‘The only court you absolutely have to win in, is the last one.’ Jonathan Swift QC of 11 KBW, formerly government’s top counsel, reflects on his Supreme Court victory last year for HM Revenue & Customs in the Littlewoods case, dubbed by the legal press as the ‘Case of the Century’ ( UKSC 70). He saved the public purse £17bn claimed as compound interest on VAT overpayments stretching back to 1973 when the UK entered the EEC.
‘I had lost in the High Court and the Court of Appeal, but I knew from their opening questions that the justices were sympathetic. The pressure was then on me, not to snatch defeat from the jaws of victory.’
A regular advocate in the highest courts, Jonathan represented the Treasury in the first case of all before the new Supreme Court in 2009, concerning international sanctions against terrorists. ‘The House of Lords had a “no holds barred” atmosphere because counsel were physically so close to the judges; it is very different in the large courtrooms in the Supreme Court building, even though the questioning is no less intense.’ The Court of Appeal – he says – is an equally taxing test of intellect and knowledge of the case.
I sense that Jonathan believes that the Supreme Court sits too often with more than five justices. ‘Members of a large bench all have their own point of view, and most likely all will want to ask different questions at the same time. I need to keep on top of who has said what, how I answer, in what order, without forgetting to think about what might happen next.’
Swift’s big picture: #pathtolaw
Born and brought up in Southend, he looks back on highly supportive parents (‘keen on school achievement, without pushing or cajoling; pleased when things went well, helping me with music and sport’) and teachers (in particular two nuns ‘preparing me for the 11+ and chivvying me along’ and his two history teachers at secondary school ‘putting in extra work to prepare me for the Oxford entrance exam’). The first member of his family to go to university and the first to be a lawyer, he remembers his welcome at New College. ‘I unpacked and knocked on the door opposite to introduce myself. ‘Hello, I’m Jonathan,’ only to get the response ‘I’m Dave. I’m a Militant. F*** off!’’ After all, it was the mid-1980s.
Why law? ‘I thought about history, but my modern languages are terrible. Law seemed respectable. I stuck with it – but it took quite a while to “get” it. It’s a particular way of thinking, of analysing situations, and the penny only dropped in my third year.’ Nicely timed, because he emerged with the second-highest First in his finals and a British Academy scholarship for a postgraduate year at Cambridge. In exams he preferred essay questions to problems. Odd that he now he solves problems? ‘No. The most important thing when analysing a problem is to step back and consider the big picture.’
Away from study Jonathan coxed the New College Women’s First Eight. ‘Coxing was an introduction to managing difficult situations, and persuading people to do painful things. Steering was also quite important …’
At the sharp end of the law
Why the Bar? ‘I liked the sound of my own voice and didn’t mind wearing silly clothes in public. And my fallback plan failed: I was turned down by every solicitors’ firm I applied to. More seriously, I liked the idea of court work, and the Bar is the sharp end of that.’
After his Call in 1989, Jonathan’s pupil supervisors at 11KBW were ‘both rather intimidating at first, but kind and generous with their time’ and taught him ‘how to apply the law rather than being academic about it.’ He mentions another former First Treasury Counsel (FTC), ‘a lovely man, who offered me real insights’.
For Jonathan advocacy is ‘a hybrid between explanation and sales: explaining why something happened in a way that is intelligent and attractive and meets the concerns of the court.’ A ‘great day’ for him is ‘being in court, arguing a case, just being there, whether the case is interesting or not.’ He cut his teeth as an advocate ‘in a lot of employment tribunals, up and down the country. TUPE was new and contentious; discrimination claims were taking off. Employment was the majority of my practice for the first 10 years.’
"Members of a large bench all have their own point of view, and most likely all will want to ask different questions at the same time. I need to keep on top of who has said what, how I answer, in what order, without forgetting to think about what might happen next"
He remembers the client in a pensions case in Birmingham, ‘who when I won for him gave me a shoe-cleaning kit. He said he was “disappointed in my appearance”. True gratitude!’ Appointment to the Attorney General’s B Panel for civil work came in 1999 – ‘by this time I was keen to get more into public law’, then appointment to the A Panel in 2003, and finally as FTC in 2006. He held that position jointly, first with Philip Sales QC and later, with James Eadie QC. Jonathan was the first FTC to be appointed on the strength of an interview rather than just on the basis of written application.
As FTC Jonathan’s days were relentless: a blend of long-term projects (including advice and litigation on new-build nuclear power stations, where he pushed the government to ask genuinely open questions in its consultation documents); constant advice at short notice; and many appearances in the higher courts in major cases of public importance. The experience ‘ran the gamut from exhilarating, interesting, enjoyable and inspiring, to occasions that were exasperating, being asked the same question again and again in the hope of a different answer’, and others that were disappointing.
‘All clients deserve clear advice, not “on the one hand, on the other” but some clients were less interested in lawyers and more interested in cheerleaders. For those, anything less than ‘you are right’ was considered bad legal advice. The best clients were those wanting to understand, if there was a legal obstacle, why it arose, and how it could be overcome. Even if that meant changing the plan.’ Favourite clients were the security and intelligence agencies. ‘They take preparation and evidence-gathering seriously: a real commitment to getting things right.’
Are there other special features of working on the government side? ‘Government appears in court every day in a wide range of cases. Counsel must adopt a strategic approach. One case for one department can affect others, so submissions may need to be very nuanced. Public law – or perhaps public lawyers – can be quite tribal, but judges don’t treat government differently. They may test arguments rigorously but that is to be expected. Government cases can raise difficult issues, which can impact upon large groups of people. True, some judges are less polite than others – I remember one judge who pretended to fall asleep, then pretended to wake up, and then pretended to be dismayed I was still speaking – but that is just one of those things. What really matters is that the bond of confidence between Executive and Judiciary is maintained – that requires every case to be properly prepared and presented.’
Sitting as a Deputy High Court Judge for the last two years has given Jonathan a wider perspective. ‘Barristers are paid talkers; the best judges are those who realise the importance of listening. As a judge, you see different things, and have a different perspective. You focus on how to formulate the conclusion rather than how to present an argument. Sitting as a judge has changed how I present cases in court. It underlined how important it is to focus submissions, giving the judge the clearest route to the conclusion my client wants.’ His advice to those starting out: ‘Get some marshalling experience if you can.’
Jonathan stepped down as FTC in 2014, but with a long tail of government cases to finish. ‘You give up your practice to be FTC. It was a major effort to remind other clients I’m still here effectively building a practice from scratch, as I had taken Silk while I was FTC.’ He now does a wide range of work before domestic and international courts and tribunals for local and central government, foreign governments, regulators, commercial entities and private citizens, lots of public law, plus case reviewing for the Bar Pro Bono Unit.
Presumably his previous experience makes him more effective when opposing government? ‘That must be true, not because of inside knowledge but rather because of a sense of how decisions are made in government. My experience helps me understand what might have gone into them, how challengeable they are likely to be and what representations might be made.’ Not the counsel government wants to see in the opposite corner.
Contributor Anthony Inglese CB was head of legal in five Government Legal Departments over a 38-year career. He is a Bencher of Gray’s Inn and now trains and mentors lawyers.