Interview with Mr Justice Mostyn – Rules and Woolly Discretion

Alexander Chandler KC

1 KBW

Many thanks for agreeing to be interviewed for the Financial Remedies Journal

Very good to see you. You come at the end of an era. Tomorrow is my last day sitting in the Admin Court, hearing a case about council tax. I shall be writing a couple of judgments, but I shall never sit there again. Then four months in the Family Division, of which two weeks are on circuit.

What I have managed to do from my bucket list was recently to sit in the Divisional Court with Lord Justice Warby, doing a case about anonymisation.

That can’t have been a coincidence.

No, it wasn’t a coincidence.

Early years

I have read that you grew up in Nigeria, Venezuela, El Salvador. You were raised as a Catholic and attended Ampleforth College, which sounds like the plot of a Graham Greene novel. Was law in the blood? Are you the first in your family to pursue a legal career?

I was the first.

You first came to national prominence age 18 when you won the Observer debating mace with Edward Stourton. The motion was ‘This house disapproves of the Referendum’ [on membership of the European Community].1

We were opposing it. We were approving the [1975] referendum and were arguing to stay in Europe.

At the prize giving, Lord Hailsham is reported to have quoted Churchill: ‘… if you can speak in this country, you can do anything.’

Yes, Lord Hailsham was the patron of the Schools Debating Association and when he gave his speech at the prize-giving (we won), he quoted Churchill.

Is that something you would subscribe to?

Definitely and of course Ed and I went off in our different ways to speak. He is one of our greatest broadcasters and I went to the Bar.

Was that when you first thought of a career as a barrister?

I first thought of a career as a barrister about then, yes. I was doing science A levels and was trying to think of a job that would accommodate science A levels, like engineering or something. Then I got lured into the debating society at Ampleforth, when I started to think about how I could use public speaking in a career. That’s why I made the decision then to switch from the idea of reading physics at university to reading law.

Career as a barrister

You were called in 1980 and took pupillage in what was then the chambers of Joseph Jackson QC at 1 Mitre Court [now 1 Hare Court]. Did you come to family law by design or by accident?

There’s one person who’s responsible for me for me being here and that is Professor Nigel Lowe then of Bristol University, where I went. I didn’t get into Cambridge (as my wife continually reminds me) and I got a very distinguished 2:2 from Bristol. There I was inspired by Professor Lowe who was a brilliant teacher of family law, and whose wife [Professor] Brenda Sufrin was in fact my personal tutor. He really inspired me with the subject; so much so that I took the option in the last year of writing a thesis comparing canon law annulment of marriage with English law, and I have it here – the only piece of work I got a first in.

I did a lot of research for that and even spent a week in the monastery at Ampleforth, reading the canon law reports. At Professor Lowe’s suggestion I applied for pupillage at 1 Mitre Court, and I remember taking my thesis there and showing it to Joseph Jackson QC, who had written the seminal work about nullity.2 He very kindly read it and offered me a pupillage. I was allocated Peter Singer as my pupil master for my first six and Bruce Blair for the second.

Many of your colleagues in chambers at that time ended up either in the High Court or above or took silk. Did you feel at the time that you were part of a stellar generation?

A few years before I arrived, Joseph Jackson had come over and done a reverse takeover of chambers, and it wasn’t a very happy place although there were some very distinguished names in chambers: Jackson, Thorpe, Focke, Singer, Wall, Hogg, Horowitz, Blair, and we were later joined by Everall, Posnansky, Nigel Dyer. So, it was a distinguished lot although we weren’t churning out endless High Court Judges the way that QEB did. Joseph Jackson could be a very irascible man, but he was so clever. He had a terrible temper. I was led by him early in my career and it was a terrifying experience. If he felt you’d put a foot wrong you would be in terrible trouble. He could be difficult and Ormrod LJ and he particularly disliked each other. I remember being led by him in the Court of Appeal and the venom – can you have palpable venom? – between them was extraordinary.

As a barrister was there anyone, as opponent or judge, who you particularly respected or enjoyed appearing against or in front of?

The judge who I most enjoyed appearing in front of in the early days was Registrar Colin Turner, who went on to become the Senior Registrar in Somerset House,3 who was a very genial and amusing man, and he had a very good turn of phrase. He was quite firm, but he was above all witty.

The opponent I most enjoyed being against was Paul Coleridge. He was always very amusing; he was always very fair. Not always completely on top of every detail of the case, but he was a very easy-going opponent. At the other end of the spectrum, I don’t say that Martin Pointer QC was difficult, but I enjoyed being against him because he really had you on your mettle. He was very, very intelligent and he was meticulous in his preparation of cases, although it was all a bit last minute. So, you never quite knew what his when you were going to get his skeleton argument and what it was going to say. But he was always a doughty opponent. What has happened to him is an absolute tragedy.

In terms of judges, I always enjoyed appearing in front of Mathew Thorpe LJ. That mind was just incredible, and he had every detail, every nuance, every marvellous turn of phrase was at his fingertips.

One of the memories that I will take forever was being led by Nicholas Wilson QC4 in front of Thorpe. I remember Nick Wilson asking the mother, ‘Can you name a woman in fact, or in fiction, who has behaved as badly as you?’ There was a dramatic silence you could cut with a knife, followed by a collective scratching of the heads and people muttering, ‘Anna Karenina? ... Lucretia Borgia? ... Regan?’ (laughs). Those early days before I took silk, being led by Nicholas Wilson, were so incredibly influential, when I was his junior of choice for about 5 years. His was such a great brain and I learned so much from him about how to cross examine, how to prepare cases, how to deal with clients. I learned so much from him because he was consummate about it. He had this incredible knack of knowing exactly when to use a bon mot and when not to. Nothing was ever out of place; it was just extraordinary. I was so lucky to have spent those years working with him.

Craft of an advocate

What are the hallmarks of a good advocate?

Preparation and being concise; not being verbose. Charlie Falconer used to have cases with tens of thousands of documents, and he’d say ‘I know where every document is, and what it says’. So, the first thing: you cannot win as a barrister if you just try to wing it. Preparation is the key, not only in your understanding of the documents, but in the way you’re going to use those documents, both in your in your written skeleton and orally.

The second thing is trying to be to be concise in your addresses to the court and in your questioning of witnesses. Do not fall into the terrible Radio 4 habit of asking compound questions of witnesses and do not make unstructured stream of consciousness submissions to judges.

Then beyond that, the ability to be a good advocate, is it something you can learn?

I think it’s a learning process.

It is a learning process. Although there are some people who will never be good advocates, though, even though they’re highly intelligent. This is true, isn’t it?

