The unveiling of Howard Morgan’s portrait of Sir Sydney Kentridge QC

In this period George Leggatt went on the bench, having been in chambers since pupillage. George had always been an enormously wellrespected lawyer and advocate. His rise was meteoric: he sped through the Court of Appeal and his appointment to the Supreme Court was announced less than seven years after he went on the bench. And Sydney Kentridge came to the end of his long and amazing career. His last case was when he addressed the Supreme Court in Prudential v Pandolfo178 in 2012 and announced his retirement on his ninetieth birthday. Andrew Popplewell had a big case practice at the bar, Left to right: Sir Sydney Kentridge QC, spending time in the 1990s

Lord Phillips and Jonathan Hirst QC on Grupo Torras and in silk at the unveiling of Howard Morgan’s portrait of Sydney leading on the Fiona Trust, another huge and lengthy Russian trial involving many days of cross-examination, in which he led a team of five, including Simon Birt and Fionn Pilbrow.179 He went on the bench in 2011 and was appointed to the Court of Appeal in 2019.

Nick Green was the first head of Brick Court in modern times to come from outside the commercial wing. Now Helen Davies was appointed as joint head with Jonathan Hirst, and as Brick Court’s first female joint head. Helen had taken silk in 2008 with Tom Adam and Tim Lord. Helen and Tom had been in pupillage the same year and were Sumption’s two most trusted juniors in his later years at the bar. Helen practised both in commercial and competition law and was Sumption’s second silk in Berezovsky.

The Libyan Investment Authority (LIA), the vastly wealthy Libyan sovereign wealth fund, provided significant work for chambers. They had several major cases: the first against Goldman Sachs, with Roger

178 [2013] 2AC 185 179 Fiona Trust & Holding Corporation v Yuri Privalov [2010] EWHC 3199 (Comm)

Masefield leading a team including Ed Harrison, a long trial before Mrs Justice Rose180 and the second, rather more successful, with Mark Howard and Roger Masefield, settled just before the trial with a capitulation by Société Générale. A third set of proceedings was launched against JP Morgan.181 At an early stage, civil war in Libya led to a power struggle between different persons claiming to represent the LIA with the result that Enyo, the solicitors acting for the LIA, had to come off the record because they could not be satisfied that the persons they were taking instructions from had authority to represent the LIA. Meanwhile there were separate proceedings between the various claimants for declarations as to entitlement to represent the LIA, but it was difficult to resolve these because of the ever-changing political situation in Libya. Charles Hollander and Tony Singla came into the proceedings to secure the appointment of a receiver, for the purpose of running the litigation for the LIA in the absence of clarity as to which individual was entitled to represent the organisation.

Tim Lord had come into silk at the time of the 2008 banking crisis and had initially built a practice in silk acting against banks. A remarkable number of Tim’s cases seemed to end in contested trials. The Property Alliance Group (PAG) litigation, which led to a long trial before Mrs Justice Asplin182 was notable for the solicitors for PAG employing an individual who had previously worked on the case with his former firm on the other side. His new employers put him not merely physically in the same room as the partner in charge but actually put him on the case. When the first letter arrived threatening an injunction against the solicitors, they helpfully said in response that the individual had now been moved out of the partner’s room. This led to an injunction restraining the solicitors from acting for PAG with indemnity costs and a new firm needing to be instructed to represent PAG.

Another Tim Lord case was Bank of St Petersburg v Arkhangelsky.183 A long running fraud trial, this time for the bank, with Simon Birt and

180 [2016] EWHC 2530 (Ch) 181 [2019] EWHC (Comm) 1452 182 Property Alliance Group Ltd v Royal Bank of Scotland [2016] EWHC 3342 (Ch) 183 [2016] EWHC 2817 (Ch), 2020 4WLR 55 (CA)

Richard Eschwege had as an opponent a resourceful McKenzie Friend called Pavel Stroilov.184 The judgment of Mr Justice Hildyard was delivered twenty-two months after the conclusion of the trial, and although finding for the bank, contained a curious passage at the end where the judge identified all the reasons why he had agonised over the veracity of factual evidence put forward by the bank before reaching his conclusion. The decision was overturned in a Court of Appeal judgment which ordered a new trial, notwithstanding that the original trial had taken six months.

