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Sunday, 10 April 2016

IPSoc Event Report: Kirin Amgen - the most difficult case Lord Neuberger ever had to decide

Lord Neuberger gets treated to the
Mr Justice Carr cross-examination
While the AmeriKat was nose down in some European legislation, the Society for Junior IP Practitioners, IPSOC, held its first educational event of 2016 last Thursday night, hosted by Irwin Mitchell at their Holborn Viaduct offices. The event, entitled “An Interview with Lord Neuberger”, saw Lord Neuberger (President of the Supreme Court) interviewed by another well known figure of the IP world, Mr Justice Henry Carr.   For those who missed the event, Dan Byrne (Bristows LLP) has come to the rescue by summarizing the event which provided insight into the life and career of a supremely (get it?) successful lawyer:
"On His School Days
The interview began with questions about Lord Neuberger’s school days. He referred to himself as having had a privileged education, but said that he “didn’t leave a trace”. He said that he hadn’t done particularly well, obtaining A-level grades of B, B and C. He did, however, go to Oxford University, which he thought was easier to do back in those days. While there he studied chemistry and didn’t give a thought to law. In fact, he went into finance before turning to the bar.

Lord Neuberger credited his mother with making him a suitable candidate for the bar as he was an argumentative child and she would often require him to swop sides in an argument. He mentioned an incident in which he was mortified to discover his mother had come to court to see him argue a case because the judge had seen her drawing something in the public gallery and asked her to explain herself (as she was potentially in contempt of court). The judge proceeded to identify a caricature of himself amongst the drawings, but, thankfully only asked to keep it.

Turning the question back on his interviewer, it transpired that Mr Justice Carr had studied law, but had stumbled into intellectual property as a result of his choice of LLM thesis (legal protection of computer programs), which he had chosen so as to enable him to go to UBC in Vancouver (good skiing, good sailing).

On Pupillage 
Lord Neuberger said that his pupillage was not a seamless experience. He described it as a very different world than today, where there were more pupillages (due to them not being funded), but that it was harder to get tenancy. Indeed, he had to do four pupillages before being taken on and he was on the verge of giving up when he decided to give it one last go.

Mr Justice Carr described his pupillage at 11 South Square (where he subsequently spent three decades) as “torture” and recalled that his clumsiness meant that he spilled coffee all over the place.

Lord Neuberger found that life at the bar suited him. He described his early career as involving a lot of travelling to county courts to do possession actions. He said it was a good way to learn, even fun, but not at all what he thought he would be doing. His contemporaries were at chancery sets. However, although he made some mistakes he thought it was a better way to learn than being a junior to a leader.

Mr Justice Carr expressed the view that it was important for junior barristers to get advocacy experience and mentioned the CLIPs scheme of which he has recently become aware (as well as section 2 of the Leasehold Reform Act 1967). The scheme pairs pro bono barristers with litigants in person in the applications court. He said it was good experience and good for justice.

On Cases 
Lord Neuberger recalled that quite often cases could end up being decided quite differently to the way the barrister thinks it will. That also goes for appeals, where he specifically recalled losing a case on two points and appealing them both with the confident expectation that one point in particular would be the winner on appeal. It turned out to be the other point that was the winner and which almost hadn’t been included on appeal. He said that the difficulty is highlighted when judges encourage litigants only to pursue their “best” points. In the words of Mr Justice Carr quoting Professor Sir Robin Jacob “which is the sausage?”. When pursuing nine points and the judge says “which is your best point”, the correct answer is “that is your job to decide”.

Lord Neuberger also thought that back in those days judges were more hostile and it was easier for them to send people to prison.

On Litigants in Person (“LIPs”) Lord Newberger has noted that the number of LIPs in the justice system has increased. He thought it started in 1999 when legal aid was beginning to be shrunk. At the Supreme Court, however, there are no LIPs because barristers remain keen to represent litigants there for nothing. 
On Becoming a High Court Judge 
Lord Neuberger characterised this as big change, despite him having sat as a deputy. He said that he was very conscious of his oath and the irrevocability of the decision. He mentioned that there a number of things you cannot do as a judge (not that you would necessarily want to do them). It’s just it is more constraining. He mentioned that he had been told that some judges even took the view that they couldn’t go to pubs.

He elaborated on the irrevocability of the move to judge and stated that there really was no going back as he viewed himself as not marketable any more. He posed the rhetorical question as to whether it should be easier to go back into practise (like the late Hugh Laddie), but wondered whether it might affect the ability of judges to be seen as sufficiently judicial and independent.

