Judges and innovation are not, perhaps, natural bedfellows. For a start, as Lord Phillips, the Lord Chief Justice, observed in a recent speech, the judiciary enjoys only “restricted” room for manoeuvre in today’s legal environment. Elaborating, he pointed to the constraints of precedent and correct statutory interpretation.
On top of that, it could be argued that innovation in a judicial context is not even wholly desirable. After all, novelty implies uncertainty – and nothing sends shivers up a lawyer’s spine faster.
But the 100-plus commercial litigators who were asked to nominate “innovative judges” appear to have interpreted their brief positively – if somewhat loosely. On the one hand, some individuals seem to have been selected for their influential rulings. Others, meanwhile, scored highly for offering a more modern courtroom approach. One admiring respondent, for example, cited Mr Justice Aikens’s habit of writing case-notes directly on to a computer – although, in truth, the sight is not that rare in either the civil or criminal court.
The result of having these different interpretations of judicial “innovation” has been to produce a somewhat splintered list of contenders (click here for rankings). Of the 11 judges who fall into the stand-out/highly commended/commended categories, four are Law Lords, another four sit in the Commercial Court, and two more are presidents (past and current) of the Employment Appeals Tribunal.
The first cluster is hardly surprising. If judges generally have limited room for manoeuvre, the Law Lords do have rather more than most. Plainly, on occasion, their decisions can have very significant implications at a social as well as a legal level.
Small wonder, then, that Lord Hoffmann tops the overall list. The South African-born lawyer moved from the Court of Appeal to the House of Lords in 1995 and is now the longest-serving Law Lord. Charming, intellectually demanding and no stranger to controversy, he is said to be one of the most daunting Law Lords to appear before.
Among the general public, Lord Hoffmann’s name may be forever remembered because of the immunity case of Chile’s General Pinochet – in which the Law Lord’s failure to disclose his links with Amnesty International led to the unprecedented setting-aside of a House of Lords’ judgment. But in recent years, his opinions have had a wide-ranging impact. For example, he has provided lead rulings which have helped determine the extent of privacy rights in the UK, core principles in patent law, the employment rights of expatriates, and the law governing economic torts – to name just a few.
Much the same could be said about the breadth and weight of rulings emanating from Lord Bingham, who has sat for many years in the top ranks of the British judiciary, having previously been both Lord Chief Justice and Master of the Rolls. But many nominators also paid tribute to his role in helping to reform the House of Lords as the UK’s top court.
More than five years ago, Britain’s first “senior” Law Lord threw his public support behind the idea of a clearly-separate supreme court, geographically divorced from parliament to make plain its purely judicial role. “The present position can mislead,” he said, pointing out that the Pinochet appeal to the House of Lords had led some foreign observers to believe the issue had bounced into the political arena.
Today, work on the Law Lords’ new home in the Middlesex Guildhall is finally underway – albeit with rising cost estimates. Hearings before the country’s top court, meanwhile, are already notable for their seminar style and lack of pomp, and its decisions have been efficiently posted on the internet for years.
As for Baroness Hale, Britain’s first female Law Lord, she scores for introducing a very different perspective to top judicial decisions – or, as one respondent put it, being “a radical thinker”. Many of her more influential opinions have been in the areas of employment and family law and, besides being extremely readable, are marked by practical commonsense.
At first sight, an equal presence of Commercial Court judges on the “innovation” list is more remarkable (even allowing for a business bias among many of the nominators). This, after all, is a specialist court – about a dozen judges – within the Queen’s Bench division. It deals with complex business disputes and, much of the time, receives little media coverage.
But the Commercial Court is also a rare part of the court system that actually competes for business. Many of the cases heard there involve international trade, meaning that the parties have a choice over the legal framework that governs their dealings and the jurisdiction in which disputes are heard. Increasingly, too, international arbitration provides an alternative to court-based dispute resolution.
Accordingly, the relationship between the Commercial Court and its users is a lot more responsive and proactive than in other parts of the court system – witness the bout of consultation recently prompted by the problems of so-called “supercases”.
With that in mind, few will be surprised to see Sir Gordon Langley at the top of the list. Always one of the best-prepared judges, he has for years won widespread admiration among commercial litigators for his effective case management and shrewd decision-making. Hearings that might drag on for hours elsewhere are done and dusted with good-humoured dispatch. “No nonsense”, “strict intellectualist”, “robust”, and “tough but fair” were typical comments.
All of this came to wider public attention in the trial resulting from the near-collapse of Equitable Life. This pitted the life assurer’s new management against its former directors and auditors, and presented the daunting task of ensuring fairness between 17 different parties, ranging from litigants in person to others with formidable legal teams. Somehow, too, a complex and over-ambitious claim had to be hammered into a case that could be brought to court.
Yet by the time the parties finally stumbled towards a settlement after four months, opening arguments had been delivered and all 17 factual witnesses had been cross-examined – and the timetable was firmly on track.
Modern case management skills and clear, timely judgments have also won plaudits for Sir Richard Aikens – coupled with the apparent IT skills. However, his venturing outside the Commercial Court raised some negative comments. Several respondents queried his handling of gag-order issues in a recent Official Secrets Act trial that he oversaw at the Old Bailey. Media organisations – including the Financial Times – have complained about the allegedly unprecedented scope of these, and they are currently under appeal.
Finally, nominators had considerable praise for the work done by both Sir Michael Burton and Sir Patrick Elias in trying to overhaul and modernise the Employment Appeals Tribunal – which is part of the tribunals service yet headed by a High Court judge, and so occupies rather uneasy ground between the court and tribunal systems.
