On 27 September 2021, Adam Kosmalski and James Warshaw, two editors of the UKSC Blog, met with Lord Leggatt to discuss his experiences in the UK Supreme Court. This was a fantastic opportunity for the UKSC Blog and provided a unique insight into the views of Lord Leggatt on subjects such as the impact of Covid-19 on the judicial system and the role of the UK Supreme Court, as well as offering a glimpse into the inner workings of daily life in the court. The UKSC Blog is very grateful to Lord Leggatt for allowing us this unique opportunity and would like to thank him for his time.
(A) The Role of the UK Supreme Court
What do you see the role of the UK Supreme Court as being within society?
“I see it very simply as being the court of final appeal in the United Kingdom for issues of law of general public importance. No more and no less than that.”
Since the inception of the Supreme Court, what would you say is the most significant decision that the court has made and the impact that it has had?
“I think there are various ways in which a decision can be significant. It can be significant because of the effect it has on people’s lives, or because it changes the understanding of how a particular area of law operates in a substantial way, or potentially because of its constitutional significance. But I suppose if you are judging by what has brought the court most into the public eye since its inception, then the most significant decisions have got to be the two Miller cases. Those are also the only two cases so far, I think, in which 11 justices have sat – it cannot be the full number of 12 just in case there is a division of opinion – although there wasn’t any in the second Miller case, as you know. In terms of their impact, I think the importance of both cases lies in reaffirming the sovereignty of Parliament, which is the fundamental principle upon which the British constitution rests and has done for several centuries.”
When there are a large number of justices deliberating, do you speak to each other about your conclusions?
“Yes, there’s always a discussion after every case, which starts with everybody giving their provisional view in turn, starting with the most junior member of the court – which was always me to begin with after I joined the court. After everybody has expressed their individual preliminary view, then there is a general discussion and sometimes, if necessary, we will have to reconvene for a further discussion later.”
(B) Risks to the Justice System
What (if any) do you view as the greatest risk to our justice system at the moment?
“I think it has to be the risk to criminal justice posed by the backlog of cases waiting for trial in the Crown Court. It is not something that the Supreme Court is directly concerned with, but it is a major problem for the justice system. There was already a big backlog of cases in the Crown Court before the pandemic, and of course that has made it much worse. But it is encouraging that some steps seem now to be taken to address it.”
Do you think virtual hearings can be used as a way to clear that backlog faster so that you don’t have to do as many hearings in person?
“I think there were attempts to try that during the pandemic, but a feature of Crown Court cases is that you have to have a jury, and it’s very hard to make that work remotely. Experiments were done in a virtual setting, but it is very hard trying to be a juror from home as your home circumstances may not be conducive to being in a virtual hearing. So, unfortunately, I think the answer there is to find courtrooms or alternative venues big enough to enable people to be spaced out, if necessary, but in the same place.”
(C) Impact on the Common Law
In your time as a judge, you have been keen to introduce the principle of good faith into English contract law, however, it is fair to say that the law has yet to reach a stage of settled clarity. Is this something you would like to resolve if you were given the chance?
“I don’t think it is a question for me to resolve, or for any individual judge to resolve. The development of the common law is a collective endeavour and I think the law on this question is going to continue to evolve for some time to come. So I think on this I would adopt the words of Chief Justice Holt, in the great case of Coggs v Barnard in 1703, when he said: “I have stirred these points, which wiser heads in time may settle.”
On the back of that last question, is there a fear of introducing uncertainty into black letter contract law, if such a principle were to be introduced?
“Yes, that is an objection and a point that is often made. Obviously, it is of value that the law should be certain, but I think first of all it would be wrong to exaggerate how much uncertainty there would be in a principle of good faith. At least in the way I conceive it, it is a fairly modest principle. Also, one can exaggerate, I think, the degree to which there is certainty in any event. For example, interpreting contracts often gives rise to questions which judges take different views about, and such cases sometimes reach the Supreme Court, so one cannot avoid uncertainty altogether, nor should one.”
As you mentioned in a speech a few years ago, Singapore has diverged from the position in England with the court explaining that a duty to negotiate in good faith was “consistent with the Asian tradition of promoting consensus wherever possible”. To what extent do you think cultural or historical influences shape such concepts in the law, and do you think it is important for the law to reflect such influences? Do you think the history and culture of England and Wales means we are unlikely to accept a general duty of good faith?