It is, but people generally improve with experience, and there is a lot of craft which advocates don’t always pay enough attention to, particularly with cross examination.

There is a lot of craft there. Do you want tips for cross examination? What is the most important thing about cross examination?

I would say, think backwards. Plan your cross examination according to your closing submissions.

Yes, I’m close to that. But here is an infallible tip. The most important thing in cross examination is the question, not the answer. The judge will always remember your questions. He will not necessarily be interested much in the answers.

Cross examination is the way, and the platform where, you can put your case again and again and drill it into the judge’s head. If the witness gives an unsatisfactory answer for you, just ignore it and move on to the next question. Get the next question in. Get the questions, which is your case, into the judge’s head. It’s the questions that matter.

The second thing: write out your cross examination. My cross examinations would always be ‘Question … if he answers this, then ask this; if he answers that, then ask that question’. It would all be planned out in a flow chart, with every possible answer that the witness could give, because of course you happen to know all the answers, don’t you? You don’t ask a question you don’t already know the answer to.

And then there’s your point, which is start at the end and work backwards.

When you’re a judge, and you hear the questions being put, those questions solidify in your mind, and you think well that’s that case that has to be met.

Third of all, never, ever, ever ask compound questions. The judge will not remember any part of it at all.

Wasn’t it Mrs Justice Parker who said no question should be longer than six or seven words?

I didn’t know she said that, but it sounds a good rule. I mean, there’s those Radio 4 questions – you know, ‘… isn’t it right that, and isn’t that right, and …?’ Absolutely hopeless.

How rigidly would you keep to your plan of cross examination? Presumably, there were points where you thought, well, this was really a surprising answer. I’m going to follow that through. Or would you say, resist the temptation; keep to the plan?

I’ve never been surprised by the answer because I was always religious about obeying the rule, never asking a question to which you don’t already know the answer.

But people under stress say unexpected things, they panic, or they freeze, or if you pause long enough, they may say something stupid.

People boast about spontaneously asking the absolute killer question they weren’t prepared for. It never happened to me. I mean, there was some latitude, but I very rarely strayed from my plan which is always an important part of a case.

We all know what the evidence is going to be. It’s a very rare case where something comes out which is completely surprising, isn’t it? In the course of my career at the Bar which lasted 30 years, there were maybe two or three cases where suddenly the most extraordinary admissions were made, which I was never expecting. In fact, I wrote about this in a judgment.5 It is very rare in cross examination that a witness collapses and admits everything. Usually, you use cross examination to reinforce your case and to undermine the credibility of the other party, and you do it by confronting them with documents which are inconsistent. So, you’re in in complete control of the process. So, it was very rare that that I had something happen that was so surprising that I had to completely move off piste, strap on a different pair of skis and go plunging off into the distance.

Conversely, what in your view is the worst sin an advocate, particularly a family advocate, can commit?

Not being precise, not being planned. I mean, you see counsel just asking questions which are forming in their minds. You can almost see it happening physically in front of you.

Being unprepared, unplanned, verbose, prolixity and laziness. It comes back to not being prepared, which will come back to haunt you. If you think you can wing it and you don’t know what all the documents are, and one of the documents turns out to be one that the case turns on and you weren’t aware of it. That would be a calamity, no? So, unpreparedness is the worst sin. And there’s no doubt about that.

What advice would you give to a junior advocate starting out a career in family law?

I predict a revolution in the practice of law in the relatively near future. AI is going to make so many youngsters, or people who aren’t the big hitters, in solicitors’ firms redundant. First of all, the AI product it is going to know where every document is in the file so when a letter comes in it will write the perfect response. It will then do the best possible attendance notes of meetings because it will be putting in sidenotes saying, ‘don’t do that’ or ‘that’s a mistake’. It will then do all their media, all their tweets, their legal research. All of the dross which lawyers currently have to do, writing letters and making attendance notes, will be got rid of. But while the AI machine will be very intelligent, it will have no wisdom. That is what you have to get your head around.

When I was talking to members of my old chambers about this at the FLBA dinner, they were saying surely this revolution is going to be for the benefit of the Bar generally, which will change and become a sort of one stop shop. Because you will go to lawyers for legal advice, not for them to write letters or to produce incredibly expensive attendance notes where there are five solicitors attending a meeting all charging hundreds of pounds an hour, so the aggregate fee for an attendance note is something like £2,500 per hour. A machine will just do all that, and much better than could possibly be done by a human being. It will know what all the previous correspondence says, what the documents say, what your opponent has asked for and whether you provided it 6 months ago. At the moment the division of solicitors doing all this, doing highly charged administrative tasks, and these elite barristers being intermittently consulted – that is all going to change. We will go back to lawyers as they used to be probably 400 or 500 years ago, giving advice, instead of being letter writers.

In a few years’ time I see far more sets of chambers being the one stop shops with direct access and the machines doing all the dross. So, a client could come into your chambers, the AI machine would take a brilliant proof of all the relevant facts, and it would know what was missed out. You would come in, provide the wisdom content, and the advice, which the machine cannot. So, I think the Bar will be a good place to go. I wouldn’t have thought starting as a solicitor will be nearly so promising. I think the solicitors’ profession is going to be really shaken down, but I think it will be to the Bar’s advantage because the Bar will go back to doing what it does so well, providing the judgment, providing the advice, and not the innumerable man hours of making bundles and all that.

So, family law is going to be a profitable place to go, and I read yesterday that the government is going to refer the reform of the financial elements of the Matrimonial Causes Act to the Law Commission. Well, that’s exciting, isn’t it?

Well, it is. If they do something about it.

Yes, but there’s a lot of noise in support, from the two Baronesses [Baroness Shackleton and Baroness Deech] and there are a lot of people on their side, saying that we have to have reform because certain judges, I think there’s probably a reference to me, try to make rules. Other judges say no, no, no, they water down the rules and we’re back to woolly discretion again. So that it’s impossible to predict the outcome of cases, because it’s subject to the individual subjectivity of the individual judge. The campaign of Baroness Deech is going to move to the battlefield of the Law Commission and in a few years’ time a revised statute will come out with a more rigid set of rules, like they have north of the border. Joseph Jackson always used to say every Act of Parliament is ten years’ work. That was his mantra. So, this could be a very good time, because if they do change the rules, there will be plenty of litigation to work out what they are before things become stable. When I wrote my essay for the millennium6 I wasn’t sure if I would recommend my children to go the family Bar, but I now think it would be a rather good place to go. In the Financial Remedies Court, we’ve sorted out the procedure, which I think is pretty good, don’t you?

