This content is from: European Union

Behind the scenes at the Patents Court

An electric car, lunch at the Inn and excitement at the Applications Court - a day in the life of England & Wales High Court judge Mr Justice Arnold

I’m not a cycling judge. I drive to work – I’m currently driving a G-wiz which is quite fun. I live in Islington [in London] and an electric car works extremely well for shuttling back and forth between home and first the Royal Courts of Justice and now the Rolls Buildings. It’s green and it’s cheap. I always felt rather guilty driving to work given that it’s a short distance so it does salve one’s conscience. It’s actually not that high-tech for an IP judge. It’s really just a souped-up golf buggy.

I tend to get in between 8 and 8.15. Then I do what I expect most office workers do; I sit down and see what emails have arrived since I was last in front of my computer. Some emails come direct and some people communicate through my clerk and she will forward them to me, or not, as she thinks fit. Sometimes I can have 10 a day, sometimes 50. But I wouldn’t say that email is a particular curse.

The next thing I do is to go around the websites. This is my own personal keeping-up-to-date. So I read the IP blogs and then I use the judicial intranet to check whether there’s anything that I need to be aware of.

Move towards compressed hearings

Typically I will pre-read for the court session, which usually starts at 10.30 but is sometimes earlier. That’s where the typicality of the day starts to break down. The day can be quite different depending on whether I am at the start or middle of a trial, or whether I am doing something different, like a hearing. At the moment I am in a trial. Today was day nine. As a result, I am pretty much up to speed with the case.

Not all cases are presented by professional advocates – even in IP cases, which have made up about two thirds of my workload since I was appointed in 2008.


"Since the Woolf reforms, there’s an increasing premium on court time and judges do more and more of their work outside court either by way of pre-reading or reserved judgments afterwards."


In a well-prepared case the parties will provide a reading list with suggestions from the advocates as to what documents should be read before trial, in what order and how long that will take. Since the Woolf reforms, there’s an increasing premium on court time and judges do more and more of their work outside court either by way of pre-reading or reserved judgments afterwards. Our Victorian forebears did almost everything orally and there was very little preparation beforehand. But now we’re moving to a system of rather compressed hearings. The big trial is still the exception to that rule but you can have shorter hearings. For these I would typically get the papers the afternoon before.

If the case is going to involve a substantial amount of pre-reading it’s the advocate’s obligation to notify the listings office so that judge gets enough time. In the present trial the estimated pre-reading time was two days – primarily the witness statement and the experts’ reports. A case doesn’t just arrive in court out of the blue. We go through statements of case, disclosure, witness statements, exchange of expert reports and finally we arrive at a trial.

For example, in a patents case, there are three key questions to be asked: what’s the technical complexity rating, how long will it take in court, and how long is the pre-reading time. The parties might say: “It’s five days in court with one day of reading”.

Interesting times in the Applications Court

Many days, I will be doing pre-reading prior to court. Or I might be sitting in the Applications Court, which is when life really gets interesting. All the Chancery judges take it in turns to hear short applications for things like preliminary injunctions – there may be any number of cases in a list. One of my recently retired Court of Appeal colleagues told me his record in a day was 42. I’ve never had that many, but I’ve had around 20. So time is very much at a premium. I need to do quite a lot of pre-reading the night before and in the morning. On the whole I need to decide there and then. There’s an element of triage involved – it’s a question of seeing cases where there isn’t a real dispute, and cases where there is a big dispute but it can’t possibly be dealt with there and then so has to be adjourned. It’s great fun in a way but it’s also very challenging.

I gown up for court. The new gowns came in when I was appointed. Some people say it looks like a gown for a Methodist minister or a gospel choir or a Star Trek character: you name it. Blame Betty Jackson. She designed them! There’s a red tab that indicates that I’m a High Court judge. I wear a wig once a year for the Judges’ Service in Westminster, which forms part of the opening of the legal year.


"Time permitting, I discuss cases informally with other judges and that can be especially helpful where it’s a case outside one’s own scope of expertise."


I used to sit in the Royal Courts of Justice. The Rolls Building is very different, although I was in the most modern building at the RCJ – it was built in the mid-1980s. The biggest difference is that here we’re mixed in with the Patents County Court and the Commercial Court. Before, I was only with fellow Chancery judges.

The court day finishes at 4.30, unless we are in a trial and, say, we run out of witnesses. Then I start to pre-read or write a judgment. Time permitting, I discuss cases informally with other judges and that can be especially helpful where it’s a case outside one’s own scope of expertise.

Room at the Inn

There’s no judges dining room here. As with so much of English legal system, the explanation is historical. Judges have always been ex-barristers and as such members of Inns of Court and traditionally dined in their Inn. A lot of judges still have lunch in an Inn. I am a bencher at Middle Temple so I go there occasionally. And because I am a Chancery judge I have the privilege of lunching in Lincoln’s Inn as well even though I’m not a member there. I go to lunch in the Inn about once a week. Typically I’ll be eating with fellow benchers – judges from the High Court and the Court of Appeal, senior circuit judges and senior barristers, QCs mainly. The rest of the week typically it’s a sandwich here while I work.

