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We think it must be unique that within the space of just over three months, the holders of the three senior judicial posts will be replaced, assuming that if the Conservatives win the general election tomorrow Lord Chancellor Liz Truss will receive her widely predicted P45 from Teresa May. The other two vacancies will arise upon the retirements of Lord Neuberger as the President of the Supreme Court and Lord Thomas as Lord Chief Justice of England and Wales. Both judges are in their 70th year and are required to depart before they reach the statutory retirement age of 70.
In many quarters, 70 is considered to be too young (Lord Denning retired at 82 before the statutory retirement age limit applied and US Supreme Court Justice Oliver Wendell Holmes, a veteran of the American Civil War, retired 70 years later, in 1932, aged 90!), certainly so far as the “younger” judges are concerned, but no governmental moves are in train at the moment to change it. Depending upon their date of appointment, some judges can continue beyond 70 but there are few still sitting who are permitted to do that: Lord Justice Longmore is one.
How will Lord Thomas’s replacement be chosen? Until about thirty years ago, the Tap on the Shoulder was the favoured route: there was no such thing as a Judicial Appointments Commission in the form in which it exists now. The system had its advantages: judges of the High Court and Court of Appeal would be in a position to identify those members of the legal profession who, in their view, were of judicial quality and perhaps more importantly, those who were not. Invariably they would be drawn from the barrister advocates who appeared in their courts, where they would make their mark before eminent, well respected and influential members of the judiciary.
The way it worked was this: the judge-to-be would be approached informally and would be asked obliquely “any thoughts about the Bench” and if the answer to that was “my old lady has always wanted to be a real Lady” or words to that effect, his name would go forward to the Master of the Rolls, the Lord Chief Justice and other legal luminaries, and appointments would follow with the approval of the Lord Chancellor and ultimately, Her Majesty. In the 1970s, two names at the Bar stood out: Tom Bingham and Bob Alexander: the former became Lord Chief Justice and the latter head of National Westminster Bank (as Nat West then was). Who could quibble with the appointment of the late Lord Bingham as Lord Chief even if it was made (if indeed it was) on Tap on the Shoulder principles: his being chosen demonstrated that the “who you know” ethos could still produce the best appointments.
But the Tap on the Shoulder also had its disadvantages. The Law Society hated it because there were few solicitor advocates in those days and none who could appear in the High Court, so it tended to be only high-flying barristers who made it into the top judicial posts, as they were the only ones “seen” in court by senior members of the Bench. Indeed, it was not until Sir Michael Sachs accepted his knighthood in 1993 that the first solicitor was permitted to wear Red Robes, and since his appointment only Sir Lawrence Collins, Sir Henry Hodge and Sir Gary Hickinbottom have done so, the latter having recently been promoted to the Court of Appeal: Sir Lawrence went further and became Lord Collins of Mapesbury, a Justice of the Supreme Court.
The Tap on the Shoulder had other critics who believed it to be a perpetuation of the “Old Boys” network – “it’s not what you know, but who you know”. It produced, so it was said, white, male, public-school and Oxbridge types as judges and that was a bad thing as it did not represent the make-up of society. White and male might have been correct but when Lord Denning was Master of the Rolls, there were plenty of judges who like him, had had a state education, Sir Tasker Watkins VC (Normandy 1944) and Sir John Vinelott to name but two. Nonetheless, it was not until Dame Elizabeth Butler-Sloss was appointed to the Court of Appeal in 2004 that the first LJ of her gender was permitted to wear robes with bands of gold, and she, naturally in those days, was referred to as “My Lord” and not (as now) “My Lady” when in court.
It was in order to alter this perceived iniquitous state of affairs that the Judicial Appointments Commission (“JAC”) was created on 3 April 2006 (the Lord Chancellor’s Department was its predecessor), to see an end to the “Old Boy” network, to make appointments “on merit” and to promote diversity: it now handles all judicial appointments from the Court of Appeal downwards, including the Lord Chief Justice, whose job, as we have mentioned above, will soon fall vacant.
How will the new Lord Chief be chosen? One criticism that cannot be levelled against the JAC is that the post has been singled out for favourable treatment by making the application process short and simple in comparison with those further down the pecking order. Potential appointees for lowly judicial appointments who are of “good character”, are required to complete a lengthy online application form. In addition, they must provide “diversity information”; they must give “independent assessments” (which is JAC-speak for referees); they must complete a self-assessment; they must choose the two best examples of their self-assessment; they must identify any “reasonable adjustments” required for tests or selection days; and finally they must not expect to be reimbursed for any expenses incurred in the application, including participating in any qualifying test or selection. (It could be worse: prospective silks have to pay £2,160 to apply to be a QC and another £3,600 appointment fee if successful!) But for prospective Lord Chiefs at a starting salary of £249,583, the process is much more onerous.