I think the procedure is good. I personally have a problem with the composite schedule. I’ve spent my life refining my own spreadsheets, getting used to Excel, and I still struggle with having to use the standard ES2.

But apparently the judges like it. However, that’s a small point. I think I mean that can be easily changed, but I think generally the structure of the procedure is pretty satisfactory. The substantive law though in my opinion has got too much woolly discretion in it.

Are you a proponent of Baroness Deech’s draft bill?

Oh yes, definitely, I’m a supporter of it.

You recently described yourself recently as having an ‘uber Tigger Pollyanna’ personality, which suggests energy and optimism, neither of which are classic barrister traits. We’re not known for being Tiggerish.

Glass half full. One of the reasons I’ve mentioned Registrar Turner is that his nickname for me was ‘Tigger’.

Your former senior clerk, Steve McCrone, sent me some of the older Chambers and Partners entries which described you as ‘… flamboyant, able to talk the hind legs of a donkey. A classy advocate and a bullish gambler’.

I suppose what that means is Mrs Miller. I said to her that when we get to the Court of Appeal and the House of Lords, there’s no costs protection of any nature. You lose, you pay all the costs. So, we were gambling hard. But she said, ‘go for it’. And so we did. I did gamble on that case. But I had confidence I was going to win. Nobody else did. But I did win.

The trilogy of HL/ SC cases: White v White, Miller and Radmacher

It is extraordinary to think that the House of Lords nearly didn’t grant leave for the appeal to be heard in White. Do you think that it was inevitable that there would a change in the law, sooner or later, away from reasonable requirements?

I can’t say. There wasn’t an enormous movement before White to change things. There were rumblings; there was the Singer paper, that he gave at Cumberland Lodge when he talked about the iniquity of the Duxbury paradox (the older you were, the shorter your life expectancy, so you got less), which is exactly what happened to Mrs White. She got less than she owned.

I remember going to Australia and I was taken to the Sydney Cricket Ground by a member of our associate chambers in Sydney, where I was introduced to this marvellous family barrister called Thomas Hodgson, who said ‘What is the way you decide your money cases in England?’ And I said we do it by reasonable requirements. He said ‘why, we do it by contributions’. I said, well, it’s because that’s the way we’ve always done it. ‘But that’s not a good reason, mate, is it? That doesn’t make any sense’. I felt a bit uneasy. But people were very wedded to it. I remember when Dart7 was up before the Court of Appeal, I bumped into Mathew Thorpe in the street who said, ‘Duxbury will be defended!’ He loved Duxbury. It was such a clever piece of magic. One of the things I’m most proud of is that I wrote the very first Duxbury program in something called Framework 2, and Duxbury is still a perfectly good method for computing needs. But that was the only way cases were decided: house and a Duxbury. So, it was inevitable that a case reached the Lords eventually.

But White was a strange case to be a test case. It is often forgotten that Mr White (your client) was cross-appealing in the Lords.

We [Mr White’s side] were trying to uphold the orthodoxy. I was saying that [the trial judge] Holman J was right, that the Court of Appeal had given her additional money for no good legal reason. Her proprietary ownership of the farm was a complete red herring, according to what Lord Denning MR had said in the seventies. Holman J had followed Dart to the letter and had been very badly treated by the Court of Appeal. I remember Lord Hutton looking at me and asking, ‘What is your main reason for saying Mr Justice Holman’s decision should be reinstated?’ I said, because he correctly followed Dart. And Hutton replied, ‘… but Dart is wrong’.

With hindsight, would you have taken a different point for Mr White?

Listen, having read the judgments, I regarded the decision of the House of Lords as a great victory for me because how I managed to hold the 60/40 split in favour of Mr White in the light of those judgments, I still don’t know. It was impossible to understand why equality wasn’t the outcome. So no, I don’t regret anything. I applaud James Turner KC, who represented the wife, Mrs White, who was a doughty fighter.

Miller/McFarlane is a significantly more complex judgment and a more controversial one. We’ve had many years teasing out the subtle nuances and the disagreements between the court. Do you think it was a missed opportunity?

No, I think that I think it was pretty good actually. There were slight differences between Lord Nicholls and Baroness Hale about short marriages.

I do feel slightly guilty for the emphasis on compensation. Our printed case was absolutely brilliant, for which I have to acknowledge Becky Bailey-Harris who is really good with legal research and has a wonderful way with words. But we put this idea [compensation] in because we wanted to win and hold the original award. We weren’t interested in changing the law. And then it appeared in the opinions, and I wanted to write and say, ‘we didn’t really mean that!’.

So that’s why one of the first things I did when I got on the bench was to try and put the lid on compensation as fast as I could. We’d only introduced that as a makeweight, having dug up some idiotic American academic analysis about how it should all be seen through the eyes of recompense, without acknowledging the fact that you don’t normally get compensated for something you’ve done voluntarily.

But that remains Baroness Hale’s view, that compensation should play a more central role in the law.

She does but she is on message that the main metric is sharing. I’ve always said to her, why do you have compensation if you’ve got relationship-generated needs? Why do you need compensation as a separate a head, a separate strand, when you’ve got within needs ‘relationship-generated disadvantage’, which is the same thing. Your needs should reflect what you’ve given up. But there have only been at most, two or three cases which have included compensation where, for some reason or other, there isn’t a sharing claim.

Brenda Hale did subscribe to the primary message that sharing is the main metric. I did try to explain recently in Fuchs8 that, when the Lords decided White, they decided reasonable requirements should not be the sole metric and instead there should be a disposition which reflected fairness, which is where they stopped. They didn’t explain anything about fairness. They just gave this protean thing called fairness without explaining, when you applied this criterion, how much money it would spew out at the other end.

So, we had these few years between White and Miller where people said reasonable needs come to £2 million but fairness, I think is £3 million. It was subjective and driven by the gut. In Miller we said we cannot keep going like that, we have to have some sort of understandable rule which we can explain to our clients and argue in court. So, they came up with the idea of sharing which had been foreshadowed in White but only as a crosscheck against discrimination.

The ‘yardstick’

Yes. But it was there just to make sure you weren’t discriminating. But it wasn’t a mode of disposition. You used needs and fairness which you checked against equality, which was quite an intellectually challenging journey because you arrived at your destination and then had to stop and make sure you’d arrived at the right destination.

