The good, the bad and the ugly – we asked litigators to identify the judges that – for better or worse – stand out among the judiciary
The 2016 Legal Business judicial survey was not just focused on the overall strengths and weaknesses of the judiciary, it also asked respondents for their views on individual judges they have appeared before. There were some obvious favourites, and one outright villain (no prizes for guessing), and somewhere in between were several judges who impressed and disappointed in equal measure.
In finding the most popular judges, the qualities that set them apart from the rest seem obvious, such as an ability to listen and empathise, to work hard and provide quick and decisive judgments. Given the negative feedback that some judges received, these aren’t attributes that everyone has mastered.
‘First instance judges tend to worry about being overturned on appeal,’ says the head of litigation at one major international firm. ‘Because things are transparent, if things get overturned they worry whether that will upset their trajectory to the Court of Appeal. You want judges who have the confidence and self-belief to make what they think is the right decision.’
The best
Of the top-ranking judges, Mr Justice Flaux runs away with it. For some, he is ‘a bloody good first instance judge’ who embodies the qualities of the Commercial Court, which he was in charge of between July 2014 and December 2015. He is praised for his ‘very agile grasp on commercial matters’, and his understanding that ‘efficiency in the court system is as important as good judgments’. However, his ‘decisive and active case management’ doesn’t come at the expense of good judgments. He has a good reputation for finance-related disputes (he is also one of the five Commercial Court judges to sit on the new Financial List), a notable example being Graiseley Properties & Ors v Barclays Bank & Ors, where his controversial decision to allow the claimant to amend their claim, to allow allegations of false and fraudulent representation in its Libor manipulation claim, was upheld in the Court of Appeal.
‘”He’s like a cartoon character”; “an outrage”; and “a shocker, he needs to go!”‘
Another popular Commercial Court judge is Mr Justice Popplewell. He ‘has all the attributes of a commercial judge’; ‘straightforward, reliable, clear on what he’s thinking and why he’s reached his decisions’. Respondents appreciate the fact that he is ‘really very quick on the facts and absolutely sound on the law,’ as well as being at ‘the cutting edge of first instance decisions that stand up in the Court of Appeal’.
In the Chancery Division, the ‘funny and down-to-earth’ Mr Justice Morgan has ‘superb case management skills’, is ‘incisive and bright, does not waste time, and will give helpful indications’. Respondents praise Morgan for being ‘always courteous and a good listener’, and for ‘asking the difficult questions fairly’. His February judgment in Hughes v The Royal London Mutual Insurance Society has attracted praise. ‘It was a decision that attracted a lot of criticism from those with vested interests in the pensions industry, but was absolutely correct on the law and a model of clarity and logic,’ according to one respondent.
Another Chancery Division judge who attracts praise is the ‘quick and clear’ Mrs Justice Rose. The ‘fab’ judge is a ‘fair and pleasant tribunal’ judge, who is ‘clearly destined for great things’. Rose has recently tried two major cases back-to-back – BAT v Sequana, and Libyan Investment Authority v Goldman Sachs – ‘and kept them both on track’. Her recent judgment on the eight-week BAT trial was handled ‘with great expedition’.
The ‘very impressive’ Lord Justice Briggs is the most popular Court of Appeal judge on the list. He is ‘another really good listener, as well as an outstanding lawyer’, and it is ‘such a relief to have him on a panel to counteract some of the less helpful judges on the Court of Appeal’. Briggs has recently received much attention following his Civil Courts Structure Review report, which was published at the end of July, which is considered by one respondent to be ‘a masterpiece: the analysis of the current structure, and identification of potential reforms to improve the civil courts was highly innovative and well thought out.’
Hung jury
However, even the most popular judges in our survey, Flaux J and Popplewell J, were not immune to the occasional detractor. Flaux is, to some, ‘an acquired taste’, who is ‘a great lawyer, but, boy, can he go off on one every now and then’. While in his judgment of Popplewell, one wag commented: ‘He has a touch of the Flaux about him, but with less flow.’
‘Burton is the cleverest man in the room, but he’s so clever he doesn’t really want to hear anyone else.’