Trials vary in length – but they are shorter than in the past. For typical IP cases, if they go to trial, I like to think most can be done in a week but they often slip into a second. The bigger cases certainly do. It is rare for them to go into four. My current case [ Force India F1 Team Ltd v 1 Malaysia Racing Team ] will probably go into the third week. It deals with confidential information and these tend to be quite factual cases – it’s the factual complexity that drives the length of cases. Cross-examining the witnesses takes time.

Judgments get longer and longer

The time it takes me to write a judgment varies. It’s a challenge of a job. The cases we hear are increasingly legally and factually complicated with the result, unfortunately, that judgments get longer and longer and of course they take time to write. One does what one can by way of writing before and after court but otherwise you are looking for spare time and obviously that depends on what the pressure in the list is. In the bigger cases, one could be talking weeks of effort rather than days.

In the Chancery Division, which has 18 judges, we have two judicial assistants who are, on the whole, junior solicitors on three-month placements. Because of who they are and shortness of placement, they wouldn’t be in a position to help with judgment writing even if English judges thought that was a good idea ‑ and on the whole most of us don’t.


"It’s only human nature to feel pride in one’s work and to take interest in what happens when it goes on appeal."


The more complicated cases will be the subject of a reserved judgment and this is distributed in writing. People from other jurisdictions find it quite puzzling that we will send the judgments out in draft to the parties so that they can correct typos and other obvious mistakes. It’s partly a resource issue – what you are effectively doing is outsourcing the proofreading, which in my case is very necessary. But it’s also because occasionally silly mistakes get made – wrong dates or transposing claimant and defendant – it’s an opportunity to pick that up. And sometimes if you have a lot of issues to deal with by the time you get to issue 20 you forget there’s an issue 21 lurking there and it’s an opportunity for the parties to say: “Hold on, judge, there’s an issue you haven’t dealt with.” Typically the parties get the draft for correction for up to four days before it is made public. So they know if they’ve won or lost but they can’t tell anyone.

If the Court of Appeal rules on a case I heard, the standard procedure is that the Court of Appeal sends me a copy of its judgment, whether upholding it or reversing it. It’s only human nature to feel pride in one’s work and to take interest in what happens when it goes on appeal. Sometimes the Court of Appeal reverses you and you think “yes, they were right” and sometimes you think “they just don’t understand!” Sometimes you can get situations where there has been some new development in the case such as they’ve brought in a new barrister who’s thought of a new argument or new evidence has been discovered.

Out of the ivory tower

I suppose the most satisfying days are those when I’ve reached the end of writing a judgment and I’m pleased with what I’ve written, which isn’t always the case. Sometimes sitting in the Applications Court and the adrenaline that the sheer cut and thrust of it generates can be quite satisfying.

One of the great privileges of dealing with IP cases is that we are continually being educated in new fields of science and technology. I can have a great day in court when all I have done is sit and listened to an expert explain some new piece of technology to me. On the whole we rely on expert evidence. In some patent cases there is a primer – a written introduction to the relevant technology. It is supposed to be agreed by the parties although sometimes, unfortunately, they don’t agree. If they are being sensible they will agree it.

If need be I can ask for a scientific adviser to be appointed to sit with me. Thus far I haven’t done that. Another option is to have a scientific adviser just to educate me – effectively give me private tuition. They tend to do it more in the Court of Appeal and the Supreme Court but it’s an option.

It is certainly a recognised downside to the job is that it can be lonely but it’s less true now than it used to be. It used to be the case in this country that people thought that being independent and impartial as a judge meant that you should be cloistered away in an ivory tower. That was thought to be a virtue. Nowadays judges are much more engaged with the outside world. There isn’t the camaraderie that you get at the bar or being a solicitor, but I think judges probably talk to each other more than used to be the case, and more importantly we’re not isolated from the professionals in the field or the users. One thing not widely appreciated about the job of the modern judge is that quite a lot of it consists of doing things other than judging. I go to and give lectures and seminars and go to conferences and receptions. I’ve just come out of a meeting with the IP Court Users’ Committee. There’s quite a lot of extrajudicial activity. You could say that I’m a part-time academic. As well as developing the law through judgments, one contributes to legal debate in other ways.


"Judges probably talk to each other more than used to be the case, and more importantly we’re not isolated from the professionals in the field or the users."


Earlier this month I spent a weekend at a conference in Oxford on the subject of European methods of harmonisation of IP law. I gave a presentation. I find it interesting, but I also think that judges also have a contribution to make. You see it particularly in the IP field and it was something pioneered by the Fordham conference which was designed to encourage debate between judges, practitioners and academics. We can all learn from each other.

We are privileged in IP that the standard of the IP bar is very high. One becomes very conscious of that particularly when, as a Chancery judge, you see the standard of advocacy across a broader range of work. But inevitably, some advocates are more outstanding than others.

People who litigate in London are likely to be conditioned by their own experience – either of their own legal system or of none. My impression is that quite a lot of people involved in litigation for the first time have preconceptions that are based on what they see on television. I’m afraid the reality is not the same – it’s a great deal less dramatic. Television tends to take great liberties with law and procedures, which is not something that happens here.

The material on this site is for law firms, companies and other IP specialists. It is for information only. Please read our Terms and Conditions and Privacy Notice before using the site. All material subject to strictly enforced copyright laws.

© 2020 Euromoney Institutional Investor PLC. For help please see our FAQs.

Related

Instant access to all of our content. Membership Options | One Week Trial