That’s why they gave us a much firmer rule [in Miller] about sharing and explained that within needs there was the concept of relationship-generated disadvantage. And then they brought in compensation which I think was a bit of a distraction because I really struggle to see cases where compensation is actually going to feature as the measure which generates the result in the case. Where needs are to be exceeded, it should almost invariably be by sharing; not necessarily equal sharing, because there can be some unequal sharing where assets have come into the matrimonial pot which have their origin outside the marriage. That’s a good principle – if a pre-marital asset has been matrimonialised, it doesn’t mean that the ultimate sharing of that asset is equal. I think that’s perfectly fair: that’s Lord Wilson’s case of Vaughan.9

It must have been a close-run thing [Miller]?

It was a really close-run thing.

The reasoning of Singer J (the trial judge) wasn’t upheld.

Well, Singer J decided it basically on conduct. Somehow, we managed to repackage that in the Court of Appeal as a different type of conduct and somehow won that, and then we abandoned conduct altogether entirely in the Lords, where I said everything had been misunderstood in the courts below. I remember in the Lords, Lord Hoffmann looked up – he had been playing on his Blackberry – and said to me ‘you’re just giving this judgment a good makeover, aren’t you?’

Did I mention that as part of our submissions we had identified the origin of ‘community of property’ or ‘matrimonial acquest’? Because my junior Becky Bailey-Harris is such a brilliant lawyer and legal historian, she had discovered that it derived not from Roman law, or Norse law after the Conquest, but from the Visigoths. This was referred to by Tacitus in his tract ‘Germania’ which we quoted without a translation in our printed case. Then we went to a mate of ours in Oxford and asked for a deliberately really useless translation for it. So, in the Lords, I stood up and started translating, only for Lord Hope to say ‘No, no, no, it doesn’t say that; it says the opposite’, and Lord Hoffmann said ‘Come on, anybody can see it. It says the opposite to what you say.’ I said, ‘What? so it’s in my favour?’ I then said to the Lords, ‘oh you’re so clever’. They were all mine after that.

So, you’d set the trap, which they walked straight into.

Straight in.

Can we turn to Radmacher, which in some ways was the most radical of the three cases?

Well, in some ways it was a bigger change in the substantive law.

Do you view the development of the law with nuptial agreements as positive or are you troubled by there now effectively being two classes of claimant depending on whether there is an agreement?

No, it’s fine. The Supreme Court had all decided that the time had come to recognise pre-nups. The issue was whether they should have contractual force and we took a long time picking over these issues, looking at Australian law and American law and then there were the public policy arguments – those old cases that said agreements in contemplation of separation were void as a matter of public policy. And then Lord Phillips said if they aren’t contractual none of the public policy objections, which only apply to contracts, arise. You could see, unlike Miller when you couldn’t see which way they were going to decide, which way they were going to decide in White and also in Radmacher. In fairness it had been made quite easy for the Supreme Court in Radmacher because the judgments of the Court of Appeal had been of very high quality. Thorpe LJ had written a good judgment; Wilson LJ had written an exceptionally good judgment, which became the template for the decision.

So, it didn’t surprise me, and it doesn’t disconcert me that we have two classes of applicants [depending on whether there is a pre-nup]. Every country that has a regime where you can make agreements has two classes, those with séparation de biens and those with community of property. I don’t have a problem with that at all. After some initial resistance in my early days of being a judge, I have come around and I now regularly uphold agreements.

It was interesting, when I decided Fuchs, there was no dispute between the parties, but that the agreement applied. It was simply a question of what it meant and what each clause generated for the wife. So, it was simply an interpretation exercise. I’m told by Mr Justice Peel that he has not tried a case in the last year that hasn’t had an agreement.

Radmacher was in fact my very last case at the Bar, and I was able to end my submissions to the Supreme Court by saying ‘those my Lords and my Lady are my very final submissions’. I sat down and it was the last thing I said as a barrister in England and Wales. I did one case after that in the Cayman Islands. But that was my last case at the Bar here.

This might be a mischievous question but would the result in Radmacher have been different if the genders of the parties had been reversed. It’s very difficult to see how a mother and wife would have received the award that Mr Granatino did in that case.

No, had it been a wife, she would have got more, I’ve no doubt. On the basis of needs though. My argument, which I won at first instance before Baron J, was that the agreement can go in the bin because it is fundamentally unfair and just do a conventional needs award. I know that a wife would have got more on that basis and that permission to appeal would not have been granted. Everybody knows that.

Is there one piece of advocacy you are most proud of as a barrister?

The advocacy that I would like to remember most was turning round the House of Lords in Miller. James Turner KC opened it in the morning, and he deliberately left me with the death slot at 3 pm, when he sat down and they [the Lords] were then definitely on his side. I had said beforehand to everyone in chambers that I’m going to get her £5 million and everyone in chambers said you will never get her £5 million after an 18 month-marriage, and then they said you’ll never hold that in the Court of Appeal, and then they said I’ll never hold it in the House of Lords. So, I was proved right in that case!

During the dead hour – 3 pm to 4 pm – they were looking at me with gimlet eyes and I was just flannelling and paddling, trying to consume the time before we could stop. Then, I went with my two juniors Tim Bishop [now KC] and Becky Bailey-Harris to Chez Gerard in Chancery Lane and we prepared the framework for my submissions the following day, and I turned them around with the force of advocacy. I was able to satisfy myself that advocacy really counted after that.

Career on the bench

You took a full-time appointment in 2010 when you were at the peak of your profession. You’d earlier been interviewed by Lynn Barber (The Guardian, 15 July 2007, ‘Mostyn Powers’), where you said that you might take an appointment if you were ‘overwhelmed by ennui’. Had you reached that stage?

I had reached the stage where, and this is coming your way, I was exhausted by the complexity of the work. And more significantly, I was overwhelmed or becoming very stressed by the unrealistic expectations that clients had when they instructed me. People have begun to regard me as some kind of miracle worker and they were coming to me with preposterous, outlandish claims, saying ‘if anybody can win, it’s you’. Clients were becoming more and more demanding, and the demands of the job had become very, very pressing and it was definitely time to move on. Also, I was looking forward to it because I thought I’d be good at it. I knew I could write good judgments because a couple of my judgments as a deputy were pretty good – GW v RW10 was a good pathfinder, although it was later shot down, and TL v ML11 which has stood the test of time. I was once told that in matrimonial law, TL v ML is the most cited case in Hong Kong. So, I was actually looking forward to it and I think it has suited me. I’m not sure the Court of Appeal would agree!

You talk about unrealistic expectations. Did your reputation as ‘Mr Payout’ come back to haunt you, being associated with huge awards?

