Judges survey: Judgment day
9 October 2006
20 October 2014
Heads we win, tails you lose (the difficulties of litigating against an adversary who will still owe you money if they win)
22 October 2014
23 April 2014
21 November 2013
31 July 2014
The best on the bench - and the not so good. The Lawyer unveils its exclusive survey of the judiciary and asks: How can judges manage better?
It is time to judge the judges. And, like any ruling, there will be winners and losers. Mr Justices Aikens, Jackson, Kitchin, Langley and Mann have emerged as the five stars of the bench after a survey of top litigators and a look over their records.
Solicitors and barristers showered praise on them. They stood out for the quality of their case management, their ability to listen and their diligence. But the one quality they all share in abundance is the one most prized by litigators - common sense. (See box for more details.)
One City litigator says of Langley J: “If he thinks it’s crap he’ll say it’s crap.” The highest praise possible.
It is no coincidence that four out of these five judges had a 100 per cent record of judgments upheld in the Court of Appeal.
All judges are assumed to exhibit some intellectual prowess, but only a handful are able to marry this with verve. They are the handful you see towards the top of the table.
One litigator says: “Someone who is technically brilliant, combining intellect with decisiveness and fairness - that’s the model of the judge you’re looking for.”
At the other end of the table, the market regards Mr Justice Evans-Lombe as indecisive and slower to reach his decisions. Five cases went to the Court of Appeal and five times his judgment was overturned.
“Evans-Lombe is a very solid old-school judge,” says one QC. “The way to win is not to bully him, but to make him think that you’ve got an enormous command of everything.”
“As a barrister I don’t think he was regarded in the same league as someone such as Langley,” adds another City litigation partner.
The average High Court judge had around 60 per cent of appealed judgments upheld in the Court of Appeal.
In the past court year, there were 161 appeals of decisions of High Court judges in the chancery and commercial courts. The Court of Appeal agreed with the High Court judge in 101 cases, overturning 60 cases, or 37 per cent.
Many lawyers saw a 75 per cent record in the Court of Appeal as the threshold for a successful judge. Or rather, that is what they expect from their judges.
Mr Justices Collins, Gloster, Stanley Burton and Sullivan hover around the 50 to 60 per cent mark, whereas only a third of judgments from Justices Bean, Lindsey, Moses and Newman were upheld.
Other judges who come in for criticism include Mr Justice Cresswell, who had just one case in the Court of Appeal last year in which the decision was upheld. However, he too is marked out as an indecisive judge, with one silk remarking that he “doesn’t make decisions” and another adding: “Cresswell is frightened of making decisions.”
More than a quarter (17) of the cases where the Court of Appeal overturned the decision came from just six judges - Mr Justices Blackburne, Christopher Clarke, Evans-Lombe, Hodge, Keith and Warren. All six found themselves consistently overturned by the Court of Appeal during the 2005-06 court year. But not everything is proved by statistics. The Court of Appeal overturned all four of Warren J’s appealed judgments, but his reputation in the market remains strong.
One court regular says: “He’s a real pensions expert, but when he is off his subject he is a little less comfortable.”
The harshest criticism is reserved not for judges, but for the court system as a whole.
David Gray, head of UK litigation at DLA Piper, says simply: “By and large judges are simply average. The general view is that judges aren’t exercising their case-management powers in an effective fashion.”
But no judge is an island; the boundaries of judges’ quality are constrained by problems inherent in legal processes.
This criticism has been echoed widely since the collapse of both the Equitable Life and BCCI trials in late 2005.
The barrage of censure has prompted the Lord Chief Justice, Lord Phillips of Worth Matravers, to announce that there will be a review of case management in the commercial court.
At the end of this month (30 October), Phillips will come together with the Master of the Rolls, Sir Anthony Clarke, and a variety of other judges and lawyers to discuss ways of streamlining case management in the world post-BCCI.
The meeting comes 17 years after the then Master of the Rolls, Lord Woolf, introduced the Civil Procedure Rules, which was the first attempt at streamlining case management in English courts.
The Woolf Reforms were designed to encourage early settlement and resolution of claims, but many practitioners believe that they have not been entirely successful.
“An avowed intent of the Woolf Reforms was to make it easier for cases to be chucked out,” says Simon Davis, litigation partner at Clifford Chance and the current president of the London Solicitors’ Litigation Association.
“However, there have been a number of cases where the first instance judges have tried to get rid of the case, only to be told that they’ve set the bar for summary judgment too low. It’s hardly encouraging them to take part in independent case management.”
Both BCCI and Equitable Life were subject to first instance strike-outs - BCCI by Mr Justice Clarke in 1997, and a large part of the Equitable Life claim by Langley J in 2002. However, in both cases the claims were allowed to go ahead after appeals, with BCCI going all the way to the Lords.
