Brick Court Chambers 100 Years EBook by brickcourt

BRICK COURT CHAMBERS 100 YEARS

Charles Hollander QC

A HUNDRED YEARS OF BRICK COURT

Ambrose McEvoy (1878-1927) W.A. Jowitt, later Earl Jowitt, 1912 Presented by Francis Howard through the National Loan Exhibitions Committee 1914

A HUNDRED YEARS OF BRICK COURT

Charles Hollander QC

Wilton 65

Published in Great Britain in 2021

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PHOTOGRAPH ACKNOWLEDGMENTS Ambrose McEvoy, W.A. Jowitt, later Earl Jowitt, 1912 Tate William Jowitt KC, 1923 © National Portrait Gallery, London View up Middle Temple Lane Honourable Society of Middle Temple Remains of the bombed middle range in Brick Court Honourable Society of Middle Temple Damage to Brick Court after the raid of 15th October, 1940 Honourable Society of Middle Temple Sir Colin Pearson © National Portrait Gallery, London Ronald Burley Christopher Burley David Karmel QC By kind permission of the Masters of the Bench of the Honourable Society of Gray’s Inn Sir Samuel Cooke ANL/Shutterstock Dame Rose Heilbron and Hilary Heilbron QC Hilary Heilbron Jonathan Hirst QC and Professor Jolowicz QC (Hon) with Burley and Simon Perry Fiona Hirst The unveiling of Howard Morgan’s portrait of Sir Sydney Kentridge QC Fiona Hirst

CONTENTS Page Illustrations ix Foreword xi The Beginning 1 After Jowitt 7 Quiet Years 23 The Alexander Years 29 The 1980s 46 The Euros 67 The 1990s 74 Recruitment 87 Essex Street 92 New Heads: Sumption and Hirst 103 Public Law 116 After Sumption 123 Chambers in 2021 133 Postscript by the Heads of Chambers 139 Appendices 143 Appendix I Members of Chambers 1921–2021 144 Appendix II Current Door Tenants 153 Author Biography 154 Index 155

ILLUSTRATIONS Page Frontispiece: Ambrose McEvoy, W.A. Jowitt, later Earl Jowitt, 1912 ii 1 Brick Court 1 William Jowitt KC, 1923 2 View up Middle Temple Lane 12 Remains of the bombed middle range in Brick Court 13 Damage to Brick Court after the raid of 15th October, 1940 14 Sir Colin Pearson 20 Ronald Burley 21 David Karmel QC 23 Sir Samuel Cooke 26 Robert Alexander QC 29 Dame Rose Heilbron and Hilary Heilbron QC 32 1 Garden Court 36 11 Essex Street 50 Jonathan Hirst QC and Professor Jolowicz QC (Hon) with Burley and Simon Perry 64 Christopher Clarke QC 66 David Vaughan QC 67 Conference room in Devereux Court, c.1994 75 7–8 Essex Street 92 Jonathan Sumption QC 104 Nicholas Green QC 123 The unveiling of Howard Morgan’s portrait of Sir Sydney Kentridge QC 124 Mark Howard QC 139 Helen Davies QC 139 Charles Hollander QC 154 xi

FOREWORD This book was spawned during a conversation I had about Brick Court’s impending centenary with Paul Gray, who runs the Brick Court marketing arm. I am not sure how I agreed to do it. Paul claims I volunteered. Certainly I have been around Brick Court longer than most. I was a pupil in 1978–79, at a time when there were eighteen members of chambers and eighteen pupils.1 Unlike most members of Brick Court at that time, I was not actually rejected by the chambers where I did pupillage, but it was really a question of jumping before I was pushed and I spent six years in other chambers before returning to the fold. In those six years Burley had me instructed in big cases involving Brick Court silks when he had no one available in his own stable. I must have made my affection for Brick Court embarrassingly obvious to my then chambers because a well-known silk there used always to greet me with the quip “Here’s Charles, on secondment from Brick Court.” But in any event writing this book has been an experience far more stimulating than I would have expected. What I knew about chambers prior to my own arrival was limited to the short history on our website written by Sydney Kentridge and Jonathan Hirst. I do not propose to name all the members of chambers, and former members, who have provided me with information and assistance for this book. However, I do want to thank individually those who have given me help and information who have never been members of chambers. Burley’s son, Christopher, provided a remarkable amount of information about the barristers looked after by his father. Quite apart from explaining how, as a litigation solicitor, he learnt the art of successful fee negotiation with his dad (something few managed),2 he enabled me to trace the existence and details of a number of members of chambers in the post-war period whose association with Brick Court might otherwise have been lost to posterity. 1 Roger Buckley was my pupil master; my co-pupil was Stephen Males, now Lord Justice Males. 2 See p53

xiii

Fiona Hirst, widow of the much-missed Jonathan, is responsible for some of the photos in the book, as well as a number of stories from Jonathan’s career. I am also grateful for help from John Sackar, (who is a Supreme Court judge in Sydney) Julian Cooke (son of Samuel Cooke), Rafael Valls (son of Raf Valls), Lavinia Wallop (David Karmel’s daughter), and Hugo Wynn-Williams and Lesley Jane Nicholson (Jowitt’s grandchildren). Finally, Paul Gray himself has done everything else in relation to this book and has done a brilliant job (probably from guilt for making me write it...): we did the appendices together, he sorted out, and where necessary procured, the photos, proofed it, and organised the publishing. Charles Hollander QC

xiv

THE BEGINNING

1 Brick Court

Brick Court was founded in 1921 by William Jowitt when he took rooms in 1 Brick Court. Jowitt was called to the bar in 1909 and started on the Western Circuit, but soon started practising in London. By 1919 he had developed a significant practice, mostly in commercial and admiralty cases but also in libel and slander. In 1921 Jowitt moved from other chambers to set up his own at 1 Brick Court in Middle Temple, bringing with him two rising stars in Cyril Asquith and Donald Somervell. At this stage he was still a junior. He became a King’s Counsel the day before the 1922 election, when he was elected MP for The Hartlepools. Jowitt was a member of the faction of the Liberal Party led by the former Prime Minister H H Asquith (Cyril’s father). He continued to practise law whilst a backbench MP. He was re-elected, now as part of the re-united Liberal party, at the 1923 election and in 1924 was a member of the Royal Commission on Lunacy. There was yet another election in 1924, and this time he lost his seat and returned full time to the bar. 1

Accounts of Jowitt pay tribute to his magnificent appearance,3 which is apparent from the famous portrait (see frontispiece) by Ambrose McEvoy, painted when Jowitt was 23. He had a superbly sonorous voice that an actor would have been proud of. When he subsequently entered the House of Commons, he was regarded as “the handsomest man in the House”,4 whilst his intellectual abilities were seen as superior to the courtroom masters of the day, Norman Birkett and Patrick Hastings. From 1925 (when RA Wright KC, later Lord Wright, went on the bench) Jowitt was the undisputed head of the Commercial bar.5 He attracted attention for his subdued and charming manner, at a time when barristers were more inclined to browbeat witnesses. Jowitt’s standing among solicitors was undoubted. Those who retained him were impressed by the painstaking attention which he paid to his briefs and the courtesy with which he considered his client’s suggestions in conference.6 The clerk was Edward Cheeseman. He was not a popular William Jowitt KC, 1923 man. He was “a little man with a round face and spectacles and a chirpy manner when he was sober”.7 Cheeseman seems to have paid little regard to members of chambers other than Jowitt himself. Thus Asquith was required to provide the customary guarantee of a minimum in clerks’ fees in a sum much higher 3 RFV Heuston, Lives of the Lord Chancellors Vol 2 (1987) Clarendon Press (“Heuston”) p69 4 Together with one other: Ibid p69 5 Ibid p70 6 Ibid p70 7 Patrick Devlin, Taken at the Flood (1996) Taverner Publication (“Devlin”) p153

than he had anticipated, but was assured by Cheeseman that he was in a position to put a good deal of work his way. After a couple of barren years Asquith reminded Cheeseman of this, upon which Cheeseman produced a brief apparently from a solicitor called Iohnson which caused confusion because it transpired that the only typewriter in the office had lost its capital “J”.8 Neither Asquith nor Somervell stayed in chambers very long; both left in 1926, probably because of Cheeseman. Like Jowitt, Somervell took silk (in 1929), also went into politics subsequently and ironically Jowitt served under him when Somervell was Attorney General and Jowitt Solicitor General in 1940. Jowitt’s life at the bar and the fortunes of 1 Brick Court changed suddenly in 1929. In the general election on 30th May he was elected to Parliament as a Liberal party candidate. That election brought Ramsay MacDonald’s second Labour government into power. MacDonald had at that time little in the way of legal talent in his parliamentary party and had been friends with Jowitt for some years. He invited Jowitt to become his Attorney General and, on 6th June 1929, Jowitt crossed the floor and became the Labour Attorney General. His acceptance of office aroused considerable public criticism, some of it from his own profession. But he was not a man much moved by public opinion. According to the parliamentary convention of the time he resigned his seat, stood again at the by-election on 31st July and was re-elected as a Labour member with a significantly increased majority. The practice was that a silk, when he becomes a law officer, moves into his rooms in the Law Courts taking his clerk with him. There were echoes of this practice 60 years later when Nicolas Lyell asked Ronald Burley to be his clerk when he became Attorney General.9 Jowitt took his clerk Cheeseman. The chambers at 1 Brick Court went into limbo during Jowitt’s period of office. The tenure of Jowitt (now Sir William) as Attorney General was not without controversy. Paid for the briefs he undertook in that capacity on behalf of the Crown, in his 21 months in post he earned the enormous 8 Ibid p154 9 See p80

sum of £39,218 in fees in addition to his salary of £5,000.10 Apart from his London house in Upper Brook Street he had a 250 acre farm, Budd’s Farm, overlooking Romney Marsh near Rye, East Sussex, which at one point had ten gardeners. He owned an art collection which included Matisse and Sickert. Although Jowitt had on nine separate occasions tried to enlist for the Great War, he had been rejected on health grounds. As a result, there were many in the profession who despised him because he had never served, but had instead progressed his practice when his colleagues were dying on the western front. Others loathed him for what they saw as his political opportunism. The crisis of August 1931 which broke up the Labour government over proposed spending cuts saw Jowitt siding with MacDonald. When MacDonald formed the National Government in September 1931, only a few Labour MPs took Jowitt’s lead in following MacDonald. Jowitt was again appointed Attorney General. The election took place on 27th October, and the Labour party was virtually wiped out, with 556 supporters of the National Government and an opposition of 56. Jowitt was defeated at the election. He remained Attorney General in the National Government after the election, but as neither his former party, the Liberals, nor his more recent party, Labour, would support him, he could not find an alternative seat and resigned on 26th January 1932. He and MacDonald were expelled from the Labour party, angry with what it saw as MacDonald’s betrayal of his party at the end of 1931. It seemed possible that Jowitt would become Lord Chief Justice as Lord Hewart was seriously ill and at that time the tradition was that an ex-Attorney General was entitled to be offered a vacancy.11 However, Hewart recovered and remained in post until 1940. In that post First World War period, the judgments that stand out are those of the very strong Court of Appeal of Scrutton, Atkin and Bankes. But this was not always the easiest of courts to appear in front of; Scrutton could be difficult as one unfortunate junior found out when appearing in front of him: 10 Heuston p87 11 Ibid p89

We are having some difficulty in following your submissions and wonder whether you might like to put them in some sort of order. Logical order would obviously be best, but this is clearly not to be hoped for. Alternatively you might consider a chronological presentation. But if this is also too much to ask, at least try alphabetical.12 Jowitt returned to the bar at the beginning of 1932. During the 1930s, while retaining his pre-eminent position at the Commercial bar, he became one of the very few counsel in demand for any case in which money was no object. In accordance with what was then acceptable practice, he was prepared to take two or even three cases on the same day. He might open a case in one court, and then go off to cross-examine an important witness in another. He might or might not return to do the closing speech. The instructing solicitors accepted a special scale of fees devised by his clerk. For the ordinary cases the ordinarily handsome fee, but for cases to which he undertook to give “his undivided attention”, a specially increased fee. Jowitt’s skills in court were remembered by Dr Charles Hill, assistant medical secretary of the BMA, who had briefed him at 1,200 guineas plus 100 guineas a day to appear before the House of Lords Select Committee to oppose a bill for the recognition and registration of osteopaths.13 Jowitt did not endear himself to the clients at the first conference when he described in considerable detail the manipulative treatment he received daily from an osteopath and said he could not get through the day without it. However, his cross-examination of the Principal of the British School of Osteopathy focused on a reference in the school’s prospectus to the latter possessing an American degree which was missing in the following year’s document: Courteous, urbane and patient through his cross-examination, the discomfiture of the witness grew visibly as Jowitt added to his knowledge by interrogation. He was the innocent searcher after truth, so anxious to learn how degrees in medicine and philosophy were acquired in the United States. He was astounded – at least he 12 Michael Kerr As Far as I Remember, (2006) Hart Publishing (“Kerr”) p240 13 Heuston p90

looked astounded – when the witness admitted he had forgotten the names of his teachers, his old masters, at medical school. He was so gently surprised when the witness did not know where the University of Texas was, though he said he was a graduate of it. So devastating was his cross-examination of this gentleman that it seemed to me that this alone was enough to make it certain that the Select Committee would report against the Bill. It was undoubtedly that, more than anything else, which led the promoter of the Bill to try to withdraw it. This cross-examination bears a remarkable resemblance to another famous Brick Court cross-examination over 70 years later.14 Jowitt, who was devoted to his clerk Cheeseman, now took four rooms on the second floor of 1 Brick Court. One room was Jowitt’s, another was for Cheeseman. A third was for a secretary who could do typing and shorthand, apparently the only such person in any set of chambers in London at the time.15

14 See p112 15 Devlin p154

AFTER JOWITT When Jowitt was Attorney General, he required a devil to assist him with his work. Colin Pearson, who had been a pupil to Walter Monckton and remained in Monckton’s chambers thereafter, had been offered the job. Pearson was born in Canada but came to England when he was seven, and took a first in classical honour moderations at Balliol in 1920. He was a socialist and when Jowitt crossed the floor in 1929 Pearson had written to him to welcome him into the Labour party. Pearson was doing cases, mostly rating cases decided by magistrates, for Jowitt as the Attorney General’s devil. In Gray’s Inn in 1929 Jowitt had attended, as President, a moot which was a problem concerning the escape of some tiger cubs from a travelling circus and involved an application of Rylands v Fletcher.16 The Master of the Moots was Sir Plunkett Bastion (yes, seriously). A young Patrick Devlin made an impression in his moot speech. Devlin happened to be introduced to Pearson some time thereafter who told him that Jowitt was looking for a second devil. Cheeseman telephoned Devlin and invited him for interview and he was duly appointed. Pearson and Devlin resided in the secretaries’ room at the Law Courts (the Attorney General had several rooms in the Law Courts at his disposal) and on most days either or both of them went after court to Jowitt’s room in the House of Commons. Thus they both got to know Jowitt, and started spending time socially with him and his wife both at their house in London and at weekends at their farm. Patrick Devlin had achieved a lower second both in the history and then law tripos at Cambridge17, albeit he had been President of the Union, and passed the bar exam with a third in 1927 notwithstanding managing to fail constitutional law. He came to the bar after a short period working in the solicitors’ firm of Sir John Withers. Devlin did 16 John Sackar, Lord Devlin (2020) Hart Publishing (“Sackar”) p43 17 Academic success eluded a number of the distinguished lawyers and judges of prior generations. Robert Megarry, Vice Chancellor in the 1970s and distinguished property lawyer, was congratulated by his tutor at Cambridge on his economy of effort as if he had obtained one less mark he would have failed.

pupillage in a modest common law set; he was not offered tenancy there and joined another common law set in Cloisters where he had no work. Devlin is a difficult person to write about now. Often regarded as one of the great judges of the twentieth century, Devlin’s reputation has recently been tarnished by evidence given almost thirty years after his death by his daughter, now aged 81, to the Independent Inquiry into Child Sexual Abuse as to sexual abuse by her father when she was a child. Her evidence, in circumstances where she went public with her family’s support, is shocking.18 Pearson appears to have been something of a detail man, who was happy doing de-rating cases for Jowitt that others (including Devlin) found dull. Pearson seems never to have had a great reputation as an advocate but was regarded as a first-class lawyer with an immediate grasp of any point put to him. Jowitt appointed him Junior Counsel (Common Law) to the Ministry of Works in 1930. Work as the Attorney General’s devil was not in the event limited to rating cases. The Attorney General was the ex-officio leader of the bar and was paid for the briefs he undertook on behalf of the Crown. Jowitt liked to have one or both of his devils sitting beside or behind him in important cases. Thus Jowitt prosecuted (with Devlin) the Sidney Fox matricide case because, by long-standing custom, one of the law officers appeared for the Crown in major criminal cases19, and also the enquiry 18 The Guardian, 25th July 2021 19 Sidney Fox strangled his mother. This was probably the only case of a matricide in the twentieth century. In April 1929 Fox persuaded his mother to make a will in his favour, despite her poverty, and on 1st May insured her life against accidental death, the policy to expire on 23rd October. Just before 23rd October, they arrived together at a hotel in Margate and booked adjoining rooms with a communicating door. On 23rd October, Fox and his mother ate dinner, Fox buying a half-bottle of port as a “nightcap” for her. At 11.40 pm that same evening, Fox raised the alarm that there was a fire in his mother’s room, and her partly clad body was pulled out of it by another guest. Fox said he went into his mother’s room, saw the smoke and then shut the door. Jowitt subjected Fox to a ferocious cross-examination. “Why did you shut the door?” asked Jowitt. Fox said that he had closed his mother’s door “so that smoke should not spread into the hotel”. “Rather that your mother should suffocate in that room than the smoke should get into the hotel?” Fox had no sensible answer and that was said to have sealed his fate. The jury convicted Fox and he was hanged at Maidstone Jail on 8th April 1930, the Home Secretary having declined to intervene. Defence counsel for Fox later remarked that Fox might have saved himself by answering “I don’t know” to Jowitt’s question “Why did you shut the door?”.

into the crash of the R101 airship, which had barely crossed the Channel on its maiden voyage to India before it crashed. The first case which Devlin did with a leader other than Jowitt was the Hearn poisoning case, which was notable because his leader, Herbert du Parcq QC, fainted just before commencing his final speech to the jury and it looked as though Devlin would have to deliver it until du Parcq recovered quickly. In 1930 Jowitt appointed Devlin as Counsel for the Mint (which involved prosecuting counterfeiters) and Counsel to the Ministry of Labour (prosecuting benefit fraudsters). When he returned with Cheeseman to 1 Brick Court in early 1932 after his expulsion from the Labour party, Jowitt offered Devlin the fourth room, which was otherwise being used as a clients’ waiting room. Jowitt’s loss of his clients’ waiting room when Devlin took it over was not a great inconvenience. The solicitors of the time were not used to such luxury and preferred to stand outside Sir William’s door until the great man was ready to see them. Jowitt himself advised Devlin against the move, but Devlin was getting very little work from his common law chambers and joined Jowitt in 1 Brick Court. He was also continuing to prosecute counterfeiters and benefit fraudsters. Moreover, where Devlin had devilled work for Jowitt, and on the many occasions when Jowitt was otherwise engaged or too busy to see a client on an ongoing case, Cheeseman proved surprisingly adept in persuading them to see Devlin “who has been devilling the case for Sir William and is very familiar with it and might be able to help you”. Those willing to accept a junior’s services in cases where Jowitt was instructed but unavailable did not provide repeat business for the junior. However, Thomas Cooper, which was one of the leading firms in the Commercial Court (where most of the cases involved trade by sea that was still predominantly in British ships), had a connection with a small firm which handled non-commercial matters, and the same managing clerk handled the smaller cases for both firms. Devlin impressed whilst handling a divorce and the managing clerk then sent him one of Thomas Cooper’s commercial cases and that gradually led to Devlin acquiring a practice at the Commercial bar. A further brief which came his way unexpectedly led to him acquiring initially the 9

common law work for Shell Petroleum and subsequently all of Shell’s work.20 These were the days when Lord Hewart was Lord Chief Justice. His famous aphorism that justice must not only be done but must manifestly and obviously be seen to be done was not borne out by his conduct in court. As was said about him: Hewart … has been called the worst Chief Justice since Scroggs and Jeffreys in the 17th century. I do not think that is quite fair. When one considers the enormous improvement in judicial standards between the 17th and 20th centuries, I should say that comparatively speaking, he was the worst Chief Justice ever.21 By 1935 Jowitt was leading Devlin in the House of Lords22 in a case on the role of the jury in civil cases. Their opponent was Sir Stafford Cripps; this was a time when a number of leading figures at the bar were involved in politics. Cripps, later Chancellor in Attlee’s government, had been Solicitor General to Jowitt in 1930. Jowitt was an anti-appeaser in the 1930s and was re-admitted to the Labour party in November 1936. Critical of the Chamberlain appeasement policy, he called for state control of the arms industry and rapid rearmament, and by early 1939 called for the recreation of the Ministry of Munitions. In October 1939 he was elected as Labour candidate in a by-election in Ashton-underLyne after the member died. As his predecessor had a majority of only 114, it was perhaps fortunate that Jowitt was able to take advantage of the all-party truce that marked the start of the war and was returned unopposed. When Churchill became Prime Minister in May 1940 Jowitt was appointed Solicitor General, with his old chambers colleague, Donald Somervell, as Attorney General, after Attlee had objected when Churchill wanted to appoint conservatives as both law officers. Despite a little local difficulty when he was convicted and fined £15 by Canterbury 20 Devlin later discovered that Mr Boyle, the non-lawyer who handled Shell’s litigation, selected him after looking down the list of practising juniors and choosing the one he thought had the most Irish name. 21 Patrick Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (1985) Bodley Head p82 22 Mechanical and General Inventions Company, Limited v Austin and Austin Motor Company [1935] AC 346

magistrates for breach of the rationing regulations (the problem apparently lay with an incompetent bailiff on his farm)23 Jowitt became Paymaster General in 1942, then Minister without Portfolio (responsible for post war reconstruction planning) and in 1944 Minister of Social Insurance. He was returned with an increased majority in the Labour landslide of 1945 and was immediately appointed Lord Chancellor, as Lord Jowitt of Stevenage, with a seat in the cabinet. Jowitt’s political renaissance left Devlin as the head of 1 Brick Court. Like Jowitt, Devlin was ineligible for war service: the rickets he had contracted while at school had left him with a permanent stoop. He joined the Home Guard instead.24 He also joined the Ministry of Supply. Devlin remained in practice during the war doing part-time work as junior counsel to the Ministries of War Transport, Food and Supply (1940–42) and to the Legal Department of the Ministry of Supply (1942–45). Inevitably, the work of the bar was limited during the war years and Brick Court was heavily bombed. The first bombs fell on the Temple in September 1940. On 15th October 1940 a land-mine attached to a parachute caused a tremendous explosion and widespread damage including the buildings of Crown Office Row, Pump Court, Cloisters, Lamb Building, Brick Court, Essex Court, Plowden Buildings, Garden Court and Temple Gardens. On the night of 10th May 1941 Middle Temple suffered more devastation than in all the previous raids when high explosive and firebombs rained down for five hours. An incendiary lodged on the top of Temple Church. A bomb had earlier smashed the water mains and there was insufficient water to extinguish the fire. The church roof fell in, leaving standing only the outer walls of the round church built by the Knights Templar and the nave. The fire spread, destroying the Master’s House, Christopher Wren’s Cloisters, most of Pump Court and Lamb Building, Brick Court, Hare Court and Harcourt Buildings. All the wardens could do was to try to save as many human lives as possible and rescue the contents of buildings, while trying to do anything possible to prevent the spread of the flames. As in the Great 23 Heuston p92 24 Sackar p57

View up Middle Temple Lane with Brick Court at the top left

Fire of London, fires continued to smoulder for days.25 Beecher Moore, a Middle Temple warden wrote: Fires were all around the Temple, on both sides of the river. The Temple Church was burning, so was Brick Court, and at 2 o’clock in the morning it was as light as day. People in air raid shelters had to be moved twice, once due to an explosion in Brick Court, and once due to an unexploded bomb in Middle Temple Garden.26 Another incident was in 1944, according to a fire watcher: [They] watched the succession of red glows in the sky made by these infernal machines as they came over from the south. 25 “London’s Burning”, Pat Edwards for Middle Temple 26 “Bombs, blazes and buckets of tea. Life at the Inn during World War II”, Middle Temple Archive, April 2020

He and several of his colleagues went downstairs into the passage which led along to the First Aid Post. About a minute later the passage shook as if it were a torpedoed vessel. On emerging from the passage and going out into Brick Court one saw a pall of black smoke over a building which appeared to be at the entrance to Essex Street. The spot that the fire watcher mentions had received a direct hit from a V-1 and most of the buildings on the west side of Essex Street were demolished by the blast. Some people had been drinking in the Essex Head tavern (now the Edgar Wallace) at the time – fortunately on the opposite side of the street to the explosion, and some glasses were broken and beer was spilt, but no one was injured.27

Remains of the bombed middle range in Brick Court with 1 Brick Court on the right 27 ibid

Damage to Brick Court after the raid of 15th October, 1940

By the end of the war Middle Temple had lost 122 of its 285 sets of chambers, giving rise to a massive task of reconstruction. Miraculously, however, in the whole of the war there were no fatalities in the Inns caused by enemy action. The destroyed range (see above), which divided Brick Court from Essex Court, was not rebuilt, and a temporary library

was put up in a prefabricated building in Brick Court, opened by Queen Elizabeth in November 1946. Moreover, importantly, not a single bottle of wine stored in the Middle Temple cellar was broken during the bombing.28 Review of the law reports at this time shows a number of references to counsel “on war service”. One might have thought it was unnecessary to mention counsel who was absent and not involved in the argument in court. In fact, in October 1939, the Bar Council had passed a resolution requiring a barrister who took over a brief for someone on war service to acknowledge that fact and to share the fees with the barrister either as agreed, or if there was no agreement, on a 50:50 basis.29 Thus in Imperial Smelting Corporation Ltd v Joseph Constantine Steamship Line Ltd30 reference is made to Alan Mocatta as counsel on war service. This charterparty case was argued by Sir Robert Aske KC, leading Devlin. Aske did not pronounce the letter “H” and it was said about him that when he was arguing a damage to cargo case no one was sure whether his complaint was that the weevils had been eating or heating the maize in the hold.31 They lost in the Court of Appeal but won in the House of Lords.32 Jowitt remained Lord Chancellor throughout the 1945–51 Attlee government. In that capacity he had to deal with the Nuremberg trials, the introduction of Legal Aid under the Legal Aid and Advice Act 1949, the United Nations Act 1946, and a variety of important legislation establishing Britain’s post war society. It was noted that none of his appointments to the bench were socialist lawyers notwithstanding his being a Labour Lord Chancellor, at least until Terence Donovan (who had a high reputation at the Revenue bar) was appointed in July 1950. Jowitt was created an earl in the 1951 resignation honours list, sat in cases in the House of Lords seventeen times after he ceased to be Lord 28 29 30 31 32

“London’s Burning”, Pat Edwards for Middle Temple Sackar p57 [1940] 1KB Kerr p244 Imperial Smelting Corporation v Joseph Constantine Steamship Line Ltd [1940] 2 KB430 (Court of Appeal); Joseph Constantine Steamship Line Ltd v Imperial SteamshipLine Ltd [1942] AC 154 (House of Lords).