Yes, that was one of the reasons I went – that you’re the only one who can win. I did in fact apply two years before I was appointed, as a cohort of four comprising Jonathan Baker LJ, Eleanor King LJ and Judith Parker J. We were all appointed at the same time but took our positions sequentially. I thought I’ve been a barrister for such a long time. And being a judge is very interesting. I mean, you’re not nearly as well paid so you leave a lot of money behind. But it’s much less stressful. And you’re largely in control of your own life. You can go at the pace you want to go. People say that being a judge is very exhausting. Which is true. The work is difficult but provided you’re decisive, provided you can make the decision, it’s a much easier job than being a barrister in my opinion. As a barrister you have to win cases; as a judge you only have to decide them.

But writing judgments is a lot harder work than preparing closing submissions.

Yes, it is, but I am good at writing judgments.

The two things people generally say they like about being a barrister is the unpredictability of their working lives, with occasional days off when a case settles, and the collegiality of chambers. Were those not difficult to leave behind?

No. I have marvellous collegiality here. For eight years, my room was next to Mr Justice Holman’s. We had a marvellous time together. and he became one of my closest friends. As a judge I’ve met so many people and I’ve made many good mates. When you go on circuit you meet interesting people so the collegiality is fine. And of course, I’ve kept up with my old chambers. The pay is much less, OK. But I would point out that we did fight for the judicial pension which is very good. You would be surprised if you asked an actuary how much it would cost to get a judicial pension. I’m not complaining at all. And I don’t at all regret becoming a High Court Judge.

The legal historian: Mostyn J and Bilbo loyally following Hawkins J and Jack (Carlill v Carbolic Smoke Ball Co [1892] 2 QB 484)

You must miss the cut and thrust of cross examination. It must be difficult, sitting as a judge, when advocates miss points, flounder about, or don’t pursue the points fully?

Yes, it can be painful to watch. I have been known to take over the cross examination in court when it has been too painful. Yes, I think that cross examining witnesses, which I was really good at, is really the only thing that I have missed.

I’ve enjoyed being a High Court Judge. It suited me very well. I made the decision quite early on that I wasn’t going to apply to the Court of Appeal. I realised that sitting in banks of three wasn’t going to work at all. I’ve had the experience the other day of sitting in the Divisional Court and I enjoyed that very much, but it did confirm to me that to be autonomous, the monarch of the mountainous Principality of Court 50, suits me down to the ground.

Similar to how Lord Denning didn’t enjoy sitting in the House of Lords, being part of a group of five?

Exactly – and being alone, it’s even better. And so much of our work is appellate anyway. So, you don’t need to be in the Court of Appeal as we have all of the private law appeals now. I sit half of the time in the Admin Court where for a third of that time, I hear regulatory appeals from doctors, dentists, solicitors, barristers, etc. It was interesting sitting in the Divisional Court, I found I was much more restrained in my questioning, when sitting with another person, than when I am the sole autocrat of the Principality of Court 50.

Lord Sumption’s expression is that he always enjoyed trespassing on other people’s cabbage patches. You clearly have a very wide interest in the law. Have you enjoyed your forays into different areas of law, public law, deprivation of liberty.

I do spend about a third of my time sitting in the Admin Court, where I am now the senior judge. I’ve been doing it longer than anybody. So, I well know my way around judicial review. They bring me in to do the family JRs; one I was doing recently involved the interpretation of s 17 of the Children Act, so I’m perfectly adept at doing that. In relation to deprivation of liberty, when I was first arrived, the clerk of the rules showed me around and took me to an enormous cupboard where she said ‘this is where we keep the DOLS’. I thought this is where the anatomically correct dolls were kept which they used in the Cleveland Inquiry. That was the first time I’d heard the expression meaning Deprivation of Liberty, so that was a fairly steep learning curve. Learning how the Court of Protection worked … have you ever done a Court of Protection case?

I have and it very much was not what I expected. I had assumed it would be a branch of family law, similar to public law. I hadn’t realised so many specialists were non-family lawyers, or how technical the work was.

It was a terrible mistake, wasn’t it, by the family Bar. When the Mental Capacity Act 2005 was passed in the light of the European Court’s decision in Bournewood,12 which said our common law way of dealing with these issues was unfair and contrary to the Convention on Human Rights, the FLBA made a fatal mistake of not moving in and seizing that work, allowing the medical Bar to move in and take over that work completely, and they do it very well. But it’s not their territory.

A ‘best interests’ jurisdiction in what the Irish realistically call ‘adult wardship’, which is what it is, should be done by family practitioners in my opinion. As you just pointed out, it’s done and done very well by the medical Bar. I had to learn that very quickly and so I’ve loved the width of the work.

On circuit we do care cases, although I really wouldn’t want to do those all the time. Those circuit judges who have unremitting diets of care work, I mean, it’s just unbelievable, the brutality that you have to witness on a daily basis. I don’t know how they manage psychologically. I did a four-week case last year about a child who died in Wales which was appalling, and I was taken out for a Bar dinner at the end, where one barrister said it was nothing compared to the case we’re doing next week.

It used to be the rule in the Police that constables would only deal with child sex cases for 6 months at a time because it’s so harrowing. So, to sit as a circuit judge dealing cases involving child abuse …

Non-stop. Yes, so I wouldn’t particularly want as a judge to only do one type of work. If you are a family circuit judge you would normally do public law with a bit of private law, unless you’ve got an FRC ticket. But in the Family Division we are lucky. We get such a variety of things to do. So, I’m very happy about that. I was happy having relentlessly done at the Bar big money cases, which are always quite interesting, with interesting people, to come here and do other things, a great variety of cases.

I think recently you’ve worked out that it’s 310 judgments to date.

I went to Westlaw and found 310 judgments which have a commentary. So, its many more in reality.

You worked out the word count is equivalent to writing War and Peace every other year. That’s an extraordinary amount of output, given, if I may say, the quality and breadth of your judgments.

It’s a fair bit. Although I am quite good at it, and the systems work well for me.

How do you find the time? I know from personal experience that you will send emails early in the morning. Have you always got up at 5 am in the morning?

I now know that insomnia is a feature of the condition I have, Parkinson’s. So, I only have 4 or 5 hours sleep a night if I’m lucky. I sleep very badly. So, most people will see emails from me at 5 am because I’m up. It is not very satisfactory, and I hope that an adjustment to my medication regime will improve that. I do find that I get very, very tired, I can get hit by a wave of fatigue. So, I’m up early because of my condition.

Were you always like this, as a barrister? Would you get up at the crack of dawn?

No, this early bird thing is only in the last six to seven years.

