In ‘Family law at a distance’,1 you spoke about the benefits of cross-fertilisation. As a practitioner, were you ever interested in family law? Did you ever come across family law practice?

No, I was a commercial practitioner. I had two exposures to family law before I went to the Supreme Court. One of them I am not in a position to talk about. The other was a case when I was fairly new to practice, which rather illustrates the problem that arose in Prest v Petrodel.2 A deserted wife who had married a Greek ship owner and then divorced him, wished to obtain a Mareva3 injunction to stop him salting away his assets before the financial remedies were obtained. She knew that he owned and ran ships, and she knew that they were all owned by one-ship companies which, as with all Greek ships, were registered in Panama. All she knew about them was that they ended with the name ‘Naviera’. She obtained from Heilbron J a worldwide Mareva order blocking every ship belonging to a company with a name including the word ‘Naviera’ – this was about 4,000 ships of the Greek merchant marine distributed across the world. I was instructed to apply to Heilbron J to have it lifted because 3,997 were unlikely to have anything to do with the husband. The judge thought this was an extraordinary application and threw it out. It was only at the door of the Court of Appeal that the wife’s lawyers recognised that this was not going to be easy to sustain before a Court of Appeal comprising people such as Eustice Roskill. The case underlines the tendency for family courts to move in a different world, in which one stopped at absolutely nothing to ensure that financial remedies were effective.

That was really the problem in Prest v Petrodel. We got to what I would agree was the right answer but not by ignoring the corporate veil. It was actually a case about company law rather than family law.

There is a problem about all specialisations. The problem is the degree of specialisation which is professionally possible at the Bar. It is higher than in almost any other legal profession in the world. This encourages the development of legal silos. I was constantly struck by the number of practitioners who came into the Supreme Court in family cases, in planning cases, in social security cases who were entirely enclosed by their speciality. They had a grab bag of useful authorities, all derived from their own area of law. There was no conception that behind these authorities there might lie some general legal principle, common to quite a number of other legal silos. But because nobody looks over the fence into the garden next door, they were completely unconscious of this. By far the best advocates are those who can relate what they are submitting to some general principle of law which is not confined to that particular speciality. It is surprising how few practitioners do that

Do you think family lawyers were particularly bad at that (being siloed)?

As I said in the lecture that you quote,4 family lawyers were particularly inclined to feel that their field was governed by certain imperatives which made other legal principles irrelevant. Family law is different in quite a few ways. It was not originally a common law jurisdiction. It originates in the ecclesiastical courts and has large elements of civil law in it. So historically it certainly is different. It is also traditionally a much more inquisitorial rather than adversarial system, with the judge very much more in charge than he would be in a case about, for example, charter parties. So, there are differences, but the substance of the law is the same in every division of the High Court. In particular, the law of property is the same.

Do you discern that things are getting better in terms of family lawyers taking this on board?

I have not heard enough cases to be able to say. I am told it is. I also notice that the calibre of people going into the family Bar, not by the accident of where they did that pupillage but by choice, is very high. I am not going to suggest that it was not always high, but looking at the children of friends of my generation who are going into the law, a significant number are going into areas of law where the pay is lousy, such as criminal law and some parts of family law. But it is not a place you go to make your fortune; you go there because you are genuinely interested in it.

When you took your appointment, did you leave the Bar with any regrets?

I did not regret it. I left the Bar at a time when I was very much enjoying it, but it was not going to get any better or any different for me. It would have been more of the same. The same was great, but the opportunity rarely arises to do something important, interesting and different when one is 63, and it is not to be sneezed at.

How did you find the change, from your role as leading counsel and one of the stars at the Bar, to the more collaborative environment of the Supreme Court?

It is not very different. The sort of cases that I was doing quite often involved large teams of barristers and solicitors – they were collaborative as well. Solicitors have changed out at all recognition since I came to the Bar in 1975. At that time, many solicitors particularly the more senior ones did not regard it as their function to think seriously about law. That was what they went to counsel. For a generation or more now, solicitors have been extremely good lawyers, or they do not survive. They have an important contribution to make which you have to respect, so there is a large measure of collaboration anyway.

