Two of the new appointments to the Court of Appeal attract my attention for different reasons. Sir Richard Aikens was one of those responsible for the Commercial Court Recommendations, and I used to instruct Sir Rupert Jackson when he was a junior barrister.
Mr Justice Aikens becomes a Lord Justice of Appeal on 19 November. He was Judge in charge of the Commercial Court from 2005-2006 and was chairman of the Aikens Committee which produced the Commercial Court Long Trials Recommendations now undergoing a trial period in that Court. His elevation means that he will not be there when the testing period comes to an end on 30 November.
Doubtless Sir Richard will keep an eye on what he did so much to promote. If we are lucky, he may get to hear an appeal on a case management matter arising, if not necessarily from the Commercial Court itself, then from another court fired up with the zeal for rigourous management which the Commercial Court Recommendations have inspired.
I was present when he and two other Commercial Court judges, Mr Justice Smith and Mrs Justice Gloster, gave a talk in February to emphasise that they intended to follow the Recommendations closely (see Commercial Court judges set out their case management intentions). It was an impressive array of judicial fire-power to bring to bear on what many regard as the dull mechanics of steering a case to trial. Dull it may be relative to to the drama of a triumphantly forensic cross-examination or a mould-breaking legal argument – both pretty rare anyway – but it is the dull mechanics which make the difference between timely, affordable justice and justice which only the richest can afford.
Not every practitioner welcomes such close management by judges, arguing that front-loading of costs is an inevitable consequence of some of the new obligations. There is certainly room for debate about this, and not every case warrants such hands-on control – or interference, if you prefer. It is, however, wrong to describe the obligations as “new” since they are firmly grounded in the CPR, and the judges positively invited comment and suggestions, as much during the course of the trial, as at the end of it. The first cases largely managed under the Commercial Court Recommendations will come to trial in the Autumn.
One of the judges at that meeting referred to the present Court of Appeal as “robust”. The appointment of Sir Richard Aikens to their number will enhance that quality.
Mr Justice Jackson becomes a Lord Justice of Appeal on 1 October. If I had been a betting man when I first met Rupert Jackson, I might have popped down to Ladbrokes and put a month’s worth of my salary as an articled clerk on that outcome (not that that would have been a very big stake in the late 1970s). The partner with whom I first sat used to instruct him on anything which needed serious intellectual input, and not just on the professional negligence matters which were his forte.
I cannot think, now, how I came to instruct him on a dispute between an up-market shop and some shop-fitters. It had no deep points of law in it, just a bloody war of attrition between two parties who hated each other and who were not willing to consider that there could be any meeting-point between their respective positions. If I am now a firm believer in the idea that the state has an obligation to provide a forum for parties to fight to the death if they so choose, and am unconvinced by those who say that any case is capable of mediation, it is thanks to that case.
I had optimistically had the case set down as a short cause – that is, with an estimated length of four hours or less – and spent the next four days fending off the hostility of an aggrieved Listings Office and trying to restrain my client, whose repeated cries of “liar” threatened to reach the ears of the judge as her opponent gave evidence.
Part-way through the fourth day, I noticed that all the clients on both sides had disappeared. A noise erupted from the corridor outside like a cat-fight at a football match. I rushed out in time to see the parties disappearing down the corridor, if not exactly arm-in-arm, then at least relatively at peace with each other. I stopped them, and was told that they were fed up with sitting in court all day, that they had businesses to run, and that they had reached an agreement. The noise I had heard was the culmination of a final debate as to the merits before they had fixed on a settlement.
Rupert Jackson explained politely that it was not really on for the principals to wander away leaving a court full of lawyers still arguing about a case which they considered settled, and the parties came back, reluctantly, to outline what the deal was. The judge assented rather quickly, doubtless afraid that any delay would allow them to change their minds. It was an early lesson for me in the idea that some people, otherwise very commercial, need their day (or in this case four days) in court for reasons which owe nothing to any rational assessment of cost versus risk.
By the time I met Rupert Jackson again, two decades had passed and he had become Sir Rupert and the judge in charge of the Technology & Construction Court. I doubt that his introduction to the minutiae of shop-fitting contracts played much part in his rise.
A stint in charge of the TCC is, however, a different matter and is, like Sir Richard Aikens’ period in the Commercial Court, useful experience to bring to the Court of Appeal, at least from the perspective of those who think that technology and case management deserve more attention than they have had in the courts.