Interview with Sir Mathew Thorpe
Published: 27/03/2023 11:03
Sir Mathew Thorpe, Barrister from 1961, in silk from 1980, Family Division Judge (1988–95), Lord Justice of Appeal (1995–2013) and Deputy Head of Family Justice and Head of International Family Justice (2005–13). Sir Mathew was interviewed at his Wiltshire home in Autumn 2022.
How have you occupied your time since your retirement in 2013?
I immediately set up a consultancy, particularly as an expert in international work. I got work from the Czech Republic, Romania, Poland and Bulgaria which kept me quite busy because at that stage there was a sort of battle being fought between the accession states in Europe and the United Kingdom. The accession states had so many nationals living here and the nationals were subject to public law care proceedings and very often the local authority would go for adoption, and as far as the accession states at a government level were concerned the loss of these nationals, the children, was dire – losing their citizenship – so they were seeing Czech or Slovak children suddenly becoming UK citizens. They resented that deeply and thought it was quite contrary to all European cooperation. There was a case decided by Sir James Munby sitting in the Court of Appeal, I think called Re N,1 where he stood up for the accession countries and said that adoption should not lightly be ordered in respect of these children, that they belong to another culture, they belong to another country, and we should respect that, and particularly we should respect the diplomatic conventions which we had not previously been doing. The case went to the Supreme Court. It was a transfer case. He had transferred the proceedings out to the accession state. The Supreme Court turned him over on that because it was at a very late stage in the care proceedings.2 But they upheld all that he said as a matter of principle, how we should respect the faith, the language, the culture of the children and not simply turn them into little English children. So I was contracted to work in an advisory capacity so that as a specific case came up in the English courts, I would get a contact from the consul in London saying what should we do about this: how should we react, should we apply for party status in the proceedings, etc?
Did you set up the consultancy because you feared that there would otherwise be a wrench leaving full-time sitting?
I’d worked for 50 years or something like that, and I certainly was not wanting to fashion a life without work and particularly without legal work. And at the same time I was offering to mediate, and to arbitrate and I got a certain amount of work either through my old Bar chambers or direct. And so I chugged along and had quite a good practice until two things happened. One was that the management of these conflicted cases became better understood so that less aggressive orders were being made and so the accession states were not so keen to give me a contract. And I lost my last contract, which was from Slovakia, maybe in 2019 or something like that. And then came Brexit and so any work in Europe simply disappeared. So since then I have done very little legal work. Sometimes I get an arbitration or mediation from my old chambers but whereas when you’re at the Bar, if you get an inquiry ‘Is Mr Allen free to do a trial’ and the clerk says ‘yes’ then nine times out of 10 something will materialise, but if you’re doing a mediation or an arbitration, it’s not just the first inquirer, but you know there are conversations between the parties and maybe the other party doesn’t want you and so in my experience only one in five enquiries would lead to a piece of work.
So recently I have taken to writing. In August 2021, A Divided Heart was published, nominally an account of walking all the Compostela Pilgrim paths on Austrian soil but really a declaration of my love of Austria, its culture, its people, its history, its landscape and its lost glories.3 Recently my second book has gone to be typeset. It’s a history of my forebears, part one, and of my life, part two. Now I am writing my third, which will be a biography of a rich Irish family in the first generation, that married into the Habsburg nobility in the second generation, and that became a hybrid in the third with the orphaned girls remaining forever Habsburg and only the orphaned son making a distinguished life as diplomat and legislator in England. The first book is now out of print, but I have some copies still which I am selling direct through firstname.lastname@example.org.
You said in Al-Khatib v Masry that from the point of view of the Court of Appeal there is no case, however conflicted, which is not potentially open to successful mediation. Do you stand by that observation now having sat as a mediator?
Well, I think it’s a bit of an exaggeration, but my heart is with the sentiment.
Did you prefer first instance work or when you moved up to the Court of Appeal? Were they chalk and cheese?
I didn’t really have a preference or feel that I was entitled to a preference. I mean you accept office to give a service and so long as you are thought to be giving a useful service as a trial judge you do your best. And then if you get promoted you do your best there. I think I was only a trial judge for 8 years and then a long time in the Court of Appeal. And when I went to the Court of Appeal I had a choice. I could have tried to recover confidence as a generalist. Or I could have said ‘no, my mission is family appeals’ and in a way the easier path was to concentrate on family appeals which I did. And I never regret that because I think I gave better service by concentrating on what I knew best. When I was at the Bar, I did have a more general practice and so it would have been possible for me to have got back into fields that I had once tilled but then neglected, but I didn’t do that and I have no regrets about it.
In the world of financial remedies, you were the leading figure for a long time. What cases are the most memorable of the ones that you did?
Well the awful thing is I have a very imprecise memory. I remember more clearly cases that I did at the Bar and I did a lot of trials when I was in the in the Family Division. I tend to remember things that weren’t money cases. I was very interested in mental capacity because at that stage the law was much more fluid and there hadn’t been a statute and there had been no very clear definition of what was capacity and what wasn’t. And I liked those cases and I did quite a few of them. And then of course my biggest endeavour as an advocate was to do the Cleveland Inquiry. I learned so much from that because I hadn’t been doing any public law as an advocate, and suddenly I had to get deep into public law work.
