Take Your Seat at the Bench: An Evening with the IP/Tech Judges

By Eibhlin Vardy

Post originally published on the IPKat Blog.

Instead of sitting on this side of the Court room – whether as a barrister, solicitor, client, or member of the public – have you ever wondered what it would be like to be on the bench? What goes on behind the scenes once the usher closes the door at the end of proceedings? What is the judicial application process in the UK? What are your chances of a successful application if you have a non-traditional background (which in the UK can be taken to mean someone other than a white, male, Oxbridge-educated barrister)?

These questions – and many others – were addressed at Wednesday night’s excellent event: “Take your Seat at the Bench”, organised by ChIPs London Chapter. The formidable panel of women judges (see below) was introduced by Amy Crouch of host Simmons & Simmons and the discussion moderated with some friendly but pointed questioning from Charlotte May QC. The panel introduced themselves by explaining their career to date and route into the judiciary:

Her Honour Judge Melissa Clarke – Senior Circuit Judge amongst other judicial appointments, including IPEC. Former private practice solicitor and in-house lawyer. Background in non-contentious IP/telecoms/IT law.
District Judge Janet Lambert – former solicitor. Various judicial appointments including IPEC.
Kelyn Bacon QC – Deputy High Court Judge (part-time) in Chancery Division and barrister at Brick Court. Background in competition law and soft IP.
Pat Treacy – recently appointed Deputy High Court Judge (part-time), and Senior Partner at Bristows LLP. Competition lawyer, including on FRAND issues and antitrust issues in the pharma sector.

Several members of the panel explained that they were put off the bar in their early careers due to an absence of financial help (in the pre-funded pupillage days) and contacts at the bar, but noted that financial help is more widely available now for today’s top applicants.


Dispelling the myths

The panel dispelled several myths during the course of the discussion.

Myth 1: the job is lonely. All disagreed with this statement. In fact, the job is more collegiate than you would think. The judges side of the Rolls Building in London is very much like a solicitor’s working area, and judges frequently discuss legal issues informally amongst themselves. Deputy High Court judges are assigned a mentor judge. Judges are regularly sent on judicial training which provides another opportunity to make judicial contacts – you end up an enormous number of ‘phone a friends’ to assist in areas of the law that you might not be familiar with. The Court room itself is usually full of people, and the judge also has the usher and sometimes a Court clerk to talk to throughout the day.

Myth 2: ex tempore judgments are to be feared. While the fear of ex tempore judgments is fairly common amongst judicial applicants and new recruits, this is quickly dispelled – synthesising and analysing information in a succinct manner is an inherent part of private practice law in any event, and ex tempore judgments quickly become second nature. There was general consensus that reserved judgments are the real challenge – simply because it is difficult to find the time to write them. As a general rule of thumb, you are likely to require roughly one day of judgment writing per day of sitting – judgment writing is something you typically have to fit around your time in Court.

Myth 3: you have to be a barrister to get on the bench. This myth was clearly dismissed by the existence of three solicitors on the panel, although there were mixed views as to whether within the judiciary, solicitors are viewed as having equivalent status as former barristers for the purpose of promotions etc. There was general consensus however that the judiciary was increasingly opening up to non-barrister candidates (e.g. solicitors, academics).

And some truths:

Truth 1: forms of address will add comedy to your day. The lady judges noted that they get called many things in error in Court (e.g. “Your Lordship” or “Sir”), with one comically being elevated to the ethereal status of “Your holiness” during proceedings.

Truth 2: there is more humanity than private practice. The judges noted that the one of the biggest positives of the job is the frequent contact with ‘real’ people in the form of sole traders/small businesses and litigants in person. This is different to the dynamic in many commercial IP practices where the human element (in terms of the direct impact upon people’s lives) is more removed.

Truth 3: expect the unexpected. There is no ‘typical day’, and when you are sitting in Court, the unexpected will happen and you need to be able to deal with it. If you like to be prepared and have considered all the issues in advance, the job is probably not for you – you need to be able to think on your feet and react accordingly.

Truth 4: salary and pension are less when compared to what can be earned in private practice, but the benefits (see above) are meaningful.

So are you game?

The panel provided some tips for next steps if you think you might be interested:

1. Get experience shadowing judges (either by applying through the formal scheme for the High Court, or by writing to judges in County Courts).

2. Plan ahead and keep a record you will need 3 referees to complete detailed submissions, and your own application form will be evidence based. The application form takes at least a week to complete, (although it was considered to be slightly less of a nightmare than the application form to take silk).

3. Try before you buy. It was pointed out that you can be a part time Deputy High Court judge for up to 4 years, with each year requiring only 6 weeks of your time for sitting.

Finally, the panel was asked how the UK can get greater representation of females on the bench, given that 29% of court judges and 46% of tribunal judges were female (see 2018 judicial diversity statistics here). There was consensus that the legal profession was a significant part of the problem, with the judicial gender statistics generally comparing favourably against statistics for females in senior roles in private practice, meaning that fewer senior women are available in the pool for selection as compared to senior men. The panel were of the view that the Judicial Appointments Commission is welcoming of candidates from non-traditional backgrounds, but the real difficulty is getting the best candidates in front of the JAC in the first place.

This post is a summary of the event, and does not do justice (pun intended) to the highly interesting and entertaining panel and great questions from an engaged audience. Merpel would like to wish IPKat readers the best of luck with their judicial applications!