Lording it up
30 October 2000
24 July 2000
2 April 2001
22 November 1999
4 March 2002
17 October 2005
In the last judicial year, the House of Lords delivered judgment in 64 cases. It is impossible to predict which cases will and which won't end up at the UK's highest court, but if a case involves a point of law which is seen to be of substantial importance, the chances are that it might. It is best to be prepared.
Lord Lester from Blackstone Chambers has appeared in three cases this year and completed 33 in total. "The House of Lords is very informal, very lively and it's a joy to argue there," he says. Michael Beloff QC from 4-5 Gray's Inn, who has almost 50 cases under his belt, calls it the "caviar of litigation". And another leading silk says: "One always makes a special effort in the House of Lords, unless one is Sydney Kentridge."
In some respects the House of Lords is actually the most informal of the courts. The Law Lords dispense with their wigs and gowns and the advocates stand on raised platforms looking down on them. But do not be deceived - the whole process is still subjugated to the whim of the Lords.
The Lords sit in a semicircle at the front of the chamber, with the senior Law Lord presiding as chairman. Next to each of them stands a large bookcase brimming with legal texts playing a supporting role. There is no formulaic structure to the proceedings, and one barrister recalls being interrogated by all five judges at once. "Sometimes the barrister is cut out altogether," he says.
In the early 1990s the Law Lords were renowned for their toughness. "I have seen very senior counsel reduced to tears," says one senior silk who regularly appears before their Lordships. "But nowadays it's much nicer - they don't humiliate people and I don't feel any more than the ordinary measure of nervousness."
Most silks agree that it helps to have a good relationship with the Lords. "You have to know the way to address the Lords, know when to stand up and know which Lords you can have a laugh with," says Beloff.
Christopher Styles, head of litigation at Linklaters & Alliance, says he tends to use the same barrister that argued the case in the lower courts unless the other side takes on a leader. He says an unequal balance between the two sides can send out the wrong message to the judges.
Advocates need to be good at written arguments. Lord Lester estimates that 90 per cent of the Lords' decisions are based on written submissions, and only 10 per cent determined on what is argued orally. The oral part is to enable parties to answer interrogation from the bench. According to John Potts, managing partner for litigation at Clifford Chance, you need advocates who know the law as much as ones who are good on their feet. "Some counsel can get away with style and technique," he says. "But at the House of Lords, you need to know the law inside out."
One Law Lord, Lord Hope of Craighead, denies that advocacy skills affect the outcome of a case, but he says that it may affect the judgment. "The skills are in homework and in making sure that every corner is covered," he says. "There's no need to be an orator, but we want to hear a logical argument. Cases don't fail because of bad advocacy. This is the end of the line and we have to be extremely careful." He goes on to say that cases are more likely to fail because of bad advocacy in the Court of Appeal, where the facts are being disputed. In the House of Lords, the facts have already been decided and the argument rests on points of law.
The composition of the appellant committee is very important. Normally, five judges sit on each committee, but if the case is of a particularly high profile then seven judges may sit. It is interesting to note that in the Pinochet case, which was heard by two different committees, there were more than seven Lords who voted to dismiss the appeal. Had these seven judges sat on the original panel then dissension and controversy would have been avoided.
How the judges are chosen for particular cases - like so many aspects of the judiciary - continues to be shrouded in mystery. Hope says the two senior judges, Lord Bingham of Cornhill and Lord Slynn of Hadley, decide who is best suited to hear the case. Lords Hope and Millett sat on over half of last year's cases, while Lords Slynn, Hoffmann, Hutton, Hobhouse and Clyde sat on between 20 and 30. Lords Saville, Bingham and Nolan all sat on under 10 cases. Judging by last year's figures, it is worth noting that only seven judges out of the 23 dissented at all, and only four - Steyn, Hope, Millett and Hobhouse - did so more than once (see box). Millett, Steyn and Hope are described by those who appar before them as the most enlightened of judges. Steyn is regarded as fairly liberal. He has a commercial background with particular experience in arbitration and shipping. Hope is a Scottish judge with the benefit of experiencing both a common law and a civil law approach, where Millett has a Chancery background, but is known for his wide and varied experience.
Last month, the House of Lords took a step in the direction of the US Supreme Court by taking on four clerks. Whereas previously the Lords had dismissed the idea, arguing that the responsibility was too great to pass on, now Hope can see the benefits. "They can provide some kind of a guide," he says. "In complicated cases we need help to find our way through. They can improve our standard of research."
In the US, clerks are responsible for drafting judgments, but Hope thinks the Law Lords would be reluctant to give up the joy of writing their own. The clerks, though, will increase the research capability of the Lords by sifting through academic writing and finding examples of similar cases outside the UK. And help is something that the Lords may well need. As has been widely documented in the press, the introduction of the Human Rights Act into UK law last month is expected to generate a flurry of cases. However, Hope insists that the House will be fairly short on granting leave and that most cases will have to be filtered out.
Whatever the case, most lawyers predict a few years of increased activity.
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