Blast from the past-part 1
In various previous QC blogs I went through a series of people who had influenced my career and choice of career. One was a law Don who had taught me at Cambridge, Tony Oakley. (He has written extensively on trust law). I pointed out that he had subsequently gone to the Bar, but that I had never had the pleasure of appearing against him. That changed last week, when he was the junior on the other side in a case before the Privy Council concerning the change of the proper law of a trust. Basically the issue concerned whether the law of a particular trust had been changed from the law of Jersey to the law the Isle of Man. Considerable consequences flow from that decision in the particular case, because if the law was changed then broadly speaking directors of the trust company are not liable for the acts of the company whereas if the law was not changed they are.
It was probably some 28 years since we had last seen one another. Then it was over a late-night bottle of whisky when he was law tutor and I was an idle student. Now we were both at the Bar, albeit that I have been at the Bar for rather longer than him and am a QC, and he is a junior barrister. (Albeit that he is obviously a renowned expert in trust and land law, because he was already a leading authority in these fields as an academic before he became a barrister).
The Privy Council is the final appellate court from various jurisdictions, amongst them Jersey and the Isle of Man. It usually consists of five Law Lords, so that it is more or less the equivalent of appearing in the House of Lords (shortly to be the Supreme Court). That means that you have a panel of five of the finest and shrewdest legal brains in the country, all or any of whom can be pressing you on parts of your case. To put it into perspective, when you appear in front of a High Court judge you will have one very fine legal brain, whose probing you will have to deal with in order to justify your position. In the Court of Appeal it will be two or three. As a general rule as one goes up the judicial ladder in general terms one would expect judges to be at least as capable if not more so than those on the rung below. (Of course this is very much a rough rule of thumb: High Court judges go on to become Court of Appeal judges and Law Lords, and there are some who it is obvious from the start are going to go a long way). Occasionally there will be Court of Appeal judges who members of the profession think were lucky to get that far. By the time a lawyer gets to the House of Lords he or she has been through a Court of Appeal career which has to have been really distinguished to justify promotion. Whilst there may be very occasional "weak links" in the Court of Appeal (this being very much a relative term: judges in the Court of Appeal will always be talented, it is just a question of whether they are at the exceptional levels the profession expects in that type of position), there are none in the House of Lords. Therefore you know that the tribunal of five will probably test due to your uttermost.
Next week I shall outline a little more about the hearing, and what it was like facing my former tutor in such a context.