Could we turn to a handful of judgments? TL v ML very quickly became the authoritative statement of the law on the procedure in intervenor cases.

And in MPS cases too.

Although that has recently been slightly watered down by the Court of Appeal [in Rattan v Kuwad [2021] EWCA Civ 1]

Yes, that’s a problem. TL v ML contained a perfectly good set of rules. And then they water it down. This is why there’s going to have to be legislation. You set out rules, ‘Rules, Rule OK’, as I said in one lecture,13 and then they water them down with individual discretion. It was always a feature of the practitioners in QEB wasn’t it? ‘We’ll work out the right solution for you’. ‘Bespoke’; that was the word they always used.

That does seem to be the tension: you either work this out mathematically, or you sit back and say it’s 60/40 (‘the boffins v the gurus’). It seems as though the Court of Appeal is taking us back towards discretion.

It’s what I call woolly discretion. And I really regret that. That is why I believe that Baroness Deech who has been railing about this for some time, will gain some traction with the Law Commission.

Look at Hart v Hart!14 I don’t want to be rude, but I really do feel that was a retrograde step. We’ve got these good rules in place that she’d get 50/50 of the acquest, unless there was good reason not to, and then they put a layer on top, saying it was all subject to the judge’s individual, discretionary, perception of fairness.

I really think, to adapt the words of Scalia, that in the field of financial remedies the rule of law should be the law of rules.

When you’re writing a judgment like TL v ML does it occur to you that as well as resolving a case, you may be writing a judgment which is going to be cut and pasted into hundreds of position statements? Do you have an eye to the impact your judgment might have on the profession?

Sometimes, although not in TL v ML; I was too young then. I quite like coining the odd soundbite. I like ‘the unforgiving minute’15 (‘… the footballer has to fill the unforgiving minute with sixty seconds worth of distance run after this marriage’.)

Which I’ve heard quoted in many cases.

And you might like this, which has nothing to do with family law. For example, today, I was dealing with a judicial review where the issue was whether in assessing the lawfulness of a decision, should it be Wednesbury unreasonableness or the continental principle of proportionality, which the European Court has said we have to use whenever the European Convention of Human Rights is in play, and which its supporters would extend across the board? I myself am very doubtful of such a method of review as it is so close to being a review of the merits of a decision as to be, usually, the same thing. The case was about the refusal of the Home Secretary to give British citizenship to someone who had been a warlord in Sierra Leone. So, I used some colourful metaphor, which I hope might go down quite well, to set the scene: ‘There is no doubt that in the world of judicial review, proportionality has advanced like a cuckoo, occupying the common law nest of traditional assessment, laying its continental eggs in it and ejecting its home-incubated Wednesbury hatchlings’.

So, one does try. I think judgments should try to be readable.

An overly anonymised judgment can be excruciating to read.

I was arguing in Re PP16 the reason we have open justice is so that this particular arm of the state can be seen to be working fairly. Most people cannot get to court, so the next best thing is to read the judgments, and you’re only going to read the judgments if they are readable. If they are anonymised, they become unreadable. There are still quite a lot of judgments which are unreadable because unfortunately not everybody follows the rules about writing judgments, which include keeping it as short as possible.

When I worked out that I had written War and Peace every other year, that was based on an average of 12,000 words per judgment. A lot of judges write judgments a lot longer than that – and I think exceptionally long judgments are an absolute bane, they can be incomprehensible. I don’t understand why when people write judgments, they have to set up all the arguments on one side, then the other and then you have this section called ‘discussion’. What does that even mean? I would just go straight to the decision.

Do you know who is the most important person you’re writing the judgment for?

The person who loses.

Yes! The person who loses. People forget this.

Yes, because the person who wins doesn’t generally care why they’ve won.

Yes. And the person who loses is entitled to know why, in short, simple language, in my opinion.

Selection of main judgments

One of your first reported judgments as a High Court Judge was FZ and SZ17 where you made a very bold statement about the practice of applicants applying for freezing orders.

You maybe don’t remember what a scandalous world we lived in in the in the late noughties. When every case began with a freezer [freezing injunction]. Solicitors would say we’ll start by hitting them hard and they’ll go down and they’ll stay down. Every case began with one and I just thought this was not only so unjust, but it was so, so damaging to family relations. I’ve talked in one case18 about how a nuclear winter ensues from which relations never recover. So, I had this campaign to try and make people obey the law and only seek freezers when they had good grounds to seek them, and I’m pleased to see that it’s been adopted in other fields as well. So, the ex parte freezing injunction is much less common than it used to be – you don’t remember because you’re too young – so many cases began with an injunction. Is there a syndrome now of cases beginning with a Part IV injunction based on coercive control?

Certainly, coercive control is brought up in more than half of my cases. Developing the point about freezing orders, UL v BK …

UL v BK will be on my gravestone.

You’ve indicated that it is one of the judgments you’re most proud of. That is a case which has obviously stood the test of time, but it is one in which you disapproved of not only the Court of Appeal, but also the House of Lords.

Well, I didn’t, I explained them.

You said that their decisions were ‘per incuriam’.

It is quite interesting, the development of the law of injunctions, given what’s happening in the Privy Council with cases like Broad Idea19 and in the Court of Appeal in Bacci & Ors v Green20 which say that the injunction doesn’t have to be in support of a legal right – although that’s another story. My draft judgment in UL v BK was approved by Sir James Munby [then President] who said this had to stop. An application for a freezing injunction has to come within the four corners of s 37 of the Matrimonial Causes Act or s 37 of the Senior Courts Act, which should be applied absolutely rigorously. This idea that you just kick off a case with a freezing order, that has to stop. And I did stop that. So that’s one thing I stopped.

And the other thing I stopped were open-ended spousal maintenance orders. They’re not made any more, are they?

No, joint lives orders have almost completely died a death, whereas 10 plus years ago they were almost routine in the South East.

That’s gone now, hasn’t it?

Yes. When you disapprove or criticise the judgment of another judge, does that ever lead to awkwardness behind the scenes?

No, they all laugh. They think it’s hilarious. There’s no awkwardness. Lord Justice Stuart Smith said to me, ‘Nicholas, you’ve turned criticism of the Court of Appeal into an artform’. And of course, if you’re not planning to get promoted, you’re suddenly liberated.

I do follow the Court of Appeal – now, stop laughing! – unless the decision is per incuriam, in which case I don’t have to follow them. Where it is not per incuriam and is binding on me, I do follow it. That doesn’t mean I have to agree with them. So, I was perfectly loyal, and I behaved myself in Hasan v Ul-Hasan,21 where I found that Lord Denning’s decision in Sugden22 was binding on me. So, I had to follow it, but I allowed a leapfrog appeal and we’re still waiting for judgment.

