Jonathan Sumption QC

figure of fun, but if so, one would be gravely mistaken. Hirst’s success at the bar, and the considerable following he attracted, came from an ability very quickly to put his finger on the point that mattered, having good judgment, and using his larger than life personal presence to advantage. He was also a thoroughly nice and decent man. He had been a successful Chairman of the Bar in 2000, the first Brick Court member to be chairman since Alexander in 1985. Indeed, it was Alexander who had first asked Jonathan to become involved in Bar Jonathan Sumption QC Council activity. It was also rightly thought by chambers that Hirst might handle well some of the people management issues which a head of chambers has to confront.

Sumption became a national figure (of sorts) in Australia when the silk who was due to lead a long trial involving Channel 7 TV developed cancer and had to withdraw. A reporter from the Murdoch press phoned Ian Moyler, pretended to be Sumption’s Australian junior and said he needed to speak to him urgently. Moyler said that he was not in chambers but was away closing up his chateau in France. This led to a fascination amongst the Australian press about the British mediaeval history don who had a chateau in France and was being paid what in Australian terms was an enormous sum for appearing in court there.

Peregrine Simon went to the bench in 2002, Paul Walker in 2004, David Lloyd Jones in 2005 and Gerald Barling in 2007. Paul Walker retired in 2019, as did Gerald Barling who was President of the Competition Appeal Tribunal for much of his time on the bench. Both have returned to chambers as arbitrators. Nicholas Chambers became Mercantile Judge in Cardiff in 1999 and returned to chambers as an arbitrator and mediator in 2012. Peregrine Simon was promoted to the Court of Appeal in 2015 and retired in 2020, also returning to chambers as an arbitrator.

David Lloyd Jones reached the Supreme Court in 2017 after a stint as chairman of the Law Commission.

Once Gorbachov had (at least temporarily) brought perestroika to Russia, and with his successor Boris Yeltsin continuing Russia’s engagement with the west, a new breed grew up, the oligarch. These oligarchs were mostly young men in the 1990s who understood both Russia and the West. Many of them spoke good English. The opportunities which appeared for the first time in Russia in the 1990s enabled them rapidly to become billionaires. Some of what they traded was aluminium but as time went on their interests became more diverse. They invariably had companies in the British Virgin Islands. A favourite was “transfer pricing” whereby aluminium or some similar commodity was sold for (say) US$50 per tonne to the BVI subsidiary then resold at the market price of US$1,000 by the BVI subsidiary to the buyer at the Russian border. In this manner the purchase money was sent to the BVI company, and problems of getting money out of Russia were obviated.

These oligarchs dealt in stupendous sums of money. That inevitably led to disputes involving stupendous sums of money. As Russian commercial relations still had something of a Wild West feel to them, there were invariably fraud allegations on both sides. The Russian courts could not be trusted, so the oligarchs (or their opponents) often sought to engineer creative methods to have their disputes dealt with by the English courts. Thus was born what became referred to as “oligarch litigation”.

Because the companies were in the BVI, that also meant there was litigation there. It is relatively easy for London silks to be called to the BVI (and other Caribbean islands) for individual cases. So members of chambers started doing more work in the BVI. There was also some litigation in Bermuda, where much of the work has always been insurance and reinsurance. So too Cayman, although the work there has been centred on hedge funds. Most of the cases in these jurisdictions were short interlocutory hearings rather than trials: jurisdiction disputes and freezing injunctions, or appointment of receivers. Cayman, with its beautiful seven mile beach and decent hotels and restaurants was always a more attractive venue than the BVI where the only half-decent hotel (Long Bay) closed and the only decent restaurant did the same (there

was a brief period when it had a chef who was reputed to have worked at the Fat Duck).

In the 1980s, Hong Kong had been an attractive venue where senior silks took on trials, such as the lengthy trial arising out of the collapse of the Carrian Group. The handover to China in 1997 made it much harder to get rights of audience, with a body of caselaw defining the precise circumstances in which English counsel would be allowed in. The restrictive rules eased slightly when Geoffrey Ma, an Anglophile who had been Roger Buckley’s pupil in 1979 and was a Brick Court door tenant, took up the post of Chief Judge of the High Court (the President of the Court of Appeal, who hears all the overseas admission cases) in 2002. Still, silks were only allowed in for special cases, such as appeals to the Court of Final Appeal or in areas of the law where Hong Kong lacked expertise. Geoffrey Ma became Chief Justice of Hong Kong in 2010 and during his eleven year service there was enormously popular. In the course of this he invited Nicholas Phillips and Jonathan Sumption to sit part-time on Hong Kong’s highest court, the Court of Final Appeal. Since his retirement in early 2021 he has once again become a Brick Court door tenant.

