'Modern Judging': The 2021 Cambridge Freshfields Lecture (audio)

Cambridge Freshfields Annual Law Lecture 2021
Modern judging
Good evening ladies and gentlemen, I am delighted to be here and also to be able to speak to you in person.
My theme tonight is modern judging. I became a High Court judge three years ago, in October 2018, by what would traditionally be regarded as an unconventional route. A year later I became the High Court representative on the Judicial Appointments Commission (the JAC), the body responsible for selecting candidates for judicial office in England and Wales.
I will be talking a bit about my career path, about my experience as a judge (during which I might be able to dispel one or two myths), something about what the JAC looks for in selecting judges in the 21st-century, and finally something about the future for court hearings.
Career path
The first part of my career in the law was quite conventional: I studied law at Cambridge in the early 1980s, at Sidney Sussex. I loved law as a subject. I had no doubt that I wanted a legal career, and that I wanted to be a practising lawyer, applying law in practice. I always preferred problem questions to essays on legal theory.
At the time, the choice of the solicitors profession rather than Bar seemed fairly straightforward. I preferred the idea of working with clients directly (there was no such thing as direct access to the Bar for clients then) and I was not particularly attracted by advocacy. I did not want to give advice and not find out what happened. I liked dealing with people. At the time, financial considerations were also important: pupil barristers were not paid and the first few years as a barrister without other financial support to fall back on could be tough. City firms also seemed more modern and progressive, although to most of you what they were like then would be unimaginable: when I started work there was one computer in the firm which took up a whole room, and urgent communications were by something called a telex machine. A lot has since changed.
I joined Freshfields in 1984 as an articled clerk (what would now be called a trainee). I quickly found my way to Tax department. This was not because of love of tax as such but because of a love of the law. It is a practice area where you have to deal with difficult legal problems daily, with a very significant body of case law to consider as well as what is now a vast amount of statute, all having to be applied to real life problems, and where you know that HMRC (then called the Inland Revenue) will always be there to mark your homework.
Tax also does not exist independently of other legal principles. To analyse the tax treatment of a transaction, you need to understand exactly how it works and broader legal principles. Doing tax work enabled me to consider and apply those other principles regularly, and across a variety of practice areas, whether raising equity or debt financing, buying, selling or merging businesses, or investing in real property. I was involved in some fascinating transactions: it was very hard work but also very interesting.
My first unconventional step was a relatively early decision to start a family: I was only three years qualified when I had my first child. Without exception, up to then the (relatively few) female lawyers who chose to stay in practice in the City had waited until they had become partners before having children. There was no generous maternity package like most firms now have, so something was cobbled together involving a bit of homeworking so that I could earn some money whilst I was on maternity leave. I went back to work and became a partner in 1994. I had a period of flexible working from 2004 when I had school aged children. I was an early proponent of working from home.
I retired from partnership at Freshfields in 2013, for family reasons and because I felt a need to re-assess what I wanted to do. I remained at the firm as a part-time consultant. In 2015, encouraged by a retired Freshfields partner who became a Tax Tribunal judge, I applied to be a fee-paid judge in the Tax Tribunal and was appointed. (Fee-paid means part time, sitting ad hoc when offered hearings that you can fit in, usually with a relatively low expected minimum number of sitting days each year: you will also hear the expression deputy judge, which is similarly part-time.) The Tax Tribunal hears most challenges to HMRC decisions. There are two tiers. The First-tier generally makes the initial decisions on both fact and law, with appeals to the Upper Tribunal on points of law (and from there to the Court of Appeal).
I gained invaluable experience in the First-tier, including dealing with witnesses, litigants in person (LIPs, meaning parties without legal representation) and fact finding as well as deciding points of law, and also in the Upper Tribunal. I had had no real prior experience of litigation at all – my practice had been pretty much entirely transactional. However, although there are some common principles, the Tribunals are still different from the courts. For example they have their own procedural rules, and the extent of the jurisdiction that they exercise is determined by particular statutory provisions.
Being in the Upper Tribunal brought me in contact with some High Court judges, because Chancery Division High Court judges also sit in the Tax Chamber of the Upper Tribunal. For the first time I started to recognise that a judicial career outside tax might be a possibility. I had never previously considered it. In retrospect I should have done so earlier.
