Calling in the troops
1 December 2011 | By Katy Dowell
25 October 2013
12 March 2014
30 October 2013
22 July 2014
9 July 2014
When it comes to choosing a barrister for the Supreme Court, it’s worth going to the top.
Only cases of the highest constitutional importance are heard in the Supreme Court. For many litigants it is the end of the legal line, so only the best counsel will do, and the skill sets demanded of a Supreme Court silk are perceived by many to be different from those needed by a barrister appearing in the Court of Appeal (CoA).
Which is why the same select group of silks can be found time and again leading the arguments in the Supreme Court, even
if they were not instructed at a lower level.
Brick Court Chambers’ Jonathan Sumption QC appears again and again in Supreme Court cases, often being brought in specifically for the final appeal. Fellow Brick Court silk Mark Howard QC is another. In March, the pair went head-to-head in NML Capital v Republic of Argentina, with both being brought in just for the Supreme Court stage. Sumption replaced 3 Verulam Buildings’ Jonathan Nash QC for NML, while Howard replaced Maitland Chambers’ Anthony Trace QC.
The Supreme Court pedigree does not end there. Brick Court barristers Fergus Randolph QC and Mark Hoskins QC have also been brought in as replacement counsel, as has Blackstone Chambers’ Michael Beloff QC and Anthony Lester QC, Essex Court Chambers’ Hugh Mercer QC and Matrix Chambers’ Thomas Linden QC.
So what does it take to strike a victory in the country’s most daunting courtroom?
When Sumption is elevated to the Supreme Court bench next year, he will leave the bar short of one its greatest advocates. Prior to appearing for Chelsea Football Club owner Roman Abramovich in his ongoing dispute with Boris Berezovsky, Sumption made three appearances in the Supreme Court this year - each time in place of or to lead the dispute’s Court of Appeal counsel.
“Clients want Sumption,” says one litigator. “They like to see his name on the paperwork, they think it sends a message to the other side about how seriously they’re taking the dispute.”
Abramovich is not the only billionaire that Sumption has represented this year.
In January, The Lawyer revealed that George Lucas’s Lucasfilms had invoked the force of Sumption for its intellectual property battle with Shepperton Design Studios over the Stormtrooper helmet design (The Lawyer, 5 January). Sumption was instructed to lead Wilberforce Chambers’ Michael Bloch QC, who had conducted the advocacy in the lower courts. According to a source close to the case, the decision was taken to ensure a win. “It wasn’t a snub to Michael,” the source says.
Whether that case was won or lost by Sumption is still being determined by the costs court in an ongoing battle over who is liable for which fees. Nevertheless, Sumption’s addition to the case was symbolic and, some argue, tactically astute.
He was more successful when he was called in to replace 11KBW’s Nigel Giffin QC for Harrow London Borough Council (LBC) in a dispute over whether the authority could run its own insurance mutual without first putting the contract out to tender. With Sumption as counsel, the local authority won.
But why the switches? If clients are happy to stick with the same silk for High Court and CoA proceedings, why would they risk their final UK showdown on someone unfamiliar with their case?
“As well as being a tactical manoeuvre lawyers also like to have a fresh pair of eyes looking over their cases,” says one senior barristers’ clerk. “Quite often the case is moving in a new direction and a new silk is needed to make sure the last one hasn’t become complacent. It may be that the appellate barrister has been working on the case for years, and they’re overfamiliar with it.”
Old Square Chambers’ John Hendy QC, who appeared in the Supreme Court against Sumption in Baker v Quantum Clothing Group, Meridian and Pretty Polly, says there are differences between appearing in the Supreme Court and the CoA, but the skill sets are not wildly different.
“The cases of the parties have been exchanged in the Supreme Court and they deal with every conceivable point in writing,” Hendy says. “That’s very different from the skeleton arguments in the Court of Appeal and High Court, which are supposed to be much briefer and allow more freedom to the advocate in developing their oral arguments.
“The amount of detail in the Supreme Court and the time limits which are usually imposed mean that the advocate there will select key points of attack and defence to develop orally.”
That means that silks must be quick on their feet and able to answer questions from the judiciary instantly. Plus, counsel should expect to be quizzed by all the judges sitting on the bench - sometimes as many as seven at once.
Blackstone’s Mike Fordham QC, who has an impressive record of 14 consecutive wins in the Supreme Court, says the key difference between the Supreme Court and the lower courts is that it pushes silks to the extreme when it comes to thinking on their feet.
