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Judicial morale, advice for the junior commercial Bar, and life beyond the law: Joe England talks to Sir Richard on his retirement from the Court of Appeal
CURRICULUM VITAE
Sir Richard John Pearson Aikens was educated at Norwich School and St John’s College, Cambridge, where he read history and law. He was Called to the Bar (Middle Temple) in 1973, took Silk in 1986 and elected a Bencher in 1994. He was Junior Counsel to the Crown, Common Law, from 1981 to 1986, a Member of the Supreme Court Rules Committee from 1984 to 1988, appointed a Recorder in 1993, a deputy Judge of the High Court (Queen’s Bench and Chancery Division) in 1998 and a Judge of the High Court (Queen’s Bench Division) in 1999. He was appointed Presiding Judge for the South East Circuit from 2001 to 2004, Judge in charge of the Commercial Court from 2005 to 2006 and a Lord Justice of Appeal in 2008, when he was sworn as a Privy Councillor. Sir Richard re-joined Brick Court Chambers as an arbitrator following his retirement from the Court of Appeal in November 2015.
What case do you think people will remember you most for (a) as a barrister; and (b) as a judge?
I very much doubt that people will remember any decisions in cases I did as a barrister. My long suffering juniors and opponents might remember the NRG case which lasted for most of 1995 before Mr Justice Colman (Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow (a firm) and others [1995] 1 All ER 976). They might possibly recall the Tin Council case in the Lords in 1989 ([1989] 3 All ER 523), which went on for 24 days, which equalled in length the Carl Zeiss case in the 1960s. It couldn’t happen with today’s Supreme Court. As for my time as a judge, as a rule very few decisions of the Court of Appeal are remembered after about five years, and my decisions won’t be any exception. I suppose the Springwell decision [on contractual estoppel] might be remembered until the issue comes up in the Supreme Court ([2010] EWCA Civ 1221). I cannot say whether I will be remembered for any particular characteristics as either a barrister or a judge. I hope I was a reasonable judge to appear before.
Did you miss the Bar at the Bench?
When I was first appointed I missed it very much. Getting used to having a more regimented life, where others said what your work would be and when and where you did it was difficult. But I gradually forgot what life at the Bar was like and got used to my new work, which I came to like very much. Although I had had enough by the time I decided to retire – earlier than I need have done.
What is the biggest challenge the judiciary faces now, and how should it deal with that?
The biggest challenge for the English judiciary at present is the danger that there will not be enough high class candidates for the higher judiciary in the future. Why is this a danger? Because successive Governments have taken it for granted that there will always enough people of sufficient calibre who are willing to go to the Bench, despite the fact that the work is getting increasingly harder, there is much more pressure (on judges’ independence apart from anything else), there is less and less support from administrative staff (because of staff and funding cuts) and there has been a cut in judicial pay of over 20% in real terms in the last five years. The very demanding work of the higher judiciary is done despite very little thanks or appreciation from either Government ministers or the higher civil service, who seem to hold the judges in poor regard. In my experience just before I retired, morale in the higher judiciary was at a very low ebb. They feel very [unloved]. How should it be dealt with? A good start would be for the government to accept, without qualification, the recommendations of the next report of the Senior Salaries Review Board on judges’ pay.
Do you think your old chambers’ colleague, Lord Sumption, was right about women in his speech recently?
Jonathan did not say that it would be 50 years before there would be an equal number of men and women judges in the higher courts. He said that equal representation could not be achieved overnight and that it would take time. I agree with that general view. The only question is how long it might take. In the last five to 10 years there have been more women appointed to the High Court and the Court of Appeal. I think that this process will accelerate. I would hope that there will be something approaching equal numbers in the Court of Appeal in under 10 years. Jonathan was also correct in saying that the great danger is that the quality of the bench could easily be sacrificed if there was a headlong rush in attempting to obtain gender equality. A sacrifice in quality would be a disaster too. Every effort must be made to find women candidates of the right quality from the Bar, the solicitors’ profession and from the academic world as well.
Do you think judges’ holidays are too long?
No. I always spent a good part of my vacations writing reserved judgments or writing lectures I had agreed to give, or doing some report or other administrative task that I had been asked to do. Neither politicians, nor the senior civil service, nor the media or the general public appreciate what goes on when senior judges are not sitting in court. The sittings are only a comparatively small part of the work done by the High Court, Court of Appeal and the Supreme Court. Judges are, perhaps, not very good at explaining this and they may have to do so more in the future.
What advice would you give to young junior commercial barristers?
Work hard, give your clients the service they need and when you are doing a case in court, keep the [skeleton argument] as brief as possible and make the oral submissions concise. Always answer questions put to you by the judge as best you can and truthfully and never be rude to witnesses, opposing counsel, the judge or court staff. Take defeat with a good grace (even when you are sure that the judge or jury were wrong) and don’t crow over victories – you may lose on appeal.