I initially made an ill-prepared failed attempt to apply to be a Deputy High Court Judge. A year or so later a competition was running for full-time Upper Tribunal tax judges. In the end this turned out to be what led me to apply for the full-time High Court role: I was trying to decide whether to apply for the Upper Tribunal role, and I received some reverse mentoring from a partner at Freshfields whom I had mentored in the past. She recognised that I wasn’t really that keen on the full-time Upper Tribunal role and encouraged me to aim high. She basically told me just to get on with it, rather than to assume that I couldn’t do it. It was the nudge, as well as the vote of confidence, that I needed. I had never previously seriously thought that it might really be something for me.
So I have talked about my career path to becoming a judge, and I am now going to talk a bit about my experience as a judge.
Experience as a judge
Preparation: My first key message is: preparation, preparation, preparation. Long gone – if they ever really existed – are the days of turning up in court, considering arguments for the first time and pronouncing. I usually use the analogy of an iceberg: the 1/10 of the iceberg that you see above the surface can be compared to the time in court and the amount under the surface can be compared to the work out of it, in terms of preparation, judgment writing and other paperwork. That can be a bit of an exaggeration but it often feels not far off in the area I work in. So whilst Court hours are typically 10.30-4.30, judges rely heavily on the time before and after court, and days when they are not sitting in court. That includes those apparently long court vacations.
Pre-reading is extremely important. Advocates are generally required to provide estimates of the time required for pre-reading: one thing you soon learn is that those estimates are often a fraction of what is really needed to prepare properly. You will often, though not always, form provisional views, but an open mind is essential. Oral submissions can certainly persuade you that any provisional view that you might have formed is wrong; the case can take a different or unexpected turn; you may properly understand or appreciate the significance of arguments or evidence for the first time. I would also stress the importance of challenging your own views; you may well also need to consider different ways of approaching a problem. The right answer might, for example, not be at either of the extreme ends of the spectrum occupied by the parties.
There are particular challenges with LIPs. Further preparation is needed, since you must attempt to discern the relevant points, both factual and legal, from what may be a very confused picture. Judges work very hard to try to ensure that LIPs are not disadvantaged, and that they are helped to identify what areas they need to focus on, which are often rather different to the points that they might think are the most important ones to make. Judges expect advocates for any represented party to assist, particularly in identifying relevant legal points. But it is also important to make sure that LIPs really feel that they have had their opportunity to be heard: their day in court. That said, the normal procedural rules apply to LIPs and we cannot take a lax approach, for example to time limits, just because a litigant is not represented. That would be unfair to others.
Another example where you might have to work hard to identify issues or concerns is with ex parte applications for urgent relief. This is where a litigant comes to court without giving notice to the other side, seeking urgent relief, for example an injunction freezing the bank accounts or other assets of a person who is alleged to be dissipating assets with a view to ensuring that a future judgment against them cannot be satisfied (a freezing injunction). In those cases, despite what may be significant apparent urgency and what is presented as a black and white case, it is necessary to stand back and challenge whether there has been full disclosure, or whether the true picture is rather different to the one that you have been presented with, and whether they really need the protection that they seek.
Paperwork: I have already mentioned paperwork (though it is rarely now in physical form). Applications on paper, meaning determined without a hearing, are a significant proportion of a judge’s work. There can be substantial issues, for example applications for permission to appeal which are typically decided on the papers at least initially, or matters where the parties are content for the issues to be determined without a hearing. These can cover substantive matters. For example, I recently granted a website blocking order, which is an injunction granted against internet service providers requiring them to block sites that are streaming films and TV programmes without a licence and in breach of copyright. The parties were content for the application to be dealt with on the papers. I provided a written judgment with detailed reasons.
Very varied: I have made it sound like hard work. It is, but it is immensely interesting and also very varied.
