Richard Lissack QC: David, why a career in the law?
Lord Neuberger: It was after cancelling out other possibilities. I was a scientist at university – a chemist. I was influenced by my father, a successful scientist. I quickly proved to be an unsuccessful scientist. I went to career advisers. They said do law or go into the City. In those days the City involved no exams and law did, so I went into the City.
After two years I realised that if I had been a bad chemist, I was a worse banker. I felt like a failure – I was about 24. I met a friend who had just started at the Bar. I thought: ‘That is what I want to do.’
On my 25th birthday, I started my Bar exams. The first year, I was working in banking very badly in the day and doing my law work in the evening. I had difficulty in finding chambers and that was probably a good experience; it made me more determined.
Richard Lissack QC: You became a silk very young. After a relatively short time, you change direction and go to the High Court bench and the Chancery Division. Why?
Lord Neuberger: I have often wondered. In those days, there was the ‘tap on the shoulder system’. The first time [The Lord Chancellor] did that, I said, ‘no’ because I had children to educate and was not ready. Three years later they came again and I made a list of reasons for becoming a judge and a list for not becoming a judge. The list for not becoming a judge was much longer; perhaps that shows that I am rather a bad judge because I then decided to become a judge.
It was a combination of curiosity, looking for a change and partly disbelief. When I started as a barrister, because I had difficulties finding chambers, it had never crossed my mind I would become a High Court judge. That influenced me.
‘Twenty-one years as a judge gave me real faith in only one law: the law of unintended consequences. So many reforms to cut costs didn’t achieve their aim.’
Lord Neuberger
Looking back, it was the right decision. I was lucky. Putting myself back in the position, it was what Sir Humphrey would call a ‘rather brave decision’.
Richard Lissack QC: Could you share a view on two particularly hot commercial litigation issues? One is the regime for disclosure. The other is the, perhaps more startling, idea that in commercial cases, evidence-in-chief should now be given live, and your view of oral evidence.
Lord Neuberger: The problems to which disclosure gives rise are well known. In many cases, the consequences of having to face a disclosure order in cost and time are such that some are put off litigating altogether. If you look at the benefits of disclosure, there will be the odd case where there is a smoking gun. But in the great majority, all the disclosure exercise has done is increase costs enormously while benefiting nobody. It would be worth investigating whether the whole exercise should be abandoned. The few cases where it has a benefit are completely disproportionate compared with the large number where it has no benefit.
You mentioned oral evidence and evidence-in-chief. If, as is very likely, we maintain our common law affection for oral evidence, I can see a great deal in favour of going back to the old-fashioned idea of witnesses giving their evidence-in-chief rather than through witness statements. First of all, discovering the truth is more likely because we all know how witness statements are prepared these days. Secondly, an enormous amount of money will be saved, because we all know how witness statements are prepared these days. Thirdly, when you look at the benefit of witness statements, which was to save time at trial, it must be borne in mind that the majority of cases where witness statements are prepared do not go to trial. They settle.
The final point you made cuts across what I have just said about witness evidence-in-chief. It concerns the value of oral evidence. Cross-examination is the high point of many trials; clients love it because they see the other side hopefully confused, pinned to the wall, shown to be crooks, etc. Lawyers – the advocates – love it because it is an opportunity to show off their forensic skills. It is also often good theatre; it is the nearest commercial litigation normally comes to good theatre. However, I question its value, although I do not think it will ever be abandoned.
There are two ways of putting the witness on the spot or showing the witness not to be honest. One is to show their story just does not fit common sense, does not fit the contemporaneous documents, does not fit other people’s evidence and so on. That can be done much more efficiently simply by saying to the judge: ‘Look what the witness says in his or her statement and look at what the witness wrote at the time in this letter.’ The second way of undermining a witness is trapping them by clever cross-examination or showing that the witness is bad at giving evidence. Is that fair? The first type of trapping a witness and undermining a witness is perfectly valid but can be done without cross-examination. It can be said that the second type is not fair on the witness or helpful. There is an argument for abandoning oral evidence, as they do in most civil systems in Europe.
Richard Lissack QC: Could we imagine a trial has taken place and a judgment is delivered? The losing party appeals and finds itself in the Court of Appeal or Supreme Court. The appeal is heard. The judges indicate they are going to take time to deliver their judgment and rise. They leave and the door closes. For most of us, what happens then is an absolute mystery. Could you tell us what happens, please?
Lord Neuberger: Certainly. There is a difference between the Court of Appeal and the Supreme Court. In both courts, the judges meet shortly before the hearing to discuss the case. Particularly in the Supreme Court, if the case is difficult, sensitive or controversial, judges might not discuss merits. They may keep their powder dry. Sometimes they want to say: ‘There are four points. We only have the day. The first and third points do not seem of very great significance; should we not be concentrating on the other two?’ Or they say: ‘There is this other point nobody has thought of.’ That also happened in the Court of Appeal.
The judges then go in and hear the argument. I sometimes knew what my colleagues thought by their questions. I always tried to keep my cards closer to my chest because it seemed fairer. Some colleagues read all the papers ahead of the case; some read hardly any. I describe the former as Pre-Raphaelites, the latter as Impressionists. When I made this distinction in a talk, I said I was an Impressionist; I wanted to engage in the oral argument and have an open mind. Two days later, The Daily Telegraph had a headline: ‘President of the Supreme Court says he never reads the papers.’