Lord Jowitt (second from right) at the beginning of the Legal Year, 1950

Chancellor, and died in 1957 after writing a book shortly before his death on Alger Hiss; as he had no male heirs, his peerage became extinct. Meanwhile Tom Denning went on the bench in 1944, shortly after arguing a shipping case in the Court of Appeal against Devlin.33 In 1946 Rayner Goddard became Lord Chief Justice after Viscount Caldecote, who had been Lord Chancellor before the war and moved from Dominions Minister to Lord Chief Justice in 1940, had suffered a stroke. Goddard was a hard liner and a dominant figure in the post-war years who is now regarded much more unfavourably than he was in his lifetime. Others began to join 1 Brick Court. Charles Fletcher-Cooke was President of the Cambridge Union in 1936 and was called to the bar in 1938 after taking a first both in finals and in his bar finals. After spending the war on the Joint Intelligence Staff, he built a successful practice, producing a textbook on monopolies and restrictive practices. He was led by Devlin shortly before the latter went on the bench in early 33 Halcyon Steamship Company Ltd v Continental Grain Company [1943] 1KB 355

1948 in a Court of Appeal case which went on for many days.34 It was another shipping case involving allegations of breach of warranty and negligence. However, Fletcher-Cooke’s real interest was politics and, after originally being a Labour parliamentary candidate, he became a Conservative MP in 1951. He took silk in 1958. His parliamentary career never lived up to its glittering promise, perhaps because “he could not control his barrister’s trick of scoring off the less clever,” where “his slightly supercilious whimsy stood out among mostly stodgy Tory MP lawyers”.35 He was a Home Office Minister 1961–63 but resigned after his “handsome eighteen-year-old friend” Andrew Turner, a delinquent with previous convictions, was arrested when driving Fletcher-Cooke’s Austin Princess without a licence or insurance. The next year Wilson’s Labour government was elected and, although Fletcher-Cooke remained an MP until 1983, he never again held ministerial office. Fletcher-Cooke did not loan his cars merely to delinquent eighteenyear-olds. He lent Ronald Burley (more on him below) his Hillman Minx shortly after the war before Burley purchased his first car. We do not know what the insurance position was in this case. Academics also began to be attracted to 1 Brick Court. Otto Kahn- Freund, who had fled Berlin in 1933 after being dismissed as a labour court judge for giving judgments of which the Nazis disapproved, was called to the bar in 1936 whilst an assistant lecturer at the LSE, and was also one of Devlin’s pupils. Although he did not appear in court, he remained a tenant (the distinction between tenant and door tenant may not have been as clear cut at the time) whilst Professor of Comparative Law at the University of Oxford and a fellow of Brasenose College. He was appointed QC in 1972 and knighted in 1976. He died in 1979. Jack Hamson was another distinguished academic who became a member of chambers. He was a member of the Special Operations Executive, was captured in Crete in 1941 and subsequently taught law to keen POWs. Those POWs sat exams; the scripts were sent to England 34 Owners of the Steamship Towerfield v Workington Harbour and Dock Board [1949] 10 35 Obituary, The Guardian 1st March 2001

and marked by Professor Winfield (of Winfield and Jolowicz fame). When asked subsequently by Hamson whether he made allowance for the conditions of those examinees when marking their papers Winfield said, “Goodness gracious – certainly not.” Raf Valls joined in 1936 and in due course became the longestserving member of chambers. His full title was His Excellency Do Rafael Valls y Carreras, LVO, Marques de la Fuente Olivares, Marques de la Cabra, Knight Grand Cross of Civil Merit, and Knight Commander of the Order of Isabella the Catholic. Valls had come over from Spain before the war, was proud of being Spanish, and his friends included some bullfighters as well as Ava Gardner. He brokered a number of Spanish deals which came through London. He was a colourful character who changed his Bentley every three years when the warranty ran out. It is said that on one occasion he went into town to buy a pair of shoes and came back with a Bentley instead. Burley regarded him as a man of great charm, gentleness and kindness. He started work at 6am every morning in chambers and held himself out as an expert in the law of many Central and South American states (“Burley, do I do Peru?”) which were based on Spanish law and appears both as counsel in the law reports and also giving expert evidence on foreign law. There are reported cases where he gave evidence of Mexican36 and Ecuadorian37 law. In giving expert evidence he described himself as “a practising member of both the Spanish and English Bars and Legal Adviser to the Spanish Embassy and the Spanish Consulate-General in London”. In Re Duke of Wellington’s Estate38 he gave expert evidence when WynnParry J had to determine a point of Spanish inheritance law concerning the Duke’s estates in Spain. What is most curious about the case is that Valls appears not as expert but as junior counsel in the appeal to the Court of Appeal.39 He used to reproduce a standard form advice to many Spanish and South American clients. He retired in 1975 and died in 1992. 36 37 38 39

Mountbatten v Mountbatten (No 1) [1959] P 43 John Walker & Sons Ltd v Henry Ost [1970] 1WLR 917 [1947] Ch 506 [1948] Ch 118

Another joiner was Walter Gumbel. He was a Jewish lawyer in Stuttgart who was called to the bar in 1927. His licence to practise law in Stuttgart was withdrawn in 1933 in one of the early Nazi purges and he came to practise at 1 Brick Court.40 He was interned at the beginning of the war, joined the British army as a private and rose to Lt Colonel, interrogating Nazi officers at the end of the war. Gumbel appears in a large number of reported cases in the post war years, usually acting for government entities or ministries41 but in the 1960s his practice focused on the Restrictive Practices Court where his expertise was wellknown: in that sense he might be described as a forerunner of the Euro practitioners.42 He died in 1981. A further politician who was briefly at 1 Brick Court at the start of his career was John Peyton. Captured in Belgium in 1940, he studied for his bar exams whilst imprisoned in Bavaria and joined chambers briefly after the war. Peyton was offered but declined the position of assistant private secretary to Jowitt when the latter was Lord Chancellor, but became personal assistant to Monckton on his 1946 tour of duty in India in preparation for independence. His career at the bar was shortlived as he became a Lloyd’s broker on return from India before entering the Commons in 1951, was Minister of Transport in Heath’s cabinet and stood as a candidate in the first ballot in the first conservative leadership election in 1975 when Thatcher unseated Heath. He came last and was eliminated. His one reported case involved appearing as junior to Devlin in a case that went to the House of Lords.43 Airey Neave was a pupil in chambers just after the war. He had escaped from Colditz, was 40 His son, Nicky, is well known as the vicar of Holy Trinity Brompton and the developer of the “Alpha” course in evangelical Christianity. 41 E.g. R v Industrial Disputes Tribunal ex parte Queen Mary College University of London [1957] 2QB 483, where he was counsel for the Ministry of Labour and National Service. 42 E.g. Re Wire Nails Manufacturing Agreement [1961] 1WLR 914, Re Black Bolt & Nut Association’s Agreement [1960] 1WLR 884, Re Blanket Manufacturing Association Agreement [1959] 1WLR 442 43 Panamena Europea Navegacion Compania Limitada v Frederick Leyland & Co Ltd [1947] AC 428. Devlin was in fact second silk in the case behind the Labour politician DN Pritt.

Thatcher’s campaign manager when she defeated Heath, and died when he was blown up by an IRA bomb just before the 1979 election.44 It was not until 1946 that Colin Pearson himself joined 1 Brick Court. He had become Recorder of Hythe in 1937 and worked in the Treasury Solicitor’s department during the war, only returning to the bar thereafter. A review of Pearson’s reported cases shows his early ones being mostly rating cases, often led by Jowitt, and then a broad practice largely involving government work, with some of his Privy Council appearances involving cases from Canada. He was in Reading v Attorney General,45 as to whether Sir Colin Pearson the army sergeant’s bribe involved a duty to account. Strikingly, almost all Pearson’s appearances in the law reports are led, in particular during his relatively short period in silk, which suggests that he either did not enjoy, or was not particularly good at, advocacy. Devlin went to the High Court bench in October 1948 at forty-two. At the same time Denning was promoted to the Court of Appeal at forty-nine. Colin Pearson became Head of Chambers, taking silk in the following year. Before Devlin departed however, one event had occurred which proved momentous. Cheeseman had ceased to clerk chambers and a new and competent senior clerk, Lionel Hawkins, had been employed. He in turn found a new junior clerk to cope with the growing work, in the person of a young man recently de-mobbed from the RAF. By that time chambers occupied the whole of the ground floor of 1 Brick Court. 44 There is a suggestion Neave may have briefly been a tenant but he was never so credited in the law list and the position is unclear. 45 [1948] 2KB 268

Early in 1948 Hawkins, the senior clerk, moved upstairs to clerk the libel set of chambers on the first floor (of which David Hirst QC would become head). Devlin invited the junior clerk, Ronald Burley, to succeed Hawkins. Burley left school at fifteen with few formal qualifications. He went into the Temple as an office boy in the chambers of D F Levy in 1938 where one of his jobs was to light the fires Ronald Burley in the grates. He then became a sales clerk at Shell Mex where he came under the influence of an older employee who tried to recruit him into the communist party. Burley briefly flirted with communism but rapidly thought better of it, an experience possibly responsible for his loathing of the left in later life. He volunteered for the RAF at the age of eighteen, trained as an officer pilot, flew Wellington bombers, mostly in South Africa, and was demobbed at the end of 1946 as Flight Lt Burley when he became junior clerk to Hawkins. Thus it was that Burley became senior clerk at the age of twenty-five, a position he occupied for more than forty years. Devlin and Pearson went on to have parallel judicial careers. Pearson was six years older. Devlin took silk in 1945, Pearson in 1949. Both became Head of Chambers of 1 Brick Court. Both would become judges (Devlin in 1948 and Pearson in 1951). Both would be President of the Restrictive Practices Court (Devlin in 1958 was its first President, Pearson in 1960). Devlin was appointed to the Court of Appeal in 1960, Pearson in 1961. Devlin was appointed to the House of Lords in 1961, Pearson in 1965 after Devlin’s retirement from the House of Lords in 1964. As a puisne judge, Devlin presided over the trial of Dr John Bodkin Adams, a doctor accused and acquitted of hastening the demise of his 21

patients. Devlin’s 1985 book about the trial caused great controversy as a former judge writing about a trial over which he had presided. Devlin had a claim to be appointed Lord Chief Justice on Lord Goddard’s retirement in 1958 but neither Macmillan (Prime Minister) nor Manningham-Buller (Attorney-General, known by the nickname “Sir Bullying Manner”46 whose conduct of the prosecution of Bodkin Adams was subject to withering criticism from Devlin in the book) were admirers, and the post went to Hubert Parker instead. In the House of Lords Devlin often found himself in a minority of two with Lord Denning, representing the more liberal point of view, although Devlin’s judgments have in many ways stood the test of time better than those of Denning, who became Master of the Rolls in 1962. And he did not enjoy the diet, which then involved numerous revenue cases. Devlin was only fifty-eight when he retired as a judge. He was Chairman of the Press Council 1964–69 and High Steward of Cambridge University 1966–91. He wrote books on law and history and the interaction of law with moral philosophy. He died in 1992. Pearson’s left-leaning political views made him an ideal appointee for commissions and inquiries under the Wilson government and he chaired inquiries following the seamen’s strike of 1966, the civil air transport industry dispute of 1967–68, the British Steel dispute of 1968 and the docks strike of 1970. He chaired the Royal Commission on Civil Liability and Personal Injury between 1973 and 1978, retiring as a judge in 1974. He died in 1980. When he became a judge, he gave Burley an Omega watch engraved: “To Burley with my thanks, Colin Pearson”.

46 Later Lord Chancellor as Viscount Dilhorne

QUIET YEARS The next two decades were a relatively lean period for Burley and his small set of half a dozen barristers. It did not help that Devlin had gone to the bench, closely followed by Pearson in 1951. Although the set sought to carry on doing the commercial work which Devlin had brought in, these were lean times for the Commercial bar generally and such commercial work as there was tended to be snaffled by 3 Essex Court. David Karmel became Head of Chambers when Pearson went to the bench. Karmel had an Irish background, had studied at Trinity College, Dublin and had practised on the Northern Circuit. He had been blown up by a mine whilst in a jeep in Yugoslavia in the war and had been the sole survivor. A long stay in hospital thereafter left him with a permanently damaged back and five inches shorter. In the event, the injury ultimately led to his death from septicaemia. He married a daughter of Sir Montague Burton, the founder of the eponymous menswear chain. He tried to avoid David Karmel QC appearing in court where possible because it was difficult for him to stand for long. Thus he did a lot of arbitration work, often at Heathrow in the 1960s arbitrating union disputes. His appearances in the law reports are generally criminal and family cases, some regulatory offences. He led in a case which considered whether insanity was a defence to matrimonial cruelty.47 There is one reported case where he was led by Jowitt in 1940, where Jowitt persuaded the Court of Appeal to quash a conviction by magistrates for breach of regulations requiring lorry drivers not to drive for more than a specified 47 Elphinstone v Elphinstone [1962] P 203

period of time.48 He took silk in 1950, was appointed Recorder of Wigan in 1952, which was a ten year appointment, then Deputy Chairman of the Court of Quarter Sessions of Gloucestershire and Recorder of the Crown Court in 1972 and sat as a judge at the Old Bailey.49 He was one of the stewards for the British Boxing Board of Control. He was appointed CBE in 1967, retired in 1979 and died in 1982. Karmel’s London chambers had previously been those of Walter Monckton. Pearson was also a member there, and it can be assumed that after Pearson himself moved to 1 Brick Court, he encouraged Karmel to join. Karmel had been a Labour candidate for Scarborough before the war, so he would have shared a left-leaning political interest with Pearson. He joined chambers when he took silk in 1950. When Pearson went to the bench in 1951, Karmel was the only silk practising in 1 Brick Court. He was a likeable and generous man who knew everybody and worked well with Burley. He later made Burley a present of his 1954 Bentley, claiming that he preferred driving his mini around town as it did more miles to the gallon. Tony Jolowicz added to the academic contingent in chambers. He became an assistant lecturer in Cambridge in 1955, having won a prize fellowship at Trinity, and from 1976–93 was Professor of Comparative Law. Jack Hamson was also at Trinity, and they were close friends. Jolowicz spent some time in his early years in practice at 1 Brick Court, but quickly found that you could not excuse yourself from giving a lecture because you were in court and could not excuse yourself from being in court because you were giving a lecture. So he plumped for academia, although still did a little work at the bar, remarking on one occasion that six weeks’ work on a case had earned him more than his annual academic salary. Denis McDonnell joined in 1953. He had been awarded an OBE in 1945 and appears in the law reports in the 1950s and early 1960s in several common law cases.50 Burley never liked or rated him. He became 48 E Wells & Son Ltd v Sidery [1940] 1KB 85 49 See for example R v Watts [1980] 71 Cr App R 136, R v Calderhead [1979] 68 Cr App R 37. 50 Hunt & Winterbotham (West of England) v BRS Parcels [1962] 1QB 617, Merchandise Transport Ltd v British Transport Commission [1962] 2QB 173, Baylis Baxter v Sabath [1958] 1WLR 529

a county court judge in 1967 and sat first at Barnet then Westminster. Whatever he was like in earlier life, by the early 1980s he had become a deeply unpleasant bully in court and spent his latter years on the bench terrorising young barristers venturing to Westminster County Court. He was an Irish Catholic, and probably did not much approve of the divorce law reform in 1969; a youthful Christopher Clarke, appearing in front of him on a divorce petition shortly thereafter, was asked “What exactly are love bites?” He died in 2001. Paul Curtis-Bennett joined in 1950, and left for other chambers in 1973 (more of that later).51 The law reports suggest he also had a common law practice,52 save for two Australian Privy Council appeals in 1965 where he appeared with the same AngloAustralian counsel team.53 Robert Gatehouse had joined from a common law set.54 A room became free because Kenneth Potter, who had joined in 1948, left. Gatehouse, who had had a distinguished war record as a tank commander, had a broad practice, in particular arguing a number of disciplinary cases before the General Medical Council. He did a number of cases in the Privy Council. The practice seems to have started when he was very young and was asked to act as a junior in an Australian appeal. When the client refused to pay the silk’s fee, the young Gatehouse had to argue the case himself for two days against the great Garfield Barwick, later Chief Justice of Australia. Although he lost, Lord Tucker and Lord Asquith wrote to congratulate him on his presentation of the case. After a tip-off Burley went to listen to Gatehouse arguing a transport enquiry without a leader and shortly thereafter David Karmel invited him to join chambers. He did a number of Privy Council appeals from Malaysia, Singapore, Australia and other Commonwealth countries, and became a friend of Lee Kwan Yew and his wife. He took silk in 1969. Gatehouse seems to have had 51 See p35 52 Williams v Holland [1965] 1WLR 739, Polak v Marchioness of Winchester [1956] 1WLR 818. 53 Pacific Motor Auctions PTY Ltd v Motor Credits (Hire Finance) Ltd [1965] AC 867, Universal Guarantee Pty v National Bank of Australasia [1965] 1WLR 691 54 According to the law list he moved to 1 Brick Court in 1960. However, his obituary in The Times states that he moved in 1955; the former date is likely to be correct.

an aversion to noise and had a baize door installed as a second door to his room to minimise external sound. Whilst in the post-war years there was a measure of anti-semitism at the bar55 it does not seem to have surfaced in chambers: there was a Jewish head of chambers (Karmel), Gumbel and Kahn-Freund had fled Nazi occupied Europe, and Tony Jolowicz had joined subsequently. Karmel was succeeded as Head of Chambers by Sam Cooke. He took firsts in both the classics and law tripos. He was placed first in the bar final examination in 1936, receiving the Certificate of Honour. He was President of the Cambridge Union in 1934 and was known there for his fiery advocacy, which makes it all the more surprising that his practice at the bar was largely advisory and there is little record of him in the law reports. There is no reported case where he was led by either Devlin or Pearson, one case where he was led by Sir Samuel Cooke David Karmel. Any interest in politics which he had when at the Cambridge Union seems to have disappeared. In 1938 he joined the Office of the Parliamentary Counsel, where he contributed to the drafting of the Education Act 1944 and of the Crown Proceedings Act 1947. In 1946 he returned to private practice, joining 1 Brick Court. In 1947 he served as constitutional adviser to Lord Mountbatten, Viceroy of India at the time of Indian independence. He was Junior Counsel to the Ministry of Labour and National Service from 1950–60, although most of his practice at the bar consisted of commercial advisory work. Gordon Slynn was one of his pupils.56 He became a QC in 55 For example, the obituary of Gavin Lightman, The Times 4th August 2020, which recounts the difficulties he had. 56 It is not clear why Slynn did not stay at 1 Brick Court, although the number of Brick Court members in later years who were turned down by his chambers at 1 Hare Court is striking.

1960, went to the High Court bench in 1967, and was appointed as the second ever chairman of the Law Commission. Afflicted by a nervous system disease, Cooke died in office aged 66 in 1978. Curiously, there were no new Chancery judges appointed between 1951 and 1960 because no vacancies arose: Gerald Upjohn remained the junior Chancery judge from his appointment in November 1951 until his promotion to the Court of Appeal. An attempt to send the Chancery judges on circuit proved disastrous and was swiftly abandoned. One of the elderly QB judges, Mr Justice Hallett, was quietly told to retire after the Court of Appeal had ordered a new trial on the grounds that the judge had interrupted the evidence of the witnesses excessively; a rather brave and unusual judgment for 1957, sensitively expressed by Denning LJ in the knowledge that it would bring an end to the judge’s career.57 The Commercial bar was dominated by 3 Essex Court. In 1961, Lord Kilmuir as Lord Chancellor took a policy decision that no chambers should have more than two QCs. 3 Essex Court already had two (Alan Mocatta and Eustace Roskill, John Megaw having gone to the bench) which created a problem when John Donaldson and Michael Kerr applied for silk. That led to a split creating 4 Essex Court where 3 Essex had an annexe. The inane and anti-competitive Kilmuir policy was quietly dropped the following year but the Essex Court split was permanent; in fact, Mocatta and Roskill went on the bench almost immediately which ironically made the split unnecessary in any event. The other principal commercial chambers were 7 King’s Bench Walk, home of Tom Denning, Henry Brandon, and Robert Goff, and 1 Hare Court (Patrick Neill, Roger Parker, Henry Fisher and Gordon Slynn).58 The City firms of solicitors did not have litigation partners. Litigation was run by managing clerks, some of whom wielded great power over the bar. The late V V Veeder remembered doing a summer internship under the redoubtable managing clerk at Slaughter and May and being told that there were two barristers they were accustomed to instruct: “Mr Saville who is good on the facts but not so good on the law and Mr Bingham 57 Jones v National Coal Board [1957] 2QB 55, Heuston p174 58 1 Hare Court lost its prominence over the generation that followed and merged in 1997 to become Serle Court.

who is good on the law but not so good on the facts.” Conferences usually began with counsel offering the solicitors a cigarette from a box kept on the desk. In 1957 the film Brothers in Law came out. Based on a book by Henry Cecil, who was in fact a circuit judge,59 it featured Ian Carmichael as a young barrister. On his first day of pupillage his pupil master finds himself in two courts at once, and so sends Carmichael off to secure an adjournment in one of them. Predictably, the adjournment is refused and Carmichael has to argue the trial on the first morning of pupillage. This led the Bar Council to adopt a rule that pupils could not appear in court during the first six months of pupillage. In his more serious book (written in 1958), Brief to Counsel, which was an introduction to the bar for those considering joining, Henry Cecil described the different branches as follows:60 As a general rule, if you are more interested in pure law and drafting documents than in advocacy, you should go to the Chancery Bar as opposed to the Common Law and vice versa. …there are distinguished practitioners at the Divorce and Criminal Bars but it is difficult for a Common Lawyer to understand why anyone should want to go to either of them. So much of the work there is sordid or monotonous or both. The standard of learning required at those Bars is, however, lower than either at the Chancery or Common Law Bar…The Admiralty Bar and the Parliamentary Bar are too highly specialised to need treatment here. If you are already thinking of going to either Bar it will probably be because you have friends or relations connected with one of them. Although the author goes on to mention tax, rating and town and country planning, the Commercial bar does not get a mention at all.

