in the insurance and reinsurance market. 1995 saw the NRG trial. NRG had purchased a second-hand reinsurance company inappropriately named Victory the month before the balloon went up at Lloyd’s, in 1990, and lost a vast sum of money. They sued the actuaries, Bacon & Woodrow, the accountants who did the due diligence, Ernst & Young, and the investment bank, Swiss Bank Corporation. Richard Aikens led for NRG, with Charles Hollander, Richard Lord and Tom Adam, the last named having been asked by Aikens to join the team at the end of his pupillage after a penetrating note on whether the rule against perpetuities had any relevance to the case (answer: no). George Leggatt was on the actuaries’ team, Mark Hapgood and Cyril Kinsky were part of the accountants’ team. The judge had apparently developed an illness when on holiday in India which caused him to nod off after lunch, and Kinsky was keeping a

115 [1997] LRLR 247; the House of Lords decision is reported at [1995] 2AC 145.

tally of the occasions as a possible point for appeal. The trial went on for most of a year after Mr Justice Colman had encouraged Aikens to provide an old-style opening which went on for twenty days. Peter Scott led for Swiss Bank, a formidable cross-examiner and presence but somewhat humourless and domineering in court, and the trial was conspicuous for the very different atmosphere in court on the rare occasions when another commitment kept Scott away. At the first interlocutory hearing, Colman had (probably unnecessarily) disclosed that he had a regular tennis game with a KPMG partner and, given that KPMG were NRG’s experts, asked if anyone objected, expecting the answer “no”. Scott said that his clients did object, so presumably the judge lost his tennis game for the period of the trial (and also the year writing his judgment). Colman dismissed the action, holding that the methodology of the actuaries was wrong but not by market standards of the time negligent. His most curious finding was that the senior partner of the actuaries, whose knowledge of the science of reserving was rather ahead of market knowledge, would have appreciated the methodology was wrong, but although he had charged for his peer review of his firm’s draft report, did not explore the report in sufficient detail to appreciate that the methodology used was fallacious. The case settled just before the start of the Court of Appeal hearing.

There was also some media work, mostly handled by Mark Cran, although Jonathan Hirst did some, particularly with Frere Cholmeley. Some of this work came from Burley’s son Christopher, who was a solicitor with a media practice, and acted for the pop star Sting. Cran always had a reputation as something of a bruiser (“How did you get that black eye?” “Summons against Mark Cran.”) but had established an enviable practice in getting pop stars out of their contracts. He took silk in 1989 after a huge win for Holly Johnson of Frankie Goes to Hollywood, whose career had been assisted by the BBC banning their hit “Relax” (one of the biggest selling songs of the 1980s) for its overt sexual content. A later attempt in 1995 to get George Michael out of his contract proved less successful.116

116 Panayiotou v Sony Music Entertainment [1994] ECC 395

Local authority swaps was another major piece of litigation.117 A number of local authorities had sought a new entrepreneurial route to raise money by entering into derivative contracts with banks. This became very popular because it enabled the authorities to raise money upfront against a possible longer term liability which might not accrue if the market moved in their favour. But the naïve and inexperienced local authorities were no match for the banks and invariably lost money on these ventures. Nicholas Chambers led for Barclays, with Cathy OttonGoulder, in the initial case which went to the House of Lords where their lordships ruled that these financial instruments were ultra vires the local authorities and therefore unenforceable. Many others in chambers were involved in the second and third rounds of litigation, where a number of test cases were set down for trial but almost all settled.

Much of Hilary Heilbron’s early career in silk had been taken up with acting as a DTI inspector on one aspect of the Blue Arrow scandal. By the mid 1990s she was back in full time practice. A piece of litigation against Jasper Conran came to be known as the “Wilted Roses” case. Michael Morris, an entrepreneurial ladieswear manufacturer, had found Jasper Conran at a low ebb and short of cash and persuaded him to sign an exclusive twenty-year licence agreement with his company. Conran soon became rather better known and affluent and was desperate to get out of the contract. His first attempt led to a capitulation in the course of the hearing. The client sent Hilary a dozen roses, but unfortunately Hilary went away immediately after the case and returned to find the roses wilted. Charles Hollander did rather better as the junior with a bottle of Veuve Cliquot. The clients did not speak to each other for two years after the hearing (though the contract continued) until what was meant to be a making-up lunch at Conran’s father’s Bluebird restaurant led to another two years of litigation. Morris asked if Conran would permit his name and logo to be used on Leyton Orient football shirts for a charitable project in which Morris was involved. Morris somehow understood that Conran had consented to this and proceeded with the venture. Conran vehemently denied that he had consented, he had hated football ever since the time when he was bullied at school but said that

117 Hazell v London Borough of Hammersmith & Fulham [1992] AC 1

even if he had considered agreeing, he would have wanted his name and logo on the shirts of a Premier League club, not one near the bottom of the lowest division. Conran contended that this was a material and irremediable breach of the twenty-year agreement entitling him to terminate. This time Charles Hollander did the trial, against Michael Crystal and Bill Wood for Conran. Mr Justice Neuberger found that Conran had not in fact consented but that in the context of a long-term agreement the breach was neither material nor irremediable.118

One of the big cases of the 1990s was the Grupo Torres litigation, which involved a massive fraud in the Spanish arm of the Kuwaiti Investment Office. With an endless cast of defendants, this kept Andrew Popplewell and Paul Wright, and to a lesser extent Christopher Clarke brought in to lead on important applications, busy for years. An offshoot was the Sarrio litigation, which turned on whether the English proceedings should be stayed in favour of some remarkably similar proceedings in Spain under the Brussels Convention as “related actions”. Andrew Popplewell succeeded against Charles Hollander at first instance but lost in the Court of Appeal (both argued it as juniors)119 before taking on Nicholas Chambers and Peter Goldsmith respectively in the House of Lords120 where their lordships remarkably concluded that the opposite of what a unanimous Court of Appeal had found was acte clair and thus not requiring a reference to Europe.

By 1996 chambers had decided Douglas Neave was not a success as senior clerk. There had been moves to replace him a year or two before, but at that stage there was no clear view as to a successor. Trying to recruit from outside had been the plan when Burley retired and chambers was reluctant to try that again. Ian Moyler had joined as a junior clerk in 1986 and was obviously talented. He was young, ambitious, and effective with solicitors. Julian Hawes had joined in 1991. He was a little older and more experienced. He had a softer manner and a light touch which contrasted with Moyler’s slightly ruthless dynamism. The suggestion was that they might be an effective partnership. However, senior clerk

118 Glolite Ltd v Jasper Conran The Times 28.1.98 119 Sarrio v Kuwait Investment Office [1997] 1 Lloyd’s Rep 113 120 [1999] 1AC 32

would involve a very significant promotion for each of them and it was far from clear that the arrangement would work, so chambers was taking something of a chance. In the event, the decision was more successful than anyone could have contemplated and together they ran a rapidly expanding chambers for twenty-three years.

Indeed they did have contrasting strengths. Ian Moyler had an encyclopaedic knowledge of which solicitors had provided which previous pieces of work, was highly articulate with solicitors and at chambers’ meetings. Julian Hawes’ style was more reflective and laid back, he was very effective at man-management and smoothing over problems, and as time went on grew into an astonishingly good negotiator.

By the early 1990s the number of members of chambers was increasing. The Euro operation was gathering pace. Historically the top graduates had all wanted to do commercial work. After Factortame suddenly many wanted to come to the bar to do EU work. Most practitioners in chambers still either practised in commercial law or EU law, and the days of those who practised in both fields had not really arrived. Helen Davies and Sarah Lee were the first who wanted to practise in both fields.