Harry Matovu took silk in 2010. Harry was involved in Excalibur Ventures v Texas Keystone Inc185 before Christopher Clarke J, a case about oil exploration rights in Iraqi Kurdistan. After Jonathan Hirst had to return the case, Harry did the case with Jonathan Gaisman.186 Having not spoken in the trial until day thirty-five, Harry’s opening words were: “My Lord, the dormouse emerges from his teapot. May I call Mr Gerstenlauer.” The Alice in Wonderland feel of the case was reflected in an excoriating judgment from the trial judge in favour of Harry’s clients.

Richard Slade took silk at the same time as Harry. He was involved in the long-running UBS v KWL187 litigation, where the Leipzig water company entered into a complex series of derivative transactions after a bribe paid to one of the managing directors of the water company. This was another case where chambers were well represented: it also featured Tim Lord, Simon Salzedo, Stephen Midwinter, Jonathan Dawid, Craig Morrison and Ed Harrison.

The judges might have changed from a generation before, but Mr Justice Peter Smith continued to keep the bar on its toes. The maverick Smith had had a successful Chancery practice in Manchester but was little known when he was appointed to the High Court bench in 2002. An outing where he had harangued counsel acting for a law firm with whom he had discussed post-judicial employment and which led to a rebuke

184 There may be no such thing as a career as a McKenzie Friend but Stroilov comes as close as anyone: he was also involved as a McKenzie Friend in the Charlie Gard case which Richard Gordon argued, see p141. 185 [2013] EWHC 2767 (Comam) 186 Richard Eschwege was a junior. 187 [2017] EWCA Civ 1567, [2015] EWHC 171 Comm

from the Court of Appeal in 2007188 had not deterred him and he was reported in the press in Emerald Supplies v British Airways plc189 insisting that counsel for the airline take instructions on what had happened to his luggage which was missing after a flight with his family. This led to David Pannick writing an article in his Times column to the effect that Smith must go. Smith phoned the head of Pannick’s chambers to complain and after not receiving any further response wrote a letter to the head of chambers which amongst its intemperate statements suggested he would no longer be supportive of those chambers. Meanwhile two members of Pannick’s chambers had argued Harb v Prince Abdul Aziz190 in which Smith had held after a trial that, during an undocumented conversation late at night at the Dorchester Hotel, the Saudi king’s son had agreed to convey to Mrs Harb two properties in Chelsea worth about £15m in return for her agreeing to withdraw certain disparaging comments she had made about his father, to whom she claimed to have been married191 a generation before. As Smith’s judgment came out shortly after the Pannick article, the prince added apparent bias to his grounds of appeal and it was argued before the Court of Appeal that the judge was subject to apparent bias against the entirety of Pannick’s chambers. Charles Hollander, for Mrs Harb on the appeal, actually succeeded in winning on the apparent bias point in the Court of Appeal but this was little comfort as the Court of Appeal, with Lord Dyson MR describing Smith’s letter as “shocking and disgraceful”, ordered a retrial on the basis that Smith had fundamentally misunderstood the evidence.192

In 2015 Jonathan Hirst was diagnosed with cancer at the base of the tongue. It was initially thought to be curable, but Jonathan had a twoyear battle with which he and his wife Fiona dealt with great bravery. He retired as head of chambers in October 2016 and died in July 2017. There have been a number of people who have made great contributions to chambers over the last hundred years in different ways, but Jonathan

188 Howell v Millais [2007] EWCS Civ 556 189 [2015] EWHC 2201 (Ch) 190 [2016] EWCA civ 556 191 That matter was also in dispute. 192 Mrs Harb lost on the retrial.

must be up near the front. He was at the heart of chambers from finishing bar school after university until his untimely death. Few will forget his larger-than-life personality and ebullient manner, his personal kindness and decency, but also hearing his booming voice when coming back from court after a heavy loss: “We gave them a bloody good fright.” Or telling everyone about his triumph, “We avoided indemnity costs.”