In addition to the above (and if you thought all that was a lot, you ain’t seen nothing yet), the post of Lord Chief requires still more information. This is somewhat ironic given that the applicants for the position will be household names so far as the panel making their selection are concerned (it includes Lord Neuberger and Fulford LJ). In addition to the usual attributes required in the Person Specification of sureness of touch, stamina, resilience and firmness of purpose when under pressure, hopefuls are expected to cite three pieces of work “two of which should be recent judgments and one other piece of significant and recent work”, and to explain “why they are interesting or important in the development of the law and how they … demonstrate the selection criteria”. There is then a need to identify “the most senior civil servant with whom you have had recent contact” and lastly, there is the “Written Plan” which appears to be a JAC euphemism for a 2000 word essay entitled “Why I want to be Lord Chief Justice”.
The application form states in terms that the successful candidate is expected to be able to serve for at least four years and it is rumoured that this has done for Lord Justice Leveson’s chances as he is 67, but it is still possible to speculate how his application form might have been competed: “one significant piece of recent work”? Ever heard of the Leveson Inquiry into the Culture, Practices and Ethics of the Press? Only 46 pages with a summary explaining its importance! Lord Justice Briggs being younger might be a candidate… ever heard of the Briggs Report, or to give it is full name “Civil Courts Structure Review: Final Report”, all 148 pages of it? It is a rhetorical question, but is it really necessary for candidates of the calibre of those who are likely to apply for the post to be put to the embarrassment of self-promotion in having to cite major pieces of their work that are in the public domain? And what about the $64,000 question, why do you want to be Lord Chief? Did you always want to be a rocket scientist, but like Michael Gove and his Boris vision, you woke up suddenly in the middle of the night and decided you wanted to be the Lord Chief Justice of England and Wales instead?
To assist the JAC in its deliberations and to spare candidates the invidious task of having to dust off their best judgments, we have a suggestion: it is for the JAC to subscribe to Costs Law Reports. In that capacity, at the touch of a button, it is possible to access over 1,200 judgments at High Court level and above. Search under Leveson J or LJ and you will find eleven judgments: do the same under Briggs J or LJ and nine judgments will appear. The same can be done for any member of the senior judiciary but sadly we do not think that this will catch on so far as the current application process is concerned. As to that, if you were thinking of applying, sorry, it is now too late! Applications closed on May 11 and shortlisting should take place this week. Best of luck to those who managed to compete the forms and write their 2000 words within the allotted time. They will certainly have fulfilled the stamina, resilience and firmness of purpose when under pressure criteria! The successful candidate will take up her or his post on 1 October 2017.
The headnotes and full texts of the cases below are available to online subscribers at www.costslawreports.co.uk. Follow Costs Law Reports on Twitter to be notified of new cases as soon as they are published.
New cases this month
Findcharm Ltd v Churchill Group Ltd  3 Costs LO 263: Costs budgeting under CPR 3.15; consequences of deliberately advancing a low budget with the intention of obtaining a tactical advantage over an opponent.
Parissis v Matthias Gentle Page Hassan LLP  3 Costs LO 269: Special circumstances justifying the departing from the “one fifth” rule under s 70(9) of the Solicitors Act 1974 in respect of the costs of reference in proceedings for detailed assessment under the Act.
EMW Law LLP v Halborg  3 Costs LO 281: Legal professional privilege: entitlement of agent solicitor acting under a conditional fee agreement, with a principal solicitor undertaking work on behalf of his client, to disclosure of documents relating to any settlement of the costs awarded in the action.
Vald Nielsen Holding A/S and Another v Baldorino and Others  3 Costs LO 309: Order for security for costs under CPR 25.13(1)(a): material change of circumstances justifying an increase in the security previously ordered.
Secretary of State for Justice the Lord Chancellor v SVS Solicitors  3 Costs LO 331: Graduated fees: determination of pages of prosecution evidence under the Criminal Legal Aid (Remuneration) Regulations 2013: whether non-compliance with the formalities of service could necessarily exclude material from the count of PPE.
R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal  3 Costs LO 361: Judicial immunity; factors applying on an application for an order for costs to be paid by a first tier tribunal in respect of judicial review proceedings brought against it.
J C and A Solicitors Ltd v Iqbal and Others  3 Costs LO 377: Stage 1 Protocol costs for low value personal injury claims in RTA cases before its 2013 amendment; eligibility for repayment of stage 1 fixed costs where no steps taken to pursue the claim after the conclusion of stage 1.
Hyde v Milton Keynes NHS Foundation Trust  3 Costs LO 391: Co-existence of public funding and a private retainer (conditional fee agreement); whether s 10(1) and s 22(2) of the Access to Justice Act 1999, prohibiting “topping up” before discharge of public funding certificate, prevented the recovery of costs.