59 His real name was Henry Leon. 60 Henry Cecil, Brief to Counsel (1958) Michael Joseph p46.

THE ALEXANDER YEARS David Vaughan had been Pat Neill’s pupil at 1 Hare Court and joined chambers in 1964. One of the great contributions David made to 1 Brick Court in his long career, as will be seen, was his ability to attract able people to chambers. Robert Alexander was called to the bar in 1961, and with no legal background or connections, practised on the Western Circuit. Eustace Roskill (later Lord Roskill) was then chair of Hampshire Quarter Sessions and became his friend and mentor. Roskill advised Alexander to take a chance and go back to London. Robert Alexander QC Alexander was close to Nicholas Phillips, and they had previously shared a flat in Pimlico. Phillips owned a house in Dulwich and had been sharing it with David Vaughan who was already at 1 Brick Court. Phillips, then at 2 Essex Court doing admiralty work, suggested 1 Brick Court and David Vaughan also encouraged Bob Alexander’s move. Alexander thus applied to join chambers. Sam Cooke feared there would not be enough work and was not in favour of granting Alexander a tenancy. However, the views of others prevailed and Alexander joined in 1966. Meanwhile, although Cooke went on the bench in 1967, others joined and the reputation of the set began to grow. The most significant of these was Nicholas Phillips himself. Phillips had been a pupil of Michael Mustill61 at 4 Essex Court. It seems to have been almost a mark of quality at that time to have been turned down by 4 Essex Court, and Phillips had ended up at the specialist admiralty set at 2 Essex Court, now Quadrant Chambers, headed by Barry Sheen and whose members included Tony Clarke and David Steel. Phillips was fed up with admiralty work (at that 61 In his autobiography Michael Kerr erroneously claims that Nicholas Phillips was his pupil.

time 2 Essex Court did almost entirely wet shipping and virtually no dry shipping). By 1971 Phillips joined his friends, Alexander and Vaughan, in 1 Brick Court. If one looks in the law reports at the cases Devlin was arguing in the 1940s, many were shipping and sale of goods cases. 1 Brick Court had retained some commercial work through first Pearson then Cooke, but Cooke was never an advocate and by the late 1960s there was not much commercial work in chambers. Most of the shipping firms had small (and not very profitable) admiralty departments who would instruct Phillips when he was at 2 Essex Court. When he came to 1 Brick Court, those same firms began to instruct him on their rather more interesting charterparty and carriage of goods work. Burley rapidly persuaded them to instruct Alexander too. Thus the shipping work began to come to chambers. In 1973 Phillips was appointed as Junior Counsel to the Ministry of Defence and to the Treasury in Maritime and Admiralty matters, which was a prestigious appointment, and which Richard Aikens took on after Phillips took silk. Once Cooke had gone to the bench, the Head of Chambers was Philip Owen, who was the only silk in chambers until Gatehouse. Philip had become a member of chambers when he took silk in 1963 at a time when the work was more varied, and had a decent practice on the Wales and Chester Circuit. His father was Wintringham Stable, a well-known High Court judge. Philip changed his surname from Stable to Owen by deed poll to avoid confusion with yet another Stable – his brother Owen Stable who went to what is now Fountain Court (then 2 Crown Office Row). He may well have come to 1 Brick Court through his father’s influence. He became leader of his circuit, and had the distinction of succeeding in the House of Lords against a top treasury team of counsel in the 1968 landmark case on public interest immunity, Conway v Rimmer.62 In the normal course he would have become a circuit judge in Wales, but sadly his life took a turn for the worse after an acrimonious divorce. In 1977 he was stopped by the police after a circuit dinner driving at 3mph on a dual carriageway and was charged not merely with drink driving but also with stealing his sample from the police fridge. This gave rise to a five 62 [1968] AC 910

day Crown Court trial in 1978. To add to his humiliation, on the advice of Richard Du Cann QC who defended him, he ran the defence that he was too drunk to know what he was doing. According to Du Cann, the experienced duty sergeant simply wanted him to put the sample back and would have been content to say no more about it, but an enthusiastic and unstoppable young constable was by this time half way through writing his report on the incident. Lord Edmund-Davies appeared before the jury to give character evidence on Owen’s behalf. Owen pleaded guilty to the drink driving charge and was ultimately acquitted of the theft count, although there was no longer any question of him going on the bench.63 Perhaps surprisingly, this did not affect Owen’s tenure as Head of Chambers, and he remained head, although residing principally in Wales, until 1990. It probably suited Burley to have an absentee head. Nicholas Lyell, subsequently Christopher Clarke’s brother-in-law when they married sisters, joined in 1965, having being a pupil of Gordon Slynn in 1 Hare Court. Christopher Clarke himself was called to the bar in 1969 and joined 1 Brick Court after not being taken on at Fountain Court. John Rankin QC joined in 1970 after he had taken silk and brought with him John Phillips from his former chambers in Temple Gardens. Neil Butter and Adrian Whitfield arrived from other chambers in 1968. The bar remained almost exclusively the preserve of white males. According to Michael Kerr, whenever the subject of a woman tenant was raised at 3 Essex Court, the senior clerk said that the lavatory was unsuitable.64 Writing in 1958, Henry Cecil said about women at the bar:65 There is still almost overwhelming prejudice against women both at the bar itself and among solicitors and among the public. In 63 The breathalyser was introduced in 1967 and drink driving was not as socially unacceptable in the 1970s as now and a conviction would not then require resignation from a judicial appointment. The author recalls being invited as a law student to the Gray’s Inn bench table and having dinner with Mr Justice MarsJones, who had prosecuted the Great Train Robbers and was arguably the leading criminal judge of his generation. He must have drunk at least a bottle of wine before walking out to his car, the doorman opening his car door for him with a “goodnight sir” before Mars-Jones drove off into the night. 64 Kerr p240 65 Brief to Counsel p160

consequence it is extremely difficult for a woman to find a vacancy in chambers. It is difficult enough for a man, but far worse for a woman. Moreover, on the whole, solicitors do not care to brief women and the public still appears shy of entrusting its fate to a woman...Unless she has quite outstanding qualities and luck it is almost impossible for a woman to succeed unless she can find a vacancy in really good chambers, and many chambers will not accept women. In 1972 Hilary Heilbron became the first woman to join chambers at a time when she was almost the only woman at the Commercial bar. The position of women at the bar in those years can be seen vividly from Hilary’s biography of her mother, Rose Heilbron.66 Called in 1939, and practising in Liverpool, Rose Heilbron encountered all sorts of prejudices against women. At that stage the main argument used was that women’s voices were too light and high-pitched to be effective in court. That was an attitude that continued in other spheres into the 1970s: when Thatcher became Conservative leader in 1975 she was advised to have (and did have) voice lessons to lower the tone of her voice although she denied it for many years thereafter. Rose Heilbron succeeded despite such difficulties and in the 1950s became an enormously well-known public figure defending murder cases in an era where there was still capital punishment and capital trials received enormous public attention. In 1943, four years after being called, she appeared without a leader in several cases defending murder charges. It seems inconceivable now to imagine a barrister of four years’ call doing so. She was one of the first two women Dame Rose Heilbron QCs appointed in 1949, the first and Hilary Heilbron QC woman senior judge when (part66 Hilary Heilbron, Rose QC (2019) Hart Publishing

time) she became a Recorder in 1956 and the second woman High Court judge in 1974.67 Women barristers were not permitted to attend Bar Messes on the grounds that rude stories were told. Rose Heilbron was similarly barred as a female member of the bar from attending judges’ dinners. By 1969 of the 2,448 practising barristers in England only 133 were women. In the twenty years since Rose Heilbron had taken silk four female QCs had been appointed county court judges, but in 1969 she was still the sole remaining practising woman QC. When Hilary was taken on at 1 Brick Court, Burley tried to push her into family law, which is what women at the bar generally did in the 1970s, but she resisted and forged a commercial practice for herself. Apart from Owen, the only QC was Gatehouse, who had taken silk in 1969. In 1971 Gatehouse had led Alexander for the (unsuccessful) defendants in the House of Lords in the landmark case Herrington v British Railways Board68 as to the liability of an occupier of land to foreseeable trespassers who injured themselves on the land. A young Nicholas Chambers was the junior on the other side. Alexander took silk in 1973 and soon established himself as a QC, and soon as the top silk at the bar. His first significant brief as a QC was in the Summerland Inquiry, after a 1973 fire in a leisure centre in the Isle of Man which killed fifty and injured eighty more. At 6’ 6” he cut an imposing figure. Adopting a low-key conversational style in court, he was able to encapsulate complex issues in a handful of sentences and made advocacy look easy. He and Burley were a terrific team, although very different. Burley was to many an intimidating figure, but had the contacts Alexander needed to establish himself at the Commercial bar, and was by now adept and authoritative in handling City solicitor clients. Alexander was approachable and charming and was the sort of ambitious hard-working barrister Burley was looking for. Alexander’s rise once he took silk was meteoric. This was the period when 1 Brick Court began to be regarded as a top commercial set. Although Alexander always had a practice of considerable breadth, 67 Mrs Justice Lane was the first. 68 [1972] AC 877

much of the work in chambers, and at the Commercial bar, was now shipping. Shipping arbitrations were curious animals. They usually involved parties who dealt in very large sums of money arguing about relatively small sums, with the shipowners and charterers fighting cases out at the Baltic Exchange or some similar venue. There the clients would call each other liars all morning, then sit down together with the lawyers to a long, substantial and alcoholic lunch before going back to calling each other liars in the afternoon session. It was regarded as rude to refuse alcohol at these lunches, and that very much included the lawyers and arbitrators, so concentration in the afternoon session sometimes was less than it might have been. The shipping arbitrators were a rather mixed bunch. A couple of them were invariably appointed by owners and invariably found in favour of owners. Today there would be applications for removal based on apparent bias, but it was difficult to find evidence to support what everyone knew. The disputes were often about demurrage, where the ship stood idle outside port incurring charges whilst arguments carried on as to whether the vessel could be permitted to discharge. Withdrawal from hire was another favourite issue: when the market moved in one direction, the shipowner was keen to find an excuse to withdraw the vessel from hire in order to let it elsewhere more profitably, and if the market moved in the opposite direction it was the charterer who wanted to play that particular game. One of the most famous such cases was The Nanfri,69 which Alexander argued leading Nicholas Phillips in the House of Lords. The client had telephoned a City firm of solicitors for advice on whether he could withdraw the vessel from hire and asked to be put through to the senior partner. When told that he was not available, he asked to be put through to someone on the same level. The hapless receptionist duly put him through to someone on the same level, thinking that he wanted to speak to someone on the same floor of the offices. There he spoke to a young associate who advised him that he could withdraw the vessel, which led to a very large negligence action when the case in the House of Lords was lost. 69 [1979] AC 757

Nicholas Phillips was very much at the centre of the shipping practice, but almost everyone in chambers did shipping work in those days. Pupils were told that if they wanted to buy one book, the best choice was Scrutton on Charterparties, probably not a popular choice today. But even Nicholas Phillips did not just do shipping and carriage work. An arrangement with Peter Carter-Ruck took Alexander and Phillips to Paris where Alexander (picking up the plum brief as always) was required to interview Brigitte Bardot and Phillips interviewed Nancy Mitford. They were never paid. In 1973 there was an exodus of members leaving for other chambers in what has been referred to as Burley’s “Night of the Long Knives”. Burley had ambitions for 1 Brick Court which did not include some of whom he regarded as the lesser lights, and wanted rid of the sort of criminal work that kept them engaged, such as causing death by dangerous driving cases at the Old Bailey. He made it clear they had no future in chambers. John Rankin had done an inquiry in Nigeria where he had contracted a disease which was ultimately responsible for his early death. Although he had had a decent practice, he did not thrive in competition with Alexander. Rankin, Neil Butter and Adrian Whitfield, none of whom had been in chambers long, all left for Carpmael Buildings. Paul Curtis-Bennett also left for other chambers and Robert Coleman (who had barely been in chambers for any length of time) left the bar. Meanwhile Roger Buckley joined in 1974 from common law chambers, bringing with him work from Clyde & Co and carriage of goods by road work. Peter Irvin joined in 1973, Richard Aikens joined in 1974 and Peregrine Simon shortly thereafter, then Jonathan Hirst in 1976. Aikens had been a pupil in 4 Essex Court and Simon in 1 Hare Court, following what was now becoming a chambers tradition of picking up outstanding talent not taken on by the other commercial sets. Aikens’ pupillage was obtained because Anthony Evans said to him, when he was told there was no work and no tenants were being taken on in 4 Essex, that he was doing a case against Nicholas Phillips and he would ask Nick if he wanted a pupil. At least Aikens had the last laugh when, after he had done a pupillage with Nicholas Phillips and been taken on at 1 Brick Court, 4 Essex changed their minds and he had the satisfaction of rejecting their offer. 35

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 running, leaving the way open 1 Garden Court 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 41

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.

THE 1980s Nick Phillips took silk in 1978, followed by Roger Buckley in 1979 and John Phillips and Nick Lyell in 1980. At last 1 Brick Court had a reasonable number of commercial silks. From his early days when Nick Phillips devilled for Bob Alexander, through the days when they did county court and matrimonial work, Bob would often lead Nick before the latter took silk and they were close friends. Nick was the better lawyer, but Bob’s skills as an advocate were unrivalled. One such case was The Diana Prosperity83 which went to the House of Lords on the question whether the vessel referred to in a charterparty as “Hull 354 to be built in Osaka” failed to comply with its description because in fact it was (irrelevantly) built at Oshima and was denominated Hull 304. So too Evans Marshall v Bertola, a case about the importation of Spanish sherry which went to the House of Lords.84 When at the trial their Spanish law expert was asked how he distinguished a case of the Spanish Supreme Court which said precisely the opposite to his evidence, the expert’s simple answer was “That was a case about sheep, this is a case about sherry.” Sydney Kentridge and his wife Felicia had worked tirelessly in South Africa to do what they could within the confines of the partisan legal system to undermine the apartheid regime. Sydney had been junior counsel to Nelson Mandela in his trial in the late 1950s. In Mandela’s autobiography85 he recounts an occasion when during the trial Sydney started the day’s proceedings with a complaint about the prison food which led to the judge sampling it himself (and with the benefit of the prison authorities putting in extra beans and gravy, declaring it well cooked and tasty). It is easy to imagine that, even at a relatively young age, the wily Sydney recognising in view of the way things were going, a diversion was needed. He also represented Steve Biko’s family at the 1978 inquest into his death in police custody when his devastating cross-examination of the police officers meant that the whitewash 83 [1976] 1WLR 989 84 [1973] 1WLR 349 CA, (No 2) [1976] 2 Lloyd’s Rep 17 HL 85 Nelson Mandela, Long Walk to Freedom (1995) Abacus p232

verdict was recognised as such across the world. When the inquest was re-enacted at the Mermaid theatre, with Albert Finney playing Kentridge, it is said that it was so realistic that when on the first night the magistrate opened the proceedings “Mr Kentridge” Sydney stood up in the audience. Sydney could boast what probably no one else today can say, that he had met Prime Minister Attlee. Sydney’s father was a minor South African politician who was granted an audience with the then Prime Minister whilst Sydney was at Oxford in 1947. He asked if his son could attend the meeting. During that same year in Oxford, Sydney and some South African friends persuaded an American student, who had the important attribute of owning a motor car, to take them to Trent Bridge in Nottingham to see the South African cricketers play England in the test match. Cricket is a game that the uninitiated rarely enjoy or understand, and the American was persuaded to take them after being told that no year in England could be treated as complete without attending a test match. They stopped by at a pub on the drive back to Oxford at the end of the day to buy the bemused American a steak for his kindness in taking them. But this was England in 1947: Sydney said of this meal “I suspect he was eating horse.” Sydney came to 1 Brick Court on the recommendation of Michael Kerr, then a Court of Appeal judge, who thought his own former chambers (4 Essex Court) more specialised than would suit Sydney. He joined in 1978, and initially came over from South Africa only for short periods of the year, but by the mid-1980s he had left South Africa and was practising full time in London. Sydney got to know various members of 1 Brick Court whenever he was in London, including when he was in the midst of an 88-day trial, in 1969, defending two journalists who had been charged after publishing articles chronicling the dreadful prison conditions in which black South Africans were held.86 1980 was the Lonrho case. Lonrho had brought proceedings against BP and Shell based on alleged breaches of Rhodesia sanctions which were said to have kept Ian Smith’s all-white regime afloat. The sanctions had been imposed by the Wilson government after Smith 86 Sackar p212

had unilaterally declared independence from Britain in 1965. Lonrho claimed that, because the breaches had kept the regime afloat, they had suffered massive damage to their African interests. The claim was an ambitious one in any view, with allegations of conspiracy to injure. The particulars of unlawful acts in relation to the conspiracy to injure included an allegation of treason. Bill Park, who was responsible for building up Linklaters’ litigation practice to a market leader, was the instructing solicitor, assisted by a youthful Christopher Style. It is said that Alexander was reluctant to take the case and suggested to Burley that he propose a fee which would be bound to be rejected. However, Burley’s proposed fee was accepted immediately. It was the first occasion on which Burley had managed to negotiate non-returnable stage payment fees. The underlying claim was heard in arbitration, an entire summer being set aside. Alexander led Roger Buckley (newly in silk), Jonathan Sumption, Stephen Ruttle and Charles Hollander. A summer of arbitral hearings at the Piccadilly Hotel involved occasional lectures from Alexander to the younger members of the team comparing their lavish lunches, which were served at the hotel every day, with his own formative experiences partaking of the rather more austere fare available at Willesden County Court. The problems with Lonrho’s case surfaced shortly before the arbitration started when Tiny Rowland sacked his team of counsel and claimed Lonrho needed a long adjournment so new counsel could be instructed. New counsel were instructed to argue an adjournment but the arbitrators were shocked when told that they had been instructed only to argue the adjournment and no one had been instructed on the substantive claim for which the entire summer had been booked. When this tactic failed Rowland instructed the elderly John Platts-Mills who tried to play out the rest of the summer by reading documents to the tribunal in opening rather than leading evidence. Eventually the tribunal rebelled against this stratagem, and ordered Lonrho’s opening to be completed by a specified date and made Lonrho lead oral evidence thereafter.87 Lonrho hinted that Ian Smith himself would be called to give evidence, which 87 Lonrho’s team included a youthful Michael Briggs (now Lord Briggs), just out of pupillage.

led to weeks of research from 1960s newspapers archived in a library in Colindale to show that Smith’s political situation gave him no room to manoeuvre whatever the conduct of the oil companies (Smith never appeared). The case involved two visits to the House of Lords, and was ultimately killed off when the arbitrators identified a number of points of law for the courts to determine and the House of Lords struck out the entire claim.88 During the first instance hearing on the legal issues with the 1 Brick Court team in the Commercial Court before Mr Justice Parker, Bob Alexander returned to chambers at lunchtime. Burley said there was an urgent Mareva injunction to be obtained and Stephen Ruttle (who had been part of the Lonrho team in court) would be his junior. At 1pm Bob had been on his feet and neither he nor Ruttle knew anything of this new brief. By 1.20 they were back before Mr Justice Parker, making use of the luncheon adjournment to obtain the order. If there were any affidavits or statements at this stage, they were rudimentary, and had not been seen in advance by Parker. Parker asked Bob how much the injunction was for and Bob answered that the claim was for £600 million. Parker winced slightly on hearing this astronomical sum, but granted the injunction and by 2pm Bob was continuing his submissions in the Lonrho case. By 1980 1 Brick Court needed more space. Middle Temple had purchased the lease of 11 Essex Street but found they could not let it because the rent was higher than the subsidised rents in the Inns, so chambers took the building. Additional space also became available on the first floor of 1 Brick Court. The libel set in 1 Brick Court also wanted the rooms, so the Treasurer of Middle Temple, Lord Roskill, asked both sets to put their case before him orally. David Hirst appeared for the libel set, but when Alexander was stuck in court, Jonathan Hirst had to put the case for his set. His success in prising the rooms from his father’s chambers caused considerable ructions in the Hirst household. Consequently, the lease on the Garden Court annexe was determined and 1 Brick Court became one of the first sets of chambers to move, albeit 88 [1982] AC 173; the first visit to the House of Lords was on the meaning of “control” for the purpose of discovery obligations: [1980] 1WLR 627.

in part, outside the Temple. 11 Essex Street was a Georgian house with an attractive circular staircase running up the core of the building. The front rooms were beautiful and Bob Alexander took up residence in the first floor front room, where chambers meetings were held. There were by now about twenty members of chambers. In 1981 John Phillips died tragically aged fortythree. A mildly eccentric but charming bachelor who was an outstanding croquet player, he used to play chess with his brother at lunchtime by telephone. When he failed to turn up for a conference 11 Essex Street Burley sent two of the juniors to his house in Barnes, where they found a quantity of milk bottles on the doorstep and called the police. He had died from the fumes of a burning washing machine and had been dead for several days when found. Nicholas Chambers, a senior junior with banking experience, joined in 1980 from a common law set. Paul Walker joined in 1980 after pupillage, as did Andrew Popplewell in 1982. Andrew Popplewell had been Richard Aikens’ pupil when Aikens was in the basement of 11 Essex Street. Aikens had a term when he came up before Mr Justice Bingham every Friday morning on commercial summons day and lost them all. When Andrew ceased sitting behind Richard as his pupil and finally was on his feet as a tenant before Bingham, the latter very charmingly said “How nice to see you on your feet at last Mr Popplewell.” The large rooms in 11 Essex Street had small anterooms behind them, and Andrew 50

Popplewell spent not merely part of his pupillage but also the five first years of his tenancy inhabiting one of these tiny anterooms behind Christopher Clarke’s room, where the only exit was through the main room. If Andrew had not realised Christopher was going to have a con, or the con went on very long, this could lead to problems as there was no lavatory in the anteroom. Therefore on occasion Andrew unexpectedly appeared in the middle of a Christopher Clarke conference from what had seemed to the attendees to be a cupboard. But it did mean that in his early days he had the benefit of Christopher at close quarters – thus Andrew giving advice by telephone that his clients should issue and serve a writ he would hear a voice from the main room “don’t serve it, just issue it”. Substantial briefs often arrived at short notice. Solicitors who expected a case to settle would delay delivery of the brief until the last minute. Thus it was not uncommon on a Friday afternoon to hear Burley say “Mr Phillips, two-week arbitration on Monday, papers down by 5pm” (that was a conversation actually overheard). That would be the first time the barrister had any knowledge of the case. It would mean a busy weekend. The lack of witness statements meant that you could spend time leading your witness through evidence in chief, on the basis of a rough proof, and to an extent pick things up as you went along. Andrew Popplewell as a young junior argued three five-day trials on consecutive Mondays – three busy weekends. On another occasion, Andrew had been told that his trial was bound to settle and had gone off for two weeks’ skiing. On the Thursday evening of the second week he learned that it had not settled after all but was starting on the Monday. It was Saturday night before he got back. On the basis of that somewhat limited preparation, he had to open the case before Mr Justice Sheen on the Monday morning. Of necessity he opened it extremely briefly and said he intended to call the ship’s master as his first witness. Notwithstanding the short summary of the case given in opening, Sheen helpfully commented that he thought it was a good idea to get straight on to the evidence. Burley was involved in every aspect of chambers. Roger Buckley and George Leggatt, the latter still in pupillage, were instructed to get an urgent injunction in an industrial dispute to stop members of a union from blocking access to lorries trying to deliver paper to a 51

newspaper for its print run that night.89 This led to the following memo from Burley: Clients were extremely angry at delay in serving injunction and nearly sacked [solicitors]. The delay is alleged to be due to Mr Leggatt drawing up the Order in abbreviated form which was thrown out by the Order Room in RCJ. Solicitor says if young Junior Counsel instructed and he is provided with a precedent from previous case the Order should be drafted in the manner required to take it immediately to the Order Room. After GL’s form of Order rejected it had to be re-drafted by the Solicitors, when eventually sorted out the lorries waiting to deliver paper had left and a print of the newspaper was lost hence Clients’ fury. Things had moved on by the time of Burley’s letter the following day to the solicitor: Dear Sir, Further to your comments in regard to the delay in drawing up the order in respect of the above injunction, I have spoken to Mr Roger Buckley QC and to Mr George Leggatt and, whilst being very sorry indeed to hear that there were problems, they totally fail to understand how these could have arisen. In the first place the Judge approved and initialled the form of the Order as drafted by Mr Buckley and written up by Mr Leggatt and it was outrageous that in a situation of great urgency a Clerk in the Order Room should have questioned it. We have in fact retained in Chambers a copy of the Order showing the words written in at the request of the Clerk in the Order Room. …It is fully accepted that in urgent situations there is a heavy onus upon Counsel to ensure that all formalities are adequately dealt with but unless you inform me otherwise it does seem that nothing was omitted from the Order by Counsel and the Order Room’s insistence that something stated should be phrased in a more verbose manner cannot be a reasonable criticism of Counsel. I would therefore be grateful if this letter could be placed before your Clients in order that no unjustified blame is allocated to Mr George Leggatt. 89 The date of the application was 4th February 1985.

If despite my comments your Clients consider some reduction should be made in the level of fees I will await their comments with concern and interest and give most careful consideration to what they say. Yours faithfully R Burley Senior Clerk Burley’s ability as a fee negotiator was legendary. His son Christopher, who was a solicitor with a successful media practice with many pop star clients, found a way of negotiating fees with his father that others could not match. When Chris indicated he would like to use Christopher Clarke to represent Sting on a large case Burley commented, “You do realise that Christopher Clarke is a very senior, very successful, greatly sought after and expensive QC.” Chris asked the likely fee and daily refreshers. Having been given an extremely high quote, Chris said that obviously, being his father, he trusted him implicitly to charge a fair fee and that on this basis the fees quoted should be regarded as entirely acceptable. He then said nothing for several minutes. Then his father broke the silence, rather sheepishly explaining that he thought it would be possible after all for Christopher Clarke to accept the brief for a significantly lower fee. A youthful Tony Blair turned up on the other side, led by his old pupilmaster Derry Irvine, in an arbitration before Cedric Barclay, one of the main figures in the arbitration community at that time, in New Orleans. Christopher Clarke and Peregrine Simon were led by Stewart Boyd, instructed by Zaiwalla, Boyd arriving at the very last minute having crossed the Atlantic on Concorde. Barclay insisted that the venue for the arbitration was moved from the inadequate hotel where they were all located to a smart hotel in the old quarter. Boyd kept referring to “lifting the subjects” (when the parties decided at the end of the negotiation that the “subject to contract” provisions should no longer be subject to contract) which led to some frustrated noises from Derry whose ignorance of what this phrase meant showed up his lack of experience of the shipping market and its terminology. Christopher and Peregrine might have taken rather more interest in Tony Blair’s submissions on

damages had they appreciated how his career would develop. Apparently while checking in at the hotel Blair tripped on Sarosh Zaiwalla’s briefcase and fell flat on his back although a photograph of the incident was lost to posterity.90 In another of Peregrine Simon’s cases the expert instructed by the solicitor had wrongly thought he was acting for the other side. The solicitor did not read the report when it was provided by the expert but just sent what was a wholly unfavourable report for his client to the other side unseen. A second expert was instructed but it was not straightforward to explain to the judge why the plaintiffs had served reports from two experts on the same topic and were only calling the second. Because of the expert problem, the other side were confident and had made no offer. Peregrine opened the case before Mr Justice Evans. After a few minutes of opening Evans said, “What I’m really interested in, Mr Simon, is the issue on the insurance policy, and I’d like to hear how your opponents put their case on that.” The first defendant’s counsel (not expecting to be called on in this way) made some slightly incoherent submissions on this for a few minutes, then collapsed in court whilst on his feet, having fainted. This was particularly alarming for counsel for the second defendant, who had not focused on the policy issues, expecting to rely on the first defendant’s submissions but was now in the firing line. The case settled at 90% shortly after lunch. Alexander was in the early 1980s in his prime as the unquestioned star of the bar. Until 1980, his main rival was Tom Bingham, but after Bingham went to the bench his principal opponent was Lennie Hoffmann (who subsequently became a door tenant at Brick Court after retiring from the House of Lords to sit as an arbitrator). Until then, the top chambers at the bar were largely synonymous with the top shipping chambers. What Alexander and Burley did was to turn 1 Brick Court into a market leader as a commercial set which had expertise in shipping and not merely a shipping set. With the subsequent downturn in shipping work in the late 1980s this was hugely important. 4 Essex Court, 3 Essex Court and 7 King’s Bench Walk continued to specialise in shipping and insurance. Alexander was simply the man to instruct in the biggest and most important cases of 90 Sarosh Zaiwalla, Honour Bound (2019) Harper Collins p31

the day; the star advocates of the bar have invariably built broad practices where they are instructed more for their courtroom skills than for their specialist knowledge in the law or subject-matter of the dispute. It was always said that Bob Alexander had two favourite juniors. If he wanted someone who could explain to him a difficult point of law, his choice would be Sumption. But Bob, for all his brilliant skills, was plagued by self-doubt and when he needed someone whose glass was always conspicuously half-full to encourage him, it was to Jonathan Hirst he turned. The International Tin Council defaulted on its debts in 1985. Most of the Commercial bar were involved in the subsequent litigation91 which equalled the record in the House of Lords, the appeal lasting twentyfour days. Kentridge, Hirst,92 Sumption and Aikens were all involved. Aikens and Mark Littmann, who led him, decided that the House of Lords counsel’s dining room was too hot and used to lunch picnicking (illegitimately) in Black Rod’s garden. Nicholas Phillips features in many of the important shipping cases of the early 1980s. Richard Aikens was a decade younger but fast building up a reputation. In the days before the Court of Appeal required at least one commercial Lord Justice to sit on commercial appeals, Aikens opened an appeal before two common law appeal judges who appeared to have difficulty understanding the point. When he referred to “the well-known Centrocon Charterparty Clause 9” Lord Justice John Stephenson gave up: “Mr Aikens, we think this appeal needs to be relisted before a panel of three with at least one Lord Justice with Commercial Court experience.” They said they would relist it the following week until Richard said that would be very inconvenient as he was getting married.93 In the same case, during the first instance before Mr Justice Mocatta, the judge had asked Richard’s opponent, Tim Young, where the location was of the port where the vessel had discharged. Young did not know. Richard had looked it up beforehand and was able to provide the answer. This led to 91 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2AC 418 92 Leading Cathy Otton-Goulder. 93 The Vik Frost [1980] 1 Lloyd’s Rep 560. Ironically, at the relisted hearing Lawton LJ gave the leading judgment, a criminal and common lawyer with no commercial experience.

