Head of Essex Court, Gordon Pollock QC, tells Bal Khela what he thinks of judges, the EU and the future of the bar
Pollock: I’ve always thought that the single most important quality for a lawyer or a judge is analytical ability. That’s why Lord Millett is so good – because he is wonderfully precise with an outstanding intellect and an accurate and analytical mind.
That’s also why Tom Bingham [the senior Law Lord] is so outstanding, he also has a superb analytical mind. It is a great joy appearing in front of a judge like that.
Another one who was like that, someone who it was a complete pleasure to argue in front of, was Lord Oliver. Lord Diplock was also good, even though it was not a pleasure to argue in front of him. His mind was superb but he had a certain acerbic side to him and that could make life as an advocate rather difficult, whereas Millett, Oliver and Bingham are men of enormous natural courtesy.
Pollock: I feel very strongly about the way the commercial court is run at the moment, because it is part of the Queen’s Bench and judges in the Commercial Court therefore go out on circuit, like all the Queen’s Bench judges do. This means that often the Commercial Court is run very badly in terms of giving an adequate service to litigants, particularly in the case of heavy litigation.
I have had experience of major litigation, for example in the Prince Jefri case, and that was down for four to six months and was due to start at the beginning of the year, and the Commercial Court was unable to allocate an individual judge to deal with all the pre-trial problems. So there was no allocated judge for the preceding three months. They were even unable to commit themselves to choosing the trial judge to deal with the interlocutory elements. It is incredibly wasteful of time and money if you get a different judge every few weeks and you have to explain the whole complicated situation for them all over again.
It is a substantial blot on the way the Commercial Court is run. You have these judges constantly going in and out and therefore those who run it – and I am not blaming them because they cannot do anything about it as that is the system they have got – should not go out on circuit.
Pollock: The Chancery Division is organised much better because the judges sit there permanently and do not go out on circuit. You can have a judge who can be assigned to deal with a particular case from a reasonably early stage.
Pollock: It has always been suggested that a “business court” should be created that would consist of an amalgamation of only parts of the Chancery Division, because there are parts that have nothing to do with business. I mean people dealing with trust, land and the rest of it, you don’t need them there. But, in so far as you’ve got a lot of commercial business work being done by chancery judges and you’ve got a lot of business work being done by the Commercial Court, it would be sensible to have a single court that deals with it all.
At the moment it seems a bit silly that you could have cases that could be done equally by a Chancery judge or a Commercial Court judge and it’s all a matter of chance where one person starts or one person doesn’t start and you really can’t transfer from one to the other.
If a single court was to be pursued, the only sensible thing would be to staff it with judges who did not go out on circuit. The last thing you would want to do would be to incorporate the disadvantage of the Commercial Court into what is supposed to be a good new court.
Pollock: Whether I would advise people to go to the bar these days, or even whether I would advise them to go to the commercial bar, I don’t know.
One of the oddities of life is that up until 20 years ago, if you came to the bar, it was doing its job in exactly the same way it has done for the past 150 years. But in the past 20 years, it has changed out of all recognition and that makes it extremely difficult to predict where or how it’s going.
People are always asking, will the bar survive, what will happen, what will be the shape of chambers, how much work will there be? I don’t know, is the short answer and if anyone comes to me and asks, should I go to the bar or your area of the bar? I would say by all means, but as long as you understand it is very difficult to tell what life will be like 30 years from now and I just don’t know. But I feel reasonably confident that the bar will survive in some form or other and there are people who say it will shrink and you will have a small group of specialist advocates, and that is possible.
At the moment, in our particular fields, there does not seem to be any major contraction of work but I have certainly heard endless stories and conversations with people that indicate that round and about – and I’m not just talking about criminal law and small civil chambers but well-known sets of chambers outside the top three or four – there are people sitting around with not that much work to do, and these are established practitioners.
Pollock: I just think that the whole thing is a complete waste of time because we had a perfectly good system which worked perfectly well. I do not think it has speeded anything up, personally I think it has made it worse. You are generating endless additional paper and upfront costs and it has not helped the bar. During the 30 years I have been practising, I think most of the changes that have been introduced have made cases slower, longer and more expensive, in particular, I think witness statements have become an unmitigated disaster.