I sit in the Chancery Division of the High Court. The Division is part of a group of courts called the Business and Property Courts (B&PCs) which also includes two courts that form part of the Queen’s Bench Division, being the Commercial Court and Technology and Construction Court. There is an enormous variety of work in the Chancery Division, ranging from complex business and financial markets disputes which overlap with the Commercial Court, to insolvency and companies work, intellectual property, competition work, real property and tax. We also deal with appeals from the County Courts, which increases the variety further – you might for example be dealing with boundary disputes between neighbours or individual small scale bankruptcies, as well as higher value matters.
When I was invited to join the Chancery Division I realised with some trepidation that it covers every specialist area dealt with by my previous firm. That can appear daunting but there can be benefits, if only in straightforwardly ensuring a lack of preconceptions. There are common approaches to problem solving, and many principles are common to different areas of law. I am much more of convert than I was previously to the notion that able judges can sit in areas well outside their original specialist area. That does not mean that specialist knowledge is not important. It is. But usually judges are looking at a discrete issue or a series of issues. Where you need a broader perspective then wider reading can obviously be done. You can also talk to specialist judges to check that your attention is being drawn to all relevant issues, particularly if you have any doubt about whether that has occurred to the extent that you would want. That is one area where judicial antennae tend to develop fairly quickly.
So overall the variety is a good thing. There is never a chance to be bored. There is also an intense focus on the case in hand – so judges often have difficulty in remembering what they did last week (or even yesterday).
Long cases: That last point is less of an issue with long trials. Some trials last many weeks or months. That raises major challenges for participants but also for the judge in making the process manageable. The trial timetable is important, and the judge’s views on that may differ from those of the parties. This arises most often in relation to the time needed to cross-examine witnesses. The parties will tend to come to court with a deep knowledge of a case they have lived and breathed, perhaps for years. Their focus will often be on how witnesses will perform in the witness box, and in particular how witnesses for their opponent will stand up to cross-examination. The judge’s perspective is often different. In most cases, certainly in the B&PCs, the most significant evidence is usually contemporaneous documentary evidence. The judge will want to be taken through that in a sensible fashion, often chronologically, and not necessarily as part of a point scoring exercise.
This, and other, points are reflected in a new Practice Direction, PD 57AC, that was introduced in April and applies to trial witness statements (essentially, witness statements for final hearings) in the B&PCs. A bit of background for those not familiar with civil litigation: unlike criminal cases, in general in civil cases evidence in chief is given by a witness statement which the judge pre-reads, with oral evidence mainly taken up with cross-examination by opposing Counsel.
Whilst the underlying principles reflected in the new Practice Direction are not new, it provides a very clear statement of them, with sanctions for non-compliance. In particular, it says in terms that:
• the aim of a witness statement is to record matters of fact within the personal knowledge of the witness; and
• that its function is neither to argue the case nor to take the court through documents: both of those are matters for submissions.
The new Practice Direction includes a Statement of Best Practice which records some points that are well known to judges, in particular by making clear that many matters of fact do not require witness evidence (they may not be in dispute or the witness may be able to add nothing to the documents); and by also making express reference to the fallibility of memory. Memory is not a simple mental record of an event which fades over time, but is fluid and malleable. It is therefore vulnerable to being altered by a range of influences without the individual necessarily being conscious of the alteration. In that connection the new Practice Direction recommends that witness statements go through as few drafts as possible, since repeat revisiting can itself corrupt recollection.
Over time the new Practice Direction ought logically to lead to a shift in approach where, in broad terms, longer is spent taking the judge through documents in the advocates’ opening submissions, and pre-reading is also made more focused. For example, in relation to one planned long trial I recently made directions for the parties to identify, well in advance of the trial, the core documents on which they intended to rely, and if possible to agree composite narratives explaining what each party said were the relevance of those documents, together with a chronology. The idea is that when pre reading the judge can look at the narratives, the key documents and the chronology. Witness statements should be shorter because they will be confined to their proper scope. Opening submissions can then also be based around the narratives.
Judgment writing: The topic of long trials leads me on to the subject of judgment writing. Judges have to get the essays out! We all have different techniques. We also need to work fast. The general principle is that judgments should be produced within three months of the end of a hearing, even for a substantial trial. My techniques include taking detailed notes during the hearing, on a laptop so they are searchable, writing up my impressions of witnesses the same day or very shortly after hearing their evidence, and at least starting on individual building blocks of judgment, for example analysing relevant case law and thinking about how it might apply, or working on discrete parts. I use the analogy of a jigsaw: you may be able to complete the outside and perhaps some characters or features, but be left with rather a lot of grey sky to work on.