Mocatta’s comment: “Mr Young, if you are going to practise in this court you are going to have to learn where the ports are.” Before the Master of the Rolls, Sir John Donaldson, on another occasion Aikens was arguing an issue of construction of an exemption clause.94 His opponent, opening the appeal, struggled when Donaldson took a new point and battered him with it. The appeal seemed over. Finally, Donaldson said, “I suppose we should see whether Mr Aikens is taking this point.” Mr Aikens said he was not taking it. The court seemed somewhat bewildered but, in reality, there was no possibility after that incident that the court would let Aikens lose the appeal. When asked about the concession afterwards he simply said that he thought Donaldson’s point was plain wrong. As for the Commercial Court judges, Mocatta had retired and Donaldson been promoted. The judges were now Roger Parker, Andrew Leggatt (father of George), Tony Lloyd, Christopher Staughton, John Hobhouse, David Hirst and Robert Goff (all of whom were old Etonians) plus Tom Bingham and Michael Mustill (the minority who were not). Bingham and Goff in particular were outstanding judges before whom it was a pleasure to appear. It was to Christopher Staughton, who might have had a career as a baritone, that the witticism was attributed: “Has your lordship had an opportunity to read the papers?” “I have, but I have not taken advantage of it.” John Hobhouse was a brilliant lawyer who expected complete mastery of the papers from anyone appearing in front of him. Solicitors who might otherwise have argued Friday morning summonses themselves would always instruct a junior barrister lest they come up before Hobhouse. When Legal Business magazine conducted a poll of their readers for the best and the worst commercial judges, Hobhouse came second in the list of best judges and also second in the list of worst judges. He was a man who was completely straightforward and you knew exactly what you were getting, but you did need to spend twice as long on preparation when appearing before him as you might need before another judge. The problem was that those who did not know him or were not wholly on top of the papers found him a nightmare. Later Johan Steyn, Mark Saville and Anthony Evans joined 94 The Raphael [1982] 2 Lloyd’s Rep 42

the commercial judges (or replaced them as they were promoted), all from 4 Essex Court. In the 1970s Desmond Ackner, possibly the best common law advocate at the bar in the 1960s and early 1970s, when sitting as a Commercial Court judge, commented on the fact that Alexander’s junior, John Phillips, was wearing a lightish grey suit: “Mr Alexander, I do not care for the colour of your junior’s suit: the Commercial bar is meant to be the cream of the bar and should dress as such.” But this was nothing compared to the Chancery judges, some of whom prized black letter law above all else, including being civil to counsel and giving the appearance of a fair trial. Some, such as Nico Browne-Wilkinson, Christopher Slade or Donald Nicholls were excellent judges. But there were others such as Jeremiah Harman, whose appointment showed the lack of judgment that was characteristic of the Lord Chancellor Lord Hailsham. Harman was that worst kind of judge: a clever man who used his detailed knowledge of the minutiae of civil procedure as a form of intellectual pedantry. A young David Anderson, not familiar with the man or perhaps some of the mores of the Chancery Division started his submissions in a crowded courtroom. “Who are you?” “David Anderson, my lord, for the eighth defendant.” “What are you doing there?” Anderson had failed to make it to the overfull junior counsel row and was addressing Harman from the solicitor’s row. There followed a discussion as to whether Anderson could be heard, not merely because he was legally presumed inaudible as being in the wrong row, but to make matters worse the plaintiffs’ counsel claimed Anderson’s client had not paid the court fee on issuing his summons, giving rise to what Harman regarded as another justification for the presumption of inaudibility. Few shed tears when Harman, whose exploits including kicking a taxi driver whom he mistook for a press photographer, ultimately resigned from the bench shortly before his retirement after he had delayed judgment on a trial for twenty months and the Court of Appeal ordered a retrial when it became apparent he had forgotten many of the facts. At this time the main firms to instruct chambers were Linklaters, Norton Rose, Clyde, Ince, and Frere Cholmeley. Bill Park at Linklaters spent much of his time flying on Concorde while acting for British Airways. After him Christopher Style and John Turnbull were leading lights in the department. Norton Rose had both shipping and non57

shipping work. Their big figure was Peter Martyr, who went on to spend almost twenty years as managing partner of the worldwide firm. Martyr was an eternal optimist, and it was necessary to bear in mind when dealing with the client that he would have added at least ten per cent to the prospects of success given by counsel. Clyde was the firm of Michael Payton, a well-known figure in the shipping world, and the firm usually acted for cargo interests. Ince would often represent charterers. Frere Cholmeley had a large media practice and would come to be involved in litigation involving Apple and Elton John, much of it through Nick Valner. The other leading shipping chambers were 4 Essex Court (now Essex Court Chambers), 3 Essex Court (now 20 Essex Street) and 7 King’s Bench Walk. 2 Essex Court (now Quadrant Chambers) had a largely admiralty practice. 1 Hare Court (now amalgamated as Serle Court) was a small top flight commercial set but did no shipping. Fountain Court had moved from 2 Crown Office Row in the early 1970s and had a mixture of common law and commercial work. Neither it nor One Essex Court, which was beginning to be seen as a top-flight set under Sam Stamler, nor 2 Hare Court (now Blackstone Chambers) did shipping work. Thus 1 Brick Court had Alexander, Phillips, and Kentridge as topflight advocates. George Leggatt joined in 1985 with Richard Lord and Cathy Otton-Goulder after pupillage. Christopher Clarke took silk in 1984 and Nicholas Chambers in 1985. Richard Aikens and Jonathan Sumption took silk in 1986. Bob Gatehouse went on the bench in 1985, aged 61, the first Brick Court judge appointed since Sam Cooke in 1967. He sat as a judge until 1996 and died in 2002. Mark Howard and Charles Hollander arrived from other chambers after a recruitment exercise at the beginning of 1986. Philip Owen somewhat curiously wrote to the heads of their respective former chambers to say how sorry he was for poaching them (or something to that effect). Unfortunately he got the names the wrong way round and told Charles Hollander’s head of chambers how sorry he was that Brick Court were taking Mark Howard and vice versa. The former’s head of chambers thought it was very funny, that of the latter very much less so. In fact letter writing (perhaps not of quite this sort) was very much in vogue. If you were applying to strike out the pleading of another member 58

of the bar, the convention was that you wrote to the barrister to say so, thereby giving them an opportunity to correct what might have been an error or defect in the pleading. If you were taking a case over from another member of the bar, convention dictated that you write a letter there too (thus informing the barrister they had been sacked), in case previous counsel had fees outstanding which they might want now to call in. The third clerk, Nigel Connor, had left to become a senior clerk in other chambers. Two new clerks were taken on, Tom Grove and Carolyn McCombe. Carolyn had been a partner in a small firm of solicitors, and had a Cambridge law degree, which made her rather different from most clerks. She was at that time married to Richard McCombe, then at the Chancery bar and subsequently Lord Justice McCombe – both of them curiously being born on the same day of the same year. She left in 1990 to become senior clerk in other chambers. Another joiner in the clerks’ room as a junior in the mid 1980s was Ian Moyler. Bob Alexander became Chairman of the Bar in 1985. This led to a dramatic judicial review of the Lord Chancellor, R v The Lord Chancellor ex parte Alexander. Lord Hailsham had, in a time of high inflation, resolved to increase criminal legal aid fees by only 5% (those were the days…). The main argument was that he had failed properly to consult the bar before making the decision. In fact, and unbeknown to anyone at the time, Hailsham had supported a larger increase but it had been squashed by Thatcher, so he was not at all amused when Bob led the Bar Council to seek judicial review of his actions. Sydney Kentridge acted for the Bar Council leading George Leggatt. Nicholas Phillips was briefed for the Lord Chancellor, but Hailsham refused to put in an affidavit because he said that to reveal the discussions that had taken place would be in breach of his oath of silence as a Privy Counsellor. The affidavit ultimately put in (after Phillips had suggested to his clients that a previous Treasury draft was positively misleading) did not in consequence really address the issue. The Divisional Court consisted of the formidable trio of the Lord Chief Justice, Geoffrey Lane, Tasker Watkins and Peter Taylor. The court started off with a hostile attitude towards the audacity (as it was perceived in those more establishment-minded days) of suing the Lord Chancellor. But the correspondence read very badly for Hailsham and by lunchtime on the first day Sydney’s understated opening of the documents 59

had swung the court around. By the end of the day the court was breast high with him. When Sydney sat down on the morning of the second day and Nicholas Phillips stood up, the judges laid into Nick and the barrage continued over next hour or so. At lunchtime the LCJ adjourned the case over the weekend, effectively telling Hailsham either to throw in the towel or have an embarrassing judgment given against him. He duly capitulated, though not without a fight over costs, which the Bar was duly awarded. The only costs were the solicitors’ fees, as counsel were of course appearing pro bono. But Sydney and George did at least each receive a case of 1979 Bollinger champagne from the Bar for their efforts. Chambers’ meetings were generally chaired by Alexander. His preeminence was unquestioned. On one occasion in 1983 he told a chambers meeting that he had persuaded a very important figure to join chambers but it was so confidential that it was necessary for chambers to agree before he could release the name. Everyone assumed he was speaking of Bob McCrindle and agreed immediately. When he revealed the name (it was in fact John Griffiths, see below) everyone said “Who?” On other occasions where a vote had been taken he would say: “Do the minority feel so strongly about their dissent that they would wish their views to thwart the majority?” He never received a “Yes” in answer to that. Fees had risen significantly since the 1970s, although it is often forgotten that whilst the punitive tax rates of the 1970s had gone, the top rate of income tax was 60% until the Lawson budget of 1988 brought it down to 40%. The Observer wrote an article claiming that Alexander earned £1m a year. Alexander threatened to sue for defamation on the basis that the article was said to suggest he was ripping off clients. He offered to reveal his income if The Observer paid to charity the difference between it and £1m. The Observer apologised and paid his costs but declined to take him up on his offer. One of Alexander’s most famous, or infamous, cases involved acting for Jeffrey Archer. The Daily Star had alleged that he had engaged the services of Monica Coghlan, a prostitute, in Shepherd Market. The paper had set up a sting operation at Victoria Station in which she was handed cash on behalf of Archer. In 1987 the jury accepted Archer’s version of events that he had never slept with her and was just paying her to shut her up. The trial is famous for Mr Justice Caulfield’s impartial summing 60

up in relation to Mary Archer, who had been called to give evidence for the somewhat spurious purpose of identifying a particular mole on her husband’s back: Remember Mary Archer in the witness-box. Your vision of her probably will never disappear. Has she elegance? Has she fragrance? Would she have, without the strain of this trial, radiance? How would she appeal? Has she had a happy married life? Has she been able to enjoy, rather than endure, her husband Jeffrey? The judge then went on to say of Jeffrey Archer: Is he in need of cold, unloving, rubber-insulated sex in a seedy hotel round about quarter to one on a Tuesday morning after an evening at the Caprice? The jury awarded Archer the almost unheard of sum in a libel trial of £500,000.95 Fourteen years later it became apparent that Archer had told a pack of lies and the answer to Mr Justice Caulfield’s last question was in fact “Yes”. Ironically Ms Coghlan had died in a road accident one month before the second trial. Mr Justice Potts was less taken with the fragrant Lady Archer, sentencing her husband to four years for perjury and perverting the course of justice, a sentence likely calculated as the longest sentence he could give without the risk of being appealed as excessive.96 Nick Phillips went on the bench in 1988, the start of a brilliant judicial career where he became in turn Lord of Appeal in Ordinary, Master of the Rolls, Lord Chief Justice, and ultimately the first President of the Supreme Court when it ceased to be the House of Lords in 2009. He returned to chambers as an arbitrator after his retirement in 2012. Shipping arbitrations had often been held in the Baltic Exchange or similar venues in the City. But an entrepreneurial solicitor called Michael Kusel decided to diversify from the largely gambling licence practice of his firm, MJ Kusel, by hiring out premises in The Strand for shipping 95 Mary Archer has since said about her husband: “People ask me whether I have ever thought of divorcing Jeffrey. I tell them: divorce, never, murder, often.” 96 When at Oxford, Archer used to run with Michael Beloff. Their running partner was Jonathan Aitken, the former cabinet minister who, through what must be regarded as an unusual coincidence, also spent time in prison for perjury after lying during a libel trial.

arbitrations. These were very popular with the bar, not merely for the convenience but also because of the excellent lunches served. It was thought that Kusel probably made more money on hiring out arbitration rooms than from his legal practice. However, by the late 1980s, the shipping litigation which had fed the Commercial bar for a generation had largely collapsed. It was always curious that there was so much shipping litigation. It was expensive: it usually involved paying three arbitrators, was expert heavy, and involved funding not merely commercial counsel and commercial solicitors but also insurers and P&I clubs. The sums involved were rarely that substantial. By the late 1980s many of the key points had been decided by the courts and there was much greater certainty in the law. The ports were getting much safer and also much more organised. Instead of letting the vessel sit outside port with its cargo of bananas rotting whilst the parties argued, increasingly they let the vessel discharge its bananas and argue about them afterwards. The big firms gradually moved out of shipping as it was seen as inadequately profitable. In the 1980s the bar still had a monopoly on rights of audience in court although the free market instincts of the Thatcher government raised questions as to whether this should remain. The new Lord Chancellor, Lord Mackay, had commissioned a report on the bar and its monopoly but in the 1980s the bar’s monopoly was still safe.97 The prohibitions on advertising were gradually being relaxed. The old telex machine in 1 Brick Court had largely been made redundant in favour of fax machines. Personal computers were still in their infancy and chambers had two long-serving secretaries, Marion and Marianne who did all the typing. Burley generally regarded members of chambers as being the servants of the typists rather than vice versa, and all work had to be dictated as it was not convenient to the typists to receive handwritten work. No one had mobile phones. In 1988 the RSC were amended to require witness statements in civil litigation, so there was considerably more paper in litigation. The size of the bundles of documents was increasing significantly. Judges now were expected to pre-read. In 1989 Sir John Donaldson, the Master of the Rolls, 97 The Work and Organisation of the Legal Profession (Cmnd. 570), 1989

issued a Practice Direction requiring skeleton arguments for all appeals. The Practice Direction stated that at the commencement of the appeal “counsel for the appellant will be expected to proceed immediately to the ground of appeal which is in the foremost of the appellants’ case”. Judicial pre-reading became the norm. Compulsory skeleton arguments followed in other courts. But some of the formalities continued, particularly at the Chancery bar. Christopher Clarke and Charles Hollander were instructed by Linklaters for a joint consultation with William Stubbs, a senior old school company law silk, and senior in call to Clarke. Burley suggested to Stubbs’ clerk that as his barristers were very busy, might Mr Stubbs come to Brick Court? That was technically contrary to convention that the more junior barrister attended on the more senior. Burley was told it would not be possible because Mr Stubbs had a septic toe. By now Christopher had been in silk for five years or so. Christopher and Charles were invited to Stubbs’ chambers in Lincoln’s Inn the evening before the con to discuss the advice that the solicitors would be given. They were then treated to a lecture on the law by Stubbs who behaved as though they were both junior solicitors. The con was fixed for first thing next morning because of court appointments. However, Stubbs unfortunately missed his train (possibly because of the septic toe) and after waiting for him some time, and with the time available for the con running out, Christopher had to deliver (in rather more user-friendly terms) in Stubbs’ room the lecture that had been given the previous evening, with Stubbs arriving just as the con was drawing to a close. That same matter also involved Sydney Kentridge. The client was Michael Edwardes, the scourge of strike-bound British Leyland which he ran in the 1970s, now of a South African venture called Minorco. After (very) negative advice had been received from Clarke and Stubbs, the great man was brought in for another opinion. This time the solicitors somehow managed to persuade everyone to attend their offices in the city (fewer problems with the trains perhaps). Burley had sorted a car and directions (a note setting out the junior’s responsibilities in ensuring the car reached Linklaters’ offices “CH: you are nominated as guide please”). Sydney’s advice was in very similar terms to that which had previously been given. But when the advice had been given previously it was seen as 63

entirely negative. Not so now. Sydney ended the con “I tell you what we should do, we should write the other side a letter.” Quite what this was likely to achieve was never identified. Yet Sydney’s magic was such that this new tactic had the effect that everyone, including Edwardes, left the meeting upbeat, convinced that a new and effective strategy had been formulated. Roger Buckley went on the bench in 1989 and Nick Lyell ceased practice on becoming a minister in the Thatcher government. Hilary Heilbron had taken silk in in 1987 and Jonathan Hirst in 1990. Tony Jolowicz became an honorary silk at the same time as Hirst. John Griffiths, who spent much of his career in Hong Kong and was Attorney General of Hong Kong 1979–83, joined. Griffiths was a wonderful advocate but might have been even more effective had he spent time reading the papers. David Anderson was another significant joiner after pupillage. Mark Hapgood, who edited Paget on Banking, joined from other chambers as did David Lloyd Jones. William Wood did too, but only just.

Left to Right: Professor Jolowicz and Jonathan Hirst taking silk with Burley (left) and Simon Perry, 1990

His name was discussed at a chambers meeting as a potential recruit. One senior silk who should be nameless was not very enthusiastic. Wood had appeared in front of the silk sitting as a deputy high court judge and had not impressed. In the event, despite these reservations, it was decided to offer Wood a tenancy. When he arrived it became apparent that the silk had had in mind someone entirely different. Bill Wood had been instructed in his previous chambers as the junior junior in a long insurance trial, CTI v Oceanus.98 Mr Justice Lloyd had found against his clients and rejected their factual case. None of the three substantive reasons the judge gave survived an excoriating judgment from the Court of Appeal. One of the reasons the judge had given was that the clients had given late discovery. In the Court of Appeal it was explained that the judge had not been aware the reason for the late discovery was that the documents in question had been mislaid under Wood’s sofa at home. In 1989 Bob Alexander departed. After his year as Chairman of the Bar in 1985–86, Bob was invited to be chairman of the Takeover Panel. This provided him with City experience. NatWest had had problems after the Blue Arrow affair and were looking for someone with a legal background to clean things up. The outgoing chairman, Lord Boardman, asked to see Bob, whom he knew. He said he wanted to speak to him about the chairmanship of the bank. Bob said, “It’s no good asking me, I can’t advise you on whom you should appoint.” Boardman said Bob had misunderstood. Bob was so taken aback that he had to send Boardman away whilst he thought of some questions to ask him about the job. Thus Alexander became Chair of NatWest. Matters did not start well when Burley and Alexander had a rare altercation after Burley refused to return a brief he had accepted for Bob, which would have delayed his departure. Perhaps that was not the happiest part of Bob’s distinguished career. He retired from the chairmanship in 1999 but never had an easy ride, coming into the bank without prior banking experience. He had become Lord Alexander in 1987, after the thankless task of acting for the government in the Spycatcher litigation where the government’s efforts to injunct Peter Wright’s memoirs, in flagrant breach of the Official Secrets Act, had been significantly undermined by the refusal of the Australian 98 [1984] 2WLUK 24

courts to grant an injunction and the consequent ease in obtaining copies of the book whether or not an injunction was granted. He subsequently chaired Justice, Crisis, and the Royal Shakespeare Company. Bob died tragically young at sixty-nine in 2005 after a series of strokes. He was the dominant figure at the bar in the late 1970s and 1980s. His contribution to Brick Court’s success was enormous. The story is told of the lady who had dinner with Mr Gladstone and Mr Disraeli on consecutive nights. After the first night she said, “Mr Gladstone is the most interesting person I have ever met.” After the second night she said, “Mr Disraeli made me feel I was the most interesting person I have ever met.” Bob was her Mr Disraeli. It didn’t matter who you were, a pupil, junior clerk or student. He would remember exactly what he had discussed with you on the previous occasion you had spoken to him. He had that magical ability of making you feel interesting and important. When Alexander, Phillips and Gatehouse were around (and Burley) the titular head of chambers, Owen, was very much in the background and largely in Wales. With all these figures gone, and Burley’s retirement looking imminent, it was time for a new head of chambers and the unanimous choice in 1990 was Christopher Clarke. Christopher’s stewardship of chambers lasted until he went on the bench in 2005 (more of which later). Christopher was an outstanding commercial advocate and the period when he was head of chambers was a particularly happy period in its history. He was a wonderful public speaker, and chambers dinners were always popular for the treat of being able to listen to one of his speeches. The only fault in his successful and consensual running of chambers was that he was too nice a man to find it easy to reprimand or to give bad news. Christopher Clarke QC

THE EUROS Britain had joined the EEC in 1973 giving rise to the possibility of some European work for the bar. Alexander, Phillips and Vaughan decided they should learn something about it and attended a oneday conference on EEC law. Bob and Nick were far too busy to have the time to do any follow up work, but David Vaughan did have the time and started reading up on David Vaughan QC this new area of law. David’s appearances in the law reports in the early part of his career are few and far between99 but he was in the law reports in Euro work as early as 1975.100 He was initially the only person in Brick Court to have any knowledge of the subject, but in 1982 he recruited Gerald Barling from other chambers to be a fellow traveller. In the 1980s David and Gerald shared a small timber framed annexe known as Prince Henry’s Room at the Middle Temple Lane end of Fleet Street where they practised in a small area of law that no one else understood and everyone else thought obscure and eccentric.101 Burley was initially sceptical but gradually David worked out how to get him on side. ICI had a complaint about petroleum tax revenues whereby the existing system gave ICI’s rivals a competitive advantage. David thought the discrimination might involve State Aid, so David brought Bob Alexander in to argue the complicated tax scheme. For the 99 He was led by Robert Gatehouse in the Privy Council in Yat Tung Invt v Dao Heng Bank [1975] AC 581. 100 National Carbonising Co Ltd v EC Commission [1975] 2CMLR 457 101 The first reported case they did together was Dairyvale Foods Limited and Others v Intervention Board for Agricultural Produce [1982] 3CMLR 358.

first time Burley saw that there was some advantage to be gained from this new branch of the law. The case which really launched EU law (as it was becoming known) was the Spanish fishing rights litigation. This was a judicial review case taken against the British government by a company of Spanish fishermen and known as the Factortame litigation, which went on from 1988 to 2000. Two silks had previously opined that the case was hopeless but that was not a word in David Vaughan’s vocabulary. He successfully argued that the UK had breached European free movement law by requiring ships to be owned by resident British citizens if they were to remain registered in the UK. The case led to something unprecedented: the suspension and then disapplication of an Act of Parliament. By confirming the supremacy of European law over freshly enacted statute, it was controversial and led to a huge payment to Spanish fishing companies that had been unlawfully banned from operating British registered vessels. Twelve years into the litigation, after three visits to the House of Lords and three to the European Court of Justice, David’s fishermen had won on all counts. A constitutional revolution was declared by the academic Professor Wade. The original Spanish Fisherman, John Couceiro, credited David Vaughan for leading him on “a journey that I would not have missed for the world”. David Anderson joined the Vaughan team in 1988, after pupillage and a short spell at the European Commission. The peripheral importance of EU law at that time was epitomised by Bob Alexander asking him “Why do you want to do EU law? – all the bright people in chambers do commercial work.” The youthful Anderson was instructed on a Factortame application before the formidable Welshman, Tasker Watkins, now in the Court of Appeal, a giant of Welsh rugby who had won the Victoria Cross for leading a bayonet charge before single-handedly taking out a German machine gun post. Most of the Spanish-owned ships were based in Milford Haven. “Get Milford Haven into the first sentence” was Vaughan’s advice. Anderson started his application by telling the court that his clients’ vessels were tied up in that port. “A very beautiful place to be tied up Mr Anderson,” beamed Watkins. “Did you know that Lord Nelson considered Milford Haven the most beautiful harbour in the world?” Anderson never looked back. 68