The Supreme Court has not always been as collaborative with as it is now. In Tom Bingham’s day, people retired into their igloos after the arguments, and they emerged with draft judgments which involved no real input from any of their colleagues. It was not done to go round to a colleague and say, ‘look I could agree with you if you change this or that’ or ‘don’t you think that the following bit of your judgment needs to be toned down’. That is absolutely routine now, but it is really only in the last 10 years that it has become so.

I was looking through the authorities and I think there were probably about a dozen family cases or quasi-family cases

I did not deliver a judgment in many of them.

Prest is the obvious one …

There was also a case where I dissented along with Tony Clark with both the family lawyers, Nick Wilson, and Brenda5 on the other side.6 That is actually one of the great advantages of the Supreme Court: the fact that some one new to the subject can end up hearing cases on subjects like this. There are times when a specialisation becomes a bit ingrown. It starts observing unique conventions of its own. An outsider can come into this world and say, ‘Blimey what the Hell’s been going on here?’ That is very healthy because it is a question that somebody who has been doing it all his career is never likely to ask.

Like the House of Lords in White, asking where in the statute is there any reference to ‘reasonable requirements’.

Yes.

What was your impression of family lawyers having not come across them in practice?

As lawyers? I thought that they were too bound up with their own way of doing things and with a series of principles and practises grown up unique to their area of law, which is always a bad thing. There obviously are immensely significant exceptions to this. James Munby, for example, was a judge with a general view of the law, in my view one of the outstanding lawyers of his generation. There were occasional practitioners who made the same sort of impression. But remember that one is spoilt in the Supreme Court.

You mentioned Prest v Petrodel earlier, where you comprehensively disapproved of the special approach which had been applied in the Family Division to piercing the corporate veil. Is Prest a decision you look back on or reflect on?

I do not really look back or reflect upon any of the cases that I sat on. I remember that one particularly because it was quite early in my time on the court, because it was not my subject, and because I had to spend a lot of time negotiating with family lawyers who were much more sympathetic to the decisions of the first instance judge than I was.

Who felt that the end justifies the means?

Yes, but that is not a sound principle.

Practitioners who sit part time are often surprised by how much you can gain from observing advocacy. You can see what works and what does not work. What would you say are the hallmarks of a really good advocate?

There is not a single answer to that. One of the worst things you can do is to imitate the mannerisms however effective of another advocate that you have admired. Certainly, at the top level there is an element of quirkiness in all great advocates, which is one of the things that makes them interesting to listen to. The quirkiness guarantees that they are not going to be telling you the same as the last person who argued that point. I think apart from the obvious things like being completely on top of your material both factual and legal, an ability to present facts and law in an interesting way is absolutely vital to retaining the interests of the tribunal.

I have occasionally been asked ‘What is the single most important rule you would press on people?’ and my answer is that halfway through each sentence it should never be entirely clear how it is going to end.

Avoid clichés?

Avoid cliches, certainly, but if there is some linguistic uncertainty about the way that you are going to put it, people pay attention more closely.

What advice do you have just for a young barrister or solicitor in terms of preparing for court?

The most important thing is that you have got to have a very clear idea of what you are trying to prove if it is fact or establish if it is not. It is surprising how many very experienced advocates flail around looking for a principle that might help them instead of working out exactly in advance what they have got to establish. This applies particularly to cases involving contested witness evidence. The point about cross-examination, for example, is not just to rubbish the other side, but to prove something, which may be better done by not rubbishing them.

Your valedictory is still online and makes entertaining viewing. Lord Grabiner QC joked that as a judge you had to retire just as you reach your intellectual maturity. Had the rules been different would you liked to have sat beyond your 70th birthday?