I am conscious of what the rules of precedent say, and if a decision is binding on me, I will follow it. The actual answer to your question is, no, there’s no awkwardness.

Sooner or later every judge is appealed successfully. Do you find it frustrating where your decision is appealed, not to have a say in the appeal. The appeal is against your judgment whereas cases are rather more rounded than might appear from the judgment.

Well, I’ll tell you one thing I want to see a rule change about: when I give a judgment and somebody wants to appeal, the rules do not say that you have to apply to the first instance judge for permission. A decision called P v P23 says that it is good practice to do so, which I have emphasised in Re HH24 saying that it is very bad practice not to ask permission to appeal from the trial judge. If they do come to you for permission, they have to state the grounds and when you deal with it, you can give some reasons about their grounds. So, when you say you don’t have a say in the appeal, you do, provided they have come to you seeking permission.

I got a bit of a slapping recently from the Court of Appeal in Villiers,25 on an obscure point about s 27 of the MCA.

I think the criticism was that you had raised a new argument during the hearing.

I took the view that there was a jurisdictional barrier preventing the claim being made. They said it was procedurally unfair for me to have raised it – the Court of Appeal can say that of course – but what was I supposed to do where I thought there was a jurisdictional barrier? Also, the wife did not ask for an adjournment to deal with the point.

What I find extremely galling is that in that case I handed out the judgment in draft. I said I will give you a week to provide any application for leave to appeal. They said we don’t need a week; we’re not going to appeal. Then they went straight to the Court of Appeal which gave them permission. So, I was deprived of giving my reasons on their grounds of appeal, which is why I would have a rule making it mandatory to seek PTA from the trial judge.

Was there any part of your judicial career that you regret?

If there has been a negative aspect to my judicial career has been that it was for a long time overshadowed by the pension dispute with the government which was toxic and completely soured relations between government and judiciary, and also because of the government’s policy of divide and rule (the pension reforms only applied to the younger judges) caused much internal division and rancour within the judiciary itself.

The proposed reforms were announced in mid-2012 by Chris Grayling. Attempts to get him to withdraw or at least modify them, so that the tax-free status at least was retained, came to nothing with the consequence that we issued proceedings in 2015. The decision of the employment tribunal in our favour was in January 2017. The decision of the EAT again our favour was in January 2018. The decision of the Court of Appeal in our favour was in December 2018, and the Supreme Court refused permission to appeal in June 2019. 7 years it took! There is a quite funny story about who was to be the lead claimant for our group of High Court and Court of Appeal judges. It would mean that the name of the case would have that lead claimant’s name in it, e.g. Chandler & Ors v MOJ. When this came up in discussion, I said of course it had to be Rabinder Singh LJ as the most senior judge. However, he flatly refused and said that it had to be me because ‘I didn’t have a reputation to lose’!!

Can we turn briefly to anonymity? You have is a series of judgments in the past year in which you express increasingly radical views about how the Family Court has misapplied the law. Why is opening up the Family Court so important?

You should read the decision of the Privy Council in a case called McPherson in 193526 where a famous politician in Alberta was getting divorced and they arranged for the undefended divorce to be heard in the judge’s library in the courthouse in Edmonton, behind a door which wasn’t locked, but which had ‘private’ written on it, thereby preventing anybody from coming in. This went to the Privy Council and the argument for the appellant which their Lordships agreed with was that when a person sits in a courtroom with the doors shut, and the public are not allowed in, he is not acting as a judge. He is being at best, a private arbitrator. Because judges sit in public so that the people can see that this particular arm of government is functioning fairly. That is why I now agree entirely with James Holman. I don’t sit in public, though I sit in private with the doors open, so the Press can come in because that’s what the law allows. I do agree with the principle that justice that is being administered behind closed doors is not being administered by a judge, it is being administered by someone else.

We don’t yet know what the Farquhar Report will say on this issue, but there appears to be a lack of enthusiasm among your colleagues for opening up the Family Court.

So, I always answer that lack of enthusiasm by saying will you please tell me what lawful power you are wielding to hear these cases in private? What is the power, bearing in mind the House of Lords said in the foundational decision of Scott v Scott27 that there is no power to do this? There is no power to have general anonymity or general privacy. There is only power in the individual case, applying the criterion of necessity; in other words, that you have to have privacy because otherwise justice will not be done. That is what Warby LJ said in the Divisional Court just the other day.28 It has to be justified in the individual case by reference to the criterion of necessity – this comes from Viscount Haldane, ending up with Warby LJ, separated by 110 years. How can this be done on a standardised basis? What is the power? It may be that if you had a national poll, people would say these things should be in private, in which case pass legislation like s 121 of the Australian Family Law Act 1975.29

That is what I always say: where is the power? And the answer is pathetic: ‘we’ve always done it this way’. What I genuinely don’t understand is that, within only a few years of Scott v Scott, they were back to the old practices by 1935.

What do you say to those who say, by opening up the Family Court, anyone who could afford to resolve their disputes in private will avoid the court service altogether by arbitration, and removing those cases from the courts will stymie the development of the law?

Well, that’s just a terrible reason for having secret justice. I have been completely persuaded and as I’ve said recently that a pillar of the constitution is called open justice.30 And it’s as important as having an open legislature. That’s not to say if people want to have private justice, they can pay for it. Fair enough. And then there’s the other argument: there will be blackmail. Well, that doesn’t seem to prevent the massive amount of work in the King’s Bench Division, does it?

We recently had the announcement that the Law Commission will review the Matrimonial Causes Act. In your view, have the higher courts taken a wrong turn in their interpretation of the law? Has the pendulum swung too far in favour of the economically weaker party?

No, I actually think what we’ve been doing at first instance – Holman J, Moor J, myself – has meant that the law has become fairly stable, certain and fair. But unfortunately, in recent times there has been a retreat back to the land of subjectivity and discretion, which I think has fired up the government to refer the matter to the Law Commission, So I don’t think it took a wrong turning. No, I don’t. I think it took the right turn. I wish the courts would resist the temptation always to allow tweaking on the facts of the individual case. I think the people who say this forget how much more difficult this makes it to settle cases.

One final legal question: Is there one case you would have decided differently had you been the court of ultimate appeal?