Doing some work on or at least towards the judgment as you go along can help focus on the issues you are finding most difficult. That can enable you to ask the questions you really want answers to in closing submissions.
Ex tempore judgments: At the other end of scale is ex tempore judgments, meaning oral judgments given at the end of a hearing. This was a big change for me from the Tax tribunal (where oral judgments are virtually never given), and it can seem daunting. But it is important to give ex tempore judgments where possible to ensure that cases are dealt with efficiently and that the work load is manageable. It requires certainty of decision and enough preparation to be able to set out the key facts and the reasoning reasonably coherently. For anything complex, you may well need to take a little time to put your thoughts in order. But if in doubt you will obviously reserve judgment and provide it in writing at a later date.
Active case management: I also want to say a bit about active case management. There is a significant focus on the efficient conduct of litigation. Judges are acutely aware of the cost of litigation and the need to ensure that court resources are fairly and appropriately allocated.
Judges often intervene proactively to try to ensure efficient case management, for example joining cases together, determining the order in which cases should be heard, or adjourning to allow parties to attempt to reach agreement. Further steps are being taken to embed opportunities to resolve disputes outside the court room, in particular by mediation. For example, there is a new scheme involving a default recommendation of mediation for appeals from the County Court to the High Court.
There are also much more ambitious plans (as part of the courts’ reform programme) to shift far more processes online, and doing so in a way that makes dispute resolution not only more accessible and efficient but also embeds opportunities for consensual resolution. This can only be a good thing. Parties engaged in litigation can become increasingly convinced of the merits of their own case each time it is repeated and elaborated, making settlement harder.
Lonely job? Before I leave the topic of my experience as a judge I want to try to dispel one myth: that it’s a lonely job. No it is not in my experience. There is a strong camaraderie between judges. We share experiences, and we discuss legal as well as practical issues and provide each other with support. In some areas we also don’t sit alone, for example in the Competition Appeal Tribunal, Tax Tribunal and of course the Court of Appeal. But ultimately the decision you make is your responsibility.
Differences for me/my background: I had a very steep learning curve when I joined the High Court. I had not opened the White Book (the procedural rules bible) before 2018. A theme that I will revert to is one of thinking about the possibility of a judicial career earlier than I did and getting more experience in court earlier, for example as a Tribunal judge, Deputy District Judge, Recorder or Deputy High Court judge. Training and experience will not only make transition easier but will bring you in contact with other judges, including contemporaries, with whom you can share experiences.
Judicial selection in 21st century
This leads me on to my next topic, judicial selection. I am in my third year as the High Court representative on the Judicial Appointments Commission (JAC). The JAC is a statutory body that is responsible for running selection exercises and making recommendations for most judicial posts in England and Wales up to and including the High Court. It also has some involvement in more senior appointments. As a Commissioner, I take part in the JAC’s strategic decision-making and its decisions on recommendations for judicial office. I also sit on the appointment panel for the annual High Court competition, which involves reviewing all applications in detail and conducting selection days with other panel members. (Selection days typically comprise interviews and some form of practical test, for example a role play with actors, or fictional scenarios which raise problems of the kind that could come up in practice.)
The volume of judicial recruitment is high, and is likely to remain very high over the next few years. For example, the programme that the JAC is being asked to deliver this year involves approximately 1100 recommendations to judicial office.
The JAC has a statutory duty to select candidates on merit, who are of good character. It also has a statutory duty to attract diverse applicants, on the basis that the judiciary should reflect the diverse society that it serves. Where relevant it applies an Equal Merit Provision (EMP) approach, both at the shortlisting and final decision-making stages. Under the EMP, where candidates in a selection exercise are judged to be of equal merit, the JAC can give priority to candidates from underrepresented groups, determined by reference to ethnicity and gender. In addition, the JAC has recently moved to name blind shortlisting.