There would have been a serious crisis in my family had that happened, but I probably would have braved the disapproval of my wife and continued for a couple of years. I would not have continued to 75. I do not think that one declines as a judge in one’s seventies. But from a purely personal point of view, I think that to stop working at 75 is too late to start doing other interesting things instead. There is a big difference that I cannot really explain between retiring at 70 and retiring at 75 to the quality of the rest of your life.

Turning to your life since retiring, you have taken a very public stance against the lockdown measures to the extent of, arguably, approval of a degree of law breaking

I did not approve it. What I said was there is no moral obligation to obey the law. It is a tautology to say there is a legal obligation. I have also said that it is a matter for every individual to decide at what point he says to himself ‘I’m not going to comply with this nonsense’. There is such a point in the case of almost every individual. If you take an extreme case, and I am not suggesting there is any analogy with the COVID-19 measures, I think that many people who were basically law abiding would have felt that there was a point beyond which in Germany in the 1930s they were not prepared to comply with some laws. I cite that simply to make the point we all have a breaking point somewhere.

Do you feel that some of the lockdown measures brought you to that point of saying ‘I can’t comply’?

I have already admitted that I was not a scrupulous observer of the lockdown rules. I thought that they were oppressive. They went well beyond what the state is entitled to do to people. It is not a good enough reason that it might work or will save lives. I do not regard liberty as an absolute value, but I do think that it is a value of very great importance. If we were talking about an outbreak of smallpox cases with fatality rates around 30% or Ebola with 50%, I would see the point. The alternative would be worse than the lockdown. But to apply this to a disease with a case fatality rate somewhere between 0.15% and 1% seems to me to be completely disproportionate.

Are you troubled by the political climate, or do you think we are now taking steps to get back on track?

Well, we are obviously moving out of lockdown, but my concerns about the political climate are a lot wider than that. I think that we are moving to a more authoritarian and less tolerant style of politics. This is not, however, entirely the fault of politicians. It is largely the fault of the public at large. There is a demand that the state intervene in areas where it is either impotent or its actions are just not going to help. The same is true of quite a lot of other countries.

Have we enabled it?

Certainly. We did not behave with the kind of hysteria that we have seen in the COVID-19 pandemic during the epidemics of Hong Kong or Asian flu in 1957 and 1968. They were not as serious in mortality or infection terms as COVID-19, but they were not that far short. What has clearly changed is the public mentality. We are now willing to accept this kind of measure and, indeed, to demand it. We all have a personal responsibility to look after ourselves and our neighbours. If we shuffle this responsibility off to the state, the state will respond in the only way it knows, namely by coercion. That creates a relationship between the citizen and the state which is profoundly unhealthy. It may be what a large majority of citizens want or certainly wanted at one stage, but that does not make it any better.

Turning to your involvement with the media, the Family Court is currently wrestling with this issue. The President has recently published guidance for opening up the family court allowing the press to actually report instead of attend. Given your recent experience with the media and some of the controversies which have arisen, are you a proponent of greater openness?

In principle, yes, but I think special considerations apply to family law. The proceedings of the courts are part of the public business of the state and unless there are compelling considerations of justice or national security I would in general think they should be open. I am the author of at least two judgments to broadly that effect.

There are, however, some rather special considerations in family cases, and I actually think that the family courts are probably too open. There was a time when family proceedings were with minor exceptions closed to the public. Family cases normally deal with intense personal tragedies involving quite ordinary citizens. I think that the public does not have a right to know about the internal distresses in a family relationship. The public does not acquire the right to know simply because the family in question is unable to sort out the problem for itself so that the court becomes involved. So, I would make this an exception to the principle that courts transact the public business of the state. Family courts are concerned with sorting out some of the most intimate and emotional issues that an ordinary human being can experience. I regard them as providing a supporting service rather than an adjudicatory service in the sense in which one might use that word in other kinds of case.

Would that also apply when it is a family against the state, for example in care proceedings?

Yes, for exactly the same reasons. Care proceedings are cases in which the relationship between a parent and child has in some way gone badly awry. I would not distinguish between that kind of issue and an issue between husband and wife.

Are you more wary of the media these days?

