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Earlier this year, two editors of the UKSC Blog, Jack Ballantyne and Louise Pearce, were invited to interview Lord Briggs at the Supreme Court. This was a unique opportunity to meet with the Justice in the historic setting on Parliament Square, to hear about his thoughts on the role and workings of the UKSC and on topics such as technology, Brexit and diversity in the legal profession. We hope you enjoy reading the interview, which we have set out below.

What do you see the role of the UK Supreme Court as being?  Both within the judiciary and for the public at large. 

“The first job of the UK Supreme Court is to determine the most difficult legal issues, which include questions of justice, equity and mercy. The UK Supreme Court is also responsible for developing the common law in line with modern British society without usurping Parliament’s primary role as legislator. In doing so, the court needs to show appropriate respect for the common law as it is being developed by courts all round the common law world. The UK Supreme Court is also responsible for developing and applying human rights law with regard, but not slavish regard, for the jurisprudence of the court in Strasbourg. The court needs to ensure it performs its tasks with maximum transparency, and with the sensible use of technology so as not impose costly barriers to access to justice.

It is not generally the role of the court to consider matters of procedure. If these matters can’t be resolved by the Court of Appeal, then they should be referred to the relevant Rules Committees.”

How will the role of the UK Supreme Court change once the UK leaves the EU in March 2019?

“I am not sure that the role of the UK Supreme Court will change greatly save that after the relevant day, we won’t be bound by the court in Luxembourg. I don’t think though that this will mean that we will take no notice of the jurisprudence of the Luxembourg court. Over time, the relationship will develop into something similar to the relationship with the High Court in Australia, and supreme courts in Canada, Hong Kong, Singapore and New Zealand. In relation to the areas of jurisdiction we will inherit on exit day, we will no longer be bound to the Luxembourg court, but those areas of law will have a common origin that will develop over time, in the same way as the common law has. This will lead to the countries moving sometimes away from one another, and sometimes converging, as is already happening with common law. The extent to which we do and don’t continue the relationship with Luxembourg is of course a matter for Parliament to decide.

European jurisprudence doesn’t just stop. Although we will stop being bound by the decisions that the Luxembourg court make after exit day, that court will continue to develop its own European jurisprudence and, similarly, the block of law we will inherit will not stand still.  The law needs to continue to develop in order to work with changing social conditions, and EU law which we will inherit on exit day will be important to these changes. It would be extraordinary if we didn’t have regard to what the European court is doing, but we won’t be bound by it.”

Representatives of the UKSC Blog attended the UKSC during the “Article 50” hearing last year, and there was a lot of media attention on the court during this time. Do you think that this has improved the profile of the court in the public eye?

“I think there was a large benefit from the public perception of what the Supreme Court was doing with the Article 50 case as people could watch the hearing as it was live-streamed on the internet. It was hugely educational for people to be able to see the calm, measured way in which judges deal with big decisions. That, and the fact that this hearing did not result in a unanimous decision, added to the respect that the public has for the courts. By comparison, the Court to Appeal does not use live streaming but I understand that it will shortly begin to do so.

I was recently at an international legal conference in Doha with attendees from Iran, China and the Far East as well as many common law countries. We were discussing the online court, and a representative from India commented that although it is important to embrace technology, it is important that the UK keeps its oral traditions and keeps broadcasting the oral hearings of the Supreme Court live, as many people from other jurisdictions watch these hearings to see how transparent justice ought to be conducted. I was surprised by how much the oral decision process is respected internationally. Through online streaming, people were able to see a sensible, calm decision as well as the discussion of technical legal issues.”

Are there any “defects” in any specific areas of law that you would like to see remedied if the right cases are heard in the UK Supreme Court?

“I think that there are three areas which currently need attention in the UK Supreme Court. My background is in business and property, with a focus on equity. These are all areas that the UK Supreme Court or the House of Lords have recently given attention, but I think another look is needed.

Firstly, the role of consideration in the formation of binding contracts. This issue was considered earlier this year n the case of Rock Advertising Limited v MWB Business Exchange Centres Limited. This case raised the question whether a clause that required modifications to a contract to be in writing invalidated a subsequent oral agreement to vary the contract. The parties had agreed a variation of a contract, which consisted of rescheduling certain obligations of one of the parties.   In accordance with a 200-year-old House of Lords case, this arguably lacked consideration.  We held that the alleged oral variation was not valid. So, the second issue, whether there was valid consideration for the variation, didn’t have to be decided. But it would have been nice to do so, and the problem is still out there. If and when it recurs, we will need a seven judge court, so we can decide whether to depart from the old House of Lords authority.