The JAC is also heavily involved in outreach work, with a view to ensuring that the pool of applicants for individual competitions is as strong as possible, and extends to groups that are underrepresented in the judiciary. This includes solicitors and those with disabilities, as well as BAME and women. Whilst progress has been made, there is much work still to be done, especially in the senior judiciary.
What are the barriers to judicial appointment? The picture on judicial diversity is complex and the JAC alone does not hold all the levers to effect change. In particular, it depends on pools of applicants being available from the professions, typically at a relatively senior level. Unlike some jurisdictions, we do not have a career judiciary and candidates tend to apply only once they are well established in practice. If there is limited diversity among senior barristers and solicitors then that will have an impact on diversity, particularly in the senior judiciary. To help start to address this the JAC now chairs the Judicial Diversity Forum to bring together organisations from across the legal sector to support increased judicial diversity and provide strategic direction to initiatives.
Specifically for solicitors, and in particular those not regularly involved in litigation, I would agree with research that indicates a lack of information and understanding about what judicial roles involve, but also more fundamentally some lack of understanding about their availability to solicitors.
Importantly, however, there can also be a perception for all minority groups of being an outsider. A well established London based barrister who has seen other barristers from their Chambers become High Court or circuit judges not only has people they may have known for a long time to talk to about their experience, to offer advice and perhaps even to read their applications or provided a reference, but has judges that he or she can readily identify with: “they have done it from a similar starting point, and so can I”. That can make a great difference to levels of confidence and dispel any concerns about a judicial culture to which a candidate may feel that he or she would not belong.
One of the initiatives that I am most enthusiastic about is a targeted judicial outreach programme that started in September 2020, the aim of which is to engage directly with candidates from under-represented groups, and in particular candidates aiming for senior salaried roles. Those participating in the programme, who include promising “near miss” candidates from previous competitions, receive tailored advice and support, including support from a judicial guide. One of the aims is to improve confidence and overcome impostor syndrome. A large number of High Court judges have volunteered to act as judicial guides.
An important theme that emerges is the value that can be obtained from different types of judicial experience as a preparation for more senior appointments. For example, the Deputy High Court judge competition, a fee paid role which is increasingly seen as the main “gateway” to a full High Court appointment, is extremely competitive, but it is not the only way to start getting judicial experience. Starting at an earlier stage, for example as a Tribunal judge or a Recorder (a part time judge in the Crown Court or County Court), can be very rewarding and help build good experience, confidence and a better understanding of what the job involves.
What JAC looks for in selecting senior judges: There are three broad areas of skills and abilities: legal and judicial skills, personal qualities and leadership. All of these are important. First, legal and judicial skills: this requires exceptional intellect and the ability to analyse complex issues, reaching clear reasoned decisions and, importantly, the ability to master unfamiliar areas fast. The second category, personal qualities, covers a broad range of important judicial skills, including not only the obvious requirements of integrity and independence of mind but also strong listening and communication skills The third category, leadership, goes beyond pure leadership skills and includes being a team player and supporting staff.
It is not necessarily the case that a good advocate will make a good judge. The JAC looks for transferable skills. For example, when I applied I used examples of challenging situations at work, both in my legal practice and management roles, and also experience outside work, in my case as a chairman of a charity. The JAC will be looking to understand what the candidate’s contribution was, and how they dealt with difficulties. Good examples can’t be put together overnight, so applications require work over a period.
Future conduct of hearings
My final topic is about the conduct of hearings, particularly in the light of lessons learned from the pandemic.
In March 2020 the B&PCs moved almost overnight to remote working. As a result there have been no major backlogs at High Court level in those courts, though a number of trials were put off. Initially judges were conducting hearings from their homes, using emergency powers under coronavirus legislation.
Everyone has obviously learnt a lot about remote working in last 18 months or so, and the courts are no exception.
Here are some observations about the likely long term impact of the lessons learned for the civil courts:
1. We will never return to the same reliance on paper bundles, meaning what were typically multiple lever arch files of relevant documents and legal authorities. That switch is not only better for the environment but also ultimately much more efficient. Judges’ greatest gripes about bundles, apart from timely receipt, are now in ensuring that pdfs are searchable and can be marked up electronically, and about effective bookmarking and indexing, together with ensuring that they have a sufficient number of screens in court as well as on their desks, and (very prosaically) the right leads to connect them.