David Vaughan died in January 2018 aged seventy-nine. David’s contribution to chambers was also immense. He was responsible for chambers’ pre-eminence in EU law. Not merely was he largely responsible for putting EU law on the map as a legal discipline in this country, he was a consummate team builder, attracting the best and the brightest.

Andrew Lydiard died from a brain tumour in 2017, and in April 2020 Mark Hapgood died. Both were comparatively young. Hapgood had dominated banking law for many years.

With Jonathan Hirst’s retirement in 2016, Mark Howard became joint head with Helen Davies. This was an obvious choice. Once Sumption had left for the bench, and his former rivals Pollock and Grabiner no longer so young,193 Howard was pre-eminent as an advocate at the bar. He had an ability to put his finger on the point faster than anyone else. He was an adrenaline junkie, loved appearing in court, and was well known as the best cross-examiner at the Commercial bar. An example was the Citigroup litigation against Guy Hands’ Terra Firma. The allegation was that Citigroup had fraudulently misrepresented the existence of other buyers to push up the price in selling Apple EMI to Terra Firma in 2007 and the claim was for US$1.5bn. The trial originally took place in New York but the Court of Appeals there had declared a mistrial based on erroneous jury direction by the trial judge and the retrial took place in London. After Howard had cross-examined Guy Hands for one day Terra Firma’s position had become so disastrous that they sought permission for Howard’s opponent, Lord Grabiner, to speak to Hands during crossexamination to obtain instructions to throw in the towel. Thus ended seven years of litigation.

Mark Howard always had a reputation as a consummate trial lawyer and terrifying cross-examiner. But whilst continuing to do trials, he re-

193 Gordon Pollock died in 2019.

invented himself as an outstanding appellate lawyer. Someone who had a curiously indifferent academic CV, he nevertheless began to be brought in, following the tradition of the best advocates at the bar, in the biggest cases in the Court of Appeal and Supreme Court. Appearing before Lord Sumption and Lord Mance in the most complicated commercial cases required a level of intellectual dexterity few can manage. Indeed, his wideranging practice even took him to the CJEU in Arcadia v Bosworth,

194 a jurisdiction dispute still running six years on.

Meanwhile, his co-head Helen Davies was herself building a reputation at the top of the Commercial bar. Helen spent over four months in court acting for the directors of Lloyds in Sharp v Blank195 (with Tony Singla and Kyle Lawson) coping with appearing in court on crutches after breaking her ankle shortly before closing speeches. This was the action by Lloyds TSB Group Plc shareholders who claimed that the former directors of Lloyds were liable for at least £385 million for breach of duty in recommending the reverse takeover by Lloyds of HBOS plc in 2008 during that year’s global financial crisis. After a wait of a year and a half Mr Justice Norris dismissed the action, holding that such matters which should have been disclosed would not have made any difference.

Ian Moyler and Julian Hawes retired as joint senior clerks in 2018 and 2019 respectively. They had run chambers together for twenty-three years. They were succeeded by Paul Dennison and Tony Burgess. Paul had been a junior clerk in Brick Court, then had spent a decade in other chambers before coming back to chambers, initially as Julian Hawes’ deputy. Tony had joined Brick Court from other chambers six years previously, having been a second clerk in competition law chambers and thus had an expertise in that area of practice. He had been Ian Moyler’s deputy.

By 2020, there were still oligarch cases before the English courts, although some of the oligarchs were struggling to get visas. The banking litigation boom, in the wake of the 2008 global crisis, and which had led to more banking cases in court than ever before, was beginning to

194 [2020] ICR 349, leading Fionn Pilbrow; Richard Eschwege was also involved for another party. 195 [2019] EWHC 3096 (Ch)

subside. Reinsurance work had been enormously important between 1990 and 2005 but it had largely ceased.