“You need to be punchier, much more selective, but most of all you need to prepare on the basis that the Supreme Court is ’open season’,” he says.
“Assumptions are more challengeable; innovations more possible. There’s freedom at higher altitude. You need to try to have thought deeply and laterally about the logic and implications, and to have predicted tricky questions to the extent you can.”
The pressures are so great that some counsel have turned down offers of work. “When we got permission to go to the Supreme Court we were more than willing to stick with our barrister - he’d got us this far. As it turned out, he was less willing than us,” muses one litigation partner. “He said we needed to find someone who could be cross-examined by the judges and he recommended someone else.”
A clerk tells a similar story. “I was mortified when one of our long-serving silks turned down work for the Supreme Court,” he says. “He felt he wasn’t up to the job. In my opinion he was, but no one had told him.”
Friends in high places
Standing in front of a fearsome bench can be daunting. Fordham recalls a stand-off in the House of Lords between the law lords and the court’s administrative staff. “The staff were insisting on us all vacating the building for a fire drill. The law lords had sat early to finish the case, and flatly refused to budge,” he remembers. “They truly do make the rules.”
It is little wonder, then, that some clients want a silk who has had a past relationship with the judges they appear before. In some matters the appearing silk may have practised at chambers at the same time as the judge, or they may have been mentored by the judge.
“In the real world it sounds like a sort of nepotism, but in the law it can’t be helped,” one litigator says. “Everyone knows everyone in this small world and if we can get a barrister who knows the judge then, yes, we’ll book him.”
With Sumption’s impending exit from the bar, a gap will open for those willing to prove their mettle in this high-octane legal environment. But with Sumption joining the Supreme Court judiciary, they could face the most formidable bench yet.
Brent London Borough Council v Risk Management Partners, London Authorities Mutual & Harrow London Borough Council
Court of Appeal
Appellant: 11KBW’s Nigel Giffin QC and Deok-Joo Rhee instructed by London Borough of Brent
Respondent: Blackstone’s John Howell QC, Javan Herberg QC and James Segan instructed by Sedgwick Detert Moran & Arnold for Risk Management
Interested parties: Henderson
Chambers’ Roger Henderson QC and Rhodri Williams QC instructed by Weightmans for London Authorities Mutual and Harrow Council
Appellant: Weightmans instructed Brick Court’s Jonathan Sumption QC and Henderson Chambers’ Rhodri Williams QC replacing Giffin and Rhee
Baker v Quantum Clothing Group, Meridian & Pretty Polly
Court of Appeal
Appellant: Old Square Chambers’ John Hendy QC, Civitas Law’s Theodore Huckle QC and Robert O’Leary instructed by Wake Smith for Baker
Respondent: Ropewalk Chambers’ Robert Owen QC and Simon Beard instructed by Weightmans for
Quantum Clothing Group
Respondent: Crown Office Chambers’ Christopher Purchas QC and Catherine Foster instructed by Hill Hofstetter for Meridian
Respondent: Ropewalk Chambers’ Toby Stewart instructed by Halliwells for Pretty Polly
Appellant: Blackstone Chambers’ Michael Beloff QC and Ropewalk Chambers’ Dominic Nolan QC and Simon Beard, replacing Ropewalk Chambers’ Robert Owen QC, instructed by Weightmans for Quantum Clothing Group
(1) Bloomsbury International; (2) Ocean World Fisheries; (3) Vision Seafood International; (4) Seafridge; (5) Seatek (UK); (6) Vision Seafoods ; (7) British Seafood; and (8) Five Star Fish v (1) The Sea Fish Industry Authority and (2) Department for Environment, Food and Rural Affairs [Defra]
Court of Appeal
Appellants: One Essex Court’s Charles Graham QC and Monckton Chambers’ Valentina Sloane instructed by Wilkes Partnership for (1) to (8)
Respondent: Blackstone Chambers’ Charles Flint QC and Robert Weekes instructed by Nabarro for the Sea Fish Industry Authority
Respondent: Essex Court’s Iain Quirk instructed by Treasury Solicitor for Defra