“That’s an interesting question. I think the whole of the common law is the product of history and culture, and I think it is natural that there will be variations in the way it is developed in different countries. Good faith is not a single or uniform concept – it is capable of being shaped by different cultures and historical traditions. So, in answer to your second question, I think the history and culture of England and Wales does mean that we are unlikely to accept, for example, a general duty of good faith of the kind that is embodied in the French Civil Code. But I don’t think that means there isn’t room for such a principle in English law, and indeed there has been such a principle in the past. It has actually played, for example, an important role in the development of English insurance law, so I don’t see why it shouldn’t again in our law in the future.”
You recently presided over an important decision, Uber BV and others (Appellants) v Aslam and others (Respondents), where you found against Uber on the status of Uber drivers as ‘workers’. Moving forward, as more industries and lines of work adapt to the ‘Uber’ model of work, do you think the issues discussed in the case will continue to be challenged and tested? In a sense this ruling might also be said to represent a form of judicial activism. Would you agree with this and, if so, is this a direction you see the court moving towards in the future?
“Well, there are two questions here. Dealing with your first question, ‘do I think the issues will continue to be challenged and tested?’, I hope the Uber decision has helped clarify the legal principles which determine whether an individual whose work is arranged through an online platform is a worker or an independent contractor. But there isn’t a single or uniform model of platform-based work, and I am sure that questions will continue to arise in other cases about how those principles are applied, and how people should be classified in situations which may have some resemblance to the Uber model but some differences as well.
On the second question, about judicial activism, I think it is worth remembering that the decision that drivers were workers was made by the employment tribunal; it was upheld by the Employment Appeal Tribunal, and then by the Court of Appeal. So I think it was hardly very surprising or revolutionary that the Supreme Court came to the same decision. What our judgment sought to do was to clarify the legal test and the conceptual underpinning, if you like, for the distinction between workers and independent contractors. I think if there was anything that might be said to be novel about the decision, it is really applying an approach which has been common in other areas of law, for example tax law, but maybe hasn’t been fully recognised in the field of employment law, that, where legislation has a clear purpose, it ought to be interpreted and applied, so far as it can be, in a way that gives effect to that purpose. So that was the underlying approach, but I don’t describe that as activism.”
(D) Life as a Judge in the UK Supreme Court
Would you say your philosophy studies at university have influenced you in your role as a judge?
“Yes, is the answer. I think four years spent studying philosophy before I started studying law has influenced my approach to the law, in that I am always trying to probe the theoretical assumptions and concepts that underpin legal doctrines. I often find myself thinking: ‘well, that is all well and good in practice, but how does it work in theory?’”
And how did you transition from a philosophy student to a lawyer?
“I ended up doing a year of graduate study in Philosophy at Harvard after I finished university in this country, which I spent studying Political and Legal Philosophy, which was kind of a route into law. I had a very inspiring teacher in America called Ronald Dworkin: he was a brilliant philosopher who had also practised as lawyer. He made me come to think at least at that time that law was applied philosophy. Of course, I discovered it isn’t most of the time; but occasionally it is, and I find that very intellectually exciting.”
Have your studies in America impacted your judicial approach?
“Again, the answer is yes. It has made me aware, throughout my career, that there are other ways of doing things, and other approaches to legal problems, than those that might be taken for granted in this country. The principle of good faith that you mentioned just now is a good example of that. The fact that in the United States a duty of good faith in the performance of contracts has been recognised for over a 100 years was something that made me question what had, recently at least, been treated as orthodox in English law on that subject.”
And would you read judicial findings in America to assist your thought process here in the UK?
“Yes, I do, sometimes. For example, in the Yam Seng case, where I raised the issue of good faith as a first instance judge, I looked at the US case law on the subject. I quite often find myself doing so.”
You took office as a UK Supreme Court Justice in April 2020. Has your experience so far been as you anticipated it would be?
“Well no, in that I was sworn in just after the start of lockdown and I hadn’t anticipated that I would spend my first 15 months as a justice on the court without actually sitting in a courtroom with my colleagues and that all the hearings would be remote! The first time I sat in court was in July this year. That wasn’t ideal, being new to the court and wanting to establish relationships with my colleagues. But apart than that, and in other ways, the experience has been all I could have hoped for and more in terms of the work.”
What do you think are the best and worst parts of your job?
“The best parts of the job are the intellectually challenging nature of the work, its extraordinary variety, its legal importance and the opportunity to contribute something to the development of the law at the highest level. I would struggle to think of the worst parts of the job. I can’t actually think of any negative aspects. I couldn’t in fact imagine a better job or one I would find as fulfilling as this one. It really is, as far as I’m concerned, the pinnacle of my life’s work.”