Some judges are more divisive than others. In many cases, the qualities that are seen as strengths by some respondents are dismissed as weaknesses by others. A good example is Mr Justice Knowles, a Commercial Court judge who also sits on the Financial List. On one hand, he is praised for being ‘incredibly careful and fair’, but on the other he is considered ‘a little timid and indecisive’. A more balanced view is that he is ‘too quiet, but a great decision-maker’, praised for his ‘long-term attachment to civil reform’.
Mr Justice Burton, who sits on the Commercial and Admiralty courts, is another judge whose ‘fearless and decisive nature’ is interpreted differently by others: ‘his view is unshakeable, which isn’t a good characteristic in a judge’. In Burton’s case, it seems you can sometimes have too much of a good thing: ‘He is the cleverest man in the room, but he’s so clever he doesn’t really want to hear anyone else’. Others, however, do not see this as a failing, since ‘he gets it right more often than not’.
Another judge polarising opinion is Mr Justice Blair, currently in charge of the Commercial Court. ‘Thoughtful, humane and fiercely intelligent’, he ‘can be very good’, but can also make the ‘odd decision’. Another respondent adds: ‘he’s utterly charming and very bright, but I don’t know if he’s spent too much time working with Sir Peter Cresswell, and it’s rubbed off’. Long-time Legal Business readers may remember that Cresswell came in for some heavy criticism in a judges survey carried out in 1994.
Events may have also conspired against Mr Justice Hildyard, who received the judicial equivalent of a hospital pass by having to sit on the mammoth rights issue litigation against The Royal Bank of Scotland (RBS). He was particularly vocal in his criticism of Herbert Smith Freehills and its client RBS when they sought an adjournment to the trial until 6 March 2017. Some respondents to the survey suggest Hildyard J creates ‘a very tense atmosphere’ and can be ‘very aggressive to counsel’. Others are kinder, saying he is ‘very hands on and practical’, and ‘shows a great command of difficult cases’.
Guilty as charged
‘It’s easy to kick the horse when he’s down,’ says one respondent, and in this survey there was a queue stretching around the block waiting to stick the proverbial boot into the controversial Mr Justice Peter Smith. However, for the time being at least, Smith J is down for the count, with a spokesman for the Judiciary confirming: ‘Mr Justice Peter Smith has agreed to continue to refrain from sitting at the present time.’
Smith is currently the subject of an investigation by the Judicial Conduct Investigations Office, concerning his behaviour in a trial involving British Airways (BA), where he had to recuse himself after getting into a dispute with the airline over his lost luggage. Smith’s role on the BA case was subject to a critical article in The Times by Lord Pannick QC of Blackstone Chambers, to which Smith responded with a letter to head of chambers Anthony Peto QC that concluded: ‘I will no longer support your chambers. Please make that clear to members.’ The letter then became subject of an appeal on his judgment on Harb v Aziz, on the grounds of bias, since the losing side was represented by members of Blackstone Chambers. The Court of Appeal has since ordered that the trial be conducted by a different judge, and criticised Smith over his ‘disgraceful’ and ‘worrying’ letter.
It is no surprise then that criticism in our survey has come thick and fast, with respondents saying he ‘brings the profession into disrepute’; ‘he’s like a cartoon character’; ‘an outrage’; and ‘a shocker, he needs to go!’ Yet even with Smith, there are a few voices of support: ‘He’s very good at sniffing out fraud, he’s a very good judge at finding the truth, but the way he does it simply is not in conformity with how we run our civil justice system in this country.’
Smith has certainly attracted most of the negative attention. The question then is, if he goes, who will replace him as the next judicial piñata? The only other judge who came close to Smith in this survey – and even that was a long way off – was Mr Justice Walker of the Commercial and Admiralty courts.
The main criticisms aimed at the ‘cantankerous’ Walker, are that he ‘gets a bit wound up with technology’, and that there is ‘a timidity and reluctance to decide points which has now become very noticeable. It stems from great conscientiousness and a desire to get things right, but greater authority, command and speed of process is required by modern commercial litigation’.