Secondly, the area of resulting trusts needs further attention. This area was briefly considered in the case of Prest v Petrodel Resources Ltd. in 2013, which also addressed the situations where the corporate veil can be lifted.

Finally, the rectification of contracts needs to be addressed. Lord Hoffman’s last judgment, in the 2009 case of Chartbrook Limited v Persimmon Homes Limited has caused all sorts of difficulty in what was previously a fairly settled area of law. Next time this topic comes to the Supreme Court, we should attempt to make rectification work again.

These are some of my particular “bugbears”, but let me tell you this; Justices should not come to the Supreme Court as missionaries.  Missionary justice will be bad justice. Justices have an overriding duty of independence, meaning we ought to come to the court without strong views or preconceptions.”

How is the decision made about which cases are to be appealed?

“This decision is currently made at meetings of teams of three Justices. Generally, the teams are chosen from different areas of specialisation. We are not a court of error and the question is therefore not whether the Court of Appeal made a right or wrong decision, but rather whether the case raises an arguable point of law of general public importance, and whether it has had recent attention from the Supreme Court.

We may well take a case even if we think the Court of Appeal didn’t get the decision wrong, just because this area has never been to the Supreme Court. In other cases, we might be persuaded by an application for permission if there is a really arguable point. There may also be cases where we don’t think the battle lines were comprehensively drawn in the Court of Appeal and there are other points that could be included.

We do however have to consider our workload. Sometimes there may be a case with an important arguable point, but it might not be the right time for the case to come to the UK Supreme Court. We do have the advantage in the UK Supreme Court that the courts below infrequently give permission to appeal which gives us more control over our workload. This is notably different from the Judicial Committee of the Privy Council, which receives appeals from a number of other countries where there is a right of appeal built into their constitution.”

You have been a supporter of the use of technology in the UK Court system, most notably your novel idea of an ‘Online Solutions Court’.  What are your thoughts on how the use of technology in the courts is progressing?

“Let’s start at the top with the UK Supreme Court. I am very happy with how technology is used in the UK Supreme Court. I came as a critical but friendly outsider, having recently carried out the Civil Courts Structure Review which didn’t include what was going on in the Supreme Court. I was deeply impressed with how the UK Supreme Court is ahead of any other Supreme Court in the world in the use of IT. It is also ahead of any other court in the UK because of the use of live streaming which is very transparent. Using video hearings in particular for parties from abroad before the Privy Council is saving vast amounts of money and making justice accessible for a wider range of people, especially people in the Caribbean and elsewhere. The use of modern IT also means that the public can take part in online hearings in a way that wasn’t possible before.

In addition, apart from Permission to Appeal applications, we now have mandatory alternative electronic bundles for all cases. Eventually we will stop having a mandatory paper trail. Most judges will still want paper copies of key documents, but I look at counsel now and whilst senior counsel often use paper, junior counsel beside them usually have laptops. It’s going to take time before it works its way through but we need to be responsive to our customers’ needs and preferences as well as judges’ needs.

I am very much an IT enthusiast and, when completing the Civil Court Structure Review, I decided at the outset that to be able to comment on the use of technology in the courts, I would need to be able to commit to a paperless approach myself. So I decided I would not receive or generate any paper whilst conducting the review. I was getting competent on screen by the end of the review, even though I remain a two finger typist.

This approach is also progressing in the other courts. In the criminal world, the tyranny of paper is ending. There has been a mammoth uploading operation to get documentation online. In criminal cases, one side is always the Crown Prosecution Service, which has assisted with unifying this process. The HM Courts & Tribunals Service Reform Programme, in which I was closely involved until October 2017, aims to have electronic filing extended to all courts.   An online service for divorce applications is already available. Online probate is being trialled.  I have also been involved in progressing the Online Solutions Court and Civil Money Claims project, and an early version of parts of it is also being trialled by the public. These projects have received very favourable reactions, even from judges who some might expect would be the last people to support this. Online filing will hopefully be extended to the regional Business and Property courts soon.

We also want to implement an online and automatic triage system that will enfranchise a whole class of people who don’t regard court as a serious option due to the disproportionate costs involved. Triage online will help litigants to articulate their disputes in a way which will enable them to be resolved, without the same pervasive need for lawyers, in simple cases.  We need to try to find a way to work online, such as by uploading documentary evidence, including paper documents scanned or photographed from mobile phones, that will enable greater access. Lawyers will no longer be needed at every step of the judicial process. Lawyers will still be needed to provide bespoke early advice on the merits and specialist advocacy where needed, but not to write every letter throughout the life of a dispute which is what costs most of the money. I think that when we get there this will be absolutely fantastic. We will have to rewrite the procedure rules though. The new Courts Bill has still not been launched, but we hope it will make provisions for an Online Court Rule Committee. Fundamental re-thinking of procedure rules will take some time, as the rules will need to be understandable by the people who produce the software for the online processes. At the moment we have adopted a temporary procedure as it will probably take one year from the passing of the Bill even to recruit the Online Court Rule Committee.”