Neither Jersey nor Guernsey permitted rights of audience to English barristers, although there were occasions where paperwork for hearings and appeals was done from London. David Vaughan and later Jonathan Sumption and David Anderson and sat as judges of the courts of those jurisdictions.

The Blair government decided in 2002 to suspend the QC system pending a review. In the event, they decided to retain it under a new structure which involved an independent body to decide who was appointed (organised by the bar) albeit the appointment continued to be made by the sovereign on the advice of the government. That meant that there were no new appointments for over three years until 2006, creating something of a backlog. Under the new system there was simply consideration of whether candidates had fulfilled the objective criteria, and the question whether chambers already had too many silks (for example) was not a relevant consideration. Neil Calver was appointed in 2006, being the first after the break. One of the problems of the new system was the interminable application form requiring candidates to give detailed examples of how they demonstrated each of the required

criteria, and it was generally considered that the application took fifty hours or more to fill in. The main consequence was that most applicants now hired consultants to assist them in filling in the form.

An unexpected consequence of the Blair reforms was that it no longer was a requirement that the Lord Chancellor, or Minister of Justice, was a lawyer. This is now generally regarded as having been an accidental consequence of a compromise during the drafting of the legislation proposed by Lord Falconer. Usually in modern times the Lord Chancellor had been a senior member of the bar who did not anticipate further promotion and thus was well-placed to understand both the concerns of the government and the concerns of the legal profession. That could be said of Lord Irvine, Blair’s mentor and former pupil master (whom Blair ultimately sacked), and to an extent of his successor, the likeable ex-Blair flatmate, Charlie Falconer. These individuals were distinguished lawyers. When Jack Straw was appointed by Brown, and then Ken Clarke in the Cameron coalition in 2010, these were individuals who had qualified as lawyers but (whatever their distinction as politicians) their distinction was not as lawyers. However, there then followed a merry-go-round of political appointees with Clarke replaced by Chris Grayling, Michael Gove, Liz Truss, David Lidington, David Gauke in quick succession, none staying in post long enough to be able to achieve much, and several of these not being lawyers at all. Of these Chris Grayling and Liz Truss were particularly reviled by the profession, the latter entirely failing to support the judges after criticism of Brexit rulings from the Daily Mail in a Nazi Germany era-inspired headline “Enemies of the People”.

Once upon a time it was said that one needed to be the son of a judge to get a tenancy at Brick Court. But when Andrew Popplewell’s father, Oliver Popplewell, retired from the High Court bench in 2003, and thereafter became one of the older students doing a degree at Oxford, he joined Brick Court as a door tenant as an arbitrator and mediator. This enabled it to be said that now you need to have a son in Brick Court to get in.

Ship blacking had been a major issue in 1970s litigation. It came back to the fore in the Viking litigation in 2005. Viking Line was a Finnish company which ran ferries between Helsinki and Tallin in Estonia. Wages were much lower in Estonia. When Estonia joined the EU, Viking sought to reflag the Rosella to the Estonian flag. The militant Finnish unions

boycotted the vessel under the cry of protecting Finnish jobs. Whilst this might have been permissible had the proposal been to reflag under a flag of convenience, the proposal was to reflag to another EU state and thus raised issues of free movement and freedom of establishment. On the face of it, the dispute had nothing to do with this jurisdiction, but the boycott was encouraged by the International Transport Workers’ Federation, whose head office was in London and provided the “anchor” defendant, and thus an expedited trial was heard in the Commercial Court before Mrs Justice Gloster. Charles Hollander led Mark Hoskins and Colin West for Viking, with David Vaughan for the ITF and Helen Davies for the Finnish Union; Mark Brealey and Marie Demetriou became involved for the union in the Court of Appeal. The judge found for Viking136 but the Court of Appeal referred the matter to the CJEU and refused an injunction in the meantime.137 The CJEU took two years to reach a conclusion which led to both sides claiming victory, and, matters having by now moved on somewhat, the case was settled shortly before the Court of Appeal had to consider the effect of the CJEU judgment.