There were other more indirect consequences of Factortame for Brick Court. Just after the House of Lords had disapplied the English statute, David Vaughan was speaking at a Cambridge student event about the case. Helen Davies attended because her law finals were imminent and she thought there might be a question on the case. It was David’s enthusiasm when speaking about the case that first put Brick Court on her radar. It was said that working on a case with David Vaughan was more a lifestyle choice than a junior brief. What drew others to him was his infectious enthusiasm for his cases and the law that made others want to be on his side. There were the fact-finding trips to coal mines, to dairy farms or – in a case about betting – to the Windsor evening races. The popping down to the junior’s room every five minutes to ask “How’s it going?” to see how his manuscript changes looked on the screen. And to prepare for Vaughan’s frequent appearances in the European Court in Luxembourg, the days spent working in the Auberge de la Gaichel, ending with a high-spirited meal and evening walk to the defunct customs post on the Belgian border. David Vaughan was a great collegiate person: the Bar European Group and the European Circuit were his creations. His conference on “Wine, Beer and Spirits in European Law”, which gained popularity because he decided to hold it in Bordeaux, is remembered thirty years on for its combination of learning, jollity and gastronomic delight. In 1989 Nick Green joined the team, in the best tradition of Brick Court having been turned down by what is now Monckton Chambers at the end of his pupillage. Dr Nicholas Green had been a lecturer at Southampton University and had co-authored an early ground-breaking book on competition law with the subsequent Brick Court joiner Aidan Robertson. In time Green developed the ability to hold forth in court on competition and EU law with a fluency and articulacy no one else could rival. He joined Vaughan, Barling and Anderson in the small annexe at a time when anyone who had ventured into personal computers had an Amstrad. In the late 1980s and 1990s David Vaughan and his small team spent much of their time on Sunday trading cases. These cases highlighted the absurdity of the Shops Act 1950, which had the effect that most shops such as supermarkets could not open on Sundays, but somehow permitted 69

them to sell pornographic magazines and alcohol. The homeware chain, B&Q, who would benefit more than most from a change in the law, was the biggest client. The tactic was that the shop would open on a Sunday, the local council would seek to prosecute, and seek an injunction, and David and Gerald Barling would appear in the magistrates’ court to tell the bemused magistrates that this was all contrary to EU free movement of goods rules which were now a part of English law. Meanwhile they would invite a reference to the CJEU which everyone knew would take years, and argue that it was inappropriate for an injunction to be granted in the meantime. Whatever the correctness of the ultimate legal position, B&Q and their other clients found it very much more profitable to open on Sundays with a claimed legal justification and risk fines if, and to the extent that, these legal arguments ultimately came unstuck. Indeed, in this regard it was apparent that crime certainly did pay. Their efforts also can be said to have been in significant part responsible for the change in the law which enabled shops to open on Sundays for six hours (a curious political compromise which seems entirely to lack logic but remains the position today). Neil Calver joined chambers in 1994. Although he subsequently became part of the commercial wing of chambers, initially he was seen as having a foot in both the Euro and commercial camps. This is because in his former chambers he had been heavily involved on the other side of the Sunday trading cases. This involved travelling up and down the country seeking injunctions in magistrates’ courts. One such appearance led to Calver spending the night accommodated above a pub and having had the pub food for supper. He arrived at court next morning to see the Brick Court taxi arrive, with the inhabitants (Vaughan, Anderson, Green and Barling) deep in discussion about the Michelin starred meal they had enjoyed the night before. He thought to himself “I’d like to be part of that”. These were the early days of EU law, when its direction was very much up for grabs, and David Vaughan and his team played a real part in its development. There was something about the Wild West in it. David’s strength was in his instincts, albeit he needed bright people around him to put an analysis on the instinct. Factortame, Sunday Trading and later Courage v Crehan were all lengthy campaigns which kept the courts 70

busy for very many years, and which played to his enthusiasm for bigpicture strategy. The team would at that stage appear regularly in the CJEU, the judges all knew David and warmed to his jokes. In a case in which Nicholas Lyell, then Attorney General, appeared for the UK government, David managed in his submissions to say “turkeys don’t vote for Christmas” both in English and French, which struck a chord with the French speaking judges as there is apparently a similar French expression about bunnies not voting for Easter. The Brick Court Euro team had unrivalled experience before the CJEU: Brick Court probably had the greatest expertise in EU law anywhere in Europe, and certainly in the UK. And the practice involved appearing in some unexpected places, such as Nick Green’s famous appearance before the Yogurt Tribunal. After Factortame and Sunday Trading, there was Courage v Crehan. The beer tie cases also kept the courts busy for a decade. This was a battle between two sides of an industry. Mr Crehan had agreed with Inntrepreneur, which controlled 7,355 pubs, to take two leases on pubs in Staines, where he would have to buy the beer from Courage exclusively at a specified price. The lease was a standard form, and it was not negotiable. The leases all extended to twenty years. However Crehan could not compete against free houses nearby who could buy beer more cheaply and argued that the agreement was contrary to Article 81 of the EC Treaty. Crehan sought damages but it was argued that even if the agreement was unenforceable, the illegality barred his claim. Conflicting judgments from the English courts kept many of the EU practitioners in beer for many years until a ruling from the ECJ.102 Green and Aidan Robertson were on the side of the brewers, Vaughan and Mark Brealey on the side of the tenants. Green was often in court several times a week for the brewers, doing their landlord and tenant work as well as the competition cases. The cases involved warfare between the different sides of the industry and led to a restructuring of the industry. The cases built up principles of illegality and unjust enrichment. Vaughan was revered by those he worked with; he might present his argument in somewhat diffuse and impenetrable terms, but that often 102 [2002] QB 507

led the judge to reformulate it and then to assume he had thought of the point for himself, which to the extent that could be described as a strategy, was a rather effective one. Thus in the House of Lords in Factortame: “I think what you are saying, Mr Vaughan...” interjected Lord Bridge, “But Mr Vaughan’s better point…” Lord Brandon would counter. And so it went on. Things did not always go to plan. David appeared on a case where he led Marie Demetriou against David Anderson. The issue was whether a product was a toy or a game, the difference having significant fiscal consequences103 because toys attracted 4.7% duty whereas games attracted nil. David’s submissions suggested that he was struggling to remember whether he was trying to show it was a toy or a game, then he reduced everyone to laughter when his in-court demonstration of the product failed completely and he was unable to get the product to work. He capped his performance by confusingly telling the judge the “dog was wagging the tail”. So many held David in affection. Apart from the Spanish fishermen, the People’s Mojahedin Organization of Iran v Council104, in which Marie Demetriou and Maya Lester were also involved, was the founding case for EU review of sanctions measures. The head of PMOI sent a long message on David’s death paying tribute to his service to the Iranian people. So too the people of Northern Cyprus, given de facto recognition in a case before the CJEU on fruit export certificates105 regarded David as a hero. In the 1960s Vaughan was an important player in the recruitment of Alexander and Phillips, the acquisitions that propelled Brick Court into the premier league. By 1990 he was seeking to recruit additional members of the Euro team. Nicholas Forwood was one of those. He principally practised from Brussels with two juniors. Brick Court agreed to establish an annexe in Brussels which the three of them would man. That investment was intended to secure chambers’ reputation as 103 VTech Electronics (UK) plc v Commissioners of Customs and Excise [2003] EWHC 59 (Ch), Lawrence Collins J 104 T-284/08 105 R. v Ministry of Agriculture, Fisheries and Food ex parte SP Anastasiou (Pissouri) Ltd [2000] 3CMLR 339

having an important EU law presence. The juniors, one of whom was Fergus Randolph, were initially merely to be “Brussels tenants” and not full members of chambers. But they subsequently became full tenants. Nicholas Forwood went on to be the UK judge at the General Court of the CJEU in 1999, and returned to chambers as a door tenant and arbitrator after his retirement. The Euro practice in chambers developed to the extent that by the mid to late 1990s there were a significant number of Brick Court practitioners who practised in EU and competition law and Vaughan had managed to set out chambers as the market leader. Apart from Green, James Flynn, who had been a partner with Linklaters in Brussels, joined, and later Aidan Robertson (who had co-authored Nick Green’s book on competition law and had been a don at Oxford) as well as Jemima Stratford, Mark Hoskins and Mark Brealey. David Lloyd Jones worked on many cases with the Euro team.

THE 1990s The Courts and Legal Services Act 1990 abolished the bar’s litigation monopoly. The free-market policies of Thatcher had radically altered many professions, and it was hardly a surprise to find that the legal profession was reformed too. Harold Wilson had asked Sir Henry Benson to review the provision of legal services in the 1960s but his report, ultimately published in 1979, had not proposed significant reform. In the 1980s solicitors increasingly pressed for rights of audience and the Marre Committee was split on the question, with all the solicitor members voting in favour and all the barrister members against. So long as Lord Hailsham was Lord Chancellor there was unlikely to be change, but he was retired after the 1987 election and his successor Lord Mackay106 had different ideas. In the longer term the bar did itself few favours by opposing any change. Chambers’ strength has always been founded on the abilities of its members and not its monopoly rights. The bar went further in refusing to admit solicitors to the Inns of Court, which provoked resentment. The professions have rarely been enthusiastic about reform: in the same way that the doctors on the BMA opposed the creation of the NHS in 1947, the Bar Council had opposed the 1898 statute which permitted a defendant in a criminal case to give evidence in his own defence for the first time. Under the 1990 changes, solicitors lost their conveyancing monopoly but were given rights of audience and entitled to apply for high judicial office for the first time. Once again, chambers was getting too big for its premises. It was getting to the stage where there were a number of small annexes, some of which were not satisfactory for conferences. 11 Essex Street was retained, notwithstanding occasional problems. Charles Hollander and Richard Lord had been sharing the basement room there and complained of sewerage smells after heavy rain. The junior clerks had inspected on several occasions and had been unable to smell anything and claimed this was a figment of the imagination. The basement inhabitants were vindicated when after one occasion of particularly heavy rain the sewer 106 Lord Havers was appointed Lord Chancellor in 1987 but had to retire through ill health three months later.

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.

RECRUITMENT Until about 1980 recruitment in chambers was entirely haphazard. Obtaining pupillage involved getting someone you knew (often a university tutor) to write a letter to someone they knew. A number of those taken on in the early 1970s arrived at Brick Court after their pupil master in another set (usually 4 Essex Court or 1 Hare Court) spoke to one of Brick Court juniors about the pupil their set had been unwilling to take on. The Inns helped in providing a network of contacts but selection on merit was something of the future. There was no pupillage committee or tenancy committee and no one was quite sure how decisions were made. That meant that the quality of pupils was at times a bit mixed. One lady who had been in pupillage for few months was asked to chase up law reports containing the other side’s list of authorities. One was “1979 2 Ll R”. Rather than searching for the Lloyd’s Reports, she apologetically said that it did not appear there was a copy of the Liberian Law Reports in chambers. Nor was it always obvious which of the juniors were squatters waiting to hear about their prospects and which were actually tenants. The traditional pupillage fee of 100 guineas had not formally been abolished but by the 1970s no one asked for it, at least in 1 Brick Court. Perhaps it was still a courtesy to offer. But there was certainly no remuneration for pupils. However, a number of the juniors in the early 1980s were accustomed to pay their pupils for work they used. Members of chambers usually had two pupils each. By the late 1970s there were about eighteen pupils in chambers. Physical space was limited and the lack of space was seen as a bar to taking new tenants. “We’d love to take all of you,” Burley would say, possibly not meaning it literally, “but there’s no space for anyone.” Pupils in the late 1970s and early 1980s who did not stay in chambers included Peter Roth, Paul Morgan, Stephen Males, Sue Carr and Robin Knowles all of whom went on to successful careers and to become High Court judges. Pupils were often asked to do a range of non-legal tasks such as visiting their pupil master’s home to pick up forgotten papers. The last day of Richard Aikens’ pupillage involved taking Bob Alexander’s young son to watch the cricket at Lord’s when Bob became otherwise engaged at short notice. In due course Andrew Popplewell had to spend the first 87

day of his pupillage with Richard assisting Richard’s heavily pregnant wife move house whilst Richard did an arbitration. Others sought to look after their pupils in different way. Hilary Heilbron was on occasion required to give female pupils sartorial advice. When George Leggatt was Jonathan Hirst’s pupil it was not entirely clear why his wardrobe was regarded inappropriate, but at Christmas Hirst provided a large cheque and told George to go out and buy himself some “proper black brogues”. Anecdotes on the bar pupils’ grapevine suggested that in many other chambers pupils were poorly treated, something that certainly never happened at Brick Court, where the warm atmosphere which pervaded chambers generally made pupillage a happy experience. One set of chambers had a chambers tea every day where pupils poured the tea and stood lining the walls whilst the members chatted to each other. A pupil in other chambers fell out with his pupil master after being sent off to deliver a pistachio ice cream to another member of the bar. Although not explained to the pupil, this involved a private joke. When pistachio was unavailable, the pupil took chocolate ice cream instead, which (unbeknown to him) spoiled the joke and led to a massive row with his pupil master who subsequently blackballed the pupil from tenancy. It was Richard Aikens who pioneered a structured system of pupillage applications in the early 1980s. Paul Walker developed it in the late 1980s; Brick Court being more or less the only set at that time to select for mini pupillage and to require a five-day assessed mini pupillage as part of chambers’ admission procedures. Mini pupillage was not merely an opportunity to assess candidates, it also gave candidates an opportunity to see the inside of chambers at first hand, and to that extent also presented a marketing opportunity. Thus Roger Masefield was, during mini pupillage, prised away from the embrace of another magic circle set where he was intending to go (whilst Tom Adam was responsible for this particular coup, it nearly proved disastrous because Tom thought Roger wanted pupillage for the wrong year). It was said that almost all those who did mini pupillage ended the week wanting to come to Brick Court, as against a rival set where almost everyone who had done mini pupillage was put off going there. With the structured system came the need for a pupillage manager. This role was originally filled by a rather formidable character who was 88

not shy of expressing her own (unauthorised) views of the candidates and their prospects of success, including on occasion to the candidates themselves. In 2001 the role was taken over by Lyana Peniston who has remained with chambers since and whose rather more approachable and user-friendly manner has welcomed scores of pupils and pupillage candidates over the years. The best candidates were invited to final interview on a Saturday, then in July, where they were required to present an application for leave to appeal from the Court of Appeal. The favourite problem was a bills of exchange case, Williamson v Rider.121 Danny Jowell was one of those who failed to make the cut for pupillage after being unable to tell the difference between a fixed and determinable future time under s83 of the Bills of Exchange Act 1882, and it took some years to tempt him from other chambers. Curiously the standard assessed mini pupillage piece of written work was also a bills of exchange problem,122 the intention being to choose an area of law where those who had done a non-law first degree might not be disadvantaged. In 1989 the tenancy committee was set up to improve the quality of decision making when deciding whether to offer pupils tenancies. This led to the creation of structured advocacy exercises for the pupils. Initially modest in output, the initial exercise used was an old Paul Walker summary judgment application about a racing yacht where defective woven roving meant that boat failed its class certification. The Olympic yachtsman who was the plaintiff, Glyn Charles, sadly drowned whilst racing some years after the exercise was first used. Charles Hollander took over pupillage when Paul left to take up an academic post in New Zealand in 1994, and the advocacy exercises mushroomed into monthly outings, mostly consisting of Charles Hollander’s triumphs and disasters in court revived, with security for costs, interlocutory injunctions, freezing injunctions, an Employment Appeal Tribunal case, and leave to appeal hearings. Most recognised that this was an effective and transparent system but there were a few glitches. Alec Haydon sought to complete his certification after completing six months’ pupillage but was told by the 121 [1963] 1QB 89 122 Based on Durham Fancy Goods v Michael Jackson [1968] 2QB 839

Bar Council that his pupil master was not registered and there was a brief suggestion that the pupillage might be void. A wag suggested that in that case he should be obliged to return his pupillage award. Simon Salzedo nearly left for other chambers after being told by the then chair of the tenancy committee, Jonathan Hirst, in one of the sometimes brutal Easter pupillage assessments that “all was not lost yet”. One unsuccessful candidate claimed that one of the interviewers fell asleep during his first interview, an allegation that met with an absolutely outraged denial from the member of chambers in question. Another pupil burst into tears during an advocacy exercise when reprimanded for referring to the patent court with a long rather than a short “a”. For one mini pupillage interview the wrong candidate was brought up for interview and the error was not appreciated until almost the end of the interview. When the member of chambers collecting him said “John Smith?” the candidate must have thought the interviewer was introducing himself. Another pupil in chambers who had been wooed by many chambers told us that during the recruitment season he had ignored a message to call 10 Downing Street as a practical joke by his flatmate. It turned out that Cherie Blair was trying to recruit him to her chambers. By the late 1980s chambers was offering pupillage awards. These soon grew in size as the commercial sets sought to attract candidates by outdoing each other in the size of their awards. Trying to offer more than your rivals had the potential to lead to a spiral, and to some extent did in later years, although chambers’ strategy was simply to be competitive. Brick Court was always happy to compete with its rivals for pupils on a level playing field. Others took a different view. One year, two Brick Court final interview candidates were made pupillage offers by another set of chambers. They made the offers ten days before Brick Court’s final interview Saturday and in each case said they would keep open the offers for nine days. In the mid 1990s the Bar Council introduced the standard pupillage application system, which went through a number of names before now being called the Pupillage Portal, but it was never then compulsory and many chambers, particularly the Chancery sets, declined to participate in order to pick off strong candidates early and avoid a level playing field. The portal had some early glitches itself. Initially a candidate could 90

apply to up to twenty sets and there was no limit on the number of offers that could be held on to before accepting one. Thus in the first year one person received fourteen offers and made his decision right at the end of the fourteen day window, which meant that none of the fourteen sets that had made him an offer could move on to their next choice candidate until almost the end of the fourteen day window, with the result that much of the system ground to a halt. Many professions offer one form or another of work experience or placements. The Commercial bar is not very suitable for that purpose because of the level of detail and large number of files. Fledgling lawyers in mini pupillage were often excited by spending time seeing how what they had learned at university was put into practice, and speaking to the practitioners who had actually argued cases they had studied. But for those who had not yet studied law, spending a week analysing legal problems they did not understand was a sure way to put them off. Worse still, work experience and random placements interfered with the mini pupillage assessment system. Sometimes it was difficult to turn down requests: when the Master of the Rolls’ clerk asked if his son could spend a week in chambers on work experience there was a concern that a refusal might impact on future listings in court. In 1997 one of the pupils was a lady called Alison Ryan. She was a strong and forthright personality who had excelled at interview in what was perhaps not the strongest year. By January of her pupillage year concerns had been raised about curious and inconsistent statements she had made about her health. At the same time her flatmates (she lived in an Inner Temple flat) had expressed similar concerns to the Inn about her veracity. An inquiry led by Jonathan Hirst (for Brick Court) and John Chadwick (for Inner Temple) discovered that whilst on her CV she claimed to have a first class degree from Cambridge, in fact she had obtained a lower second. Moreover, a glowing reference she had used from someone who was said to have been her tutor, had been forged. She was struck off by the Bar Council and next surfaced a year or two later when the press announced her appointment as Press Secretary for Manchester United F C, an appointment which was rescinded when the football club learned more about her background than she had disclosed.

ESSEX STREET

7–8 Essex Street

Once again, chambers were outgrowing their accommodation. An opportunity arose to move to premises at 7–8 Essex Street just outside the Temple. The decision to sign up to a 15-year full repairing lease was a difficult one for professionals accustomed to being risk averse. At the key chambers meeting, someone said, “What happens if the Law Courts move to Docklands?”. All other annexes and premises were given up, including 1 Brick Court. The new building was a rather ugly concrete box; the new owners had decided to reface it in red brick which improved its looks no end. Thus chambers operated under a single roof. This was also an opportunity to install modern computer cabling. The fax had now been replaced by computers. When chambers moved in 1998 there was email installed with a VPN across chambers for the first time. Richard Aikens did much of the organisation. The senior members of chambers took the large attractive corner rooms, reflecting the historic position where members of chambers had cons in their own rooms. However, a suite of conference rooms on the fifth floor meant

that conferences were now held there and as time went on a very large room became an unnecessary luxury. Retractable sliding doors between the fifth floor rooms enabled the space to be converted into a single long room for chambers meetings and seminars. And there was a roof terrace for summer and parties. In 1998 the Bloody Sunday Inquiry was set up by the new Blair government; an inquiry into the 30th January 1972 incident in the Bogside area of Derry, Northern Ireland, when British soldiers shot twenty-six unarmed civilians during a protest march against internment without trial and fourteen people died. The inquiry had been offered by Blair as a bargaining counter in negotiations for the Good Friday Agreement. There had been a first inquiry shortly after the incident by the then Lord Chief Justice, Lord Widgery, in a rather different political climate. Lord Saville was appointed to chair it. Christopher Clarke was asked to be counsel to the inquiry. The inquiry was expected to last six months. David Lloyd Jones and Mike Bools were part of the team for the soldiers and Alan Roxburgh was part of Christopher’s team. Saville’s first ruling was that the government should pay for one team of three barristers to represent all the families of the victims. The families threatened to boycott the inquiry, Saville backed down and ten teams of barristers were instructed for the families. That initial caving in set the tone for the inquiry. Saville refused to permit soldiers to give evidence under anonymity (although there was evidence that their lives might be in danger if they were identifiable) and he was successfully judicially reviewed – the case being argued by Sydney Kentridge. Saville reconsidered his decision as mandated but came to the same conclusion second time round. A second time he was successfully judicially reviewed, again by Kentridge for the army.123 The inquiry finally reported fourteen years after it had been set up at a cost to the public purse of £200m. David Lloyd Jones did manage to secure one brief escape from the Bloody Sunday inquiry. He was contacted on a Friday evening in half term and asked to take the amicus brief in the House of Lords on the Pinochet case, which involved submitting a skeleton argument on the Monday for a hearing commencing on the Wednesday. The case, an application to set 123 R v Lord Saville of Newdigate ex parte B (No 2) [1999] 6 WLUK 244

aside the extradition warrant on the now elderly Chilean dictator when he visited the country,124 subsequently became notorious for the failure of Lord Hoffmann to recuse himself notwithstanding his connection to Amnesty International. The House of Lords decided to review their own prior decision. David, who had been a law don at Downing College Cambridge, was a native Welsh speaker, had an expertise in public international law, and also worked closely with the Euros and appeared many times in the CJEU. Always a favourite with the Treasury Solicitor, he had just taken silk at the time and according to a number of subsequent comments from law lords who sat on the appeal, fulfilled his task with great distinction. Richard Aikens went on the bench in 1999, having had little time to enjoy the new building in Essex Street which he had spent so long organising. Perhaps Aikens’ greatest success as an advocate was The Fanti125 which went to the House of Lords on the question whether the “pay to be paid clause” in the Newcastle P&I Club rules could withstand the effect of the Third Party (Rights Against Insurers) act 1930, a question on which several generations of commercial silks had opined. Having lost before commercial arbitrators, at first instance and the Court of Appeal, Aikens, leading Jonathan Hirst just before he took silk, succeeded in the House of Lords against Jonathan Sumption and Andrew Popplewell. Richard was promoted to the Court of Appeal in 2008 and returned to chambers as a door tenant and arbitrator after retiring from the bench in 2015. There was a major change in the way the courts operated in 1999 when the Rules of the Supreme Court were replaced by the Civil Procedure Rules. Lord Woolf, then the Master of the Rolls, had been asked to chair a review into the civil justice system with a view to combatting the increase in litigation costs. He had decided that a change of attitude was required by litigators and thus “a fresh start”, which involved replacing the RSC by new rules. It was not Woolf ’s fault that he reported a few years before the advent of electronic disclosure, which more than anything 124 R v Bow Street Stipendiary Magistrate ex parte Pinochet Ugarte [2000] 1AC 119 125 Firma C-Trade S.A. Respondents v Newcastle Protection and Indemnity Association [1991] 2AC 1

else led to the spiralling of litigation costs in years to come. However, wholesale replacement of the rules was a doubtful exercise at the best of times and in the event his reforms led to increase in costs rather than a decrease and few now regard the exercise as a success. Many common law Commonwealth jurisdictions have declined to adopt them and prefer to retain the RSC. At an internal seminar to explain the new rules to members of chambers, Andrew Popplewell drew attention to the new slim white volume entitled “Civil Procedure” setting out the new rules and commentary on them, and predicted that in time this would extend to two volumes (which was then the current size of the Whitebook) and would be called “The White Book.” And so it was. Such new expressions as “the overriding objective” and “Part 36 offers” (often used as a verb as in “we Part 36d them”) became current. For a while the new rules led to a significant decrease in interlocutory applications, partly because neither practitioners nor judges had any experience of the new rules, nor could foresee all the drafting issues potentially arising, and it was very hard to predict decisions. In many ways the CPR moved the balance in favour of litigation solicitors because it placed emphasis on many of the litigation tools which solicitors worked on: pre-action protocols, pre-action disclosure, expert reports and joint expert reports, witness statements and mediation. One successful innovation which came into force at the same time as the CPR (and which the patent court has always claimed was their idea rather than that of Lord Woolf) was summary assessment of costs. In 1998, conditional fees became lawful, subject to restrictions. Legal Aid in civil cases had become increasingly difficult to sustain, but there was a concern that the UK would go for the US model where massive contingency fees have many unattractive features. In the early days, conditional fees did not affect chambers very much, but these became the foundation on which later funding arrangements were based. Senior members of chambers and retired judges had always sat as arbitrators but a new breed now appeared – the mediator. When the CPR came into effect in 1999, mediation was still in its infancy but the importance placed in the CPR on mediation gave it an impetus. The small band of professional mediators became in demand. And mediation became an alternative second career for those senior barristers who did 95

not want to go on the bench. Stephen Ruttle was the first to move in that direction. Stephen had had a successful insurance and reinsurance practice but mediation better suited his evangelical interests. Bill Wood moved in that direction too. They recruited Tony Willis, a former Clifford Chance managing partner, to join chambers. A successful mediator seeks to impose his personality on the parties to push them in the direction of resolution of disputes by compromise rather than litigation. All three of Ruttle, Wood and Willis have consistently been ranked as top mediators and others soon joined them. What became apparent was that it was difficult to combine being a mediator with a continued advocacy practice. The soft skills required for success as a mediator are rather different from those needed for courtroom advocacy. And most clients do not instruct a silk to keep telling them how important it is to settle the case. So, increasingly, those who chose the mediator route did it full time, particularly in those early years of mediation, when there was a lot of work. The number of silks in chambers was increasing rapidly. Mark Hapgood had taken silk in 1994, Mark Howard in 1996, Andrew Popplewell and George Leggatt with Stephen Ruttle in 1997, Bill Wood and Nick Green in 1998 and Charles Hollander in 1999 with David Anderson, Paul Walker and David Lloyd Jones. Jonathan Sumption had been involved in the Sphere Drake case.126 In 1989 Mr Justice Hirst had heard this reinsurance trial and concluded that Sphere Drake’s main witness, Mr Leslie Sage, had been a truthful witness. The decision was upheld by a majority of the Court of Appeal with a vigorous dissent from Lord Justice Stuart-Smith who would have held that Sage was lying. In later proceedings, to which another insurance company was also a party, Mr Justice Moore-Bick found that Mr Sage did commit perjury in giving evidence in 1989, having rejected the argument because of the difference in parties that an issue estoppel arose from the Hirst judgment. This led to a new attempt to set aside the Hirst judgment for fraud, but the evidence was significantly different because a waiver of privilege opened up all the files of Linklaters (who had acted for Sphere Drake, Sage’s employers) from the original trial. By 126 Odyssey Re v OIC Run-Off Ltd [2000] WL 191217

this time Sage was dead, although it was noticeable from the privileged materials that once Mr Justice Hirst was designated the 1989 trial judge, the drafts of Sage’s witness statement no longer started “I, Leslie Sage…” but now started “I, Leslie “Sapper” Sage” in a nod to his war record. At the second trial Mr Justice Langley rejected the case that Sage was lying and upheld the Hirst judgment. A number of Linklaters solicitors gave evidence at the second trial. Sumption was sufficiently impressed by the way Andrew Henshaw, a Linklaters partner who had been an assistant solicitor involved in the original trial, conducted himself under hostile cross-examination from Sumption himself that he supported him when Henshaw sought to move to the bar and joined chambers in 2000. Sumption’s win in the Court of Appeal when he persuaded a majority of the court that they should overturn Langley’s judgment must go down as one of the great wins of his glittering career. There cannot be many occasions when the Court of Appeal reverse the factual finding of a respected Commercial Court judge not to find fraud. Jonathan Hirst was involved in another Sphere Drake case of a rather different nature.127 Sphere Drake had got caught up in the personal accident spiral engineered by Sterling Cooke Brown (SCB), a firm of insurance brokers in Bermuda. The spiral traded in losses, a perverse form of arbitrage. A huge volume of LMX Reinsurance was written in this extraordinary market, all brokered by SCB and a few other brokers who earned commission at every turn. The scheme had many of the hallmarks of a Ponzi scheme. The trial before Mr Justice Thomas, with Jonathan leading Andrew Lydiard and Colin West, lasted 103 days in court over a year, and was at the time a record length for the Commercial Court. Jonathan cross-examined in all for 47 days, an immense burden, and the judgment which ran to nearly 1,000 pages, was a major triumph for him, finding that the defendants had been comprehensively dishonest. Sumption had also been acting for the boxing promoter Frank Warren against Don King.128 Warren had signed a disastrous agreement after he arrived late at night in Las Vegas and was left in a room with jetlag 127 Sphere Drake Insurance Ltd v Euro International Underwriting Ltd [2003] EWHC 1636 128 [1998] 2 ALL ER 608, the juniors were Charles Hollander and Andrew Thomas.