No. If you descend into the bear pit as I have done you cannot complain if you get scratched. I deliberately went public on lockdowns but in general I think that this is a bad idea. I have a great deal of sympathy with those ex-colleagues of mine who feel that a retired judge should not take a public stand on controversial issues. But there are some issues which I think are so fundamental not just in themselves but because of what they mean for the way we govern ourselves in the future, that you have to stand up and be counted. I think that lockdown was that kind of issue.

Some judges anonymously engage in social media such as Twitter. Has that ever interested you? Are you a secret Tweeter?

No, I am not a secret Tweeter. I find the social media deeply unpleasant in lots of ways and I think that people who go onto social media often lose the reticence that they would observe in any other medium. It is a tremendous temptation to say things that one subsequently regrets. That applies to a lot of very cautious people who just become less cautious when they go into Twitter.

Do you ever regret not taking the path of an academic historian?

I have taken the path of an academic historian, side by side with being about a barrister and a judge. So, I have got nothing to regret. You know the irony is that conditions in academic life now are such that it is easier to write a five-volume history of the Hundred Years’ War as a barrister and judge than as a full-time academic. It is shameful but that should be so, but it is. Partly because of the burden of administrative work and partly because of the need to keep up the research assessment framework score of your university department by producing regular articles in peer-reviewed journals. This is a tyranny which stops people writing serious works of scholarship. I do not think that I could have written as I have done if I had been a full-time academic. I hasten to say that that came something of a surprise to me. It was not why I ceased to be an academic.

Having now completed that multi-volume project, I think Lord Grabiner QC suggested you might start on something similarly massive, such as the Thirty Years War?

I cannot start on something massive in scope. I am not immortal. I have finished The Hundred Years War; it has taken me 42 years. It is important not to embark on the decline and fall of the Roman Empire at the age of 73. I do not quite know what I am going to do now. I cannot imagine a time when I do not have some literary project on hand. I did at one stage think about writing about the Dreyfus case, but after reading Ruth Harris’s excellent book in English on the subject I felt that that was a work that could not be bettered and so there was really no point.

I am going to follow the traditions of the Bar by saying I have one final question, meaning at least two final questions: There is precedent for retired judges to appear on Desert Island Discs. Would you ever be tempted to do that and, if so, what would be the book and piece of music you take to your desert island?

I would be tempted. The book? For a very special reason it would be Pastor’s The History of the Popes. The special reason is that if you are on a desert island and only has one book, it needs to be the longest book that you can think of. Pastor’s The History of the Popes is not a literary masterpiece but it is in in 40 volumes, so by the time I had reached the end I would undoubtedly have forgotten the beginning and could happily start again. As to music, it depends on the last concert that one went to. I think possibly one of Janácek’s operas, probably Jenufa.

Is there one case as a judge or a barrister you look back with the greatest sense of pride and satisfaction?

There is not one; there are a number of them. Some of them are technical cases of no general interest. Alconbury,7 for example, was about the application of human rights to the planning system. It was a case I look back on with pride because most people thought it could not be won in the House of Lords and I did win it. I was not surprised to win it. I just thought that people had missed the critical point up to that stage and it is always a pleasant feeling to win a case like that.

Otherwise, I got a great deal of satisfaction from the last case I did at the Bar, which is the dispute between Abramovich and Berezovsky.8 It was a case of no legal importance at all – essentially, a swearing match between two people about a series of transactions which occurred in the absence of witnesses and with no documentation. It turned entirely on cross-examination. I have never prepared a cross-examination so intensively or continued one for so long – 9 days – or with a stronger feeling that it was decisive of the outcome. So, I look back on that with some pleasure.

And that would have been cross-examination with an interpreter?

Not in the case of Berezovsky. He would have been wise to use an interpreter because although he spoke and understood English well enough to be cross-examined, he did not understand it quite as well as he thought he did. Abramovich genuinely does not speak much English. He needed, and used, an interpreter.

Lord Sumption, on behalf of the Financial Remedies Journal, thank you for agreeing to be interviewed.