This article is about the rise and rise of Kiwis at the English Bar. I had intended to submit it for publication before Christmas, but missed the deadline. Just as well.
On 11 January it was announced that Stephen Jagusch – ex Simpson Grierson and now partner and Global Chair of Quinn Emanuel’s international arbitration practice – was recommended for appointment as one of Her Majesty’s Counsel. He received his letters patent at the ceremony at Westminster Palace on 22 February. Stephen joins Audley Sheppard QC and Wendy Miles QC, who in 2015 made history by being the first New Zealand solicitors to be appointed to silk. Wendy had the double distinction of being the first New Zealand woman (barrister or solicitor) to be appointed a QC in the United Kingdom.
For the extraordinary nature of these accomplishments to be truly appreciated, they should be seen in context. There are almost 130,000 practising solicitors. Solicitors became entitled to apply for appointment as Queen’s Counsel in 1995. The first two (Arthur Marriott QC and Lawrence Collins QC) were appointed on 27 March 1997. Since 1995 there have only been 129 applications of which 33 (25%) have been successful. Three (10%) of these have been Kiwis, even though they only make up at most 0.4% of that branch of the profession.
The number of Kiwi silks at the bar has not changed significantly since I arrived in 1992.
The four practising in the 1990s were John Platts-Mills QC (1964), Murray Pickering QC (1985), Philip Sapsford QC (1992) and later Paul (now Justice) Walker QC (1999). Since then there have been five further appointments: Graham Eklund QC (2002), David Hislop QC (2010), me (2011), Richard Coleman QC (2012) and Paul Key QC (2013).
The contrast in silk appointments between the two jurisdictions is stark. 2005 saw the removal of the patronage system – still operative in New Zealand – in favour of an independent selection panel. This comprises non-lawyers (one of whom is chair), barristers, solicitors, and a retired judge.
The first stage for the aspirant involves completion of a 66-page application (fee £2,160). The second involves the successful navigation of an interview (fee £3,600 on confirmation of appointment), in the event one receives an invitation (roughly a third do not). In England and Wales as of 2014 there were some 1,625 QCs in practice, as opposed to some 101 in New Zealand. In 2015 there were three appointments in New Zealand as opposed to 93 here – a third of the entire 282 QC appointments made in New Zealand in the last 108 years. In case 2015 is not regarded as representative, in the period 2013-2015 there were 43 New Zealand appointments and 277 here.
[The population of England and Wales is a little over 56 million, while New Zealand’s population is close to 4.5 million.]
The real change
The real change at the English bar has been in the influx of Kiwis in the ranks of juniors. In the 1990s there were only a handful in addition to the silks I have named. The first three were from well-known legal families: Julia Clark (now a Chancery Division Master), Judith Parr, and Nicholas Dugdale, as well as Catherine Callaghan, Matthew Sherratt and Ross Burns, who returned to New Zealand. Ross formed part of Mark Lundy’s defence team at his second trial, together with David Hislop QC and Malcolm Birdling.
Now there are some 17 juniors. While this growth is remarkable, the striking feature is the excellence of the chambers in which they are to be found. The difficulty in my talking about this is that apart from those who have worked in London, there are probably few New Zealand lawyers who have anything more than a superficial knowledge of the English bar.
Many readers will be aware of Brick Court because it was the first port of call for most Kiwi firms instructing English counsel on Privy Council appeals. Some of its famous tenants such as Robert (later Lord) Alexander QC, Sir Sydney Kentridge QC and Jonathan (now Lord) Sumption QC were familiar to several generations of New Zealand lawyers.
Despite the departure of these icons, Brick Court still probably maintains its place as the pre-eminent chambers in the United Kingdom (in The Lawyer list of top 20 cases for 2016 Brick Court featured 15 times with 23 members).
Paul Walker made history when he became its first Kiwi member. He made history again in 2004 when he was appointed the first High Court judge from New Zealand.
In 2004 Sir Paul was followed to Brick Court by Tony Willis, who by then had a long and distinguished career having been Clifford Chance’s managing partner followed by heading up its litigation practice. Tony was unavailable for our photograph because he was in New York picking up the Who’s Who Legal award for global commercial mediator of the year – for the fifth consecutive year.
Malcolm Birdling, probably the ablest New Zealand lawyer of his generation, accepted an offer of tenancy in 2011 after having completed his pupillage. Geoff Sharp, one of the southern hemisphere’s pre-eminent mediators, is also a door tenant.
There are many other magic circle and leading sets to which Kiwis have found their way. These include Fountain Court (Richard Coleman QC and Craig Ulyatt, and where Auckland University’s Professor Peter Watts QC is a door tenant), Blackstone (Catherine Callaghan and Eesvan Krishnan), 4 New Square (Graham Eklund QC), Doughty Street (David Hislop QC) Essex Court (Paul Key QC, where Victoria University’s Professor Campbell McLachlan QC is also a door tenant), One Essex Court (Henry Forbes Smith and James Ruddell), 7 King’s Bench Walk (Tim Jenns), 39 Essex Street (David Mayhew) and 20 Essex Street (Penelope Neville).
Practice anywhere as a barrister offers an exciting and privileged life. This is especially so in London because it is a world forum for litigation and dispute resolution.
For a Kiwi to get a place at that table is now as difficult as qualifying for an Olympic final – demonstrated by the fact that there are still only 20 something New Zealanders among the 16,000 at the English bar. Yet in recent years, despite the daunting odds, Kiwis have demonstrated their excellence by establishing themselves as barristers in growing numbers.
James Ruddell, currently undergoing his pupillage, exemplifies the outstanding qualities of these candidates. His distinctions include Senior Scholar in arts and law at Auckland University, the FMB Reynolds, John Morris and Peter Birks prizes at Oxford, capped by the 2014 Vinerian Scholarship (first in year in BCL) – the last accomplishment repeating Henry Forbes Smith’s feat in 1998.
The last word
Perhaps the last word should go to the old and not the new.
John Faithful Fortescue Platts-Mills QC set benchmarks that are unlikely to be eclipsed. Born in Wellington in 1906, he embarked on a Rhodes scholarship to Balliol after garnering a double first and any number of blues at Victoria University College. Subsequently BCL, barrister, Bevin Boy, Labour MP 1945-1950, QC, counsel in any number of civil, commercial and criminal cases (memorably in the last category for one of the great train robbers and for the Krays) and six sons (one of whom, Mark Platts-Mills QC, followed his father to Balliol and is now the distinguished head of the intellectual property set at 8 New Square). From 1936 onwards father and son account for the staggering number of 98 cases in the All England Reports, and 54 in the Weekly Law Reports – probably a record unparalleled in English legal history.
JPM’s prodigious physical and mental prowess remained remarkable to the end. In his 90s he produced a riveting 657-page account of his personal, professional and political adventures.
In the prologue he wrote, with a characteristic self-depreciation: “It is said that history is written by the winners. Mine is a footnote to a loser’s history for beginners.”
Michael Mansfield QC, the well-known criminal silk who was once his pupil, more aptly described the autobiography as “… a contemporary history of our times … a remarkable and compelling account of groundbreaking events chronicled by someone who played an active role in them …” From whence shall come another?
John McLinden QC is a trial and appellate advocate and a member of Field Court Chambers in London. He took silk in 2011.