and copious alcohol to sign the agreement whilst King was allegedly otherwise detained. Mr Justice Lightman had for some reason taken against Warren from the outset, and although Warren was no saint, King was certainly worse. Lightman was an outstanding advocate and lawyer, but never understood the difference between being at the bar and on the bench, and was a shockingly bad judge who never concerned himself with giving the parties a fair hearing and did not appreciate that winning is not part of the function of the judge. It is very rare to say that a judge was biased, but it was hard to avoid that conclusion in relation to this litigation. Indeed, the impression on the clients was not assisted by the knowledge that counsel for King came from Lightman’s old chambers and King’s solicitor was a personal friend of the judge. There was a memorable occasion when Sumption, who invariably got on with and was respected by the tribunals before whom he appeared, said: I simply cannot understand how your lordship is willing to accept any proposition put forward by my learned friend but is unwilling to accept even the most uncontroversial proposition put forward by myself. Of all the many hearings in that litigation, in which Lightman was the managing judge, there was only one occasion when Warren was successful. That was on a contempt hearing, when Lightman was very reluctantly persuaded to recuse himself on grounds of appearance of bias. That hearing was dealt with by Mr Justice Jacob who found in favour of Warren. Lightman also came a cropper in a case which proved the forerunner to Porter v Magill129 in relation to judicial bias. Re Medicaments130 was one of the last cases before the old Restrictive Practices Court where Mark Cran131 was appearing before Lightman and two specialist members. During the hearing the economist panel member made a job application to the firm run by the regulator’s expert witness, Mr Zoltan Biro. When she realised the connection, on Lightman’s advice, she told the firm that she was putting her application on hold till the end of the case and so 129 [2002] 2AC 357 130 [2001] 1WLR 700 131 Leading Cathy Otton-Goulder.

informed the parties, which arguably made matters worse. By this time the long trial was nearly finished and when Cran made an application to recuse the tribunal, Lightman summarily rejected it, with stinging criticism in his judgment stating that this was an application that should never have been made. Lord Phillips MR chairing the Court of Appeal (before whom Sumption had now been brought in to lead) thought otherwise and ordered a retrial of the case before a different judge. Sumption was now at the top of the bar. He had survived losing five House of Lords appeals within a year in 1990 (even Bob Alexander had gone a term without winning a single case at one stage). His main rivals were Gordon Pollock and Tony Grabiner. There are many very clever people both in Brick Court and at the Commercial bar, but many would say that Sumption was the cleverest person they ever met. It was as though he had a hard drive twice the size of everyone else. Doing a case being led by Christopher Clarke one might say “I should have thought of that”. Being led by Sumption it was more a case of “I’d never have thought of that”. It was said that the Court of Appeal were terrified of him because he went very quickly and did not repeat himself. The Equitable Life crisis (which had the effect that many pension holders of the company lost a significant part of their retirement funds) was caused by Sumption single-handedly.132 Equitable Life policies had guaranteed annuity rates but sought to undermine that by using a power in their articles of association to grant different final bonuses to their with-profits retirement annuity policyholders, the calculation of which depended on whether the policyholder elected to take the annuity at the higher guaranteed rate, or the lower current rate. When Sumption, leading Simon Salzedo, lost before the Vice Chancellor, Sir Richard Scott, at first instance on an action for a declaration to hold the board’s decision void, they doubted whether they would get leave to appeal. There was nothing in the Articles which prohibited what the directors had done. But Sumption managed to persuade the Court of Appeal that the decision was unlawful as being a discretion exercised in a way which was contradictory to the intention of the instrument conferring it, so as to derogate from the reasonable expectations of the policyholders, and 132 Equitable Life Assurance Co Ltd v Hyman [2002] 1AC 408

held the win in the House of Lords. Sumption always said that if his opponent, Tony Grabiner, had made clear to the Court of Appeal the startling financial consequences if Sumption was right, they would never have found in Sumption’s favour. Elton John sued PricewaterhouseCoopers alleging that they had negligently failed to detect the alleged overpayment of tour expenses by his former manager (and lover) John Reid.133 Mark Hapgood led Cyril Kinsky for the accountants. Neil Calver was the junior for Elton John, led by Gordon Pollock. On Christmas Eve Pollock phoned Neil to tell him that he would not be returning to finish the case after Christmas. Thus, despite being a not particularly senior junior, he ended up having to finish the last two months of the trial himself and make the closing speech. A damaging cross-examination by Hapgood revealed that in the course of a series of drug binges and extravagant spending, Elton John had spent £293,000 on flowers in eighteen months. When Hapgood suggested: “What you are trying to do is get back from PWC’s deep pocket some of your past generosity to Mr Reid?” Sir Elton answered “Yes”. Mr Justice Ferris accepted the submission that notwithstanding Sir Elton’s abilities he had no interest in or acumen for business matters and dismissed the claim. Another aspect of the Elton John case led to a significant change in procedures for protecting confidentiality and the routine use of shredders134 which had not been previous practice at the bar. It involved a draft of an opinion which Jonathan Hirst and Neil Calver were to give to Elton John’s solicitors on a conflict of interest question. The draft was thrown away in a wastepaper bin, as was then normal practice. The draft was stolen, the contents then appeared in the tabloid press. The issue discussed in the draft was of no obvious interest to anyone other than the parties, but for the tabloid press anything involving a celebrity is news. Although it was generally believed that the culprit was a gentleman named Benjamin Pell, who was accustomed to rifle through the bins of law firms in the hope of finding something to sell to the tabloid press, in the absence of firm evidence an application was made to court to 133 John v PricewaterhouseCoopers [2001] 4WLUK 283 134 John v Express Newspapers [2001] 1WLR 1931

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identify the source who had supplied the draft to the papers. Lord Woolf in the Court of Appeal, in a somewhat curious decision, overturned the decision of the first instance judge and declined to order that the paper revealed its source based on s10 of the Contempt of Court Act which requires the court to exercise a discretion whether to compel a journalist to reveal its source. Calver’s music practice flourished for some time thereafter. He acted for the singer Michael Bolton who had fallen on hard times at this stage after a US court ruled that his song “Love is a Wonderful Thing” had been copied from an Isley Brothers song and awarded US$100m damages. Bolton called Neil on his mobile who pulled in at a layby to take the call: “Neil, my career is finished, nothing is left.” He was going to send Neil his new album. “I want your advice. No one I know has as good judgment as you.” Then he spoilt it. “I want you to tell me whether I should put track four before track three on the album.” Neil Calver was led by Christopher Clarke in Rowland v Bock. The US authorities had been tipped off that Christian Norgren was coming to the jurisdiction to give evidence for Rowland and flew in to arrest him, leading to contempt proceedings against Bock for interfering with evidence by tipping off the US authorities. Bock said the tip-off was nothing to do with him. A Diplomatic Note was provided to the judge, Mr Justice Popplewell, which it was assumed revealed who was responsible for the tip-off. Should the judge read it? After argument the judge held that he should, but when he called for the Note from his clerk, it was nowhere to be found, leading to an altercation between the judge and his clerk as to whose fault it was that it had been lost. Then when it was finally found and read, after all that, it said nothing at all about who had effected the tip-off. Mark Howard having been in silk since 1996 was starting to establish himself as an outstanding cross-examiner and trial advocate. An early Howard case in silk was Wallace Smith Trust, where Wallace Smith had stolen a large amount of money from the trust. After the main claim (in which Sumption was leading Mark Hapgood) settled, the claim against the Canadian lawyer who was responsible for the trust through which the money had been funnelled continued, the lawyer being Howard’s client. The other side called their main witness, a current Pricewaterhouse 101

partner. By the end of almost a week of cross-examination, Howard had managed to persuade the witness to admit that he had misled the Bank of England. After the weekend, the witness failed to appear on Monday morning for the cross-examination to continue. A GP note stated that he was not well and the cross-examination was not good for his health. This was not thought satisfactory, so a joint psychiatrist report was urgently commissioned: this concluded that the cross-examination had been so aggressive that it was injurious to the witness’s health and that he was in effect having a nervous breakdown. The case settled shortly thereafter. Howard was also involved in the J-Block litigation, involving a North Sea pipeline where he acted for Enron (prior to its dramatic demise). The Texan attorneys who instructed Howard had retained local lawyer Joe Jamail at US$100,000 per month. Jamail was best known for his success in the US Penzoil litigation where his usual one third contingency taken on a jury award of US$10.53 billion raised questions as to why he was still working. His contribution to the jurisdiction dispute consisted of a one page memo summarising the Texan connections in the case culminating in the line “In this case some bad things happened in Texas”. Sydney Kentridge was involved in opposing an antisuit injunction on behalf of Enron in the litigation and took over from Anthony Boswood, who had advised that the chances of resisting the injunction were 1%. Sydney said he disagreed with Boswood’s advice as it was too optimistic.135

135 Phillips Petroleum v Enron Corp 24th June 1996 unreported Waller J

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NEW HEADS: SUMPTION AND HIRST Christopher Clarke went on the bench in October 2005. He had been in the Bloody Sunday Inquiry for seven years, rather than the six months it was originally expected to take, and it was still far from concluded. He had had to spend a considerable part of those seven years in Northern Ireland. During that period he had neither been able to enjoy the range of other cases that his pre-eminent position at the bar would have enabled him to do, nor to go on the bench, which is what he wanted to do. Yet he never complained about his long sentence of confinement in the endless Saville Inquiry. But the problem he faced was that he was 58 by the time he was able to extricate himself to go on the bench, and the retirement age for judges had been lowered in 1994 from 75 to 70, leaving him less than twelve years on the bench. Had he been able to accept appointment six or seven years previously, as he had no doubt anticipated, he would surely have made it to the Supreme Court, and would have had a real shot at being appointed to one of the great legal offices, as had done Nick Phillips. Sadly, he simply ran out of time and his nevertheless distinguished judicial career never stretched beyond the Court of Appeal. Now he is back in chambers as an arbitrator and is President of the Court of Appeal in Bermuda. Christopher had been an enormously popular Head of Chambers. Indeed, it was a reflection of the respect and affection in which he was held by members of chambers that, although in those seven years he spent long periods away from chambers in Northern Ireland, there was never any suggestion that he would be asked to stand down as head. Jonathan Sumption was now pre-eminent both in chambers and at the bar. It was decided that, given the size of chambers, it was better henceforth to have the burden shared by two persons and Sumption and Jonathan Hirst were invited to act as co-heads. It is hard to imagine two more different individuals than Sumption and Hirst. Sumption was a lawyer’s lawyer, whose towering presence came from his vast intellectual gifts. He had the air of a slightly eccentric professor. Hirst’s personal presence came from his booming voice and unforgettable laugh. One might on first meeting him think him almost a

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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 Council activity. It was also rightly Jonathan Sumption QC 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. 104

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 105

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 106

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 107

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 C C C, 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 C C C 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.140 136 137 138 139 140

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

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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 109

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

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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

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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)

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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 ViceChancellor 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]

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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.

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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

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PUBLIC LAW Brick Court had always done public law cases. Bob Alexander had argued Spycatcher155 and Datafin156 because the best advocates at the bar are invariably asked to argue the most important and most challenging cases. Much of the Euro work had involved judicial review. In the 1990s there had been an explosion in EU and competition work. By the late 1990s the Blair government had made clear that it intended to legislate in the human rights area, and enacted the Human Rights Act 1998. This led to an increased importance for public and administrative law. Partly because of its moral and political importance, and partly because the courts were suddenly active in creating the boundaries, many of the best graduates became anxious to specialise in this burgeoning area of law. There was a significant overlap with the work done by the Euros, as many of their cases involved judicial review. Euro practitioners such as David Anderson and Jemima Stratford already had practices that crossed over into public law. The Euro practitioners organised a weekend seminar at a hotel in Rye (shades of Jowitt) in 1996 for everyone in chambers to learn about human rights. The attraction of moving into public law was to use the Euro expertise as a way into this new market. It was envisaged that there would be synergies with the Euro practice, and also potentially with commercial judicial review. And a strength in public law was likely to attract bright young graduates enthusing about it after studying at university. Richard Gordon was recruited, a senior silk who had a longstanding public law practice, together with Alan Maclean, who had a mixed public law and commercial practice. Shortly afterwards a number of public lawyers split from 4–5 Gray’s Inn Square. This led to the recruitment of Marie Demetriou and Martin Chamberlain. Marie had been one of those who had applied for pupillage for 1995–6, had not obtained a pupillage in that golden year, and her absence had been regretted ever since. Martin was at that time relatively junior but soon became the 155 [1990] 1AC 109 156 [1987] QB 815

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spearhead of chambers’ public law practice. When asked why he had not originally applied to Brick Court he confessed that he had been turned down for mini pupillage! He was initially dubious as to how committed Brick Court might be to getting involved in public law but was persuaded when David Anderson told him that Sumption had told chambers that public law was going to be increasingly important. In the event Martin did much more public law work at Brick Court than he had done in the short time he was at his previous set. Richard Gordon’s view of public law was distinctly creative. He led Martin Chamberlain in R v Registrar of Births Marriages and Deaths.157 This involved an attempt to prevent a man on remand for murder from marrying his girlfriend. The problem was that the main evidence against him was a confession he had made to the girlfriend and if he married her she would cease to be a compellable witness against him. Shortly before the hearing they were served with new discovery from the other side: a bundle of love letters provided with the intention of proving it was a genuine marriage. Richard submitted that the marriage should not be permitted as being contrary to public policy if used to stymie a criminal prosecution. What might be seen as a ridiculous argument surprisingly succeeded in the Divisional Court before Mr Justice Maurice Kay although it met with less success in the Court of Appeal. Richard and Martin were ready for the question: “What would happen in a church wedding if during the service the parson asked if anyone objected to the marriage and someone objected on this ground?” According to the Book of Common Prayer (a copy of which was purchased to consider the issue) it would be for the priest to try the issue himself. Richard Gordon was never the most relaxed of advocates. He took a trip to Strasbourg with Jemima Stratford and Fionn Pilbrow for Roche v UK which concerned testing chemical weapons on soldiers at Porton Down. Richard (who did not like flying) proposed that the team take the slow route to Strasbourg, working on the train and with a pause for a nice lunch in Paris on the way before working late into the night at Strasbourg. Next morning the taxi driver arrived at the hotel, took all the papers plus suitcases to his boot, and locked them in. At this point 157 [2002] EWCA 1661

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the taxi driver realised that he had locked his keys in the car and was unable to open the boot. “On ne peut pas ouvrir le coffre, c’est fermé à clé, c’est pas possible.” Richard definitely was not calm. After some failed attempts to think of a solution (the driver not being impressed with the suggestion that a jemmy be used to open his boot), the team took another taxi to the court. The taxi driver meanwhile rushed home and must have retrieved a spare key for the boot. Closeted in a room in the basement of the Strasbourg Court without any papers, Richard was pacing the room and planning what he was going to say without notes, when the taxi driver came back five minutes before the hearing started with the precious papers. One of the attractions of a public law practice was its focus on cases which were topical and often newsworthy. Thus during pupillage Maya Lester was able to work on the conjoined twins case with David Anderson, where in order for either twin to have a worthwhile life it was proposed to carry out an operation which would kill the weaker twin, acutely raising right to life issues.158 As time went on, an increasing number of practitioners in chambers sought to become involved in public law. Sydney Kentridge and Martin Chamberlain argued a case that law students will study: they took the Hunting Act to a nine-member House of Lords, arguing that the use of the 1911 Parliament Act procedure to pass the statute after the conservative-dominated House of Lords (the chamber not the court) had rejected it twice was unconstitutional.159 Sydney opened the case in the House of Lords as follows: “I was accused in the court below of overstating my case. Let me overstate it again.” A second visit to the House of Lords160 was based on infringement of Article 8 of the ECHR and EU free movement rules and involved Richard Gordon and David Anderson161 for the two sets of claimants. Sydney also argued the Chagos Islanders cases. In 1965 the islands of the Chagos Archipelago in the Indian Ocean, which had been ceded 158 159 160 161

[2001] Fam 147 Jackson v Attorney General [2006] 1AC 262 R (Countryside Alliance) v Attorney General [2008] 1AC 719 Leading Marie Demetriou.

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to Great Britain by France in the 19th century, were constituted a separate colony, the British Indian Ocean Territory (BIOT). Under an Ordinance made in 1971 by the Commissioner for BIOT, the inhabitants of the Chagos Islands were compulsorily removed, mainly to Mauritius, because Diego Garcia, the principal island in the archipelago, was required for a US military base. In 2000 Sydney persuaded a Divisional Court, including John Laws, that the English court had jurisdiction to issue a prerogative writ such as an order of certiorari to any place under the Crown’s subjection notwithstanding the existence of effective local courts,162 – another case studied by law students thereafter. But then in 2004 the government decided to reintroduce immigration controls so that the islanders would no longer be allowed to return to the outer islands without a permit under new Orders in Council which removed any right of abode and disentitled the islanders from entry or presence on the islands without specific permission. This led to a divided Supreme Court163 with Lord Bingham and Lord Mance dissenting; the majority held that what had occurred did not breach any legitimate expectation of the islanders, contrary to the submissions of Sydney, now leading Maya Lester. There has been subsequent litigation both in the English courts and Strasbourg. Apart from Sydney and Richard Gordon, David Anderson and subsequently Martin Chamberlain dominated this area of the law. David had a significant if short lived triumph164 in Wales on behalf of a client of a different nature: Shambo. He was the temple bullock at the Hindu Monastery and Temple at Skanda Vale, Llanpumsaint, Carmarthenshire. The temple bullock epitomises the Hindu belief that there is a spark of divinity in all animals and, as a result, the life of all animals is sacrosanct. It was said if Shambo were to be slaughtered, that would be a particularly 162 R v Secretary of State for Foreign and Commonwealth Affairs ex parte Bricoult No1 [2001] QB 1067 163 R v Secretary of State for Foreign and Commonwealth Affairs ex parte Bricoult No2 [2009] 1AC 453 164 Leading Maya Lester, The Queen on the Application of Swami Suryananda as a Representative of the Community of the Many Names of God v The Welsh Ministers [2007] EWHC 1736 (Admin). Mark Hoskins argued the case in the Court of Appeal.

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sacrilegious act, a serious desecration of the temple and a gross invasion of their right to manifest their religion, a right protected by Article 9 of the ECHR. Unfortunately Shambo contracted bovine TB and an order was made for his destruction, so judicial review was sought. David succeeded at first instance before Deputy HCJ Hickinbottom, a result that was literally regarded as a miracle by his clients, although sadly this was overturned a couple of days later by a less sympathetic Court of Appeal.165 This led to attempts to restrain the police by large numbers of Welsh Hindus seeking to prevent Shambo’s apprehension requiring lines of police to keep order. When the beast was finally taken, each officer removed his helmet as Shambo went past. David Anderson was involved in the judicial review of the Standardised Packaging of Tobacco Regulations, which was very much a chambers affair: decided at first instance by Mr Justice Green, and then the Court of Appeal. All of Marie Demetriou, Kelyn Bacon, Tim Johnston, David Scannell, Jenny MacLeod and Daniel Piccinin were involved.166 Anderson did not always get a great reception in Europe. Appearing before the CJEU in one of the Gibraltar cases, he placed his papers on a well-situated table in the court. Returning a few minutes later, he found that his Spanish opponent had taken occupation of the table and dumped his papers on the floor. When he questioned what had happened, he was told “It is no different from what you did in 1709.” At least he did not suffer the indignity of James Flynn who, appearing in an international treaty arbitration in Paris, broke his glasses mid-submission, leaving Victoria Wakefield to ascertain the French for sellotape, to run around the Quai d’Orsay shouting “du scotch, du scotch” causing general confusion (particularly because the word “scotch” did not only mean sellotape) before returning to the salle d’audience and successfully sellotaping his spectacles back together. Anderson, who always commanded respect across EU and public law, served two terms as the Independent Reviewer of Terrorist Legislation. That led to the curiosity that on 8th June 2018 he was both created Lord Anderson of Ipswich (when he became a cross-bench life peer) and also Sir David (knighted for services to national security and civil liberties). 165 [2007] EWCA Civ 893 166 [2016] RPC 22, 2018 QB 149

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David’s 250-page report, A Question of Trust, created with help from Tim Johnston and Jenny MacLeod, was the basis of the Investigatory Powers Act 2016. In more recent years Martin Chamberlain came to dominate the public law bar. He argued, leading Emily MacKenzie, that parents were not entitled to take their children on holiday in school term time in Isle of Wight Council v Platt.167 The statute requires children to attend school regularly and it was argued on behalf of the Platts that a child could still attend school regularly and take holidays in term time. At the beginning of the hearing, Lady Hale said “Of course ‘regularly’ means ‘in accordance with the rules’ from the Latin” which proved the successful argument, stopping countless parents from taking their kids out of school in term time. And of course it gave rise to a large number of quips: “Do you go to the gym regularly?” doesn’t mean how often, but: “Do you pick up your towels?”. Martin Chamberlain was particularly proud of his win in Animal Defenders International v United Kingdom, where the claimants contended that the ban on paid political advertising under the Communications Act 2003 was contrary to Article 10 of the ECHR, and which he won for the UK government in Strasbourg by nine votes to eight. Other highprofile cases included Regina (Campaign Against Arms Trade) v Secretary of State for International Trade v Amnesty International which involved an attempt to ban the sale of arms to Saudi Arabia for use in the conflict in Yemen,168 and Walker v Innospec169 involving the rights of those in single sex partnerships to survivors’ pensions. Aged forty-five Martin was appointed to the bench in 2019 – having survived a judgment from his former colleague Lord Justice Leggatt in terms that: “It is difficult to express in language of appropriate moderation why we consider these arguments without merit.”170 An enormous number of public law cases ended up in the Supreme Court such as R (Unison) v Lord Chancellor171 (differential 167 168 169 170 171

[2017] 1WLR 1441 [2019] 1WLR 5765 [2017] UKSC 47, leading Max Schaefer. R (Law Society) v Lord Chancellor [2019] 1WLR 1649 DC [2017] 3WLR 409

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fees for commencing employment tribunal cases) in which Victoria Wakefield was involved and El Gizouli v Secretary of State for the Home Department172 (mutual assistance for the United States for a prosecution where there was the death penalty). Most recently, Marie Demetriou led Hugo Leith and Robert O’Donoghue led Gerard Rothschild and Emily MacKenzie in Micula v Romania173 as to whether payment of an ICSID arbitration award by Romania would involve state aid: Lord Lloyd-Jones gave the leading judgment. And Brexit provided a series of dramatic cases: Martin was involved in R. (on the application of Miller) v Secretary of State for Exiting the European Union,174 the Gina Miller case on the role of parliament in any Brexit agreement; Maya Lester, who had built up a practice in sanctions cases, argued Wightman v Secretary for Exiting the European Union175 before the CJEU (can notice to leave be revoked unilaterally?); and Richard Howell had the junior brief for the government in the Parliament prorogation case.176

172 173 174 175 176

[2020] 2WLR 857 [2020] 1WLR 1033 [2018] AC 61 [2019] QB 199 R v (on the application of Miller) v Prime Minister [2020] AC 373

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AFTER SUMPTION After Jonathan Sumption’s departure Nick Green became joint head of chambers with Jonathan Hirst. In 2014 chambers had for the first time a written constitution, which stipulated that there should be joint heads. The increased size, and turnover, made this inevitable. Chambers was now run by an Executive Committee with a Chancellor of the Exchequer, initially Nicholas Green QC Mark Cran then Simon Salzedo, both of whom had qualified as accountants before they came to the bar. In addition to the pupillage committee and the tenancy committee there was a marketing committee, a library committee, and IT committee, plus an art committee. There had been a significant increase in the number of staff: in addition to the two senior clerks, each had a team with three or four junior clerks, and Deborah Anderson ran a third team which clerked the mediators and arbitrators.177 Nick Green’s tenure was short lived, as he went on the bench in late 2013. Nick had been Chairman of the Bar in 2010 at a difficult time when the government was seeking to make savings in criminal legal aid fees. Given that the coalition came to power promising cutbacks and austerity, it was inevitable that legal aid fees would be a target and not much any Chairman of the Bar could do about it. Yet the Bar Council sometimes lacks effectiveness by sounding like a trade union. Nick avoided that pitfall and deserves credit for seeking to engage constructively with government whilst working hard to minimise the cuts. He had strong leadership qualities. As an advocate his fluency in arguing competition law issues was unrivalled, and he had an articulacy on his feet which accounted for much of his success. He was at his best acting against a regulator or government body. He is currently chair of the Law Commission, having been promoted to the Court of Appeal with rapidity. 177 Kate Trott now clerks the mediators and arbitrators.