After the hearing, in the Supreme Court we always went back and discussed the case. There was a firm rule that the most junior judge gave their view first and it went up until the most senior judge gave the last view. When I started in the House of Lords, I was always first; I hated it because I often did not know what my colleagues thought. I gave my view and prayed at least one would agree.
‘I said I wanted to engage in the oral argument and have an open mind. The Daily Telegraph headline was: “President of the Supreme Court says he never reads the papers.”’
Lord Neuberger
When I moved to become president of the court and went last, I envied the person who went first because the president cannot influence their colleagues. Sometimes all five agree for the same reasons and that is easy. Sometimes there is a difference of opinion and the case is discussed after the five have given a view to see if there is any shift or common ground and to see where to go.
At the end of the discussion, the senior judge will decide which member of the court will write the first judgment. Sometimes, when there is a dissent, one of the dissenters will rather naughtily write a judgment and circulate it before the person who is meant to be writing the main judgment writes it, hoping to change somebody’s mind. However, I normally discouraged that because it does not lead to good relations.
Normally, the person appointed to write the lead judgment will write it. It is then circulated electronically and there is often complete silence. They are all too busy doing their own cases. After about two weeks, I’d rather plaintively send around an email saying: ‘Has anyone read this? We really ought to finish this.’ Then people come back, either saying, ‘I agree’, or see me and say: ‘David, I am really not happy about these four paragraphs. If you can change them in this way, I will agree with you.’ I would then put around an email saying: ‘This person has suggested this. I will hold fire until others come back, but I am prepared to go along with it.’
Alternatively, somebody will send in a judgment which agrees with mine, or somebody will send in a judgment that disagrees and I will wait and see. Normally, it can all be done electronically and we will tie things up with the odd meeting to try and agree small variations. Sometimes, there will be strong disagreement and the presider or others may feel that a further meeting is appropriate. In one case, where relationships became a little frayed, we had a total of 19 meetings to sort out where we were.
It depends on when people change their minds. Sometimes things can become fraught. Occasionally, I had to go to a judge who had written a dissenting judgment and suggest that they tone it down. One colleague, when dissenting, wrote, ‘I am completely astonished by the majority view that’, and we had a negotiation and it changed to, ‘some people might be surprised that’. That is good for internal relations and the external perception of the court.
Very unusually compared with courts in other countries, the Supreme Court sends out decisions in draft form so advocates can correct mistakes such as wrong names or arguments. Occasionally, an advocate will come back and say: ‘You are proposing to decide this case on a point I have not had the chance to deal with; if it was raised, I missed it.’ On those occasions, I tended to be a softy and give the opportunity to make submissions. We were the final court; there was nowhere else to go and the most important thing was to do justice. Some colleagues thought I was wetter on those occasions than they would have been.
It seemed to work. There were cases where we took a long time; there were cases where people flip flopped. I was one of the most likely to change my mind. Judging is an ongoing thing. A judge should not just make up their mind at the end of the case. Sometimes, when I write a judgment, I change my mind. I realise, as I write, I am wrong. Not often but it happens.
Richard Lissack QC: Fascinating insight. Do you mind taking a few questions?
Delegate: Given the experience of the last 20 years of civil litigation reform, which primarily have appeared to be aimed at reducing the cost of litigation, are judges the right people to lead reform?
Lord Neuberger: A very loaded question, and an entirely fair question.
My experience as a judge for 21 years has given me real faith in only one law: the law of unintended consequences. So much of the changes effected to civil procedure to cut costs have not achieved that aim. In fairness to the people who have made the changes, it is easy to generalise after the event. However, one of the ways in which we have gone wrong is to complicate rather than simplify; I only have to look at the White Book [the core guidance on civil litigation procedure]. I would prefer it to be simpler.
Secondly, some of the changes have ignored human nature. When any change is made to civil procedure, the question should be asked: ‘If I were a solicitor or a barrister seeking to make money out of this, or seeking to use this as a weapon to attack the other side, what would I do?’ That sort of question is often not asked when a change is proposed. For instance, mediation is a good thing. However, I suspect it is often used as part of the armoury to fight a case rather than for its own sake.
I would say judges should be involved. [But] my main concern about doing it is this: judges see cases that fight. Cases that fight are not typical – the majority settle. One ought to take into account the majority of cases, which do not fight. That right person might be a judge or might not. The judiciary should be represented; so should all those involved in litigation, such as the people here.
Delegate: At the moment, there is no ready access to petitions made to the Supreme Court and the responses to them, nor is there any access for the public and the practitioners to cases. Would it be a good idea for those documents to be made public and readily accessible?
Lord Neuberger: Yes. We are concerned with open justice. Cases that come to the Supreme Court, should be known about and all details known about. The problem is this: the Data Protection Act is said to give rise to the problem that if you put these document on the website, they will contain information which infringes the legislation. Something has to be done to stop data protection legislation preventing open justice. So the answer is ‘yes’, undoubtedly. However, there is this problem.
Richard Lissack QC: Thank you very much. Please join me in thanking Lord Neuberger for a fascinating half hour. LB