What one always suspected to be true of newsreaders is in fact also true of
Court of Appeal judges. Under the table and beneath their judicial robes,
they tend to wear hiking boots, glamorous heels or trainers from early
morning tennis matches. They are a fascinating group of people and a term or
two with one is a useful and exciting opportunity for any baby barrister or
trainee solicitor.
What does the job involve? You are assigned to one judge. In my case it was
Lord Justice Waller, Vice-President of the Court of Appeal, Civil Division.
Each week you locate key documents for the judge to read and you write a
bench memorandum to assist in identifying the issues on the appeal. You
deliver it to the judges who will hear the appeal. This involves padding up
and down red-carpeted corridors, learning where the Bear Garden* and Chicken
Run* are. One occasion I felt like Alice in Wonderland when a staircase I
was on was suddenly swallowed up by a ceiling.
You might be asked to explain your analysis or do extra research on an issue.
On the day of the hearing you can sit in on the prehearing conference — a
meeting of the panel of judges when they exchange provisional views and
discuss the skeleton arguments. This is the best bit of the job. It’s very
interesting to see whether or not you have got the issues right. Then, if
you are ahead with your work, you can sit in court and watch the hearing and
also see what goes on back-stage during the adjournments. This includes
listening to the judges arguing the case between themselves and commenting
on the advocacy.
Apart from work for your judge, you also do occasional pieces for other judges
and prepare bench memorandums for the Court of Appeal office. This typically
involves setting out the factual and procedural background of an application
by a litigant in person for permission to appeal and identifying any grounds
of appeal with a real prospect of success. The work is varied. One bench
memorandum I had to do concerned an attempt by a prostitute to argue that a
contract that she had entered into with a client to lend her money to set up
her business was a contract for an immoral purpose. She wanted to argue that
it would be against public policy for the court to enforce it. Another
involved an attempt by a serving prisoner to force the Prison Service to
reopen negotiations with BT so as to reduce the cost of phone calls for
prisoners.
Other things I enjoyed included research for an urgent permission to appeal
hearing on whether the High Court had jurisdiction to award strawberry
pickers an interim injunction pending the outcome of their application to
the European Court of Human Rights, working on an appeal relating to the
inquest of the Diana, Princess of Wales, and doing a note on the
professional conduct issue of whether a barrister, when acting against a
litigant in person, is under any special duty.
What did I learn? I learnt that judges work extremely hard, that it is always
worth preparing a chronology and that the secret of a good skeleton argument
is making it short and concise or, if it really can’t be short, finding some
way of being able credibly to say, a third of the way through: “If the court
is with me on this point, there is no need to consider the 50 (extremely
complex and boring) points that follow.”
I learnt that the judges’ clerks are the keystone of the Court of Appeal. They
ensure that the judges have all their papers and are able to prepare for
their hearings, generally organise their lives, type up judgments, keep
everyone happy, and know exactly what’s going on.
I got a feeling for which members of the Court of Appeal are Merits Men and
which are Black Letter Lawyers. I saw that judges can and frequently do
change their minds during the course of hearings (hooray!). I saw
astonishing and excruciating examples of skeleton arguments and advocacy.
I’m now convinced that excellent preparation is essential (and can get you a
very long way). In particular, it is so important to know, in advance,
exactly what your case is, both in detail and in no more than three
sentences, and how you will answer the difficult questions.
I learnt that if you and your opponent are both going to hand up costs
schedules that include claims for hours spent “attending on the other side”,
it is important to check that you are both claiming for the same number of
hours.
Why do it? First, I can’t imagine a better masterclass in how to be a
commercial barrister than digesting skeleton arguments from Jonathan
Sumption, QC, on one side and Lord Grabiner, QC, on the other, writing a
bench memorandum for the judges, then hearing the barristers and judges battle it out in court, and seeing the judges come to a view behind the
scenes.
Secondly, it is great fun. It’s a bit like being a judge but without the
responsibility. As Lord Justice Buxton emphasises: “The job is extremely
challenging, requiring the assistants to engage on equal terms with the
Lords Justices and to adapt immediately to the court and its procedures and
practices.”
Thirdly, it is such a privilege to be part of the system for a bit, even as a
bit-part player, and to see how it really works.
The author is a barrister at One Essex Court
* The Chicken Run is a link corridor between buildings in the secure area
running from the criminal appeals offices to the West Block, which has
cut-out pictures of all sorts of colourful chickens stuck in one long row –
originally along the whole length of the corridor, but sadly lots of them
have been pulled off now. A judge’s clerk is thought to have stuck them on,
but she has long been retired.
* According to some old literature, the Bear Garden is two large waiting
areas for applications to be heard either by a judge in chambers or a master
in chambers . (The former deals with applications for injunctions, and the
latter deals with applications to settle certain matters before trial.) One
of the rooms is known as the Painted Room, with its beautiful fireplaces and
panelled ceilings, and the wallpaper with four of the crests depicting the
Inns of Court. There is a story that suggests that these rooms became known
as the Bear Garden because much arguing takes place there. Much litigation
is settled outside the judges’ and masters’ chambers and the amount of noise
and its pitch has made people liken the atmosphere to that at a bear-baiting
competition.
Excellent article and the perfect tutorial for the upcoming barrister.
Earl, San Fernando, Trinidad and Tobago