Mrs Justice Gloster also tried the long-running Masri litigation.138 In 2006 she gave judgment against CCC, in a Lebanese based dispute concerning an interest in the Masila oilfield. However, although they had the money, the defendants refused to pay the judgment. This led to enforcement proceedings taken by Masri around the world seeking to locate assets against which to enforce or otherwise to pressure on CCC to make payment: and endless freezing, disclosure and contempt applications to the commercial court. Although Mark Hapgood led at the original trial where Helen Davies also appeared on the other side, it was Simon Salzedo who benefited most. Simon was junior counsel at the trial for Masri, but had what is nowadays an almost unheard of opportunity to do most of the subsequent court applications without a leader including one trip to the House of Lords139 and one to the Privy Council.140

136 Viking Line v International Transport Workers Federation [2005] 3CMLR 29 137 [2006] 1 Lloyd’s Rep 303 138 Masri v Consolidated Contractors Int Co SAL [2006] EWHC 1931 Comm 139 [2010] 1AC 90 140 [2011] UKPC 29

Meanwhile the Blair government had asked David Clementi to look into regulation of the legal profession. The much bigger Law Society had not distinguished itself in its regulatory capacity in recent years, which was unfortunate for the bar that had been a much more effective self-regulator, as in the public eye they were tarred with the same brush. Clementi wanted to stop lawyers regulating lawyers, and thought the variety of different regulators for the different elements of the legal profession unacceptably confusing for the individual making a complaint. The 2007 Legal Services Act set up the Legal Services Board (LSB) as a super-regulator overarching the entire legal profession and required the legal regulators to split their regulatory and representative responsibilities on the basis that at present there was a conflict of interest in the same body performing both roles. Hence the formation of the Bar Standards Board (BSB) as the bar regulator, with a non-lawyer chair, and George Leggatt as its first vice-chair (the senior legal position) and Charles Hollander chair of the Standards Committee. The legislation envisaged that the LSB would be a “light touch” regulator but regulators often find such a role incompatible with the importance of justifying their existence to the government and in its early years at least the LSB rarely had any interest in listening to anything the BSB said to it, with at least one member of the LSB board being virulently anti bar.

Barristers now were permitted to contract for their fees. Historically, solicitors had been liable to pay barristers’ fees and although the obligation did not sound in law, it was a disciplinary offence for a solicitor to default on counsel’s fees (it was no answer that the client had gone bust, but if the solicitor went bust counsel had no recompense). That provided an effective guarantee of payment, but over time solicitors came to resent this and the Law Society and subsequently the Solicitors Regulation Authority (SRA) gradually declined to treat non-payment as a disciplinary offence. Imposition of contracts seemed the way forward, but in practice in many ways the different forms of contract now used as standard provide the bar with less protection than before. Nevertheless, serious bad debts in commercial litigation remain rare.

One of the more curious pieces of litigation in this decade was the TAG litigation. The Accident Group set up a model for personal injury litigation, whereby after-the-event insurance would fund small

scale personal injury litigation with solicitors and barristers acting on conditional fees. The key was that the solicitors would certify to insurers that the cases they took on had in their view more than a 50% chance of success. The method of attracting business was questionable, to say the least, with stories of TAG representatives cold-calling individuals at home and encouraging them to make a claim on some event which had occurred within the last three years which it had not occurred to them previously to take forward. For reasons never satisfactorily explained, high-street firms of solicitors never really took the vetting process seriously, insurers lost a large amount of money and TAG went bust. Insurers sued an extraordinary 634 firms of solicitors (firms not cases) for negligent vetting, and after some arguments about privilege141 and a number of applications concerned with picking test cases, a settlement was reached. Charles Hollander led for insurers with Tim Lord masterminding the strategy, alongside Colin West, and in the subsequent round Victoria Wakefield. The settlement of the first action funded a second related action against a further eighty-two firms which again settled, after the Court of Appeal had given permission to go to the Supreme Court on a limitation point.142

Meanwhile Sumption was the dominant figure at the bar. His appearance in a House of Lords appeal for the government143 in which both lower courts had held that the planning inspector system was a breach of Article 6 of the European Convention of Human Rights because the inspector was not an independent and impartial tribunal led to their lordships reversing the lower courts. His appearance in the bank charges case144 a few years later was to the same effect. Most of the top banking silks at the bar had been instructed in this litigation for the banks, and the lower courts had held that bank overdraft charges fell foul of the Unfair Terms in Consumer Contract Regulations. Sumption appeared