Appellant: Essex Court Chambers’ Hugh Mercer QC and Tim Eicke QC brought in at the appeal level to lead Iain Quirk for Defra
Respondents: Wilkes Partnership instructed Brick Court’s Fergus Randolph QC and Margaret Gray replacing Graham and Sloane for (1) to (8)
Intervenor: Brick Court’s Mark Hoskins QC and Blackstone Chambers’ Robert Weekes instructed by Treasury Solicitor for the Sea Fish Industry Authority replacing Flint as lead respondents for the Sea Fish Industry Authority
NML Capital v Republic of Argentina
Court of Appeal
Appellant: Maitland Chambers’ Anthony Trace QC, Benjamin John and Ciaran Keller instructed by Travers Smith for Argentina
Respondent: 3 Verulam Buildings’ Jonathan Nash QC and Peter Ratcliffe instructed by Dechert for NML Capital
Appellant: Brick Court’s Jonathan Sumption QC replacing Nash as lead to Peter Ratcliffe. Sandy Phipps, also of 3 Verulam Buildings’, was brought in at Supreme Court level having been instructed by Dechert for NML Capital
Respondent: Brick Court’s Mark Howard QC replacing Trace to lead John and Keller, instructed by Travers Smith for the Republic of Argentina
Bisher Al Rawi & Ors v The Security Service & Ors
Court of Appeal
Appellants: Blackstone’s Dinah Rose QC and Doughty Street Chambers’ Richard Hermer QC and Charlotte Kilroy instructed by Birnberg Peirce & Partners for first four appellants
Appellants: Leigh Day & Co for the fifth appellant
Appellants: Blackstone Chambers’ Michael Fordham QC and Naina Patel instructed by Christian Khan Solicitors for the sixth appellant
Respondents: 4 Stone Buildings’ Jonathan Crow QC, 3 Verulam Buildings’ Rory Phillips QC, Monckton Chambers’ Daniel Beard (now a QC) and 11 KBW’s Karen Steyn instructed by the Treasury Solicitor for the respondents
Intervenors: Blackstone Chambers’ John Howell QC and Jessica Boyd instructed by Liberty and Justice
Media intervenors: Doughty Street’s Guy Vassall-Adams for Guardian
News & Media, Times Newspapers and the BBC
Media intervenor: Blackstone Chambers’ Anthony Lester QC brought in to lead Vassall-Adams for Guardian News & Media
Lucasfilm & Ors v Ainsworth & Another
Court of Appeal
Appellants: Harbottle & Lewis partner Mark Owen instructed Wilberforce Chambers’ Michael Bloch QC and Alan Bryson
Respondents: Simmons Cooper Andrew partner Seamus Smyth instructed Hogarth Chambers’ Alastair Wilson QC and George Hamer
Appellants: Brick Court’s Jonathan Sumption QC brought in by Harbottle & Lewis to lead Bloch and Bryson Autoclenz Ltd v Belcher & Ors
Court of Appeal
Appellant: Henderson Chambers’ Patrick Green and Kathleen Donnelly instructed by Manches for Autoclenz
Respondents: Devereux Chambers’ Timothy Brennan QC and Peter Edwards instructed by Thompsons
Appellant: Matrix Chambers’ Thomas Linden QC brought in to replace Green, instructed by Pinsent Masons, which replaced Manches
Kookmin Bank v Rainy Sky & Or
Court of Appeal
Appellant: Fountain Court’s Guy Philipps QC and James Cutress instructed by Linklaters
Respondent: 20 Essex Street’s Andrew Baker QC and Socrates Papadopoulos instructed by Ince & Co for the respondents
Appellant: Brick Court’s Mark Howard QC and 20 Essex Street’s Michael Ashcroft QC instructed by Ince & Co replacing Baker and Papadopoulos
Up and coming
Russell & Ors v Transocean International Resources & Ors (Scotland)
Scotland Court of Session
Appellants: Hastie Stable’s Brian Napier QC instructed by Allan McDougall for Unite
Appellants: Ampersand Stables’ Aidan O’Neill QC instructed by Lefevre Litigation instructed for the Offshore Industry Liaison Committee (OILC)
Respondents: Simpson & Marwick advocate Michael Jones QC for Transocean
Appellants: Matrix Chambers’ Thomas Linden QC replacing Napier and O’Neill for Unite and OILC
Ministry of Defence [MoD] (Respondent) v AB & Ors (Appellants)
Court of Appeal
Appellants: Henderson Chambers’ Charles Gibson QC, 4 New Square’s Leigh-Ann Mulcahy QC, One Crown Office Row’s David Evans and Henderson Chambers’ Adam Heppinstall instructed by the
Treasury Solicitor for the MoD
Respondent: Crown Office Chambers’ Michael Kent QC, Catherine Foster and Nadia Whittaker, and Temple Garden Chambers’ Mark James instructed by Rosenblatt
Respondent: Rosenblatts partner
Neil Sampson instructed 3 Hare Court’s James Dingemans QC replacing Kent