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What one always suspected to be true of newsreaders is in fact also true of Court of Appeal judges. Under the table and beneath their judicial robes, they tend to wear hiking boots, glamorous heels or trainers from early morning tennis matches. They are a fascinating group of people and a term or two with one is a useful and exciting opportunity for any baby barrister or trainee solicitor.
What does the job involve? You are assigned to one judge. In my case it was Lord Justice Waller, Vice-President of the Court of Appeal, Civil Division. Each week you locate key documents for the judge to read and you write a bench memorandum to assist in identifying the issues on the appeal. You deliver it to the judges who will hear the appeal. This involves padding up and down red-carpeted corridors, learning where the Bear Garden* and Chicken Run* are. One occasion I felt like Alice in Wonderland when a staircase I was on was suddenly swallowed up by a ceiling.
You might be asked to explain your analysis or do extra research on an issue. On the day of the hearing you can sit in on the prehearing conference — a meeting of the panel of judges when they exchange provisional views and discuss the skeleton arguments. This is the best bit of the job. It’s very interesting to see whether or not you have got the issues right. Then, if you are ahead with your work, you can sit in court and watch the hearing and also see what goes on back-stage during the adjournments. This includes listening to the judges arguing the case between themselves and commenting on the advocacy.
Apart from work for your judge, you also do occasional pieces for other judges and prepare bench memorandums for the Court of Appeal office. This typically involves setting out the factual and procedural background of an application by a litigant in person for permission to appeal and identifying any grounds of appeal with a real prospect of success. The work is varied. One bench memorandum I had to do concerned an attempt by a prostitute to argue that a contract that she had entered into with a client to lend her money to set up her business was a contract for an immoral purpose. She wanted to argue that it would be against public policy for the court to enforce it. Another involved an attempt by a serving prisoner to force the Prison Service to reopen negotiations with BT so as to reduce the cost of phone calls for prisoners.
Other things I enjoyed included research for an urgent permission to appeal hearing on whether the High Court had jurisdiction to award strawberry pickers an interim injunction pending the outcome of their application to the European Court of Human Rights, working on an appeal relating to the inquest of the Diana, Princess of Wales, and doing a note on the professional conduct issue of whether a barrister, when acting against a litigant in person, is under any special duty.
What did I learn? I learnt that judges work extremely hard, that it is always worth preparing a chronology and that the secret of a good skeleton argument is making it short and concise or, if it really can’t be short, finding some way of being able credibly to say, a third of the way through: “If the court is with me on this point, there is no need to consider the 50 (extremely complex and boring) points that follow.”
I learnt that the judges’ clerks are the keystone of the Court of Appeal. They ensure that the judges have all their papers and are able to prepare for their hearings, generally organise their lives, type up judgments, keep everyone happy, and know exactly what’s going on.
I got a feeling for which members of the Court of Appeal are Merits Men and which are Black Letter Lawyers. I saw that judges can and frequently do change their minds during the course of hearings (hooray!). I saw astonishing and excruciating examples of skeleton arguments and advocacy. I’m now convinced that excellent preparation is essential (and can get you a very long way). In particular, it is so important to know, in advance, exactly what your case is, both in detail and in no more than three sentences, and how you will answer the difficult questions.
I learnt that if you and your opponent are both going to hand up costs schedules that include claims for hours spent “attending on the other side”, it is important to check that you are both claiming for the same number of hours.
Why do it? First, I can’t imagine a better masterclass in how to be a commercial barrister than digesting skeleton arguments from Jonathan Sumption, QC, on one side and Lord Grabiner, QC, on the other, writing a bench memorandum for the judges, then hearing the barristers and judges battle it out in court, and seeing the judges come to a view behind the scenes.
Secondly, it is great fun. It’s a bit like being a judge but without the responsibility. As Lord Justice Buxton emphasises: “The job is extremely challenging, requiring the assistants to engage on equal terms with the Lords Justices and to adapt immediately to the court and its procedures and practices.”
Thirdly, it is such a privilege to be part of the system for a bit, even as a bit-part player, and to see how it really works.
The author is a barrister at One Essex Court
* The Chicken Run is a link corridor between buildings in the secure area running from the criminal appeals offices to the West Block, which has cut-out pictures of all sorts of colourful chickens stuck in one long row – originally along the whole length of the corridor, but sadly lots of them have been pulled off now. A judge’s clerk is thought to have stuck them on, but she has long been retired.
* According to some old literature, the Bear Garden is two large waiting areas for applications to be heard either by a judge in chambers or a master in chambers . (The former deals with applications for injunctions, and the latter deals with applications to settle certain matters before trial.) One of the rooms is known as the Painted Room, with its beautiful fireplaces and panelled ceilings, and the wallpaper with four of the crests depicting the Inns of Court. There is a story that suggests that these rooms became known as the Bear Garden because much arguing takes place there. Much litigation is settled outside the judges’ and masters’ chambers and the amount of noise and its pitch has made people liken the atmosphere to that at a bear-baiting competition.
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