141 Winterthur Swiss Insurance Company v AG (Manchester) [2006] EWHC 839 (Comm) 142 Axa v Akther and Derby [2010] 1WLR 1662 143 Regina (Alconbury Developments Ltd and Others) v Secretary of State for the

Environment, Transport and the Regions [2003] 2AC 295 144 Office of Fair Trading v Abbey National plc [2010] 1AC 696

for the first time in the Supreme Court and persuaded their lordships that the charges were outside the remit of the regulations.145

Three Rivers was a case on which the courts did not distinguish themselves. The demise of BCCI was one of the big financial crashes of the 1990s and had provided years of employment for the insolvency bar. Lord Bingham’s inquiry had acquitted the Bank of England of intentional wrongdoing and had barely suggested negligence. A claim by assignees of the deposit holders for misfeasance in public office thus looked distinctly unpromising (and indeed ultimately was abandoned). They thus sought to gain access to documents not seen by Bingham which had been thought to be privileged. In two rulings the Court of Appeal sought to push back the boundaries of legal advice privilege. The first ruling,146 known as (No 5) that documents within a company created for the purpose of seeking legal advice are not privileged, has been universally criticised throughout the common law world. The House of Lords refused leave to appeal on the basis that the delay would disrupt the trial (which turned out misconceived as the trial was delayed) but in the next ruling the Court of Appeal now held that advice from Freshfields as to the drafting of witness statements for the Bingham inquiry, not being subject to litigation privilege as the proceedings were not adversarial, was “presentational advice” and thus also not subject to legal advice privilege. Their lordships did agree to take the presentational advice appeal, in which Sydney Kentridge and Tom Adam acted for the Law Society and Charles Hollander (who had been acting for the government in the litigation with Sarah Lee) for the Bar Council. Sumption succeeded on the presentational advice appeal147 but contrived to argue it in a way which reopened the decision as to whether (No 5) had been correctly decided. Although the (No 5) point had been fully argued by the best advocates at the bar, their lordships managed to avoid reaching a conclusion on the (No 5) point, allegedly at the behest of Lord Scott, the senior law lord. As privilege cases rarely reach the

145 Mark Hoskins was also involved for the banks, and Jemima Stratford and Sarah

Love were part of the OFT team. 146 Three Rivers DC v Bank of England (No 5) [2003] QB 1556 147 [2005] 1AC 610

House of Lords, this means the unsatisfactory position remains that (No 5) still stands eighteen years later notwithstanding criticism not merely from abroad but from the Court of Appeal saying they would not have followed it were they not bound.

One of the major competition law cases involving chambers was the Pay TV litigation,148 which sought to challenge the regulator’s decision requiring Sky to offer the content of elements of their core premium sports service to other platforms. This was all concerned with the rights to the Premier League. It involved a long expert-heavy trial before Mr Justice Barling, President of the CAT. All of James Flynn, Helen Davies, Mark Hoskins and Tom Plewman were involved, with David Scannell, Maya Lester, Richard Blakeley, Sarah Ford, Sarah Love, Gerard Rothschild and Marie Demetriou.

Sky provided other work too. Mark Howard was establishing himself as the best cross-examiner at the bar. One of the cases that made his reputation was the EDS case,149 leading Alec Haydon and Fionn Pilbrow. BSkyB claimed that EDS had won the contract to replace their customer relationship management system by making fraudulent misrepresentations. The man who had sold it for EDS was Joe Galloway, who was their main witness. His CV referred to his MBA from “Concordia College St Johns (1995–96)”. Concordia College was said to be in the US Virgin Islands. After some initial questions about the importance of representing oneself accurately and honestly, the crossexamination changed track when, on cue from Howard, Fionn Pilbrow brought up the Concordia College website live on the display screens in court. In the course of questioning, Galloway explained that he had been working on a project for Coca-Cola on the island of St Thomas at the time and had been able to complete the MBA in the course of the project, and would travel there by small plane between St John and the nearby island of St Thomas. He had attended regular classes and it had taken about a year. The judge recounted in his judgment what happened next in the cross-examination:

148 The principal judgment was 20 British Sky Broadcasting v Ofcom [2012] CAT, largely reversed by the Court of Appeal [2014] Bus LR 713. 149 BSkyB Limited v HP Enterprise Services UK Limited [2010] EWHC 86 (TCC)

In fact, Concordia College is a website which provides on-line degrees for anyone who makes an application and pays the required fee. This was effectively and amusingly demonstrated by an application which was made on the website for an MBA degree for a dog “Lulu” belonging to Mark Howard QC. Without any difficulty the dog was able to obtain a degree certificate and transcripts which were in identical form to those later produced by Joe Galloway but with marks which, in fact, were better than those given to him. In addition, a recommendation letter was provided to Mr Galloway and the dog by a person who purported to be President and Vice-

Chancellor of Concordia College and University .150 Concordia’s website said as follows:

Meeting your needs, Concordia College’s online prior learning assessment process may conclude with an accredited degree in 24 hours, in the subject of your prior studies. Your transcripts then credibly document all of your learning.

