Bench pressing

Next month Lawrence Collins QC will, in the words of the Lord Chancellor, make “a little bit of history”. The solicitor, a partner at Herbert Smith, will be the first to be appointed directly from private practice to the High Court Bench.

“The appointment marks another step in the diversification of the judiciary without any reduction in the first-rate ability of those who sit on the bench,” claimed Lord Irvine. Collins will join Sir Michael Sachs, who was a recorder and circuit judge before becoming only the second solicitor to sit in the High Court.

“I can’t think that is what Parliament had in mind – it’s been 10 years since the Court and Legal Services Act,” says Judge Harvey Crush, who was senior litigation partner at Norton Rosefor 21 years prior to becoming a circuit judge in 1995. The 1990 act puts solicitors on an equal footing with the bar, allowing them rights of audience before all the courts, eligibility for silk, and providing in theory a career path to the bench.

“I think that the judiciary doesn’t draw from the widest pool of able people, and that doesn’t mean just more solicitors. I don’t think it draws from the most able barristers either,” says the Judge Crush. The criticism is nothing new, and it has been only 12 months since the Sir Leonard Peach inquiry into the judicial appointments system prompted familiar – and impossible to contradict – assertions that judges were predominantly white, male and Oxbridge.

Solicitors were also quick to voice their own grievances. The Law Society argued that its members were “largely excluded” from the ranks of the higher judiciary, while dominating “lower status appointments”. Outside of the High Court, only 13 per cent of circuit judges come from law firm backgrounds, whereas 94 per cent of all district judges are from private practice.

The then Law Society president Robert Sayer concluded that the selection process of “secret soundings” for judges and QCs was “pretty well doomed”. He said: “It is so out of step with modern ideas that it’s hard to see how it can survive into the next millennium.” He announced that, from then on, the Law Society would not be taking part in the process.

Charles Elly, circuit judge and a former president of the Law Society, who sits at Reading, takes a more moderate line. “I wouldn’t have withdrawn from the process because, although it may not have been regarded as perfect, at least it was a way of getting information about the candidates,” he says.

And therein lies the problem: how do the judges get to know the solicitors when they never appear before them?

Clifford ChanceLondon and Asia litigation managing partner John Potts says: “Our judges mostly come up through the bar; they’re addressed by people who come through the bar and they’re used to a standardised system of advocacy.” He believes that there will have to be more “infiltration” of the courts by solicitor-advocates before solicitors are considered for appointment to senior judicial positions.

So far there are only approximately 1,000 solicitors with higher rights of audience and only four solicitor-QCs. Mark Humphries, a partner at Linklaters& Alliance and the chairman of the Solicitors’ Association of Higher Court Advocates, believes that the low number does not reflect a lack of enthusiasm – he sees it as a “purely regulatory” problem. With new regulations making it easier for solicitors to qualify coming into force next month, he believes that the number will treble during the next two years.

Humphries interprets the appointment of Lawrence Collins as a positive message to the profession. “It is another indication of the distinction between the old labels of solicitors and barristers becoming rather blurred,” he says.

It is the Law Society’s contention that there is too great an emphasis placed upon advocacy at the expense of other qualities solicitors could excel in. It is a view that has supporters among the judiciary.

“There’s been more trouble on the bench from people who can’t keep their mouths shut than from any other cause,” Judge Crush says. He cites case management skills, knowledge of accountancy and years of experience of direct contact with commercial clients as assets that solicitors could bring to the job.

Potts of Clifford Chance believes that as solicitors penetrate the judiciary there will be a cultural shift away from traditional advocacy. He predicts that the judicial system will become “more document-based” and driven by briefs that will be written “thoroughly and properly in the US style”. He also argues that solicitor-judges would bring “a little more commercial reality” to court judgments.

Eversheds’ national head of litigation John Heaps argues that a greater representation of solicitors on the bench could help realise the aims of last year’s reforms of the civil justice system by Lord Woolf. “Solicitors fundamentally can bring a real awareness of what the customer of the courts is really looking for,” he says. “And those are the things that Woolf carried out his reforms for – speed, cost-effectiveness and sometimes a commercial solution that might be achieved through mediation.”

Judge Martin McKenna, former litigation partner at Eversheds’ Birmingham office, has been appointed directly from private practice to the circuit bench. He says that one of the reasons he now feels qualified for the job is the greater emphasis on judges “running” cases under the new civil procedure rules, and not just being “reactive”. “I don’t think that I’d have been particularly interested if I had to sit there listening to barristers droning on,” he says. He adds that little emphasis was placed upon advocacy during his interview for the post.

While the circuit bench remains the preserve of the bar, there are only 23 barristers that sit as district judges out of more than 400. District Judge John Frenkel says that the civil justice system is bottom-heavy. “About 90 per cent of all final decisions in civil litigation are made by district judges,” he says. He left private practice to become a full-time judge in 1983 and is presently the senior vice-president of the Association of District Judges.

He has no regrets leaving behind life in private practice. “Every day I do something different, and the variety of the work is the attraction of the job,” he says, adding that his case load covers everything from family to insolvency and presiding over small-claim fast-track trials and case-managing larger claims.

But with so few solicitor-judges at circuit-level, is a career at the bench a professional cul-de-sac for solicitors? “There are no career prospects,” Judge Frenkel says bluntly. “You’re appointed to an office and that’s it.” He adds, though, that he would not do a different job.

An unprecedented appraisal system for deputy district judges will be introduced next year. According to Judge Frenkel, this represents a “significant development on the accountability of the judiciary”. But he also points out that this will be a valuable information source for the judicial appointments board when deciding upon full-time positions. “If this was extended to recorders it would go a considerable way to meeting some of the Law Society’s criticisms,” he says.

Unsurprisingly, one considerable problem for the judiciary in attracting the best candidates from private practice is money. According to one district judge, if a solicitor is in private practice and he is 40 years old and worth his salt, he would be earning twice a district judge’s salary.

Judge McKenna readily admits that he has taken a “massive” pay cut moving from being a commercial litigator to being a circuit judge. He believes that he will earn about one third of his Eversheds salary. So why make the career leap? “I felt a bit stale and wanted to get back to the law,” he says. “In a big law firm you spend a lot of time managing people and client relationships.”

Judge Crush says he opted for a judicial career partly because the hours were a “small fraction” of those for private practice, but also out of a sense of public duty. “I think it’s important to serve your country and it’s something useful you can do for a lot more people than your clients,” he says. He adds, though, that life on the bench is not as challenging as in private practice. The workload might be far more wide-ranging, but it is “at a much lower level”.

But Judge Elly regards it as a wonderful opportunity for a radical career change. He says: “When you have been a partner for 35 years in the same firm, and then an opportunity arises to make a change and give you new opportunities, you’re very fortunate. Most people don’t get that chance.”