2. In the B&PCs, there is a general consensus that short, procedural hearings will usually be suitable for a remote hearing, at least with represented parties, and that as a general rule longer hearings, especially those involving live evidence and issues of credibility, will usually justify an in-person hearing.
3. But there are important caveats to this. First, many litigants in person may either find it difficult to access the necessary technology or may be able to satisfy the judge that they are at a disadvantage in other respects in a remote hearing setting.
4. Secondly, in more substantive hearings with witness evidence, some witnesses, especially those for whom significant travel would otherwise be required, may well continue to give evidence remotely, with material efficiency gains as a result. This will particularly be the case with expert witnesses, but it is not limited to that.
5. It is also recognised that it is in fact possible to assess credibility remotely when necessary to do so. The idea that this is done to any material extent by reference to a person’s physical demeanour is in any event generally regarded as outdated. Certainly in the business courts judges tend for obvious reasons to place particular emphasis on any contemporary documentary evidence before considering other factors, which will include inherent probabilities and motivations.
6. Thirdly, even procedural hearings based can benefit tremendously from the sort of interaction between legal teams that is far easier with an in-person hearing. These interchanges can make a real difference in resolving misunderstandings and narrowing differences, and even allowing settlement.
7. More generally, it is also very easy to underestimate how exhausting conducting or participating in a remote hearing can be. It tends to be significantly more tiring than an in-person hearing, and requires more frequent breaks. Also, whilst remote hearings may be more efficient for the parties and their representatives (a barrister, for example, might be able to attend courts in different cities on the same day, and so take on more work) it tends to be the case that the court can get through fewer cases, because of increased difficulties in successfully listing and managing multiple short hearings.
8. There is also a recognition that it is important that judicial powers are exercised, and seen to be exercised, from Courts and Tribunal buildings, even if the parties or others attend remotely. There are a number of reasons for this. One is that it best helps meet the need to maintain the solemnity of the court, which is critical in ensuring the necessary respect for it. There had been concerning indications that unrepresented litigants at least were taking the court process less seriously than they should because they were attending online, rather than acting as they would in a physical court. But there is also the fundamental point that justice must not only be done but be seen to be done. The critical importance of public justice is easy to underestimate. Whatever is done to enable the press and public to access remote hearings – and a lot of steps have been taken – issues of perception can remain that public and press don’t or won’t in fact be able to wander in and out of a hearing as easily as they did before, or at least won’t have an immediate appreciation that the work of the courts is continuing with public hearings. The fact that hearings are going on is not so obvious with remote hearings, whatever steps are taken to publicise the means of accessing them. We have all see TV reporters or newspaper photographers outside court buildings: remote hearings can’t have the same public impact.
9. We should also continue to see an increase in so-called hybrid hearings, where some participants are present in person (typically advocates, and a limited number of additional members of the parties’ legal teams, plus the judge and any witness giving evidence in person) and others can see and hear the proceedings through a dedicated link. In complex trials this can be accompanied by electronic document presentation and real-time transcription. I have myself conducted three major trials in this way since June last year.
10. The use of electronic bundles and evidence by video link has a knock-on effect on the extent of equipment needed, both for the judge and other participants. Trials tend to look very different. If you walked into a big trial in the B&PCs you would probably be more struck by banks of screens and heavy IT equipment, along with technical support teams, than by wigs and gowns.
Finally, I have already touched on the reform programme. One of the aims of that is to try to ensure that fewer disputes end up in court. This doesn’t mean that there will no longer be a need for judges. The digital age has brought many changes, but no one is predicting that judges will be redundant. But the hope is that the reforms will in time allow judges to focus on cases that really warrant judicial decision-making, for example because they raise difficult issues of fact and law and are genuinely not amenable to a negotiated settlement, and to spend less time on administrative tasks.
Conclusion
In conclusion, I hope that I have managed to give you some insight into my path to the judiciary, my experience as a judge, what we look for in selecting judges and something about the future direction of travel for court proceedings. I would now be very happy to take any questions you have.
Mrs Justice Falk DBE
16 November 2021