There appears to be a growing trend of legislation and regulation of the technology industry. Do you have any views on where the balance between commercial license and protection of the public should be struck?

“I recently attended a Fintech seminar for judges run by the Financial Markets Law Committee. The seminar considered regulation of new IT in the context of banking and finance. It is not clear which precise area of regulation things like blockchain, bitcoin and smart contracts should fit in to. These concepts are currently almost entirely unrregulated and it is not clear to the regulators which area they should be covered by. For example, should bitcoin be governed by securities regulation or banking regulation? Regulators are having to run to catch up with developers of new concepts and products. In banking and finance, things are already changing, as shown by disintermediation; new efficient IT processes that can remove financial intermediaries such as banks and brokers.

Law is currently both made and applied within strict jurisdictional boundaries. These new technologies do not recognise national borders, nor do some of the contracts relating to these new technologies include choice of law clauses, apparently on the assumption that there won’t be disputes. For example, the argument would be that with blockchain there can’t be evidential problems as all transactions are recorded in the ledger. Eventually, however, we will need to have regulation. We don’t have solid international law foundations in this area and some countries are currently adopting an ‘u first’ approach to international issues. So the way to make the structures work may be by choice of law and jurisdiction clauses. Take for example an ISDA derivative contract, these all include a choice of law which is usually English or New York law, as well as jurisdiction provisions, and that is how this structure works so well for international derivative contracts. The IT world will need to go down the same route, if the risk     of lawlessness is not to deprive them of their purpose. You could liken this to the gig economy which the UK Supreme Court has just been grappling with in the recent decision of Pimlico Plumbers Ltd and another v Smith.”

You took office at the same time as Lady Black. When you are choosing the panels of justices, do you try to ensure you have a balance?

“This balance undoubtedly manifests itself. We have an intensely collegiate open-door approach, as we are a small team of twelve justices and seven judicial assistants, with a group of staff that we all share. The concept of working together in a small group breeds its own familiarity with, and respect for, people from different backgrounds, genders, social status and legal specialisation backgrounds. We do try to set our constitutions so as to ensure that you don’t just have the people who have specialist knowledge from their earlier careers, but deliberately include some non-experts in there too. It is one of the great strengths of the law that the higher you go the more generalist the court becomes. The basic principles of justice operate on a broad field to help the law remain integrated and ensure that it does not develop into self-contained silos.

The type of case involved is also important. For example, in some cases, having a gender diversity is of primary importance, such as in the recent ruling on the Northern Ireland abortion law. It does not make sense that five or seven men could be able to address with any credibility a woman’s rights to control her own body, with no input from women. Having gender diversity is also important in family cases. Saying this, it doesn’t mean that it is not important to have gender diversity in all cases. Lady Hale, Lady Black and Lady Arden are hard pushed to cover all cases and I think it’s probably true that in most cases I have been sitting with an all male court, probably because I am mostly rostered for business and property cases, where there may not be quite that absolutely necessary requirement for gender diversity as there is in areas involving rape, abortion, family or social matters.

As I have mentioned, the Court of Appeal is ahead of us, and the courts below are generally doing amazingly well in terms of recruiting women. The latest statistics are really impressive in terms of getting more women to apply and appointing more, although this is not fully coming through in the High Court and above yet. It is not just gender diversity that needs attention though. It is also social background, class and ethnic diversity where we really have not progressed past first base in the UK Supreme Court. The Court of Appeal is starting to get there.”

You took office as a Supreme Court Justice on 2 October 2017. Has your experience so far been as you anticipated it would be?  What have been the best and worst things about your job?

“When I was in the Court of Appeal, I effectively had two and a half full time jobs, being a full-time judge, deputy head of Civil Justice and also working on the Civil Court Structure Review. This was challenging. I am really enjoying just judging. Having one full time job is extremely healthy.

The experience has so far been largely as expected., We have deep-rooted collegiality. I wasn’t aware before I got here just how good the staffing is, from the library, to the Judicial Assistants and the IT staff – all are very helpful, and the support has just been fantastic.