Have you ever changed your mind after delivering a judgment?
“Never is the answer, in the aftermath of giving the judgment. I don’t think the human mind works that way, or at least my mind doesn’t. If you have thought hard about a case and you have reached a conclusion on it and given what you believe are good reasons for your conclusion, I think you would be rather a fickle person if you then changed your mind. There’s also the fact that when I’ve finished a case I’m moving on to the next case and I’m not looking back to the one I’ve just completed.
On the other hand, that’s not to say I couldn’t reach a different decision now on a legal issue which I dealt with some time ago if it comes back in another case, differently argued. Indeed, that did happen in the business interruption insurance cases that we heard last December. I had sat as an arbitrator 10 years before in an arbitration which raised an issue that also arose in those cases. The decision of the arbitrators, of whom I was one, was appealed to the Commercial Court, and Lord Hamblen, who was then a judge in the Commercial Court, dismissed the appeal. When that issue arose again in the business interruption cases, we reached a different view, both of us, on the point, and had to say that our previous view was wrong. That was with the benefit of a lot of hindsight, and with new arguments. So, that’s the one case that I can think of in which I have changed my mind after originally delivering a judgment.”
What has been the most interesting case you have presided over?
“I’m assuming you mean since I’ve joined the Supreme Court. I find it difficult to say because I find all the cases interesting, but if you are making me pick out one, I will select the business interruption insurance case I just mentioned. This is because of the immediate relevance of the decision to businesses making claims right there and then arising from the pandemic on their insurance policies. The case had to be sped through the courts, which was done with impressive speed in about 9 months from issuing proceedings to a final decision in the Supreme Court. The case also raised a variety of interesting points of law in the field of insurance law, which was actually probably my main specialism as a barrister, which I haven’t had much opportunity to deal with on the bench. I found all that very interesting.”
And in your whole career as a judge, beyond the Supreme Court?
“Well, in a different way, the cases arising out of the Iraq war, where I was designated as the judge in charge of them when I was in the High Court. They were fascinating because of the range of difficult and often novel issues of law that they raised, and the extraordinary facts.”
On that point, as a barrister you specialised in insurance and more contractual corporate law. As a judge you obviously look at a wide range of issues. (1) How do you switch your approach and (2) Have you found that enjoyable?
“Yes, I’ve certainly found that enjoyable. One of the most interesting and enjoyable things about being a judge at every level is the variety of the work. I’m always interested in learning new things. I tried to do so as much as I could as a barrister. I was lucky when I started at the Bar that you could still do a wide range of work, even in predominantly commercial chambers. I did employment cases, libel cases, landlord and tenant cases, and so on – a broader range than would be possible now, I think. I tried to keep a broad practice, but it has got harder, as you know, as a practitioner. One of the great fascinations of being a judge is the opportunity to deal with different areas of law that are outside your main expertise.”
(E) Impact of Covid on the Judicial System
The pandemic has forced nearly all professions to adapt in unprecedented ways, and the judicial system is no exception. As such, a very formal institution has been made to embrace a certain degree of flexibility. Now, as we begin to approach our former normalcy, what changes would you like to keep? Are there any additional changes you would also like to make?
“As a result of the pandemic, the Supreme Court moved to using electronic bundles of documents for all hearings. That wasn’t something I was used to doing as a matter of routine, but I’ve come to appreciate the advantages over paper bundles, both in getting rid of the bulk of paper but also that it speeds up hearings because it is quicker for everybody to find the page. That practice will certainly continue.
I think with virtual hearings it was impressive that they were as good and effective as they were but, however good the technology is, it is never going to be quite as good as a live hearing, because you always lose some level of communication with any technology. So I am delighted that we are now starting to sit in court again. However, I expect there will be cases, some Privy Council hearings, where the parties are on the other side of the world and, even if there is a slight disadvantage in terms of the level of communication, it is an overall more efficient way of dealing with the case for them not to travel all the way to London but to do it by video link. So maybe that is something that will be here to stay.”
(F) A career in the legal profession
What have you found to be the key differences in terms of your daily work in your careers as a barrister and now as a judge?
“I loved the work when I was a barrister, but the work of being a judge is even better. A key difference for me is that the work is much less stressful. You don’t have emails arriving at all hours when you are on holiday expecting an immediate response, you don’t have clients’ expectations to manage. In court you can sit and listen to the arguments and occasionally ask a question, rather than having to be ready to deal with anything your opponent or the judge might raise. And although the workload is just as heavy on the bench, the pace of the work is more even, and it doesn’t have the same intense peaks that you have at the Bar. Generally, you feel, I think, that you have more control over your work and probably over your life.”