But perhaps just a passing thought, too, should be given to those areas of the court system where judges were only barely mentioned – or passed over entirely. Absence, one might suggest, can also speak volumes.
Biographies
Lord “Lenny” Hoffmann is a senior British judge, serving as a Lord of Appeal in Ordinary. Born into a Jewish family near Cape Town, Lord Hoffmann was the son of a well-known solicitor. He was educated at Cape Town University and then attended Queen’s College, Oxford, as a Rhodes scholar. He studied for the Bachelor of Civil Law, thought by many to be the leading graduate law degree in the common law world, and won the Vinerian Scholarship. After being called to the Bar, he became one of the most sought after and highly-priced barristers of his generation and was quickly made a judge.
Sir Gordon Langley has been a judge in the High Court, Queen’s Bench division, since 1995. He was educated at Westminster School and Balliol College Oxford, and called to the Bar (Inner Temple) in 1966, becoming a bencher in 1996. He was appointed a QC in 1983 and was a recorder from 1986-1995.
Sir Richard Aikens has been a judge in the High Court, Queen’s Bench division, since 1999. He was educated at Norwich School and St John’s College, Cambridge, was called to the Bar (Middle Temple) in 1973 and became a bencher in 1994. Before becoming a judge, he was a junior counsel to the Crown, Common Law (1981-86) and became a QC in 1986; he was a recorder from 1993-99. From 2001-2004 he was presiding judge for the South Eastern Circuit.
Sir Jeremy Cooke was admitted as a solicitor in 1973 and later called to the Bar (Lincoln’s Inn) in 1976. He took silk in 1990 and was made a bencher in 2001. He acted as an assistant recorder between 1994 and 1998 and as a recorder between 1998 and 2001. He was appointed as a High Court Judge (Queen’s Bench Division) in 2001. At the start of this year, he became presiding judge for the South Eastern Circuit. He has been Vice-President of the Lawyers’ Christian Fellowship since 2003.
Sir Michael Briggs, formerly of Serle Court chambers, became a judge in the High Court, Chancery division, last July. Prior to his appointment, he was widely regarded as the best Chancery silk. He was educated at Charterhouse and Magdalen College, Oxford, and called to the Bar (Lincoln’s Inn) in 1978, becoming a bencher in 2001. Other appointments: junior counsel to Crown Chancery, 1990-94; QC, 1994; attorney general, Duchy of Lancaster, 2001-2006.
Lord (Thomas) Bingham of Cornhill has been a Senior Lord of Appeal in Ordinary since 2000. He was educated at Sedbergh and Balliol College, Oxford. He was called to the Bar (Gray’s Inn) in 1959 and named a bencher in 1979. He was made a QC in 1972 and was a recorder of the Crown Court from 1975-1980. From 1980-86 he was a judge in the High Court, Queen’s Bench division and in the Commercial Court: subsequently, he was a Lord Justice of Appeal from 1986-92; Master of the Rolls from 1992-96 and Lord Chief Justice from 1996 to 2000.
Sir Christopher (Simon Courtenay Stephenson) Clarke has been a judge in the High Court, Queen’s Bench division, since 2005. He was educated at Marlborough College and Gonville and Caius College, Cambridge and called to the Bar (Middle Temple) in 1969. Other appointments: attorney of Supreme Court of Turks and Caicos Islands, 1975; QC, 1984; recorder, 1990-2004; bencher, 1991; deputy High Court judge from 1993-2004; judge of the Courts of Appeal of Jersey and Guernsey from 1998-2004; counsel to Bloody Sunday inquiry, 1998-2004.
Baroness (Brenda Marjorie) Hale of Richmond is a British legal academic, barrister and judge. Born in Yorkshire, she was educated at the Richmond High School for Girls, and later studied at Girton College, Cambridge, where she read law and graduated with a starred first and top of her class. After becoming assistant lecturer in law at the University of Manchester, she was called to the Bar in 1969, topping the list in the bar finals for that year. In 2004, she was the first woman to join the House of Lords as a Lord of Appeal in Ordinary under the Appellate Jurisdiction Act 1876.
Lord Justice (Sir David) Neuberger has been a Lord Justice of Appeal since 2004. He was called to the Bar (Lincoln’s Inn) in 1974, and appointed as QC in 1987. He served as a recorder from 1990-96 and was appointed to the High Court Bench (Chancery Division) in 1996. He was the Supervising Chancery Judge for the Midland, Wales and Chester and Western Circuits from 2001-2004. Since 1999, he has been chairman of the Advisory Committee on Spoliation of Art.
Sir Michael Burton has been a judge in the High Court, Queen’s Bench division, since 1998 and a judge of the Employment Appeal Tribunal since 1999 (he was president from 2002-2005). He was educated at Eton College and Balliol College, Oxford. He was called to the Bar (Gray’s Inn) in 1970 and named a bencher in 1993. He was a law lecturer at Balliol from 1972-74 and became a QC in 1984, serving as a recorder from 1989-98.
Sir Patrick Elias has been a judge of the High Court, Queen’s Bench Division, since 1999 and president of the Employment Appeal Tribunal since last year. He was educated at the University of Exeter and King’s College, Cambridge. He was called to the Bar (Inner Temple) in 1973, became a bencher in 1995 and a QC in 1990. Between 1973 and 1984, he was a fellow of Pembroke College,Cambridge, and from 1975 to 1984 a lecturer at the University of Cambridge. Sir Patrick is the co-author of Labour Law: Cases and materials and Trade Union Democracy, Members’ Rights and the Law, and editor of Harvey on Industrial Relations and Employment Law.