Although one might think this had little to do with the Sky computer system which was the subject of the case, the allegation in the case was overselling, and that was exactly what Galloway had done to his CV. In the light of an afternoon’s cross-examination on Mr Galloway’s MBA, a team of Herbert Smith solicitors visited the US Virgin Islands that weekend; Coca-Cola had no plant or office in the US Virgin Islands; there was no airport on St John; and there was no Concordia College on the island.

As so often is the way, it was not the original sin that was the problem but the cover up. Galloway’s evidence was exposed as a pack of lies on this issue. More important, however, the way he stuck to his story without any noticeable change in his demeanour, revealed him to be a consummate liar; a man who could and would tell lies without batting an eyelid. His credibility gone, EDS were forced to terminate his employment in the course of the trial, and the trial swung irrevocably in BSkyB’s favour.

A couple of points are worth noting in relation to this now-famous cross-examination. First, it was not always the smooth ride that appears with hindsight. When the questioning on this issue started, Galloway’s

150 [178]

answers appeared confident and plausible and for a while it looked as though there had been some sort of confusion and the dog ruse would fall disastrously flat. Three senior Herbert Smith partners, instructing Howard, were in court at the time and were looking uncomfortable wondering whether this was going to end up with their clients looking a laughing stock. At this stage most counsel would have lost their nerve.

Secondly, the resemblance to Jowitt’s cross-examination of the Principal of the British School of Osteopathy151 seventy-five years before is really striking. Turn back in this book to the account of that crossexamination and compare it with this. Some things do not change.

The first of the big oligarch trials was between Berezovsky and Abramovich.152 Sumption led for Abramovich with a Brick Court team of Helen Davies, Daniel Jowell (both now in silk), Andrew Henshaw, Richard Eschwege, Edward Harrison and Craig Morrison. Roger Masefield was part of the Berezovsky team. Berezovsky claimed there had been agreement that he would be entitled to an interest in Sibneft and Rusal. He was a disastrous witness, his wild and reckless evidence giving Mrs Justice Gloster little difficulty in preferring the evidence of the urbane Abramovich. Berezovsky committed suicide shortly thereafter, mired in debt. Berezovsky v Abramovich proved to be comparatively unusual in that it ran all the way through trial to judgment; many other such cases, such as Cherney v Deripaska (taking place at around the same time and also involving the disputed ownership of Rusal), in which Mark Howard153 appeared for Cherney, came to an end before judgment.

Berezovsky v Abramovich turned out to be Jonathan Sumption’s swansong. He had not been planning to go on the bench but was approached and asked whether he would consider an appointment direct to the Supreme Court. There was something of a trade union revolt from some of the judges who were not impressed that Sumption was going straight to the summit from a lucrative practice whilst they had spent years treading the boards of the lower courts, and there were a couple of false starts in relation to his appointment. In January 2012 Sumption

151 See p5 152 [2012] EWHC 2463 (Comm) 153 Leading Fionn Pilbrow and Tony Singla.

became the first person to be appointed direct to the Supreme Court or its predecessor since Lord Radcliffe who had partitioned India. It also meant that for a short period of time, until Nicholas Phillips’ retirement later that year, Brick Court had two members of the Supreme Court, a feat then repeated in 2020.

In truth, that was where Sumption obviously belonged and although the mandatory age seventy retirement gave him slightly less than seven years, many of his judgments, such as his rationalisation of the circumstances in which the corporate veil may be broken154 will stand the test of time. His presence combined with Jonathan Mance’s provided the basis of an outstandingly strong Supreme Court. In December 2018 Sumption went back to his epic work on the Hundred Years War, four volumes of which have now been published to impressive reviews (indeed, Volume III won the Wolfson Prize, the UK’s most prestigious history prize), was a Visiting Fellow of All Souls College, Oxford, and appears to be developing a new career as a media pundit and commentator.

154 Prest v Petrodel [2013] 2AC 415