But many solicitors and barristers believe that using BCCI as the benchmark is giving an uneven view of the true situation.
“I think you can over-extrapolate from the BCCI process,” warns John Goddard of Freshfields Bruckhaus Deringer, who was the Bank of England’s lead partner in the case.
BCCI has at least got the issue of case management into the public eye and has got people talking. One senior QC says there is a “profound problem”, adding: “Under the old pre-Woolf system there wasn’t so much case management to do - bad case management is worse than no case management.”
All the lawyers interviewed for this feature were clear about one thing that would make a huge difference to case management and thus the view of the market towards judges.
“With case management, one of the most important things is that a judge should preferably deal with everything so that he knows the case,” says a leading commercial silk.
“One of the real problems with case management in the more complicated cases is that each time you have to educate a new judge, it takes a long time.” The market is keen to see a system similar to the US docket system, where a judge is assigned the case when a claim is filed and will see it through to trial and judgment. The system would also enable judges to be more thorough about pre-trial reading, helping both themselves and the parties involved.
Richard Lissack QC of Outer Temple Chambers says: “It seems to me that the key point for case management from a judge’s perspective is that a judge is given enough time and enough information to be on top of a case before he’s required to manage it. It’s rather unfair to expect a judge to manage a case when the issues aren’t clear and the time isn’t made available for a judge to read enough before preliminary hearings.”
While few would explicitly link bad case management to the statistics on appeals, solicitors and barristers alike say that good judges tend to manage cases better and are then less likely to be overturned on appeal, if appealed at all.
“What’s the best thing for case management?” asks one QC. “Good judges.”
The market is unanimous in saying that improvements in case management would help the bench and pave the way for more stars such as Mann J or Kitchin J to emerge in the future.
Only a tiny proportion of this country’s population ever come into contact with the men and women that define the boundaries of its legal system. This is their judgment.
Stars of the bench
Mr Justice Aikens - Often appealed, Aikens J’s judgments are also often upheld. This paints the picture of a judge making consistently difficult decisions on high-stake cases, and following the law to the letter. One City litigation head says of Aikens J: “I’ve always found him to be a good judge, bright, quick on the uptake.” The same solicitor singles out Aikens J for his ability to make a difficult decision in a decisive manner. Something borne out in his Court of Appeal record.
Mr Justice Jackson - Credited with reviving the beleaguered Technology and Construction Court, Jackson J is described as “one of the absolute best”. Lawyers commend Jackson J for his work on the knotted Multiplex v Cleveland Bridge litigation over the development of the new Wembley stadium.
Mr Justice Kitchin - One of the newest justices, Kitchin J has made an immediate impact with his clear and thoughtful judgments on IP matters. One IP litigator describes him as “eminently sensible and a very nice bloke”. His first year has seen only one judgment appealed, which was dismissed in the Court of Appeal. Most people who have had cases before Kitchin J have agreed he is “a star in the making”.
Mr Justice Langley - Langley J received high praise for his handling of the Equitable Life saga, winning plaudits for having “a combination of intellect and courage”. Trusted by counsel, Langley is “a calibre individual, intellectually searing and very good on detail”.
Mr Justice Mann - Frequently seen ruling on high-profile copyright and trademark cases, Mann J has a reputation for being “very bright, but straight to the point”. His handling of the Apple Corps v Apple Computers case in May garnered praise, especially the way in which he “cut through all the verbiage and tackled the main points head on”. His business-like manner is appreciated by both applicants and defendants alike because “in the commercial world, that’s how people operate and clients find it reassuring”.
In patent cases, solid case management is not just useful but essential, as many trials hinge on a detailed assessment of highly complex technology. 3 New Square IP silk Simon Thorley QC helped push through changes in patent case management to speed up the trial process.
Thorley says: “The system is working pretty well at the moment. There has been a lot of work put into it. There’s a recognition of the expense of patent actions.” Counsel on opposing sides of a patent case often join forces to compile a primer for the judge, who can then request a technical adviser during the trial. This saves time explaining technical background.
Thorley says: “The modern system has become extremely interactive, and rightly so. The objective of both the bar and the bench is to get the case to trial as quickly and as economically as justice allows.” Such sentiments should act as a beacon for other courts looking to improve their processes.
One IP litigator estimated that patent trial times had been cut from eight weeks to one week within the space of 20 years. Proof, if any was needed, that a proactive approach to case management yields tangible benefits.
Solicitors’ recommendations for better case management
- Judges should be allowed to manage a case from start to finish.
- More active pre-trial reading by judges.
- Trial bundles should be prepared at least six weeks ahead of trial.
- Summary judgment of minor issues should be considered more often.
- Where possible, disclosure and the number of witnesses should be limited to keep costs down.
- Judges should control the length of opening statements.