Successful Supreme Court silks are a special breed, with the same names dominating the most high-profile cases. Katy Dowell reports
Only cases of the highest constitutional importance are heard in the Supreme Court. For many litigants it is 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.
So what does it take to score a victory in the country’s most daunting courtroom?
When Sumption is elevated to the Supreme Court bench next year it will leave the bar short of one its greatest advocates. Prior to appearing for Chelsea FC owner Roman Abramovich in his ongoing dispute with Boris Berezovsky, Sumption made three appearances in the Supreme Court this year, each time in place of or to lead the dispute’s CoA counsel.
“Clients want Sumption,” says one litigator. “They like to see his name on the paperwork. They think it sends a message to the other side about how seriously they’re taking the dispute.”
But Abramovich is not the only billionaire Sumption has represented this year. In January The Lawyer revealed that film magnate George Lucas’ Lucasfilms company had invoked the force of Sumption for its IP battle with Shepperton Design Studios over the Star Wars stormtrooper helmet design. Sumption was instructed to lead Wilberforce Chambers’ Michael Bloch QC, who had conducted the advocacy in the lower courts.
According to a source close to the case, the decision was taken to ensure a win. “It wasn’t a snub to Michael,” the source points out.
Whether that case was won or lost by Sumption is being determined by the costs court in a battle over who is liable for what fees. Nevertheless, Sumption’s addition to the case was symbolic and, some argue, tactically astute.
He was a definite success when he was called in to replace 11KBW’s Nigel Giffin QC for Harrow London Borough Council (LBC) in a dispute over whether the authority could run its own insurance mutual without first putting the contract out to tender. With Sumption’s counsel, the local authority won.
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.
Blackstone Chambers’ Mike Fordham QC, who has an impressive record of 14 consecutive wins in the Supreme Court, says the key difference between the Supreme Court and the lower courts is that it pushes silks to the extreme when it comes to thinking on their feet.
“You need to be punchier and much more selective, but most of all you need to prepare on the basis that the Supreme Court is ’open season’,” he says. “Assumptions are more able to be challenged; innovations more possible. There’s freedom at higher altitude. You need to think deeply and laterally about implications, and to have predicted tricky questions as much as you can.”
The pressures are so intense that some counsel have pulled away intentionally.
“When we got permission to go to the Supreme Court we were more than willing to stick with our barrister- after all, he had got us this far – but as it turned out he was less willing than us,” recalls one litigation partner. “He said we needed to find someone who could be cross-examined by the judges and recommended someone.”
Another clerk tells a similar story.
“I was mortified when one of our long-serving silks told me he was turning down work for the Supreme Court,” says the clerk. “He felt he wasn’t up for the job. In my opinion he was, but nobody had told him.”
Standing in front of a fearsome bench can be a daunting experience. Fordham recalls a stand-off in the House of Lords between the Law Lords and the court’s administrative staff.
“The staff were insisting on us vacating the building for a fire drill,” he recalls. “But the Law Lords had sat early to finish the case and refused to budge. They truly do make the rules.”
It is little wonder, then, that some clients like a silk who has had a relationship with the judge they appear before. In some matters the silk may have been practising at chambers at the same time as the judge or they may have been mentored by the judge.
“In the real world it sounds like a sort of nepotism, but in the law it can’t be helped,” one litigator says. “Everybody knows everyone in this small world and if we can get a barrister who knows the judge then, yes, we’ll book him.”
With Sumption’s impending exit from the bar a gap is opening for others willing to prove their mettle in this high-octane environment. With Sumption preparing to join the Supreme Court judiciary, though, they may just face the most formidable bench yet.
Recent supreme court cases
Brent London Borough Council v Risk Management Partners; London Authorities Mutual Ltd & Harrow London Borough Council
Court of Appeal
Appellant: 11KBW’s Nigel Giffin QC and Deok-Joo Rhee instructed by London Borough of Brent
Respondent: Blackstone Chambers’ John Howell QC, Javan Herberg QC and James Segan instructed by Sedgwick Detert Moran & Arnold for Risk Management Partners
Interested parties: Henderson Chambers’ Roger Henderson QC and Rhodri Williams QC instructed by Weightmans for London Authorities Mutual Ltd and Harrow London Borough Council
Appellant: Weightmans instructed Brick Court Chambers’ Jonathan Sumption QC and Henderson Chambers’ Rhodri Williams QC replacing 11KBW’s Giffin and Rhee for Brent
Baker (Appellant) v (1) Quantum Clothing Group;
(2) Meridian Ltd; (3) Pretty Polly Ltd
Court of Appeal
Appellant: Old Square Chambers’ John Hendy QC, Civitas Law’s Theodore Huckle QC and Robert O’Leary instructed by Wake Smith for Baker