If I was to appear before you, what three ‘DO NOTS’ should I be aware of?
Do not make submissions with your hands in your pockets; do not drink water from a bottle while making submissions and do not drop your voice at the end of a sentence. All, I fear, have become common faults of some counsel over the last 10 years.
What will you be doing in your retirement?
I will carry on working, mainly in the law. I hope to sit as an arbitrator in commercial disputes, to do some teaching at King’s College, London and some writing on the law. Other things may come up as well; it is early days. I will carry on being Chairman of the Temple Music Foundation for a little longer, although it will soon be time to hand that over to someone else and then I will hope to be able to involve myself in some other work with a music charity or elsewhere in the arts. I aim to carry on with re-learning French, to do more bicycling, to go to our house in France more often, to do more travelling with my wife and to see more of our extended family, some of whom live abroad at present.
You once said to me that too many judges end up only doing legal things in their retirement. What steps, given the above, will you take to ensure you have time with your family and to pursue your multiples hobbies such as cycling, music etc?
I think that I have answered that question already. It is always difficult to get the balance just right. I would like to go to more music festivals outside the UK, for instance and my wife and I hope to go to both Sri Lanka and Costa Rica.
I hear that you, Pattern LJ and Lord Hoffmann (now in his 80s) cycle regularly from London to Brighton and this summer across a substantial part of France?
Lennie Hoffmann and Nick Patten had done many cycling tours together before I joined them. We decided to do the London to Brighton ride two years ago (together with Robert Jay) and we did it again this year with a larger team of judges and barristers. We raised over £3,000 for the British Heart Foundation. We hope to do London to Brighton next year. Last summer Lennie, Nick and I bicycled from my house just south of Biarritz to Nantes. We did 720km in six days. The route was, for the most part, along the Velodysée, which is a cycle route that has been created along the French Atlantic coast from Brittany to the Spanish border. We did not have very good weather and some of the days were very long (on one we did over 150km) but we enjoyed it enough to decide to tackle a ride from Biarritz to Collioure on the Mediterranean coast next summer. As it is going to be much more hilly, we shall take longer over it.
Contributor Joe England is a barrister at Quadrant Chambers
Joe (Called 2011) practises at Quadrant Chambers with a particular specialism in commodities. He began his legal career at Allen & Overy LLP, during which time he decided to transfer to the Bar. Joe spent his first year of practice at the Supreme Court as judicial assistant to Lord Sumption and Lord Wilson.
CURRICULUM VITAE
Sir Richard John Pearson Aikens was educated at Norwich School and St John’s College, Cambridge, where he read history and law. He was Called to the Bar (Middle Temple) in 1973, took Silk in 1986 and elected a Bencher in 1994. He was Junior Counsel to the Crown, Common Law, from 1981 to 1986, a Member of the Supreme Court Rules Committee from 1984 to 1988, appointed a Recorder in 1993, a deputy Judge of the High Court (Queen’s Bench and Chancery Division) in 1998 and a Judge of the High Court (Queen’s Bench Division) in 1999. He was appointed Presiding Judge for the South East Circuit from 2001 to 2004, Judge in charge of the Commercial Court from 2005 to 2006 and a Lord Justice of Appeal in 2008, when he was sworn as a Privy Councillor. Sir Richard re-joined Brick Court Chambers as an arbitrator following his retirement from the Court of Appeal in November 2015.
What case do you think people will remember you most for (a) as a barrister; and (b) as a judge?
I very much doubt that people will remember any decisions in cases I did as a barrister. My long suffering juniors and opponents might remember the NRG case which lasted for most of 1995 before Mr Justice Colman (Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow (a firm) and others [1995] 1 All ER 976). They might possibly recall the Tin Council case in the Lords in 1989 ([1989] 3 All ER 523), which went on for 24 days, which equalled in length the Carl Zeiss case in the 1960s. It couldn’t happen with today’s Supreme Court. As for my time as a judge, as a rule very few decisions of the Court of Appeal are remembered after about five years, and my decisions won’t be any exception. I suppose the Springwell decision [on contractual estoppel] might be remembered until the issue comes up in the Supreme Court ([2010] EWCA Civ 1221). I cannot say whether I will be remembered for any particular characteristics as either a barrister or a judge. I hope I was a reasonable judge to appear before.
Did you miss the Bar at the Bench?
When I was first appointed I missed it very much. Getting used to having a more regimented life, where others said what your work would be and when and where you did it was difficult. But I gradually forgot what life at the Bar was like and got used to my new work, which I came to like very much. Although I had had enough by the time I decided to retire – earlier than I need have done.
What is the biggest challenge the judiciary faces now, and how should it deal with that?