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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, spending time in the 1990s Left to right: Sir Sydney Kentridge QC, Lord Phillips and Jonathan Hirst QC on Grupo Torras and in silk at the unveiling of Howard Morgan’s leading on the Fiona Trust, portrait of Sydney 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)

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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 180 181 182 183

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

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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

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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 188 189 190 191 192

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

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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 re193 Gordon Pollock died in 2019.

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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 Blank 195 (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)

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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)

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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

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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.

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CHAMBERS IN 2021 If Jowitt came to visit Brick Court in 2021, what would be his impression? First, Brick Court is now a substantial and sophisticated business. The four rooms Jowitt had and the eighteen members in the late 1970s have been succeeded by over ninety members, forty-five of whom are QCs (two more having been appointed in March 2021), plus a number of door tenants, many of whom sit as mediators and arbitrators. There are twelve clerks in all, under the supervision of the two senior clerks, Paul Dennison and Tony Burgess, with teams of IT, fee collection, administration and marketing staff, receptionists and a number of junior clerks. Many of those staff have been at Brick Court for many years. Chambers is run by the two Heads of Chambers overseeing the series of committees, with a written constitution. The bar is a much more serious place in 2021 than it was fifty years ago. In the 1980s, before witness statements, counsel would go into court with far less preparation, and by modern standards there was an element of seat-of-the pants about advocacy which is impossible today. However, it meant that members of chambers did a huge amount of advocacy and juniors appeared from an early age regularly without leaders in arbitrations, Commercial Court trials and in the Court of Appeal and developed a forensic dexterity in court. There are fewer such opportunities today. Historically, there were less big cases with large teams. Second, the relationships between the two branches of the profession are rather different. The bar was once a rather remote place, barristers having no real social contact with those who instructed them, and a formality in their relationships with solicitors under the guidance of strict Bar Council rules designed to avoid what was seen as touting. The conference or consultation was a formal occasion with the solicitor having no idea in advance what the barrister was going to say to the client. Now barristers and solicitors genuinely work in teams. The client does not want to hear disagreements between his various lawyers: it is much better that there is a discussion between solicitor and counsel before the meeting with the client at which differences can be debated, so that the client is given advice from all the lawyers, and if there are still

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disagreements, they can be put fairly to the client and debated. Marketing is no longer seen as opprobrious. Third, chambers is a more diverse group than once was the case. It is no longer the preserve of white Anglo-Saxon men. Reference has been made above to the difficulties women originally faced at the bar.198 When Hilary Heilbron became chambers’ first female tenant in 1972, there were hardly any women at the Commercial bar, and women were often pushed towards family law. Today whilst there are still criticisms of the limited number of women in the higher echelons of the bar, chambers has eleven female QCs.199 Fourteen women practising in chambers have children of school age (or younger). Not a single woman has ever left chambers for childcare reasons. Although maternity and paternity leave policies are important, chambers has a reputation for being particularly female-friendly amongst the leading sets. Much of the credit for this should go to Helen Davies, one of the first female heads of a magic circle set and herself arguably the most successful woman at the bar today, who with Jemima Stratford, Maya Lester and others have championed the importance of diversity. Chambers has many leading female practitioners, such as Jemima Stratford, Marie Demetriou, Maya Lester, Sarah Ford, Victoria Wakefield, Sarah Abram, Sarah Love (and until recently Kelyn Bacon) all of whom have continued to practise whilst bringing up children. Nor are an affluent family background and a public school education an expectation today. Bob Alexander, who came to the bar in 1962 in the then unusual position of having a father who owned a garage in Stoke-on-Trent, would take pleasure in seeing the number of members of chambers who derive from backgrounds that could not be described as affluent, who have been able to join chambers not because of their background but because of their outstanding ability. The top end of the bar is too competitive a place to be able to choose other than on merit. A day participating in pupillage final interviews is a humbling experience, interviewing the best fifteen, not only from this jurisdiction but also from Australia, New Zealand, Hong Kong and elsewhere, candidates 198 See p32 199 Having just lost one, Kelyn Bacon, to the bench.

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who have not merely unbelievable academic achievements but also allround qualities of great distinction. When Harry Matovu joined in 1989 he was the only Black barrister at the Commercial bar. Even now, it has very few Black members, and Harry remains the only Black member of chambers. Barristers from minority ethnic backgrounds now also include Jasbir Dhillon, who was one of the first Sikhs to take silk, Tony Singla, Charlotte Tan and Zahra Al-Rikabi amongst several others. Chambers is however conscious of the need to improve its profile in this area and this is work in progress. It was long near impossible to succeed at the bar with a disability, notwithstanding that a wheelchair user was able to become US President in 1933 and Britain had a blind Home Secretary in 2001. Edward Ho is wheelchair bound as a result of a terrible accident when snowboarding some years ago, and manages a successful commercial practice, appearing regularly in court. One of chambers’ newest tenants is visually impaired. The term LGBT+ would not have meant anything several generations ago, still less would chambers have welcomed those who associate with it. In the past if members of the bar were gay they tended to keep quiet about it. Now Brick Court has several LGBT+ members of chambers and positively welcomes LGBT+ applicants and prospective staff. Fourth, the work of members of chambers, and particularly that of the senior members, is much more internationally based. The caseload always was international, but once was focused on the English courts. Of course there has in modern times always been Strasbourg and Luxembourg. But now members attend court or arbitrations in Bermuda, Cayman, the British Virgin Islands, Dubai, Singapore, Hong Kong, and Gibraltar and sit as judges or advise on hearings in Jersey and Guernsey. Fifth, recruitment is rather different. Fifty years ago it was a given that almost anyone who came to Brick Court had been rejected elsewhere first, and chambers succeeded through picking up top quality talent rejected by others. It was the recruitment of Bob Alexander and Nicholas Phillips that first propelled Brick Court into the premier league. It was the recruitment of top quality Euro practitioners that first propelled chambers into pole position in EU law. Now recruitment is much more structured. From first application for pupillage, where Lyana Peniston continues to run the administration and 135

provides a first contact for pupillage applicants, to selection of tenants from pupils, since the 1990s chambers has prided itself on having a transparent and fair selection process both for both pupils and for tenants from pupillage. This is as important for the future development of chambers as lateral recruitment and although chambers continues regularly to pick up talent from other chambers, there is enormous home-grown talent throughout chambers, and particularly amongst our current juniors. Pupillage is not an easy year: it is taxing and inevitably stressful, given the desire to secure a tenancy at the end. Those who have achieved the extraordinary academic success that our pupils invariably have cannot find it easy to have their work criticised (a feature of the fact that in this profession experience is important). But it is a stimulating year and pupils in chambers have always been well treated and looked after. Indeed, the quality of those arriving for pupillage is breathtaking. The competition for places is enormous, no doubt reflecting on the perceived desirability of a tenancy at Brick Court. If those are the differences, what may be regarded as similarities? First, chambers has always adapted itself to the changing areas of work and differing demands of practice. In the 1970s and 1980s, the dominant feature of commercial work was shipping. At that stage, Brick Court was at the heart of shipping work, but when it faded, chambers moved on, to reinsurance work in the 1990s, then to the oligarch cases, the financial services and banking boom after the 2008 crash, immersing itself in the professional negligence boom when that occurred too. When offshore markets opened up, Brick Court was there. Outside commercial work, chambers quickly established itself as the dominant set in EU and competition law as soon as that work evolved, and played a central part in its development. It remains at the forefront of EU and competition work, with an enviable number of specialist practitioners. And when public law became increasingly important after the Human Rights Act, chambers moved into that area of work too. Whilst the commercial practitioners appeared in arbitrations as they did in court, chambers developed a glittering array of arbitrators. Hilary Heilbron developed an arbitration practice before others, but now all of Lords Phillips, Hoffmann and Hope sit as do Christopher Clarke and Richard Aikens, Klaus Reichert and many others. 136

Mediation was a new skill developed twenty years or so ago, and with Stephen Ruttle, Bill Wood, Tony Willis and now Sue Prevezer spearheading the practice, Brick Court is for many the first port of call for commercial mediators. What chambers has managed to do has been to handle the highprofile and complicated cases in each of its practice areas: there are plenty of low-value professional negligence or commercial cases, and plenty of run-of-the-mill public law applications, but Brick Court has always held itself out as the go-to chambers for complex and difficult cases in each of its areas of expertise. Secondly, in the same way that his devils learnt from Jowitt, there is something incredibly stimulating and exciting about working with colleagues who include so many of the best and brightest. Having your draft rewritten by a Kentridge or a Sumption, or one of the leading lights of 2021, is an incomparable learning experience. Debating and discussing legal issues with such illustrious colleagues, working with, or being led by individuals of genuinely outstanding talent: in Brick Court one has the opportunity to see in court so many of the best advocates in the English-speaking world. The two current heads of chambers are arguably the most successful man and the most successful woman respectively at the bar today. Finally, the tone and atmosphere of any business is usually set by a small number of the senior individuals. The ethos has always been hard work in a stimulating and enjoyable atmosphere, where individuals worked hard but relished each other’s company. George Leggatt said of his arrival at in chambers: Coming to Brick Court was quite a contrast for me. I had spent the previous year in New York working for a law firm on Wall Street. There I felt I was a very small cog in a huge legal factory. The atmosphere was highly serious. There were very few jokes. The competition among the lawyers was intense for who could bill the most hours and charge the highest fees to the firm’s clients…. Arriving at Brick Court from Wall Street was a refreshing contrast. People worked hard but the work was much more interesting. And there were plenty of jokes.

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The many members of chambers who have spent time first in other sets of chambers, or elsewhere, will recognise Brick Court Chambers as a conspicuously happy place, a dynamic environment where members of chambers are proud of their success. It has always been so.

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POSTSCRIPT BY THE HEADS OF CHAMBERS

Helen Davies QC

Mark Howard QC

We are delighted that Charles has written this history of chambers for Brick Court’s 2021 centenary. One of the key themes of our centenary celebrations is to emphasise the social responsibility which has been an important feature of chambers’ ethos since the initial days of Jowitt. Jowitt served in government and as a judge. Bob Alexander was Chairman of the Bar in 1985–86. Jonathan Hirst did the same in 2000 and Nick Green in 2010. George Leggatt was vice chair of the BSB in 2006–08. From the outset, leading members of chambers became esteemed members of the judiciary. The judiciary is, or has been, full of Brick Court alumni: Phillips, Sumption, Lloyd-Jones, Leggatt, Clarke, Aikens, Green, Popplewell, Simon, Buckley, Barling, Walker, Chamberlain, Henshaw, Calver, Bacon, Chambers, Forwood. In 2012 we had two Supreme Court justices at the same time for a short period when Nicholas Phillips and Jonathan Sumption were on the court. Then in 2020 George Leggatt joined David Lloyd Jones there. Promoting wider access to the profession has also been important to Brick Court for many years. Now an annual Brick Court Student Open Day, to which students from a wide variety of universities are invited, enables aspiring applicants for pupillage to learn more about life at the bar. Chambers has also hosted an annual Insight Day for Years 12 & 13 in conjunction with Access Aspiration which provides similar information to sixth form students from less advantaged backgrounds. Chambers has been instrumental in spearheading an initiative to recruit 139

more women to the Commercial bar, working in collaboration with the other “Magic Circle” commercial sets (Essex Court Chambers, Fountain Court Chambers and One Essex Court). Its efforts towards advancement of women at the bar have been recognised in The Times. Brick Court is also one of six commercial sets that have jointly created a mentoring scheme to support and encourage individuals from underrepresented groups to pursue a career as a barrister. Brick Court was one of the first two sets to become a supporter of the Black Talent Charter, which was developed by Harry Matovu. Chambers also participates in the Bar Council’s Social Mobility Foundation Bar Placement week and the Access Aspiration Scheme, as well as the Pegasus Access scheme, each of which seeks to encourage diversity and social mobility in the profession and sponsors a travel bursary to support students in financial need who reach the national final of the mock trial competition for fifteen to eighteen year olds. Brick Court is unusual today in including sexual orientation figures in published diversity figures. This is intended to flag to applicants (whether as members of chambers or staff) not merely that some members of chambers are openly gay but that chambers positively welcomes LGBT+ applicants. Chambers has become involved with the recent Inns of Court/Free Bar Scheme coordinating a celebration of LBGT+ diversity at the bar. Chambers’ social responsibility is also reflected in many aspects of our work. We have close links with a number of pro bono organisations including Amnesty International, Liberty, Redress, Reprieve, the United Nations High Commissioner for Refugees (UNHCR), the Human Dignity Trust, the Death Penalty Project, the AIRE Centre, JUSTICE, the International Commission of Jurists and the European Human Rights Advocacy Centre. We are a legal partner of A4ID (Advocates for International Development), an international development charity providing legal support to development organisations and developing country governments. We also work closely with Advocate (as the Bar Pro Bono Unit is now known) and the Free Representation Unit. In 2012 we received a Friends in Law Award in recognition of our support of these organisations. Brick Court is an inaugural Pro Bono Gold Patron of Advocate. Stephen Ruttle is the founder and still active member of 140

the Wandsworth Mediation Service, which offers mediation to the community that covers assisting in neighbourhood disputes through to actively keeping down knife crime. Notable pro bono cases have included Marie Demetriou acting for transsexual Christine Timbrell in her claim for fair pension rights before the Court of Appeal, and also acting on behalf of war widows in claims brought against the government. Several members of chambers continue to fight for the displaced Chagos islanders. In 2017 Richard Gordon, Gerard Rothschild and Andrew McIntyre represented the parents of Charlie Gard pro bono in the litigation concerning the termination of treatment for their son. In 2019 Paul Bowen won the Outstanding Achievement category at the Legal Aid Lawyer of the Year Awards.200 Jenny MacLeod won Pro Bono junior of the year in 2019;201 and in 2020 Jenny and Emma Mockford won awards for their pro bono work on the Harry Richford inquest.202 It was therefore particularly important to us that the centenary celebrations also involve chambers seeking to “give back” and support various causes that are significant to Brick Court. We are particularly pleased that Brick Court has committed to raising £250,000 in the course of 2021. The primary focus of the fundraising is social mobility – not just within the bar or the legal profession but more widely. Chambers is working with two charities – the Sutton Trust and IntoUniversity – each of whom in different respects seek to assist under-represented groups into higher education and the work place. Chambers hopes to 200 Paul was recognised particularly for his public law and human rights work in cases involving free speech and open justice, mentally disordered and incapacitated individuals, access to justice, inquests and deaths in custody and assisted dying, among others. 201 Jennifer was nominated in recognition of her outstanding record of pro bono work. It was noted that, amongst her other work, she “displays an extraordinary commitment to improving women’s rights, working on international cases to assist victims of domestic violence and abuse” as well as working “extensively on this topic closer to home”. 202 Jennifer and Emma were jointly nominated for their work supporting the family of baby Harry Richford at a three-week long inquest in January 2020, instructed by Arnold & Porter Kaye Scholer LLP. Harry was born on 2nd November 2017 and died seven days later.

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raise £100,000 for each, as well as seeking to get involved in the work that they do. The remainder of the money raised will go to Advocate and the Access to Justice Foundation. We are very much looking forward to working with our current colleagues to reach these targets. There are a variety of fundraising initiatives planned, a number of which will also provide good opportunities for some much needed fun and esprit de corps after a difficult Covid-19 year. Above all however, we are hopeful that with the benefit of the encouragement and enthusiastic support of all at Brick Court we will by this means not only celebrate the 100th birthday of our extraordinary chambers but also contribute to providing very many opportunities for others in the years to come. Mark Howard QC & Helen Davies QC

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APPENDICES

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APPENDIX I MEMBERS OF CHAMBERS 1921–2021 Joined *from other chambers

Call

KC/QC

William Jowitt

1921*

1909

1922

Founded 1 Brick Court on moving from other chambers, left to become Attorney General 1929, returned 1932, left for government 1939, later Earl Jowitt, d1957 (HoC)

Cyril Asquith

1921*

1920

1936

Joined with Jowitt, left for other chambers 1926, later Lord Asquith of Bishopstone, d1954

Donald Somervell

1921*

1916

1929

Joined with Jowitt, left for other chambers 1926, later Lord Somervell of Harrow, d1960

Patrick Devlin

1933*

1927

1945

Left to become judge 1948, later Lord Devlin, d1992 (HoC)

Rafael Valls

1936

1933

Otto Kahn-Freund

1939

1936

1972

Principally door tenant as became academic, d1979

Charles Fletcher-Cooke

1939

1938

1958

Left to go into politics 1961, later Sir Charles, d2001

Colin Pearson

1945*

1924

1946

Left to become judge 1951, later Lord Pearson, d1980 (HoC)

Sam Cooke

1946*

1936

1960

Left to become judge 1967, Sir Samuel, d1978 (HoC)

John Peyton

1947

1945

Left to go into Lloyd’s then politics, later Lord Peyton of Yeovil, d2006

Kenneth Potter

1948

1947

Left for other chambers 1960

(HoC) denotes Head of Chambers

Retired 1975 d1992

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Walter Gumbel

1948*

1935

Retired 1974 d1981

John Royle

1949*

1937

Left to join Associated Newspapers 1964

David Karmel

1951*

1928

Paul Curtis-Bennett

1951

1950

Tony Jolowicz

1953

1952

Denis McDonnell

1953*

1936

C J (Jack) Hamson

1953

1937

Michael Gow

1955

1954

Robert Gatehouse

1960*

1950

1969

Left to become judge 1985, Sir Robert, d2002

Philip Owen

1963*

1949

1963

d2001 (HoC)

David Vaughan

1964

1963

1981

Retired 2015, d2018

Robert Alexander

1966*

1961

1973

Created Lord Alexander of Weedon 1987, left to be chairman of NatWest 1989, d2005

Nicholas Lyell

1966

1965

1980

Left to join government. Solicitor-General 1987 (then Attorney-General), later Lord Lyell of Markyate, d2010

Neil Butter

1968*

1955

1976

Left for other chambers 1973

Adrian Whitfield

1968*

1964

1983

Left for other chambers 1973

John Rankin

1970*

1950

1969

Left for other chambers 1973

Adrian Hohler

1970

1968

Christopher Clarke

1970

1969

1950

Left in early 1960s to take up judicial appointments, d1982 (HoC) Left for other chambers 1973, d1986

1990

Principally door tenant as became academic, d2012 Left to become judge 1967, d2001

1975

Principally door tenant as became academic, d1987 Left bar 1963

Left bar 1971 1984

145

Left to become judge 2005, Sir Christopher, current door tenant (HoC)

John Phillips

1970*

1962

1980

d1981

Nicholas Phillips

1971*

1962

1978

Left to become judge 1988, later Lord Phillips of Worth Matravers, current door tenant

Robert Coleman

1972

1969

Left bar 1973

Tim Stevenson

1972

1971

Left bar to join oil company 1974

Hilary Heilbron

1972

1971

Peter Irvin

1973

1972

Julian Malins

1973

1972

1991

Left for other chambers 1997

Roger Buckley

1974*

1962

1979

Left to become judge 1989, Sir Roger, current door tenant

Peter Brunner

1974

1971

Richard Aikens

1974

1973

Martin White

1974

1973

Mark Cran

1974

1973

1988

Left to practise in Bermuda 2013, current door tenant

Peregrine Simon

1975

1974

1991

Left to become judge 2002, Sir Peregrine, current door tenant

Timothy Charlton

1976

1971

1993

Retired 2017

Jonathan Hirst

1976

1975

1990

d2017 (HoC)

Jonathan Sumption

1977

1975

1986

Left to become judge 2012, Lord Sumption (HoC)

Stephen Ruttle

1978

1976

1997

Current MoC

Sydney Kentridge

1978

1977

1984

Previously practised in South Africa, retired 2012, later Sir Sydney, current door tenant

Paul Walker

1980

1979

1999

Left to become judge 2004, Sir Paul, current door tenant

Nicholas Chambers

1980*

1966

1985

Left to become judge 1999, current door tenant

1987

Current MoC Retired and died 2021

Retired 2016 1986

Left to become judge 1999, Sir Richard, current door tenant Left bar 1991

146

Gerald Barling

1981*

1972

1991

Left to become judge 2007, Sir Gerald, current door tenant

Andrew Popplewell

1982

1981

1997

Left to become judge 2011, Sir Andrew

John Griffiths

1983*

1956

1972

Left to return to Hong Kong in 1990s, where he had been Attorney General

George Leggatt

1985

1983

1997

Left to become judge 2012, later Lord Leggatt

Richard Lord

1985

1981

2002

Current MoC

Catharine Otton-Goulder

1985

1983

2000

Current MoC

Derrick Wyatt

1986*

1972

1993

Principally academic, retired 2019

Charles Hollander

1986*

1978

1999

Current MoC

Mark Howard

1986*

1980

1996

Current MoC (HoC)

David Lloyd Jones

1986*

1975

1999

Left to become judge 2005, later Lord Lloyd-Jones

David Anderson

1987

1985

1999

Created Lord Anderson of Ipswich KBE 2018, current MoC

David Garland

1987

1986

Mark Hapgood

1988*

1979

1994

d2020

Richard Slade

1988

1987

2010

Current MoC

Harry Matovu

1989

1988

2010

Current MoC

Cyril Kinsky

1989

1988

2010

Left for other chambers 2003

William Wood

1989*

1980

1998

Current MoC

Nicholas Forwood

1989*

1970

1987

Left to become judge 1999, later Sir Nicholas, current door tenant

Fergus Randolph

1989*

1985

2009

Current MoC

Nicholas Green

1989*

1986

1998

Left to become judge 2013, Sir Nicholas, (HoC)

Mark Clough

1990*

1978

1999

Left to become a solicitor 1995

Left bar 1997

147

Sarah Lee

1991

1990

2016

Current MoC

Michael Swainston

1991*

1985

2002

Current MoC

Paul Wright

1991

1990

Helen Davies

1992

1991

2008

Current MoC (HoC)

Tom Adam

1992

1991

2008

Previously a solicitor, current MoC

Alan Roxburgh

1993

1992

Alec Haydon

1994

1993

2019

Current MoC

Jeremy Gauntlett

1994

2017

Also practises in South Africa, current MoC

Mark Brealey

1995*

1984

2002

Left for other chambers 2017

Jemima Stratford

1995

1993

2010

Current MoC

Mark Hoskins

1995*

1991

2009

Current MoC

Neil Calver

1995*

1987

2006

Left to become judge 2020, Sir Neil

James Flynn

1996

1978

2003

Previously a solicitor, current MoC

Roger Masefield

1996

1995

2013

Current MoC

Simon Salzedo

1996

1995

2011

Current MoC

Michael Bools

1996

1991

2012

Current MoC

Andrew Thomas

1997

1996

Andrew Lydiard

1997*

1980

2003

d2017

Dominic Chambers

1997*

1987

2008

Left for other chambers 2002

Jasbir Dhillon

1997

1996

2013

Current MoC

Simon Birt

1999

1998

2015

Current MoC

Kelyn Bacon

1999

1998

2014

Left to become judge 2020, Dame Kelyn

Margaret Gray

1999

1998

2019

Current MoC

Aidan Robertson

1999*

1995

2009

Current MoC

148

Richard Gordon

2000*

1972

1994

Retired 2019, current door tenant

Alan Maclean

2000*

1993

2009

Left for other chambers 2014

Colin West

2000

1999

2020

Current MoC

Maya Lester

2001

2000

2016

Current MoC

Michael Rollason

2000*

1994

Marie Demetriou

2001*

1995

2012

Current MoC

Andrew Henshaw

2001

2000

2013

Previously a solicitor, left to become judge 2019, Sir Andrew

Martin Chamberlain

2001*

1997

2013

Left to become judge 2019, Sir Martin

Tim Lord

2002*

1992

2008

Current MoC

Conor Quigley

2002*

1985

2003

Left for other chambers 2006

Fionn Pilbrow

2002

2001

2019

Current MoC

Daniel Jowell

2002*

1995

2011

Current MoC

Sarah Ford

2003

2002

2017

Current MoC

Stephen Midwinter

2003

2017

Current MoC

Tony Willis

2004

Victoria Wakefield

2005

2003

2019

Current MoC

David Scannell

2005

2003

2020

Current MoC

Klaus Reichert

2006*

1996

Current MoC

Gerard Rothschild

2006

2005

Current MoC

Jonathan Dawid

2006

2005

Current MoC

Sarah Abram

2007

2006

Current MoC

Sarah Love

2007

2006

Current MoC

Robert O’Donoghue

2007

1996

2017

Previously a solicitor, current MoC

Tony Singla

2008

2007

2021

Current MoC

d2002

Previously a solicitor, current MoC

149

Richard Blakeley

2008

2007

Current MoC

Richard Eschwege

2009

2008

Current MoC

Edward Harrison

2009

2008

Current MoC

Craig Morrison

2010

2008

Current MoC

Oliver Jones

2010

2009

Left to return to Australia 2018, current door tenant

Thomas Plewman

2010

2009

2016

Previously at the South African bar, current MoC

Nicholas Saunders

2010*

2001

2018

Current MoC

Daniel Piccinin

2011

2010

Previously a solicitor, current MoC

Max Schaefer

2011

2010

Current MoC

Fred Hobson

2012*

2005

Current MoC

Michael Bolding

2012

2010

Current MoC

Tim Johnston

2012

2011

Current MoC

Malcolm Birdling

2012

2011

Current MoC

David Bailey

2012

Previously a solicitor, current MoC

Andrew McIntyre

2013

2011

Current MoC

Geoffrey Kuehne

2013

2012

Previously a solicitor, current MoC

Emily MacKenzie

2013

2012

Current MoC

Joanne Box

2013

2012

Current MoC

Kyle Lawson

2013

2012

Current MoC

Zahra Al-Rikabi

2013

2012

Current MoC

Paul Bowen

2014*

1993

Hugo Leith

2014

2013

Previously a solicitor in Australia, Current MoC

Jennifer MacLeod

2014

2013

Current MoC

Charlotte Thomas

2015

2013

Current MoC

2012

150

Current MoC

Tom Pascoe

2015

2013

Current MoC

Ben Woolgar

2015

2014

Current MoC

Edward Ho

2016*

2009

Current MoC

Laura Newton

2016*

2009

Current MoC

Sophie Shaw

2016

2015

Current MoC

David Heaton

2016

2015

Previously a solicitor in Australia, current MoC

Emma Mockford

2017

2016

Previously a solicitor, current MoC

Aaron Khan

2017

2016

Left bar 2021

Matthew Kennedy

2018

2013

Previously a solicitor, current MoC

Tom Wood

2018

2017

Previously a solicitor, current MoC

Jonathan Scott

2018

2017

Current MoC

Jon Lawrence

2018

Previously a solicitor, current MoC

Frederick Wilmot-Smith

2019

2018

Current MoC

Richard Howell

2019

2018

Current MoC

Sue Prevezer

2020

1983

2000

Previously in other chambers, then a solicitor, current MoC

James McClelland

2020*

2004

2021

Current MoC

Charlotte Tan

2020*

2008

Current MoC

Sarah Bousfield

2020*

2013

Current MoC

Jacob Rabinowitz

2020

2018

Current MoC

Tom Foxton

2020

2019

Current MoC

Allan Cerim

2021

2018

Current MoC

Vernon Flynn

2021*

1991

Georgina Petrova

2021

2011

2008

Current MoC Previously a solicitor, current MoC

151

Jessie Ingle

2021

2019

Previously a solicitor, current MoC

Chintan Chandrachud

2021

Previously a solicitor, current MoC

Andris Rudzitis

2021

2019

Current MoC

Crawford Jamieson

2021

2020

Current MoC

Aarushi Sahore

2021

2020

Current MoC

Sophie Bird

2021

Current MoC

Salim Moollan

2021*

1998

Emilie Gonin

2021*

2015

2016

Current MoC Current MoC

152

APPENDIX II CURRENT DOOR TENANTS *Lord Phillips of Worth Matravers KG Lord Hoffmann of Chedworth Lord Hope of Craighead KT *Sir Christopher Clarke *Sir Richard Aikens *Sir Peregrine Simon Sir Oliver Popplewell *Sir Roger Buckley *Sir Gerald Barling *Sir Paul Walker *HH Nicholas Chambers QC *Sir Nicholas Forwood QC The Hon Geoffrey Ma *Sir Sydney Kentridge QC Robert Webb QC Simon Thorley QC *Richard Gordon QC *Mark Cran QC John Sturrock QC James Wolffe QC Alastair Sutton Professor Peter Muchlinski Mads Andenas QC (Hon) Geoff Sharp *Oliver Jones Professor Robert McCorquodale *Former Member of Chambers

153

AUTHOR BIOGRAPHY Charles Hollander QC’s association with Brick Court goes back to his pupillage in 1978. He is a commercial litigator with vast experience in court. He also practises from Temple Chambers in Hong Kong, and has been called to the bars of British Virgin Islands, Bermuda, Bahamas, Cayman, Brunei and Gibraltar. He sits as a deputy high court judge and is worldwide chair of World Athletics’ disciplinary panels. His books Documentary Evidence and Conflicts of Interest are well known and he has argued many of the leading cases in these areas.