Respondent: Ropewalk Chambers’ Robert Owen QC and Simon Beard instructed by Weightmans for Quantum Clothing Group
Respondent: Crown Office Chambers’ Christopher Purchas QC
and Catherine Foster instructed by Hill Hofstetter for Meridian
Respondent: Ropewalk Chambers’ Toby Stewart instructed by Halliwells for Pretty Polly
Appellant: Blackstone Chambers’ Michael Beloff QC and Ropewalk Chambers’ Dominic Nolan QC and Simon Beard, replacing Ropewalk Chambers’ Robert Owen QC, instructed by
Weightmans for Quantum Clothing Group
(1) Bloomsbury International; (2) Ocean World Fisheries; (3) Vision Seafood International; (4) Seafridge; (5) Seatek (UK);
(6) Vision Seafoods ; (7) British Seafood; and (8) Five Star Fish
v (1) The Sea Fish Industry Authority and (2) Department for Environment, Food and Rural Affairs [Defra]
Court of Appeal
Appellants: One Essex Court’s Charles Graham QC and Monckton Chambers’ Valentina Sloane instructed by the Wilkes Partnership for (1) to (8)
Respondent: Blackstone Chambers’ Charles Flint QC and Robert Weekes instructed by Nabarro for (1) the Sea Fish Industry Authority
Respondent: Essex Court’s Iain Quirk instructed by the Treasury Solicitor for (2) Defra
Appellant: Essex Court Chambers’ Hugh Mercer QC and Tim Eicke QC brought in at the appeal level to lead Iain Quirk for Defra
Respondents: Brick Court Chambers’ Fergus Randolph QC and Margaret Gray replacing Graham and Sloane, instructed by the Wilkes Partnership for (1) to (8)
Intervenor: Brick Court’s Mark Hoskins QC and Blackstone Chambers’ Robert Weekes instructed by Treasury Solicitor for the Sea Fish Industry Authority replacing Flint as lead respondents for the Sea Fish Industry Authority
NML Capital v Republic of Argentina
Court of Appeal
Appellant: Maitland Chambers’ Anthony Trace QC, Benjamin
John and Ciaran Keller instructed by Travers Smith for Argentina
Respondent: 3 Verulam Buildings’ Jonathan Nash QC and Peter
Ratcliffe instructed by Dechert for NML Capital
Appellant: Brick Court’s Jonathan Sumption QC replacing Nash as lead to Peter Ratcliffe. Sandy Phipps, also of 3 Verulam Buildings’, was brought in at Supreme Court level having been instructed by Dechert for NML Capital
Respondent: Brick Court’s Mark Howard QC replacing Trace to lead John and Keller, instructed by Travers Smith for the Republic of Argentina
Bisher Al Rawi & Ors v The Security Service & Ors
Court of Appeal
Appellants: Blackstone Chambers’ Dinah Rose QC and Doughty Street Chambers’ Richard Hermer QC and Charlotte Kilroy instructed by Birnberg Peirce & Partners for the first to fourth appellants
Appellants: Leigh Day & Co for the fifth appellant
Appellants: Blackstone Chambers’ Michael Fordham QC and
Naina Patel instructed by Christian Khan Solicitors for the sixth appellant
Respondents: 4 Stone Buildings’ Jonathan Crow QC, 3 Verulam Buildings’ Rory Phillips QC, Monckton Chambers’ Daniel Beard (now a QC) and 11 KBW’s Karen Steyn instructed by the Treasury Solicitor for the respondents
Intervenors: Blackstone Chambers’ John Howell QC and Jessica Boyd instructed by Liberty and Justice
Media intervenors:Doughty Street’s Guy Vassall-Adams for Guardian News & Media, Times Newspapers and the BBC
Media intervenor:Blackstone Chambers’ Anthony Lester QC brought in to lead Vassall-Adams for Guardian News & Media
Lucasfilm & Ors v Ainsworth & Another
Court of Appeal
Appellants: Harbottle & Lewis partner Mark Owen instructed Wilberforce Chambers’ Michael Bloch QC and Alan Bryson
Respondents: Simmons Cooper Andrew partner Seamus Smyth instructed Hogarth Chambers’ Alastair Wilson QC and George Hamer
Appellants: Brick Court’s Jonathan Sumption QC brought in by Harbottle & Lewis partner Mark Owen to lead Bloch and Bryson Autoclenz Ltd v Belcher & Ors
Court of Appeal
Appellant: Henderson Chambers’ Patrick Green and Kathleen Donnelly instructed by Manches for Autoclenz
Respondents: Devereux Chambers’ Timothy Brennan QC and Peter Edwards instructed by Thompsons
Appellant: Matrix Chambers’ Thomas Linden QC brought in to lead Green, instructed by Pinsent Masons, which replaced Manches
Kookmin Bank v Rainy Sky & Ors
Court of Appeal
Appellant: Fountain Court’s Guy Philipps QC and James Cutress instructed by Linklaters
Respondent: 20 Essex Street’s Andrew Baker QC and Socrates Papadopoulos instructed by Ince & Co for the respondents
Appellant: Brick Court’s Mark Howard QC and 20 Essex Street’s Michael Ashcroft QC instructed by Ince & Co replacing Baker and Papadopoulos
Up and coming
Russell & Ors v Transocean International Resources & Ors (Scotland)
Scotland Court of Session
Appellants: Hastie Stable’s Brian Napier QC instructed by Allan McDougall for Unite
Appellants: Ampersand Stables’ Aidan O’Neill QC instructed by Lefevre Litigation instructed for the Offshore Industry Liaison Committee (OILC)
Respondents: Simpson & Marwick advocate Michael Jones QC for Transocean
Appellants: Matrix Chambers’ Thomas Linden QC replacing Napier and O’Neill for Unite and OILC
Ministry of Defence [MoD] (Respondent) v AB & Ors (Appellants)
Court of Appeal
Appellants: Henderson Chambers’ Charles Gibson QC, 4 New Square’s Leigh-Ann Mulcahy QC, One Crown Office Row’s David Evans and Henderson Chambers’ Adam Heppinstall instructed
by the Treasury Solicitor for the MoD
Respondent: Crown Office Chambers’ Michael Kent QC, Catherine Foster and Nadia Whittaker, and Temple Garden Chambers’ Mark James instructed by Rosenblatt
Respondent: Rosenblatts partner Neil Sampson instructed 3 Hare Court’s James Dingemans QC replacing Kent