The biggest challenge for the English judiciary at present is the danger that there will not be enough high class candidates for the higher judiciary in the future. Why is this a danger? Because successive Governments have taken it for granted that there will always enough people of sufficient calibre who are willing to go to the Bench, despite the fact that the work is getting increasingly harder, there is much more pressure (on judges’ independence apart from anything else), there is less and less support from administrative staff (because of staff and funding cuts) and there has been a cut in judicial pay of over 20% in real terms in the last five years. The very demanding work of the higher judiciary is done despite very little thanks or appreciation from either Government ministers or the higher civil service, who seem to hold the judges in poor regard. In my experience just before I retired, morale in the higher judiciary was at a very low ebb. They feel very [unloved]. How should it be dealt with? A good start would be for the government to accept, without qualification, the recommendations of the next report of the Senior Salaries Review Board on judges’ pay.
Do you think your old chambers’ colleague, Lord Sumption, was right about women in his speech recently?
Jonathan did not say that it would be 50 years before there would be an equal number of men and women judges in the higher courts. He said that equal representation could not be achieved overnight and that it would take time. I agree with that general view. The only question is how long it might take. In the last five to 10 years there have been more women appointed to the High Court and the Court of Appeal. I think that this process will accelerate. I would hope that there will be something approaching equal numbers in the Court of Appeal in under 10 years. Jonathan was also correct in saying that the great danger is that the quality of the bench could easily be sacrificed if there was a headlong rush in attempting to obtain gender equality. A sacrifice in quality would be a disaster too. Every effort must be made to find women candidates of the right quality from the Bar, the solicitors’ profession and from the academic world as well.
Do you think judges’ holidays are too long?
No. I always spent a good part of my vacations writing reserved judgments or writing lectures I had agreed to give, or doing some report or other administrative task that I had been asked to do. Neither politicians, nor the senior civil service, nor the media or the general public appreciate what goes on when senior judges are not sitting in court. The sittings are only a comparatively small part of the work done by the High Court, Court of Appeal and the Supreme Court. Judges are, perhaps, not very good at explaining this and they may have to do so more in the future.
What advice would you give to young junior commercial barristers?
Work hard, give your clients the service they need and when you are doing a case in court, keep the [skeleton argument] as brief as possible and make the oral submissions concise. Always answer questions put to you by the judge as best you can and truthfully and never be rude to witnesses, opposing counsel, the judge or court staff. Take defeat with a good grace (even when you are sure that the judge or jury were wrong) and don’t crow over victories – you may lose on appeal.
If I was to appear before you, what three ‘DO NOTS’ should I be aware of?
Do not make submissions with your hands in your pockets; do not drink water from a bottle while making submissions and do not drop your voice at the end of a sentence. All, I fear, have become common faults of some counsel over the last 10 years.
What will you be doing in your retirement?
I will carry on working, mainly in the law. I hope to sit as an arbitrator in commercial disputes, to do some teaching at King’s College, London and some writing on the law. Other things may come up as well; it is early days. I will carry on being Chairman of the Temple Music Foundation for a little longer, although it will soon be time to hand that over to someone else and then I will hope to be able to involve myself in some other work with a music charity or elsewhere in the arts. I aim to carry on with re-learning French, to do more bicycling, to go to our house in France more often, to do more travelling with my wife and to see more of our extended family, some of whom live abroad at present.
You once said to me that too many judges end up only doing legal things in their retirement. What steps, given the above, will you take to ensure you have time with your family and to pursue your multiples hobbies such as cycling, music etc?
I think that I have answered that question already. It is always difficult to get the balance just right. I would like to go to more music festivals outside the UK, for instance and my wife and I hope to go to both Sri Lanka and Costa Rica.
I hear that you, Pattern LJ and Lord Hoffmann (now in his 80s) cycle regularly from London to Brighton and this summer across a substantial part of France?
Lennie Hoffmann and Nick Patten had done many cycling tours together before I joined them. We decided to do the London to Brighton ride two years ago (together with Robert Jay) and we did it again this year with a larger team of judges and barristers. We raised over £3,000 for the British Heart Foundation. We hope to do London to Brighton next year. Last summer Lennie, Nick and I bicycled from my house just south of Biarritz to Nantes. We did 720km in six days. The route was, for the most part, along the Velodysée, which is a cycle route that has been created along the French Atlantic coast from Brittany to the Spanish border. We did not have very good weather and some of the days were very long (on one we did over 150km) but we enjoyed it enough to decide to tackle a ride from Biarritz to Collioure on the Mediterranean coast next summer. As it is going to be much more hilly, we shall take longer over it.
Contributor Joe England is a barrister at Quadrant Chambers
Judicial morale, advice for the junior commercial Bar, and life beyond the law: Joe England talks to Sir Richard on his retirement from the Court of Appeal
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