I’ve had a happy time. My wife said at school I spent most of my time in the library. I came to 4 Essex Court in 1975. This is my home. In those days, 4 Essex Court was the number one set of chambers for commercial work and I met the head Bob MacCrindle. He was Tom Cruise, Brad Pitt, Obama, Putin… a mixture… it was like getting a part in a Hollywood film because no one got into 4 Essex Court in those days.
I remember Bob saying: ‘I’ll tell you three things. One, I’m leaving’. He went to Shearman & Sterling in Paris around the time tax rates were 98% or something like that. Second, he said, ‘you’re going to buy my chair and table’. I was 22, didn’t have any money and he said ‘that will be £100’. I said ‘okay’. I still have that furniture. Thirdly, he gave me some advice and said: ‘If you don’t have to say anything, don’t.’ That stayed with me. I’ve been incredibly short in my judgments.
I was 12 or 13 and thought I was going to change the world. I thought this was a great way to do it… so I’ve been a bit of a failure. The Bar suited me because barristers are very independent-minded. I like to be my own boss.
Looking back, I wouldn’t have worked as hard. I have five children. Looking back as an old man… you miss opportunities. I take my grandchildren to school now. Spending half an hour walking my five-year-old grandson, Toby, to school is the highlight of my week.
The most interesting case I ever did was a shipping dispute worth just $25,000. I remember getting up in court to introduce my client and I was so engrossed in the detail, I completely forgot who my client was. I said: ‘My Lord, in this case I act for the owners.’ My opponent leaned over and said: ‘No, you don’t. You’re acting for the charters.’ My opponent thought this was a ploy. My solicitor was apoplectic with rage. Later in the COA, Lord Lloyd told me that I didn’t understand what shipping was. We went on to win in the Lords.
Some barristers said I gave them a hard time. I didn’t give them a hard time, I gave their arguments a hard time.
What gets me out of bed is the feeling of wanting to get the right answer, understand, help move English law and right it.
I did a case in 1979 – there was a new arbitration act which came into force that year. It was going to revolutionise arbitration – it was the backbone for modern arbitration in London. I was 26 or something, and used to tell everyone that as a young barrister you don’t have much to offer other than speed. I would work in chambers in August when no one else would so I got this big arbitration. We ended up in the House of Lords – it’s probably the most important case I ever did.
I did a great case that was all about a question of set-off. I lost in the Court of Appeal in front of Lord Justice Mustill, who was one of the greatest lawyers. He sold me his desk as well. I was determined to win that case back in the Lords and I did.
In the early ‘90s my life transformed when I did the Lloyds litigation. I spent about three years acting for most of the defendants – it was all about individuals who had lost huge amounts of money. Some were going bankrupt, some were committing suicide… I remember going into court and the claimant would say ‘I want to withdraw claimant X’ because they had done that.
My least favourite case involved stolen knickers from a warehouse in North London. Over eight years a warehouse man stole every week boxes of knickers, T-shirts, socks, probably worth about £2m over time. But he always just took a little. Under the policy, for the insurers to pay he had to steal more than £5,000 worth of goods… even though he stole £2m in total, if he stole 500 times each £4,999 worth, Ted Baker didn’t get any money. I hated it because the claim was for nearly £1m but the costs totalled around £7m. A good example of litigation gone wrong.
I remember my dog case. When I was a judge you do Court 37, which is the emergency court and you’re on call seven days and nights. You do it once a year. If you have any problem, whether you’re being beaten up, you can phone up the law courts and ask to speak to a judge and he will grant you an order at any time of day and night. One Friday evening, this old man comes into court, obviously living on the streets, and he said: ‘I have a friend who has a dog. I can’t find my friend so the dog is running wild. I took the dog to the police and they took it to the pound.’ I’m scratching my head. He said the pound would only keep a dog for seven days and they were going to put the dog down the next morning.
He spoke like the professor of poetry from Oxford, unbelievably articulate. He wanted an order to stop the killing of the dog for at least seven days. He said: ‘Just let me find my friend.’ He wasn’t the owner of the dog so he had no cause of action. I went out the back of the court to think. They have 100 volumes of Halsbury’s Laws of England. I looked under D for dogs, then A for animals. Blow me, I found a case in 1752 about the finder of a dog and cause of action. I went back clutching this and gave a magnificent judgment. I made the order and saved the dog! I went home with a skip in my step. My children think I’m a boring lawyer – suddenly I was Superman! That is my best case.