I definitely would have decided the proprietary estoppel case [Guest]31 with the minority. It seems much more logical that the recompense should be the underpayment, to make up how much he should have been paid, rather than discount the value of the farm. Also, Cheshire West.32 I would have decided that along with the minority, and the madness that has ensued would never have happened. The millions, billions of wasted pounds of having endless court reviews of people who are not being detained by the state in a gilded cage but are just being looked after. My attempts to water it down in the Rochdale case came to nothing. I was fiercely criticised by the Court of Appeal!33

Plans in retirement

You retire in July 2023. Will this be a clean break, or will you continue to sit, as a PFDR judge or arbitrator?

I’ll stop sitting in July; I’m still on the books as a judge until December because I’ve got a fair bit of leave backed up. But I’m stopping sitting in July. I’m not going to sit after that in any capacity. I’m going to continue to be an editor of At A Glance and the Financial Remedies Practice. I’m not going to be a primary author; I’m going to be more of a non-executive editor in the way Sir Peter Singer, who I miss very much, was. He would get the output from me after my sweating over a hot computer and would change this or that word with a biro.

I must say that HMCTS has very assiduously enabled me to carry on working these last few years by providing me with a permanent judicial assistant. They did a very good retirement course the other day and the question was asked, are you going to doing any private work? Well, you can only do that if you’re going to keep up with the law. You can’t offer yourself as a private FDR judge of you don’t keep up with the law and I’m not planning to keep up with the law, reading the weekly bulletins. I might read the Financial Remedies Journal perhaps. But this is what people forget – you need to read a lot more than that to keep up with the law, don’t you? I mean, we almost do it osmotically. All barristers and all Judges keep up with the law, and I’m not planning to do that at all. I’m planning to enjoy myself as much as I can because I don’t know where this condition is going to take me. So, I’m going to enjoy myself as much as I can.

The first edition of your podcast Movers and Shakers is in the charts, which we recommend to all of our readers. Just briefly tell us something about how that came together.

It’s all in Rory Cellan-Jones’s piece in the Daily Mail,34 and also in Joshua Rosenberg’s Substack.35 What happened was just after I was diagnosed, I was talking to my closest friend Ed Stourton, the journalist. This was in May 2020, nearly 3 years ago. And he said you must meet Rory Cellan-Jones, who’s just been diagnosed. And so we met. He became a very good friend. We met regularly in a pub to chew the fat. We heard that Jeremy Paxman had been diagnosed. So, I invited him along to the pub and then he brought Paul Mayhew Archer who had written the Vicar of Dibley, and then Rory brought in Mark Mardell. Also, we were joined by this marvellous woman called Gillian Lacey Solymar. And so, this group was formed, and we meet for a few pints in the Ladbroke Arms. It probably was my idea. We had such interesting discussions, and they were so helpful because all of our symptoms were different. It was very, very useful for us to ward off those black thoughts which we all get. Because you don’t know where you’re going, and you don’t know when. It’s been great fun doing the podcast and I think you would agree it is quite funny and very interesting. It’s got some quite emotional moments. We’ve had the most marvellous feedback from the public, from all over the world, from California, from South America, from Zambia. People saying, oh, I wish I’d had something like this, and I wish my father who had it, had been able to participate in something like this. So, I’m going to be doing a lot on that in my retirement.

Any plans to write your memoirs, to write fiction? Could there be a Rumpole in the offing?

I’ve got a good subject for a historical novel – but I’m not going to tell you. Knowing that Robert Harris writes one a year and makes millions, I thought I can surely write one as good as Robert Harris. I was talking to my son-in-law who is a very successful scriptwriter and he said, Nicky, your particular style of writing is not quite the same, so I put that out of my mind.

The problem about memoirs is that I wouldn’t be able to talk about what happened in the great cases would I? I wouldn’t be able to talk about the really funny bits, you know, clients, representing famous people. I’m not actually planning to write my memoirs.

I am planning to do a lot of work on the Parkinson’s front, raising money for charity. I don’t know how long the podcast will last. I mean some of these podcasts go on for many episodes, and I actually think we’re doing good things. So, I’m going to do that.

And I intend to spend quite a lot of time watching the England cricket team.

In the past, you described yourself as ‘Catholic, Welsh and Wagnerian’. Do those three words still apply?

I think it was a bit pretentious actually. I’m at its highest a cultural Catholic. I’m not a believer. And never have been. So that was always rather a rather a pretentious thing to say. Although in fact I notice that after that judgment I wrote called Tousi,36 one commentator condemned it as a very Catholic judgment by a very Catholic judge. I was tempted to write the former might be true, but not the latter. Welsh? Well, I do support Wales at rugby, ha-ha. And of course, we are of Welsh origin, but that’s a bit pretentious as well, and Wagnerian – I am Wagnerian, yes.

What does it actually mean to be ‘Wagnerian’?

It means you are obsessed by his music. You know every note of it, and you go to performances of the operas as often as you can. And his music is swirling around in your brain all the time.

Do you have a favourite author or book genre?

My favourite book when I got into serious reading in my teens was the Gormenghast Trilogy by Mervyn Peake. I loved all that Gothic business and the idea of acres and acres of moss-covered roofs and strange people inside. In recent times, a book that I’ve read and not been able to put down, is Earthly Powers by Anthony Burgess, although that’s quite Catholic! It struck the right note as far as I was concerned, an excellent book.

Favourite piece of classical and popular music?

The Wagner fixation began when aged 12 I found in my mother’s records the Tännhauser Overture conducted by Otto Klemperer, and I thought what the hell, that is the one. That was how I started, and that would be the one I would take. So, if I had to have one it would be the Overture to Tännhauser.

And popular music?

I don’t really do that, although we did recently go to that very, very good ABBA show, marvellous, so clever, we sat there transfixed. So, I would say The Winner Takes It All would have to be my favourite pop song.

Finally, if instead of your Valedictory, you were giving a speech at the Oscars, is there anyone you would particularly want to thank?

I have been looked after as this condition has developed by my wife who is the most wonderful person I could ever hope to meet. She is absolutely the most wonderful person. Apart from being incredibly intelligent, she is the kindest, the most conscientious, and most interesting person I have ever met. I’ve been so, so lucky to be able to marry Liz. So, if I was doing an Oscars’ speech, I’d burst into tears and thank her because I know that as things deteriorate, and they will, she will be there by my side and I will be so, so lucky.

In terms of my career, I would thank Nigel Lowe for setting me on this path. Nicholas Wilson, of course and then Tim Bishop, who’s a marvellous junior, he was a brilliant, brilliant, brilliant junior. And then since I’ve been here, my clerk Tony. And then in the recent times, my JAs who have enabled me to carry on. I’m on my sixth JA and they’ve all been marvellous.

Thank you very much.

No, my pleasure!