Legal brief: Switching silks

And for many litigants making it there means they have reached the end of the legal line, so when it comes to picking counsel only the best will do.

The skill sets demanded of a Supreme Court silk are perceived by many to be different from those required of a barrister appearing in the Court of Appeal (CoA). This is why a select group of elite 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 is a name that appears again and again on Supreme Court cases, often being brought in for the final appeal. His set fellow Mark Howard QC is another. In March, the pair went head-to-head in NML Capital v  Republic of Argentina (2011), with both being brought in only at the Supreme Court stage. Sumption replaced 3 Verulam Buildings’ Jonathan Nash QC for NML, while  Howard replaced Maitland Chambers’ Anthony Trace QC.

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, who has done it twice.

But why the switches? If clients are happy to stick with the same silk during High Court and CoA proceedings, why would they risk their final showdown in the UK courts on someone unfamiliar with their case?

“As well as this being a tactical manoeuvre, lawyers like to have a fresh pair of eyes looking over their cases,” says a senior clerk used to having counsel changes made. “Quite often a 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 an appellate barrister has been working on a case for years and they’re over-familiar with it.”

Old Square Chambers’ John Hendy QC, who appeared in the Supreme Court earlier  this year against Sumption in Baker v (1) Quantum Clothing Group; (2) Meridian Limited; (3) Pretty Polly (2011), 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,” he argues. “That’s very different from the skeleton arguments in the CoA 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 that are usually imposed mean that the advocate there will select key points of attack and defence to develop orally.”

That means silks have to be quick on their feet and able to answer questions from a learned judiciary instantly. Plus, counsel should expect to be quizzed by all the judges sitting, sometimes as many as seven at a time.

With Sumption preparing to join the Supreme Court judiciary, they may just face the most formidable bench yet.