When I started there were no witness statements, no skeleton arguments. The judge knew nothing about the case in court – he might know the pleadings. In those days you would go into court not knowing what was going to happen, or what witnesses would say. Now, it’s all neat and tidy, with active case management. In those days you would go into court and have to think outside the box the whole time, it was very stressful. It is a huge, dramatic difference.
I made the order and saved the dog! My children think I’m a boring lawyer – suddenly I was Superman! That is my best case.
The judges are much nicer today than they used to be. They were much tougher. Everyone says that I was a grumpy judge. I don’t think I was grumpy… I was keen to test the arguments. I was very interactive in court – I liked to conduct it like a Cambridge seminar – some people didn’t like it but I thought it was important.
My strongest quality, but some would say my weakest, was testing the argument. My positive feature is being keen to test the argument at every stage orally. Some barristers didn’t like that, some said I gave them a hard time. I didn’t give them a hard time, I gave their arguments a hard time and that’s what judges should do. I don’t think I was mad or anything…
Joining the bench was an easy decision. I was 58 and I had practised for nearly 40 years… I didn’t want to die without having had a go. I thought I could change things. I’m very interested in the development of law, English law. I’m keen to take things forward.
Lawyers I admire? Bob MacCrindle was just amazing. Lord Mustill is number two. Tony Grabiner is fantastic, Laurence Rabinowitz and David Pannick are both fantastic. Joe Smouha too. All of them work incredibly hard.
I always say to students: ‘To become a great advocate, brevity is your most powerful weapon.’ Advocacy is a constant process of synthetisation of shortening. All of those have that ability because they have worked at it again and again. If you listen to David Pannick it’s almost like a fireside chat and he has worked very hard to get it down to the absolute bare minimum – Nick Phillips as well. Jeremy Cooke at the High Court; and Tom Bingham was fantastic. Outside the law, my wife; and Clive James… is fantastic in terms of his empathy and sensitivity to people.
I have a work/life balance. I play tennis with Justice Mostyn. You will see two old men huffing and puffing three or four times a week at 8am – it was a condition of my decision to leave the bench that I continue to play with him. He insisted on it. My grandchildren are my focus too – I’m teaching my five-year-old grandson how to play draughts at the minute and we’re about to start chess. I find you get real brutal honesty with children.
Arbitration will continue to blossom over a wide area of disputes. There is huge keenness for that in different countries. There are trends in arbitration – one of them is linking arbitration and mediation. I am doing a $1bn arbitration in January for three weeks. This week there will be an attempt to mediate that dispute. I am not doing that. Tomorrow there is a neutral evaluation of the dispute and I’ve been asked to give a view. I will assist in the mediation with a view to avoiding an arbitration. I’ve never come across that but it’s becoming common. Within the arbitral process you get a structure developing but there is a strong feeling that at a stage in the arbitral process everyone should pause and try to settle. That is becoming increasingly common – a big trend for the future.
My ambition is to carry on playing tennis and be with my grandchildren.
I’m an international judge in Singapore – that is probably the most exciting thing to happen to me in the longest time. They’ve appointed 12 judges. Historically if you had a dispute between a Chinese shipbuilder and a Greek buyer that would come to London. But the idea is it may change going forward and Singapore is the obvious place. Singapore has a terrific legal system; it’s independent, incorruptible and transparent and with judges from different legal systems. This sounds rather grand but there should be a commercial law which is of general application around the world. That’s a fantastic vision.
London will maintain its status – I have no doubt. The judges here are fantastic and the way in which we conduct the case, the speed, efficiency, the quality, the transparency…
Career wisdom always sounds trite. You’ve got to have fun and you’ve got to lighten up. You must be passionate about what you do – don’t do it for the money – do it because it’s interesting and because you want to change things.
I’m incredibly competitive. I love finding the answer no-one can find, I love fighting for the underdog, truth and justice! It’s tremendous. I hope to do it until I’m 150, or like Sydney Kentridge – he’s 93! None of my children are lawyers – one of the great dishonours in my life [laughs] – but I would advise to do what you enjoy. Do what makes you happy.
Sir Bernard Eder is a tenant at Essex Court Chambers, an international judge at the Singapore International Commercial Court and a former High Court judge