Mr Justice Carr mentioned that one of his own concerns was that it was said to be lonely, but he has not found that so. Lord Neuberger thought that the Rolls Building (where Mr Justice Carr sits) is better than the Thomas Moore building where Newberger sat as it allows freer circulation of the judges. The Thomas Moore building only had one judge per floor, but he mentioned that knowing Sir Nicholas Pumfrey there kept him sane, as well as allowing them to share their respective expertise in property and intellectual property law. Both the interviewer and the interviewee agreed that having a coffee machine was essential, not least for breaking the ice with colleagues.

On Birmingham 
Lord Neuberger and Mr Justice Carr reminisced about a patent case in which Lord Neuberger was the judge and Mr Justice Carr one of the advocates, which took place in Birmingham (maybe the first and the last). Mr Justice Carr recalled the difficulty of reviewing trial bundles in hotel lighting whereas Lord Neuberger recalled judges lodgings with a chauffeur driven car (which Mr Justice Carr remembered as a stretched cortina from the site visit). Closing speeches were apparently adjourned to London to the relief of all concerned, although Lord Neuberger did mention that Birmingham had a very successful and large commercial and chancery bar.

On Kirin Amgen
Lord Neuberger characterised Kirin Amgen as the most difficult case he had ever had to decide. It was his third patent case and one of his longest cases with a Nobel Prize winning expert on either side.

On Appellate Courts 
Lord Neuberger was asked if he missed the evidential side of things in the appellate courts. He admitted that after a few months of it he missed “real life”. It was also a big change from being the sole judge in charge to being with two senior colleagues. He slightly missed the control factor but learned a lot from the way other judges manage a case. He mentioned that it might make more logical sense to start a judicial career in the Supreme Court surrounded by colleagues, with no evidence and reserved judgment and to work your way up (if you are good enough) to being alone at first instance, with evidence and frequent extempore judgments.

Lord Neuberger was appointed to the House of Lords but went back to the Court of Appeal to be Master of the Rolls. He said that there was some suggestion that his reported comments about the disadvantages of the Supreme Court had led to people to think that he had refused to be transferred to the Supreme Court. That was not the case. He did think there were some disadvantages to the Supreme Court (the cost of the building), but the advantages he mentioned were not reported. He went to the Court of Appeal because he described himself as impatient and ambitious and wanted to do something different.

On Oral Advocacy (question from the floor) 
In response to a question on dos and don’ts for junior advocates, Lord Neuberger suggested that written skeleton arguments should be viewed as the opportunity for “two bites of the cherry”. Don’t be a slave to them and try to make different (but complementary) oral submissions. He said it was important to develop a personal style which suits the advocate (don’t try to be something you are not). Also, play to your judge if you can; something he noted could be difficult in the appellate courts with a number of judges.
On a Written Constitution (question from the floor) 

When asked about whether the country needs a written constitution, Lord Neuberger noted that there has been no revolution since 1688. The country is civilised and he takes the view that “if it ain’t broke don’t fix it”.

He said we are probably quite quaint to have no written constitution, but we are developing a typically British, half-baked solution with human rights and devolution. To change the system fundamentally with a written constitution would give judges the power to override the legislature which would be undesirable if it made them more high profile and political.

Mr Justice Carr indicated it might be preferable to be in a system where anything is permitted as long as it is not expressly prohibited (as opposed to a system where what is permitted is prescribed).

On Filming in Court 
Lord Neuberger said it was hard to see any objection to filming cases which don’t have juries or witnesses. The principle is open and public justice and it could be argued that a camera is just a modern version of the public being given access.

He accepted it might be different where there are witnesses or juries, but that concerns might reduce over time. He noted that tweeting from courts is now allowed. He also mentioned that he had been filmed twice in the Court of Appeal by a litigant in person using a laptop camera (which was then uploaded to YouTube).

Mr Justice Carr suggested that the problem might be if cases become like soap operas (noting that this was unlikely to be a particular problem for patent cases) with witnesses playing to the gallery or tortured by it. It might raise questions of consent by witnesses.

On Advice for Junior Lawyers 

Work hard and be conscientious, but most importantly have high spirits; it can be very gruelling to work very hard on very boring cases. Keep things in perspective as anything that seems bad is all good experience."
For more information about IPSOC, their events and how to become a member click here.

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