Interview with Sir Jonathan Cohen
Published: 01/04/2022 05:47
Rhys Taylor: Sir Jonathan, thank you very much for agreeing to be interviewed this evening for the Financial Remedies Journal.
Can I please start by asking you, do you have any particular recollections from your early days at the Bar?
Sir Jonathan Cohen: Well, first of all, it was great fun. There was a huge variety of cases and, by today’s standards, very little paperwork. A heavy case in those days was one lever arch file. You would turn up at the county or magistrates’ court with a statement from your client (if they were civil cases there would also be pleadings) and virtually no idea of what anyone on the other side was going to say. So in the magistrates’ court, you had no prosecution statements; you would just go in and cross-examine completely blind and mysteriously, when defending, you sometimes won cases. Nowadays it would be thought to be completely human rights non-compliant.
Have you always been a specialist family lawyer?
Absolutely not. When I joined Chambers at 4 Paper Buildings, a long time ago in 1975, we did bits of everything. It was marvellous training. I can still remember the day when I appeared in all three divisions of the High Court in different cases. That would never happen now.
On appointment to the High Court bench. What did you miss most about the Bar?
It might sound a strange answer, but what I missed most was the company of those in their 30s and 40s. There are lots of people in the RCJ in their 50s and 60s, but I really enjoyed the company of my colleagues and in particular my younger colleagues in Chambers and that’s what I miss most.
What did you not miss?
What case gave you the most satisfaction at the Bar?
That is a really difficult one. I think the cases that gave me most enjoyment were the ones where the subject matter was so interesting, and I think of two in particular: one was the immunisations case of Re C (Immunisations)  EWCA Civ 1148,  2 FLR 1095 where we had to consider every one of the various immunisations which are given; their benefits and dangers; the risks of illness – that was absolutely fascinating working with high class juniors and doctors on that. And the other one I remember particularly was Hvorostovsky v Hvorostovsky  EWCA Civ 791,  2 FLR 1574 – a finance case which went to the Court of Appeal and learning how the opera world worked; how the stars made their money and the extraordinary methods of payment that used to exist. That was very entertaining.
What was your worst day in court at the Bar?
My two worst days were in respect of two care cases which I lost – the only two borderline care cases that I lost when I was in Silk – when I really felt the decision was wrong. And those did give me sleepless nights, when parents lost their children when I didn’t think they should have.
What, in your view, is the mark of effective advocacy in Financial Remedy cases?
The efficient use of words, making complicated concepts simple and no grandstanding.
You now hear first-tier Financial Remedy appeals. Do you see any themes coming through?
Well, actually, we don’t hear many first-tier financial remedy appeals because, of course, we only get appeals from circuit judges and recorders sitting at first instance. So really the only significant source of appeals is inclined to be the Central Family Court. There are surprisingly few final orders that are appealed, certainly in my experience, but probably a disproportionate number in respect of cost orders and enforcement issues.
What do we family lawyers get wrong most often?
Two things came to mind. First of all, too often we still get competing chronologies, competing schedules of assets, notwithstanding the rules for efficient conduct. And secondly, and this really comes into your question about costs, too often we see cases being taken on and run to the end which can never be commercially viable for the parties, but I think we’ll touch again on that later on.
Well, I’ll go straight to it. Do you have views about the typical costs incurred in Financial Remedy applications?
My view is that if rich people want to spend large sums of money on lawyers, that is a matter for them. But I think many judges are worried by cases where costs are incurred which are wholly disproportionate to the family assets. Clients need to be told at a very early stage if they can’t afford to fight a case, and if they’d be better off self-representing, then they should be told that too.
Is the developing body of caselaw on the need to make open offers changing the way cases are dealt with before you?
I think slowly. The need to negotiate sensibly is a message that Mr Justice Mostyn, in particular, has been promulgating and I think that that is getting through. So, yes, but slowly.
Would you favour a return to Calderbanks?
Yes, I would. I don’t know that it’s necessarily a popular view, but I would like to see Calderbanks reintroduced for costs incurred post FDR. I think there is a difference in costs which are incurred before FDR, which should rightly be covered by the general rule that there is no order as to costs. But litigants who continue to take their case right through to the end, notwithstanding a reasonable offer, should be punished in costs. And even if there is more flexibility in its application than there was before, I would like to see a return to Calderbanks in those circumstances.
Do you have any observations about the establishment of the Financial Remedy Court?
I’m all for it. The financial cases should come before judges who have expertise, but of course, it all depends on the FRC being properly resourced. But yes, all power to its elbow.
Any thoughts on increased transparency for the Financial Remedy Court?
I think this is a really difficult one. For my part, I have no problems with hearings being attended by legal bloggers and by accredited reporters who know the rules and the reporting restrictions. I am very cautious about details of people’s finances being available and attributable to them in the absence of litigation misconduct. I don’t have a problem with lifting either wholly or partly anonymity in cases of those who misbehave during the course of proceedings, but otherwise I am cautious about publication. Presence of those reporters and bloggers who know the rules and will comply with them is fine. But beyond that, I need to be persuaded.
After your retirement, do you intend to accept any private FDR or arbitration appointments?
Well first of all, my retirement is not due for almost exactly two years! Yes, certainly, if anyone will have me – I am very keen to continue my involvement in family law.
What percentage, roughly how many cases do you see which includes a litigant in person?
In money cases in the High Court, not very many – I would guess not much more than 10%. In children’s cases, again not that many in the High Court, save for respondents in abduction cases and they have often been unrepresented. There is a new scheme starting whereby there will be a duty solicitor on duty to help those in those circumstances and that will be an enormous improvement.
If I may, the family lawyer you have admired the most and why?
I’m a bit coy about this, I’m not going to pick out anyone who is still practising, but my predecessor as Head of Chambers was Lionel Swift QC and I know of no one who was more comfortable appearing in any sort of case in any Division of the High Court, but also was more generous with his advice and, when necessary, his means to anyone in need. He was a superb role model.
Your alternative career?
That’s very difficult. I suppose ideally, I would, in my fantasy world, spend several days a week being a cricket correspondent and one day a week perhaps running a pop-up food restaurant where I would cook a no-choice menu – but it might not have many customers!
Your ideal day out of court?
Ah, well I’d start off by having a good read of the newspaper and doing the crossword because I am obsessed with newspapers; a bit of exercise – maybe some golf or some real tennis; lunch with friends and family; a nap in the afternoon and then maybe a visit to the theatre in the afternoon and more eating and drinking.
Your desert island book?
I don’t really have a favourite book – as I’ve already said, I love to have a daily newspaper. I feel that the Victorian classics are a bit of a gap in my reading repertoire, so I’d like to get into Dickens, Trollope and Austen more than I have. And then maybe when I’ve finished them, I could re-watch Some Like It Hot, which is my favourite film of all time.
Sir Jonathan, thank you very much for your time this afternoon.
Not at all, it’s been a pleasure. I have to say that I have enjoyed and am enjoying my career in family law enormously. Thank you very much, Rhys.