I have also been pleasantly surprised by the stream of cases coming up to us of the Business and Property type from Commonwealth countries that use the Judicial Committee of the Privy Council as their court of final appeal. Most people think of appeals to the Privy Council as mainly being about crime, but there are also a lot of interesting business cases coming from great financial centres such as from the Channel Islands and the Cayman Islands.  We even have appeals from remote places like the Cook Islands and Pitcairn Island. Most of these cases are looking at common law points. They are not binding in the UK but are highly persuasive. They are on matters that don’t get to the Supreme Court via the domestic route. I’ve really enjoyed this, and I think we have a lot to contribute and learn, for example Trinidad and Tobago don’t just take their common law from us but also from Canada and other countries too. They look around the whole world which means we also have to look at the common law around the world too when deciding these cases, and that is very interesting.

I have also enjoyed working on the outreach programmes with schools and universities. I have been part of the outreach programme, ‘Skype a Justice’. This is for schools that are too far away from London to come and visit. Instead they can do a Skype session and you can talk with the students and they get a good indication of what is going on here.

We have already discussed the “Article 50” hearing, and I think this exemplified the effort which the Supreme Court is making to improve state of knowledge of the public about the courts generally. I am not satisfied with the state of knowledge of the public of our court systems. The UK rates very low in the developed world on public legal education, such as having an understanding of individual’s rights, how the courts work, how to get access to the courts, and alternative dispute resolution options, before you are involved in a dispute. Very little has been done so far to educate people properly about the justice system but it is important that people have this understanding before they become involved in a dispute.  Once the dispute happens, being in the court system with time limits running is an emotionally charged process which doesn’t leave much time for legal education. Having Skype sessions, giving lectures to schools, students coming to visit the courts and do moots is just scratching the surface. We do have high quality access to justice in the UK once people are involved in a dispute.  But for those not involved, they will not be prepared to pay taxes to fund the legal system properly if they don’t understand more about how it works. The Ministry of Justice is the most heavily cut department during recent austerity measures.  People won’t be able to avail themselves of access to justice without good public legal education. This is a really worrying area.”

What advice would you give to aspiring (a) barristers; and (b) judges?

  • “Barristers
  1. Don’t assume that you have to read law at university. Two of the Justices that went to Oxford University read History. Similarly, degrees in Science are useful if you want to pursue a career in IP law.
  2. Work very hard at university and get a good degree, you won’t get into the profession without this.
  3. Do lots of work experience and pupillages, but don’t be too picky. Take the opportunities you are offered.
  4. If you want to work in crime, be ready to work hard for little financial reward. We are at risk of losing the criminal bar, because the junior part of it is being paid so badly. It is not fair that unless parents are paying for the education required, the criminal bar is not economically accessible. We are trialling extending court hours and there is a risk that practitioners will have to be available from 8am until 6pm. This may have drastic consequences for barristers who are caring for young children. Don’t let this put you off though.
  5. Get involved in pro bono and charity work. Pro bono should be a key part of all solicitors’ and barristers’ work. It is fantastically beneficial for the courts that are involved and for the unrepresented parties, such as work as a student volunteer for the Personal Support Unit. You should also think seriously about direct professional access, particularly in connection with the Online Court. You could consider applying to be a Judicial Assistant at the UKSC or the Court of Appeal.
  • Judges
  1. Don’t be put off by poor terms of service. This is a fantastic job. You could do it part time at first.
  2. Don’t hesitate to embrace criminal work, even if this isn’t your area. I hesitated, and I now regret it.
  3. I was given six pieces of advice whilst I was on the bench: listen, listen, listen, ask, ask, ask. My motto is that ‘from discussion comes wisdom’ and this is true here. This is all part of our oral system of litigation.
  4. Don’t let unwritten judgments get on top of you. You need to keep the balance of your life right. I do this by trying to get my judgments done as soon as possible after the hearing. Then I have time for family, friends and leisure, without having to worry about the workload.”

On this note, how else do you manage to keep a balance in your life?

“Keeping a balance in your life is essential and should be a non-negotiable requirement. How you do it is personal. I have cultivated high productivity when at work, but sometimes I will sacrifice something I want to do so that an outstanding piece of work is no longer on my shoulders and I can then enjoy other things later. Having a balance helps to make you a more rounded person and this is why doing pro bono is so important, but also it is to make you function properly. I like having busy leisure, but being busy doing something different. My favourites are sailing very old boats, (mine is aged 114 years) driving quite old cars (mine is 59 years), expeditions to the remote places in the world, running a garden steam railway and singing. Learning when to say no is also very important.”