Influx of retired judges threatens to flood arbitration and ADR markets

“There is life after the judiciary,” says Sir Gavin Lightman. And for this former High Court judge this is absolutely true.

As The Lawyer revealed last week (17 March) Lightman is extremely busy in the international arena after hooking up with Indian firm FoxMandal Little and as an associate member of Serle Court.

Lightman is one of a string of former judges to recently rejoin their old chambers, making some question whether the legal market is becoming flooded with ex-judicial members.

At the current rate of judges retiring from the bench and returning to chambers – one a month – there would be an increase of a third in ex-judicial arbitrators and mediators among The Lawyer’s Bar Top 30. The figure now stands at 33 former judges seeking work in the arbitration and alternative dispute resolution (ADR) arena. This equates to what is seemingly an insignificant figure of 1.6 per cent of all the barristers, arbitrators, mediators and adjudicators in the top 30.

However, more than a quarter of barristers are also taking on roles as arbitrators and mediators, not to mention the solicitors moving into these markets.

The overall picture, therefore, is of a market that is showing signs of serious overheating.

Former High Court judge Sir Anthony Colman of Essex Court Chambers, who retired last June, says that whether there is enough demand for former judges really depends on what they are looking for.

“Some want to arbitrate, doing a bit here and there, while others are looking to do it seven days a week,” he says. “For the latter there is, to my mind, not enough work. For those who want to do it as it comes, then there’s enough to satisfy any retirement needs.”

Colman admits that he has found himself a lot busier than he had expected. “I was looking for more than semi-retiring, but for it to be less than a full-time job,” he explains.

With the ex-High Court judge sitting on international arbitrations, often as the chair of the tribunal, writing the majority of the awards, sitting as a retired judge in the Commercial Court and also in the court of Dubai International Financial Centre, Colman’s new role is much closer to a full-time job than he had anticipated.

But there is a secret to Colman’s success. He says it is really about ensuring that former judges keep up their reputations.

“Many solicitors and perhaps their clients would know me from the Commercial Court and so know how I conduct hearings and the type of atmosphere there is when I sit,” says Colman. “It centres a lot on solicitors advising their clients on who should be appointed as arbitrators.”

Colman also says that it is about being visible. “The international arbitration field is a curious industry, and I choose that phrase quite deliberately. If you hide under a stone then some will find you, but really you have to have a public profile. This is why I have attended arbitration conferences and written papers.”

But not all former judges are enjoying Colman’s success. As one senior clerk at a Top 30 set reveals, he has been having trouble getting enough work for one of his former judges.

“It’s an oversaturated market and there are more judges aspiring to come back to their chambers,” he says. “I’ve found that for previous judges it took a matter of weeks to get a good-sized practice up and running, but recently it’s taken more than nine months.” Former Court of Appeal judge Sir John Chadwick is back at his old chambers One Essex Court. According to his senior clerk Paul Shrubsall he is busy.

“Sir John is getting work acting as an expert witness. In fact his first instruction was to give an opinion on English insolvency law as an expert as part of Chapter 11 proceedings in New York,” says Shrubsall.

This, however, is not exactly the work that Chadwick told The Lawyer he was focusing on when he first moved back to his old chambers. He was looking to do more arbitration and mediation.

“He has had other enquiries,” says Shrubsall, “but as with everything at the bar, for every three enquiries only one job may pay off.” One reason why Chadwick has not managed to get his arbitration and mediation practice off to the flying start he may have hoped for is that he has been sitting in Dubai and was recalled to the Court of Appeal in February for the month.

So it is early days for Chadwick, who only returned to One Essex Court in November.

As previously noted, Lightman has returned to chambers, but his outlook is slightly different from that of Chadwick and Colman, as he is looking at his role more as assisting with the bigger legal picture.

“I’ve had a flow of work, but one of my main interests is promoting the importance of mediation internationally,” says Lightman.

This is one factor that led to Lightman getting in bed with FoxMandal Little, but there is more to it. As he tells The Lawyer: “Indian law firms have an important role to play in legal and business life, not only for the world, but also for this country.”

Lightman is using his “life after the judiciary”, as he calls it, to be much more of an advocate for progressing the legal systems across the globe – something he is absolutely riveted by. “It has been an exhilarating experience getting back into the field,” he says. “I really enjoy being back in chambers, as the life of a judge can be quite solitary.”

Taking on a statesman-type role is how several senior clerks believe judges can have a career after the bench.

“By taking on a statesman position it raises the judge’s profile immensely, which in turn will give them work as an arbitrator or mediator if they wanted it,” says one senior clerk. “The flipside, however, is that being high-profile takes up a lot of time, making it difficult to take on long pieces of work. So it’s catch-22. It’s easier to be just the statesman or just the arbitrator. To do both is a balancing act.”

So is the market impossibly overheated for former judges? If arbitration and mediation is solely what they are looking at, then the answer has to be yes. As the number of ex-judiciary practitioners increases, the market is becoming increasingly difficult to source work in and this is not helped by barristers and solicitors also moving into the arbitration and ADR arena.

For those happy to just take it as it comes or who want to take on the PR role, this is currently the perfect legal bazaar. There certainly is life after the judiciary, but it’s a question of knowing where to find it.