How do you manage when you’ve just heard a case and you’ve then got a judgment that you’ve probably been writing, how do you compartmentalise everything to get your thoughts in order?
“Well, that is a problem generally that you have to contend with as a judge. The essential thing is not to fall too far behind in writing your judgments. If you do, you are then coming back to cases long after the event, and the pressure builds up. So you have to try and be efficient. Inevitably I am still working on another judgment when I’ve finished a hearing, so I try and write some notes at least while its fresh and then hope to come back to it as soon as possible.”
Is there anything barristers and solicitors presenting the case can do that particularly assists you when you are writing a judgment? Is there one thing you could say that is very useful.
“No, I don’t think so. I mean obviously having the written case is important. I try to take a good note during the hearing, so I’ve got notes of the arguments. A transcript is useful; if there isn’t one, it’s useful that the hearings are all recorded, and I can find the bit on the video recording or ask my judicial assistant to find it and listen again to that bit of the argument. So I do not think there is anything more the lawyers involved can do. If there are points that arise after the hearing in our discussions, new points that weren’t raised, we can and do ask for additional written submissions on them.”
What have been the biggest challenges you have experienced in your career?
“Well, I think in the whole of my career, probably the biggest challenges I experienced were when I helped set up the Bar Standards Board as the new regulator for barristers. A large number of barristers viewed the new body with suspicion or possibly worse, because they thought they were having outside regulation imposed on a profession that had always been self-regulating. Whereas many outside the profession thought it was just the profession continuing to regulate itself with another name. So I found it quite difficult to be unpopular with everybody, although for opposite reasons.”
What advice would you give to aspiring lawyers?
“I find that a hard question because I am not really in the business of offering advice to people. But I think something that I found useful in my own experience was to observe senior lawyers who had been doing the job for quite a long time and watch how they did things, for example in court as advocates. If you see someone who is an expert that can be quite inspiring. Although it is never any good trying to imitate what they do yourself, because it is always harder than it looks and, anyway, what works for one person will not work for somebody else. Everybody has to find their own way of doing things well. You actually learn a lot more from watching things being done badly, because you can learn from seeing mistakes that everybody ought to avoid.”
(G) Quickfire Round
What is your favourite film and why?
“The Seventh Seal. It has been parodied a lot, but it is a profound and perfectly made film about the meaning of life in the face of death. You’ve got to watch it, if you haven’t already seen it. You also have to watch another film by Ingmar Bergman called Wild Strawberries, which is almost as good. Both were made, I think, in the same year I was born, 1957.”
What is your favourite novel and why?
“Bleak House. Apart from the satire on the law, the whole of human life is there, and it is Dickens’ writing at his virtuoso best.”
After a long day in court, what is your favourite restaurant to go to?
“After a long day at court, my favourite place to eat is at home. As for my favourite restaurant anywhere, my daughter lives in the San Francisco area, where she now works as a public defender, and whenever we go and see her we eat out a lot: there’s a restaurant in Berkeley, California, called Chez Panisse which I think is the best restaurant I’ve ever been to, created by a brilliant American chef called Alice Waters.”
If you were stranded on a desert island, what one item would you like to have on you?
“I am assuming for this that I do not need to choose something to help me stay alive and can choose something to while away the time! So, it has to be a book, and it has to be a book I can re-read, because I’d have time to read it multiple times. So it has to be a work of philosophy as far as I’m concerned. So I’ll choose what I think is the finest work of philosophy written in the English language, which is Hume’s ‘A Treatise of Human Nature’.”
You said you weren’t in the industry of giving out advice, but from the advice that you’ve been given, is anything that particularly resonated?
“I once met Lord Griffiths after he’d been hearing a case in the House of Lords and they had had in front of them that day someone called Bob Alexander, who at the time was one of the foremost advocates at the English Bar. Lord Griffiths said to me: “we had Bob Alexander in front of us today and he has a tremendous quality as an advocate”. I thought I am going to learn the secret to success at the Bar! And Lord Griffiths said: “He keeps his voice up! Some of us are getting on a bit and we’re rather hard of hearing, so the fact that he speaks loudly is wonderful because we can hear everything he says.” And, actually, I found that was rather useful advice, as judges sometimes do find it a bit hard to hear what people say, and unless they can hear you, you’re not going to get your points across.”
What lockdown pastime/hobbies have you picked up?
“The answer is a cat.”