Charles Hollander QC

154

INDEX 1 Brick Court (libel set) 21, 43fn, 49 1 Garden Court 36, 49 1 Hare Court (see Serle Court) 26fn, 27, 29, 31, 35, 58, 87 2 Crown Office Row (see Fountain Court) 30, 58 2 Essex Court (see Quadrant Chambers) 29, 30, 58 2 Hare Court (see Blackstone Chambers) 58 3 Essex Court (see 20 Essex Street) 23, 27, 31, 36, 45, 54, 58 4 Essex Court (see Essex Court Chambers) 27, 29, 35, 36, 39, 45, 47, 54, 57, 58, 87 7 King’s Bench Walk 27, 54, 58 11 Essex Street 49, 50, 74, 75, 80 20 Essex Street 58

Archer, Jeffrey 60, 61 Archer, Mary 61 Aske, Sir Robert 15 Asplin, Dame Sarah 125 Asquith, HH 1, 2, 3 Asquith, Lord (Cyril) 1, 25, 144 Atkin, Lord 4 Attlee, Clement 10, 15, 47

A Abramovich, Roman 114 Abram, Sarah 134, 149 Ackner, Lord 57 Adam, Tom 82, 88, 111, 124, 130, 148 Aitken, Jonathan, 61fn Aikens, Sir Richard 30, 35, 36, 50, 55, 56, 58, 75, 82, 83, 87–88, 92, 94, 136, 139, 146, 153 Alexander, Robert (Bob) 29–30, 33–34, 35, 36, 40–41, 45, 46, 48–49, 50, 54–55, 57, 58, 59, 60, 65, 66, 67, 68, 72, 75, 80, 87, 99, 104, 116, 134, 135, 139, 145 Al-Rikabi, Zahra 135, 150 Andenas, Mads 153 Anderson, Lord (David) 57, 64, 68, 69, 70, 72, 96, 106, 116, 117, 118, 119, 120–121, 147 Anderson, Deborah 123 Apple 58, 128

B Bacon, Dame Kelyn 120, 131, 134, 139, 148 Bailey, David 150 Balogh, Stephen 38–39 Bankes, Sir John 4 Barclay, Cedric 53 Bar Council 15, 28, 44, 59, 74, 90, 91, 104, 111, 123, 133, 140 Barling, Sir Gerald 67, 69, 70, 104, 112, 139, 147, 153 Bar Standards Board 109, 139 Barwick, Garfield 25 Bastion, Sir Plunkett 7 Beloff, Michael 61fn Berezovsky, Boris 114 Biko, Steve 46 Bingham, Lord 27–28, 50, 54, 56, 111, 119 Bird, Sophie 152 Birdling, Malcolm 150 Birkett, Sir Norman 2, 79 Birt, Simon 124, 125, 148 Blackstone Chambers 58 Blair, Tony 53, 54, 93, 106, 107, 109, 116 Blakeley, Richard 112, 150 Bloody Sunday Inquiry 93, 103 Boardman, Lord 65 Bolding, Michael 150 Bolton, Michael 101

155

Bools, Michael 93, 148 Boswood, Anthony 102 Bousfield, Sarah 151 Bowen, Paul 141, 150 Box, Joanne 150 Boyd, Stewart 53 B&Q 70 Brandon, Henry 27, 72 Brealey, Mark 71, 73, 108, 148 Briggs, Lord 48fn British & Commonwealth 75 British Leyland 39, 63 British Steel 21 British Virgin Islands 105, 132, 154 Britoil 76, 77 Brown, Gordon 107 Browne-Wilkinson, Lord 57 Brunner, Peter 146 BSkyB 112, 113 Buckley, Sir Roger xi, 35, 36, 40, 46, 48, 51, 52, 64, 82, 106, 139, 146, 153 Burgess, Tony 129, 133 Burley, Christopher xi, 53, 83 Burley, Ronald xi, 3, 17, 18, 20–21, 22, 23, 24, 25, 30, 31, 33, 35, 36, 37, 40, 41, 45, 48, 49, 50, 51, 52, 53, 54, 62, 63, 64, 65, 66, 67–68, 80, 81, 83, 85, 87, 133 Butter, Neil 31, 35, 145 C Caldecote, Lord 16 Callaghan, James 39 Calver, Sir Neil 70, 100, 101, 106, 131, 139, 148 Cameron, David 107 Carpmael Buildings 35 Carr, Dame Sue 87 Carter-Ruck, Peter 35 Caulfield, Sir Bernard 60, 61 Cecil, Henry (alias Henry Leon) 28, 31 Cerim, Allan 151

Chadwick, John 91 Chagos Islanders 118–119, 141 Chamberlain, Sir Martin 116, 117, 118, 119, 121, 139, 149 Chambers, Dominic 148 Chambers, HH Nicholas 33, 50, 58, 84, 85, 104, 139, 146, 153 Chandrachud, Chintan 152 Charles, Glyn 89 Charlton, Timothy 146 Cheeseman, Edward 2, 3, 6, 7, 9, 20 Churchill, Winston 10 Citigroup 128 Clarke, Sir Christopher 25, 31, 41–42, 51, 53, 58, 63, 66, 76, 82, 85, 93, 99, 101, 103, 126, 136, 139, 145, 153 Clarke, Lord 29 Clarke, Sir Kenneth 107 Clementi, David 109 Clough, Mark 147 Clyde & Co 35, 57, 58 Coghlan, Monica 60, 61 Coleman, Robert 35, 146 Colman, Sir Anthony 83 Connor, Nigel 36, 59 Conran, Jasper 84–85 Cooke, Sir Samuel xii, 26–27, 29, 30, 58, 97, 132, 144 Cooper, Thomas 9 Coopers & Lybrand 81 Cran, Mark 83, 98–99, 123, 146, 153 Crehan, Bernard 70, 71 Cripps, Sir Stafford 10 Croom-Johnson, Sir David 41 Crown Agents 41 Curtis-Bennett, Paul 25, 35, 145 D Davies, Helen 69, 75, 82, 86, 108, 112, 114, 124, 128, 129, 134, 139, 148 Dawid, Jonathan 126, 149

156

Demetriou, Marie 72, 108, 112, 116, 118fn, 120, 122, 131, 134, 141, 149 Denning, Lord 16, 20, 22, 27, 38, 39, 40 Dennison, Paul 129, 133 Devereux Court 75 Devlin, Lord (Patrick) 2fn, 6fn, 7, 8–9, 10, 11, 15, 16, 17, 19fn, 20, 21–22, 23, 26, 30, 144 Dhillon, Jasbir 135, 148 Donaldson, Lord 27, 38, 40, 56, 62 Donovan, Lord 15 Du Cann, Richard 31 du Parcq, Herbert 9 Dyson, Lord 127 E Edmund-Davies, Lord 31 Edwardes, Michael 63–64 Edwards, Pat 13fn, 15fn Equitable Life 99 Eschwege, Richard 114, 126, 129fn, 150 Essex Court Chambers 58, 140 Evans, Sir Anthony 35, 54, 56–57 F Falconer, Lord 107 Fay, HH Edgar 41 Fisher, Sir Henry 27 Fletcher-Cooke, Charles 16, 17, 144 Flynn, James 73, 112, 120, 148 Flynn, Vernon 151 Ford, Sarah 112, 134, 149 Forwood, Sir Nicholas 72–73, 130, 139, 147, 153 Fountain Court 30, 31, 58, 140 Fox, Sidney 8 Foxton, Tom 151 Frere Cholmeley 57, 58, 83 G Gaisman, Jonathan 126 Galloway, Joe 112–114

Gauke, David 107 Gauntlett, Jeremy 148 Gard, Charlie 126fn, 141 Garland, David 147 Gatehouse, Sir Robert 25, 30, 33, 41, 45, 58, 66, 67fn, 76, 145 Glidewell, Sir Iain 77 Gloster, Dame Elizabeth 108, 114 Goddard, Lord 16, 22 Goff, Lord 27, 56 Goldsmith, Lord 85 Gonin, Emilie 152 Gordon, Richard 116, 117–118, 119, 126fn, 131, 141, 149, 153 Gove, Michael 107 Gow, Michael 145 Grabiner, Lord 99, 100, 128 Gray, Margaret 130, 148 Gray, Paul xi, xii Grayling, Chris 107 Gray’s Inn 7, 31fn, 116 Green, Sir Nicholas 69, 70, 71, 73, 75, 96, 120, 123, 124, 139, 147 Griffiths, John 60, 64, 147 Grove, Tom 59 Gumbel, Revd Nicky 18fn Gumbel, Walter 19, 26, 145 H Hailsham, Lord 57, 59–60, 74 Hale, Lady 121 Hallett, Sir Hugh 27 Hamson, CJ (Jack) 17, 24, 145 Hapgood, Mark 64, 82, 96, 100, 101, 108, 128, 147 Harman, Sir Jeremiah 57 Harrison, Edward 114, 125, 126, 150 Hastings, Sir Patrick 2 Havers, Lord 74fn Hawes, Julian 85, 86, 129 Hawkins, Lionel 20, 21

157

Haydon, Alec 89, 112, 148 Heath, Edward 19–20, 36, 38, 43 Heaton, David 151 Heilbron, Hilary 32, 33, 36, 64, 75, 84, 88, 131, 134, 136, 146 Heilbron, Dame Rose 32, 33, 43 Henshaw, Sir Andrew 97, 114, 131, 139, 149 Herbert Smith 113, 114 Hewart, Lord 4, 10 Hilbury, Sir Malcolm 43–44 Hildyard, Sir Robert 126 Hill, Dr Charles 5 Hirst, Sir David 21, 49, 56, 77–78, 96–97 Hirst, Jonathan xi, xii, 35, 36, 37, 40, 42, 49, 55, 64, 81, 83, 88, 90, 91, 94, 97, 100, 103–104, 123, 124, 126, 127, 128, 139, 146 Hobhouse, Sir John 56, 77 Ho, Edward 135, 151 Hobson, Fred 150 Hodson, Lord 20fn Hoffmann, Lord 54, 77, 94, 131–132, 136, 153 Hohler, Adrian 145 Hollander, Charles xi–xii, 48, 58, 63, 74, 76, 78, 82, 84–85, 89, 96, 97fn, 108, 109, 110, 111, 125, 127, 132, 147, 154 Hope, Lord 132, 136, 153 Hoskins, Mark 73, 108, 111fn, 112, 119fn, 131, 148 Howard, Mark 58, 76, 82, 96, 101–102, 112–114, 125, 128, 130, 139, 147 Howell, Richard 122, 151 I ICI 67 Ince & Co 57, 58 Ingle, Jessie 152 International Tin Council 55

Irvin, Peter 35, 146 Irvine, Lord 53, 76, 107 J Jacob, Sir Robin 78fn, 98 Jamieson, Crawford 152 John, Elton 36fn, 58, 100 Johnston, Tim 120, 150 Jolowicz, Professor Tony 18, 24, 26, 64, 145 Jones, Oliver 150, 153 Joseph, Sir Keith 36 Jowell, Daniel (Danny) 89, 114, 149 Jowitt, Lord (William) ii, xii, 1–6, 7, 8, 9, 10–11, 15–16, 18, 19, 23, 80, 114, 116, 133, 137, 139, 144 K Khan, Aaron 151 Kahn-Freund, Otto 17, 26, 144 Karmel, David xii, 23–24, 25, 26, 145 Kay, Sir Maurice 117 Kennedy, Matthew 151 Kentridge, Sir Sydney xi, 46, 47, 55, 58, 59, 60, 63–64, 75, 78–80, 93, 102, 111, 118–119, 124, 137, 146, 153 Kerr, Sir Michael 5fn, 15fn, 27, 29fn, 31, 39, 47 Kilmuir, Lord 27 King, Don 97–98 Kinsky, Cyril 82, 100, 147 Knowles, Sir Robin 87 Kuehne, Geoffrey 150 Kusel, Michael 61–62 Kwan Yew, Lee 25 L Lane, Lord 59 Lane, Dame Elizabeth 33fn Langley, Sir Gordon 97 Lawrence, Jon 131, 151 Laws, Sir John 119

158

Lawson, Kyle 129, 150 Lee, Sarah 86, 111, 148 Leggatt, Lord (George) 51–52, 58, 59, 77, 82, 88, 96, 109, 121, 124, 137, 139, 147 Leggatt, Sir Andrew 56 Leith, Hugo 122, 131, 150 Lester, Maya 72, 112, 118, 119, 122, 134, 149 Levy, DF 21 LIA (Libyan Investment Authority) 124–125 Liddington, David 107 Lightman, Sir Gavin 26fn, 98–99 Linklaters 40, 48, 57, 63, 73, 96, 97 Littmann, Mark 55 Lloyd Jones, David (Lord Lloyd-Jones). 64, 73, 93–94, 96, 104, 105, 122, 139, 147 Lloyd’s 19, 39, 82, 144 Lloyds Banking Group 129 Lloyd, Lord 56 Local authority swaps 84 Lonrho 47–49 Lord, Richard 58, 74, 82, 147 Lord, Tim 110, 124, 125–126, 149 Love, Sarah 111fn, 112, 134, 149 Lydiard, Andrew 97, 128, 148 Lyell, Sir Nicholas 3, 31, 36, 46, 64, 71, 80–81, 145 M Ma, The Hon Geoffrey 106, 153 MacDonald, Ramsay 3, 4 Mackay, Lord 62, 74 Macken, Fidelma 130 MacKenzie, Emily 121, 122, 150 Maclean, Alan 116, 149 MacLeod, Jennifer 120, 121, 141, 150 Macmillan, Harold 22

McClelland, James 151 McCombe, Carolyn 59 McCombe, Sir Richard 59 McCorquodale, Professor Robert 153 McCrindle, Robert 39, 60 McDonnell, Denis 24–25, 145 McIntyre, Andrew 141, 150 Major, John 80 Males, Sir Stephen xifn, 87 Malins, Julian 36, 146 Mance, Lord 115, 119, 129 Mandela, Nelson 46 Manningham-Buller, Sir Reginald 22 Marre Committee 74 Mars-Jones, Sir William 31fn Martyr, Peter 58 Masefield, Roger 88, 114, 124–125, 148 Mason, Fred 36–37 Matovu, Harry 126, 135, 140, 147 Matrix Churchill 80 Maxwell, Kevin 81–82 Maxwell, Robert 81 Megaw, Sir John 27 Megarry, Sir Robert 7fn Middle Temple 1, 11–13, 14, 15, 36, 49, 67 Midwinter, Stephen 126, 149 Mocatta, Sir Alan 15, 27, 37–38, 55–56 Mockford, Emma 141, 151 Monckton, Sir Walter 7, 19, 24, 69 Moollan, Salim 152 Moore-Bick, Sir Martin 96 Morgan, Sir Paul 87 Morris, Michael 84 Morrison, Craig 114, 126, 150 Morritt, Sir Andrew 40 Mountbatten, Lord 26 Moyler, Ian 59, 85–86, 104, 129 Muchlinski, Professor Peter 153 Mustill, Lord 29, 56

159

N NatWest 65, 145 Neave, Airey 19–20 Neave, Douglas 81, 85 Neill, Lord 27, 29 Neuberger, Lord 36, 85 Newton, Laura 151 Nicholls, Lord 57 Norgren, Christian 101 Norton Rose 56–57 NRG 82–83 Nuremberg trials 15

Platts-Mills, John 48 Plewman, Thomas 112, 150 Pollock, Gordon 77, 79, 99, 100, 128 Popplewell, Sir Andrew 50–51, 77, 85, 87–88, 94, 95, 96, 101, 107, 124, 139, 147 Popplewell, Sir Oliver 107, 153 Potter, Kenneth 25, 144 Potts, Sir Humphrey 61 Prevezer, Sue 137, 151 PricewaterhouseCoopers 100, 101, 130 Pritt, Denis 19fn Property Alliance Group 125

O O’Donoghue, Robert 122, 149 One Essex Court 58, 140 Otton-Goulder, Catharine 55fn, 58, 84, 98fn, 147 Owen, Philip 30–31, 33, 45, 58, 66, 145

Q Quadrant Chambers 29, 58 Quigley, Conor 149

P Pannick, Lord (David) 44fn, 127 Park, Bill 40, 48, 57 Parker, Lord 22, 49 Parker, Sir Roger 27, 56 Pascoe, Tom 151 Payton, Michael 58 Pearson, Sir Colin 7, 8, 20, 21, 22, 23, 24, 26, 30, 137, 144 Pell, Benjamin 100 Peniston, Lyana 89, 135 Perry, Simon 36–37, 64 Petrova, Georgina 151 Peyton, John 19, 144 Phillips, John 31, 40–41, 46, 50, 57, 146 Phillips, Lord (Nicholas) 29–30, 34, 35, 36, 45, 46, 51, 55, 58, 59–60, 61, 66, 67, 72, 99, 103, 106, 115, 124, 132, 135, 136, 139, 146, 153 Piccinin, Daniel 120, 150 Pilbrow, Fionn 112, 114fn, 117, 124, 129fn, 149

R Rabinowitz, Jacob 151 Radcliffe, Lord 115 Randolph, Fergus 73, 147 Rankin, John 31, 35, 145 Reichert, Klaus 131, 136, 149 Rehmatullah, Mo 37fn Robertson, Aidan 69, 71, 73, 148 Rollason, Michael 149 Rose, Lady (Vivien) 78, 125 Roskill, Lord 27, 29, 37–38, 49 Roth, Sir Peter 87 Rothschild, Gerard 112, 122, 141, 149 Rouse, Sidney 79fn Rudzitis, Andris 152 Rowland, Tiny 48, 101 Roxburgh, Alan 93, 148 Royle, John 145 Ruttle, Stephen 43, 48, 49, 96, 137, 140, 146 Ryan, Alison 91 S Sackar, John xii, 7fn, 8fn, 12fn, 15fn, 47

160

Sage, Leslie 96–97 Sahore, Aarushi 152 Salzedo, Simon 90, 99, 108, 123, 126, 130, 148 Saunders, Nicholas 150 Saville, Lord 27, 44, 56, 77, 93, 103 Scannell, David 112, 120, 131, 149 Schaefer, Max 121fn, 150 Scott, Jonathan 151 Scott, Peter 83 Scott, Lord 81, 99, 111 Scrutton, Sir Thomas 4–5, 35 Serle Court 27fn, 58 Shambo, the temple bullock 119–120 Sharp, Geoff 153 Shaw, Sophie 151 Sheen, Sir Barry 29, 51 Simon, Sir Peregrine 35, 36, 44, 53–54, 104, 139, 146, 153 Singla, Tony 114fn, 125, 129, 135, 149 Slade, Sir Christopher 41, 57 Slade, Richard 75, 126, 147 Slaughter and May 27 Slynn, Lord 26, 27, 31 Smith, Ian 47–49 Smith, Sir Peter 126–127 Somervell, Lord (Donald) 1, 3, 10, 144 Sphere Drake 96–97 Stable, Owen 30 Stable, Wintringham 30 Stamler, Sam 58 Staughton, Sir Christopher 56 Steel, Sir David 29 Stephenson, Sir John 55 Sterling Cooke Brown 97 Stevenson, Sir Melford 38–39 Stevenson, Tim 146 Stevensons (“Stevies”) 42 Steyn, Lord 56 Sting 53, 83

Stratford, Jemima 73, 111fn, 116, 117, 134, 148 Straw, Jack 107 Stroilov, Pavel 126 Stuart-Smith, Sir Murray 96 Sturrock, John 153 Style, Christopher 48, 57 Sumption, Lord (Jonathan) 36, 48, 55, 58, 76, 94, 96, 97, 98–99, 100, 101, 103, 104, 106, 110, 111, 114–115, 117, 123, 124, 128, 129, 137, 139, 146 Suttle, Stephen 43fn Sutton, Alastair 153 Swainston, Michael 148 T Tan, Charlotte 135, 151 Taylor, Lord 59 Temple 1, 11–15, 21, 31, 36, 49–50, 67, 80, 91, 92, 119 Temple Church 11 Terra Firma 128 Thatcher, Margaret 19–20, 32, 36, 38, 43, 59, 62, 64, 74 The Accident Group (TAG) 109–110 The White Book 95 Thomas, Andrew 97fn, 148 Thomas, Charlotte 150 Thomas Cooper 9 Thomas, Lord 97 Thorley, Simon 153 Three Rivers 111 Trott, Kate 123fn Tucker, Lord 25 Turnbull, John 57 U Upjohn, Lord 27 V Valls, Rafael xii, 18, 144 Valner, Nick 58

161

Vaughan, David 29, 30, 67–73, 106, 108, 128, 145 Veeder, VV 27 W Wade, Professor Sir William 68 Wakefield, Victoria 110, 120, 122, 131, 134, 149 Walker, Sir Paul 50, 76, 88, 89, 96, 104, 139, 146, 153 Wallace Smith Trust 101 Warren, Frank 97–98 Waterman, Pete 78–79 Watkins, Sir Tasker 59, 68 Webb, Robert 153 West, Colin 97, 108, 110, 131, 149 White, Martin 146 Whitfield, Adrian 31, 35, 145 Widgery, Lord 93 William Stubbs 63 Willis, Tony 96, 137, 149 Wilmot-Smith, Frederick 151 Wilson, Harold 17, 22, 47, 74 Winfield, Professor Sir Percy 18 Withers, Sir John 7 Wolffe, James 153 Wood, Bill 64, 65, 85, 96, 137, 147 Wood, Tom 151 Woolf, Lord 94–95, 101 Woolgar, Ben 151 Wright, Lord 2 Wright, Paul 85, 148 Wright, Peter 65 Wyatt, Derrick 147 Wynn-Parry, Sir Henry 18 Y Young, Tim 55–56 Z Zaiwalla, Sarosh 53–54

162

Brick Court Chambers 100 Years EBook

Articles inside

Index

Appendix II Current Door Tenants

Chambers in 2021

Public Law

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

Jonathan Sumption QC

New Heads: Sumption and Hirst

Conference room in Devereux Court, c.1994

11 Essex Street

1 Garden Court

The 1980s

The 1990s

Jonathan Hirst QC and Professor Jolowicz QC (Hon) with Burley and Simon Perry

Recruitment

Christopher Clarke QC

Dame Rose Heilbron and Hilary Heilbron QC

Sir Samuel Cooke

Damage to Brick Court after the raid of 15th October, 1940

Sir Colin Pearson

After Jowitt

William Jowitt KC, 1923

Ronald Burley