Pollock: There have undoubtedly been situations in which judges might possibly have been challenged and they weren’t because it is regarded as not playing the game. A great deal of pressure can be put upon people not to challenge judges and that could have happened. But [Lonrho] was a very unusual situation. The Court of Appeal has done a major judgment on challenging in the Locerbial case. It all came up following the Amnesty decision in the Pinochet case and it suddenly became fashionable to challenge judges. The Court of Appeal decided to bring all of the cases on at once and give a definitive judgment. It was given by Lord Bingham, Richard Scott and Lord Woolf and shortly after that, there was an arbitration case for which we got judgment and the law is now sorted out as there is a tight test for when judges need to be recused.
The Prince Jefri case and KPMG established a landmark decision in terms of conflict of interest, but what is the actual test for satisfying the court that there is no risk to confidential information and how can the burden of proof be met?
As it turned out, there was nothing KPMG could have done to avert that situation because whatever it did was bound to leave some residual degree of risk and the court has said that you cannot expose your clients or ex-clients to avoidable risk as long as it is a real risk even if small. The Lords described it as “a non-fanciful risk”.
Pollock: The only thing it could have done, several years earlier, was to operate a series of water-tight compartments and never allow any cross-fertilisation. Within forensic accounting that means you have to not just have a forensic accounting department but a series of forensic accounting departments and you don’t allow the transfer of people and you keep them physically separate. I suspect that this is impossible.
Pollock: That would not be workable. What people have always done and what has happened for a very long time is that you choose your law and jurisdiction by contract. This is why England has had a wonderfully developed system of commercial law and why we have a Commercial Court and why, at the end of the day, we’ve got a number of very good solicitors and a number of successful sets of chambers. All of these earn a hell of a lot of money to contribute as invisible earnings because we have offered what no one else has. It’s an international forum for the resolution of disputes but running side by side with this is the arbitration system. It has been growing by leaps and bounds over the past 20 years and is an alternative to litigation.
Pollock: It is a question of whether there should be an international court for these sort of purposes. I would say arbitration is the answer.
Parties only have to agree to an arbitration clause and because of the adoption of conventions, the clause would be enforceable for pretty much everyone. It is one of the features of life that we have an endless number of arbitrators. Distinguished, retired members of the judiciary who, having done their time at the bench, are coming back to have a wonderful third career as arbitrators along with mediation. But I will wait to see how that goes, as it may or may not, but I think it is probably going to be bigger.
Pollock: I’ve accompanied clients to regulatory bodies but I don’t take a day-to-day interest. I suspect the FSMA will turn out for the worst because I think it is a big mistake. This vast over-arching single body. I believe that small is beautiful. I also think most change is a mistake, it can be good but usually it is undertaken for the wrong reasons.
Pollock: The EU is a vast sprawling bureaucracy for which I have a very low opinion and which should be abolished.
Whenever you create a body like that it just grows and becomes ever more bloated and ever more sclerotic. This is inevitable, and this is what is happening. I’m against large institutions and the EU is bidding for the European Commission to become one of the largest institutions of all.
Pollock: How can you do anything about such institutions, they continue growing and producing ever more.
I remember going to the Commission for a case. You are allowed to have your day making all your submissions which are not submitted to anyone who is going to decide anything, but to someone who is going to write them down, or is there to allow them to be recorded. You go over there and there are 10 people translating the whole thing simultaneously.
Why? I don’t know why. It seems completely useless to me. You have two English counsel, three English solicitors and various clients making these arguments and you are paying these very high-class translators to translate. The cost was extraordinary, the chairman sat there and the only thing he said was: “Now you must remember we’ve got to stop no later than 12.30 because if you don’t get to the restaurants by one, all the tables are taken.” This gives you a pretty good idea of what was important from his point of view.
Pollock: The European competition authorities are taking an interest in transfer fees because their whole purpose is to enable footballers to be treated as assets that are to be bought and sold.
Pollock: Bodies such as the IOC, IAAF and Fifa are somewhat oligarchic and uncontrolled institutions but what to do about them is another question entirely.
They do act in a rather dictatorial fashion and, as you know, there has been endless disputes caused because of the line taken by the IAAF in relation to drugs – you have seen that with Linford Christie recently. The British authorities have said ‘we are not satisfied that he has taken nandrolene’ and refused to ban him. Then that situation has been taken over by the IAAF, which has promptly banned him. You have to say this is not a wholly happy circumstance particularly because the IAAF has deliberately domiciled itself in Monaco so it will be free of any form of judicial restraint or control.
You have got a body which is capable of breaking people’s careers which arrogates for itself the power to do so, without any form of constraint or control.