It was now the accountants who seemed to get sued regularly, and then found themselves before their regulatory body. It was almost impossible to win the regulatory cases as, by reverse-engineering the problem which had arisen, it was pretty well always possible for the unsympathetic regulatory tribunal to find negligence. Simon Salzedo, who had qualified at Pricewaterhouse before he came to the bar, dominated this area of work. Tom Adam also became involved in many of the big accountants’ cases. Tom seemed to have acted for almost the entire tax bar in a different form of professional negligence and spent most of 2019 acting on an extraordinary scam involving the large-scale creation of false expert reports for use in car accident cases where the cost of hiring replacement vehicles was deliberately understated.196

The cost of commercial litigation meant that commercial cases which did not involve huge sums of monies rarely now went to court and were easy pickings for the mediators. That meant a move towards big cases with big teams, of counsel as well as solicitors. Now Mark Howard would often lead two or three other silks as well as the juniors. So many a commercial practitioner would start a career in silk with a lot of work as a second silk. Advocacy by juniors was relatively rare in commercial cases. Preparation time for even fairly routine commercial hearings was huge.

The competition lawyers, by contrast, were doing more and more advocacy. Some had thought that Brexit could lead to a reduction in work, but for the present nothing of the sort has happened. Those who were accustomed to appearing at the ECJ took the Irish Bar exams, so they would continue to be members of the bar of an EU state. Nick Forwood joined as a door tenant when he retired from the CFI, and Fidelma Macken joined as a door tenant (retiring in 2021) on retirement from the Supreme Court of Ireland and, before that, as a judge of the ECJ. Margaret Gray continues to practise from chambers though principally based in Dublin.

What made the difference to the competition lawyers was the combination of the rise of follow-on damages actions and the Consumer

196 Accident Exchange v McLean [2018] EWHC 23 (Comm)

Rights Act 2015. The latter gave pride of place in group actions to the Competition Appeal Tribunal and permitted group actions in competition law that was not possible elsewhere. The first significant case, Merricks v Mastercard,197 went to the Supreme Court and involved Mark Hoskins, Victoria Wakefield and Marie Demetriou as well as Hugo Leith and Jon Lawrence. The Mastercard litigation on differential interchange fees in the light of a Commission decision had been fruitful for many of the competition lawyers, with two separate trials giving rise to diametrically opposite results before the Court of Appeal sorted it out. Now Mr Merricks’ collective action also received different treatment from the different courts, a rejection from the CAT being comprehensively overturned by the Court of Appeal and the Supreme Court being asked to define the parameters of this new jurisdiction.

What, however, was significant was that the variety of group actions, whether under the collective action scheme of the 2015 CRA, or by way of other forms of group actions, provided an enormous source of work for the competition lawyers. Trucks and FX cartel litigations involved vast teams of counsel. Indeed, the competition lawyers had never been busier. Several of the juniors who had originally had principally commercial practices, such as Colin West and David Scannell, both of whom took silk in 2020, gradually shifted part of their emphasis towards competition law. For the first time the competition lawyers seemed to spend as much time in court as the commercial practitioners.

Richard Gordon, who had originally started the public law practice in chambers, retired after an unexpected illness in early 2019. In a period when students were enthusing about public law and human rights, chambers’ profile was an important encouragement to those doing pupillage to come to Brick Court rather than to commercial sets that did not have a public law practice.

In 2019 Andrew Henshaw went on the bench, followed closely by Kelyn Bacon and Neil Calver in 2020.

Brick Court also now had an impressive team of arbitrators. Hilary Heilbron had been doing arbitration for the longest, and Irish SC Klaus Reichert was also a full-time arbitrator. Lord Hoffmann, often now seen

197 [2020] UKSC 51

cycling into chambers in his lycra, inevitably had a huge practice. First Lord Cooke then more recently Lord Hope joined as arbitrators, and several former members of chambers all sat as arbitrators after their judicial retirements.

There has been an increasing amount of work offshore: the BVI (hit badly by its 2018 hurricane) and Cayman were the main Caribbean sources, plus Bermuda. The Dubai court has opened up. Hong Kong had given rise to occasional ad hoc admission rights but remained difficult to get into; Charles Hollander qualified there in 2015 and joined Hong Kong chambers so has had an unqualified right of audience.

Chambers once again became too big for its building. Initially they took on an annexe from the next door premises where the lease was held by the Salvation Army. However, when the other tenants moved out more of the building became available and chambers knocked through so there was a passageway between the main part of chambers and the annexe.