How was it that as an advocate who had not done public law that you were selected for such a very important role?
Well, I think entirely by chance because I was a good friend of Elizabeth Butler-Sloss and I had shared a room with her when she was in chambers and when she accepted the job the Treasury tried to get her to agree that they would instruct a leader or one of two leaders who they had used in other public inquiry fields and she said ‘no, I don’t agree, I want one of the silks from the family Bar’. And she said, ‘I want either Mathew Thorpe or Edward Cazalet’. I remember that to accept the brief meant doing something immediately in the long vacation in August at very short notice, and I think Edward had commitments and he couldn’t even consider it and I had no particular commitments and I was keen to have a go. So it was entirely thanks to Elizabeth that I got the brief.
How long did that take up of your time?
It started in August and I think final submissions were the following February. So it was a long job. When I was a trial judge I did quite a lot of public law work because of course I had that reputation from Cleveland. And I did these capacity cases because they interested me. And of course I did the money cases because in my final years at the Bar maybe 60% of my fee income came from Charles Russell and I was doing many of their ‘big money cases’, although I was also doing private children’s cases for them as well.
In Dart back in 1996 James Munby QC, as he then was, sought to persuade you that the courts had been getting the interpretation of section 25 wrong and the applicant should not be restricted to his or her reasonable needs. You were fairly forthright in saying that that was a matter for Parliament and not the judiciary. Lord Nicholls took a somewhat different view some 4 years later. Was he right to do so?
Well James Munby was a Chancery silk, so he comes into a money case and he starts making what seemed to be extravagant submissions. And I was a great admirer of Roger Ormrod who was the designer of this yardstick of reasonable requirements. And I knew how well it worked and I was committed to upholding the yardstick. And anyway there was abundant Court of Appeal authority which said that was the proper approach, and so it seemed to me that it wasn’t open to us to depart from that so his submission seemed bound to fail at our level. And of course 4 years later it gets to the House of Lords and in a very, very impressive judgment Lord Nicholls says this won’t do because it’s discriminatory and we’ve moved away from that sort of old patriarchal society and we must do better. So the world changed.
Was it a fair criticism? Do you think the law had not kept up with the times?
Well, I think that the social changes had been very great and were no longer compatible with the Ormrod yardstick. And he was quite right to point out that just giving the wife her reasonable requirements when the husband maybe had a massive fortune was hardly fair. So it was a change that was perhaps bound to come once the issue reached that height. But I still thought that if there was to be a wholesale fresh approach, it should be set by the legislators, not by the judges. And I still think that because I don’t think the judges have made a very good job of it over the following 22 years or so.
How would you criticise the judges post-White?
Well, I think that they’ve made it so complicated. I mean, it’s okay for a practising silk, he or she can understand all these sort of concepts. The midwife has been Brenda Hale and of course she’s a brilliant academic mind, but most people practising in family law are not at that intellectual level. And I still think that Parliament has always fought shy.
If there are three things that I have done in my judicial career which I look back on with satisfaction, one was to start with Gerald Angel the ancillary relief working party, the ‘pilot scheme’ in 1996. Nicholas Mostyn recently said we must record the history of this and he got Class Legal to publish some articles. It was important. It did achieve a lot. The other thing that I look back on with satisfaction was to start the Interdisciplinary Committee. I was very taken with the teaching of Professor Murch and Professor Hooper in Bristol, and they were saying that the family justice system is rotten because there are all these silos, all these ghettos, and they don’t talk to each other, and the result is chaos and we must all work together. And I thought that was so impressive and in those days we had the wonderful Stephen Brown as President and as one of his judges you could go to him with an idea and if he thought there was the smallest risk in going down that road your letter would go unanswered and you would know that’s a ‘no’ but he was very supportive of innovation as long as it didn’t seem to him risky, so we had the Interdisciplinary Committee and the International Committee. Those three things started with little idea of what potential they had but they sort of generated a life of their own and grew and grew. The Interdisciplinary Committee ended up as the Family Justice Council and the International Committee, chaired by Andrew Moylan, still meets regularly and does excellent work.
Staying with your thoughts on interdisciplinary work and the danger of silos, one of the criticisms of the Financial Remedies Court is that excluding more generalist judges from hearing financial remedies work is not a good idea. Do you think financial remedies work is poorer if it is only heard by specialist judges?
I think the Financial Remedies Court is a wonderful achievement. I have profound admiration for Nicholas Mostyn. We were in chambers together and when he was first in chambers he was my junior of choice if there was not a lot of money about, because you knew the solicitors could afford him. In those days it was two-thirds of the leader’s fee, but they could get him probably for one-quarter of the leader’s fee. And he was so clever. I think he has done a wonderful job and financial work is so important to the families that are locked in that I think they deserve people who really know what they’re doing. I think one of the deficits in the system in my day was that the District Judges really knew what they were doing, but the Circuit Judges really had very little idea and there was an appeal from the District Judge to the Circuit Judge which was a bit of a mockery and we tried to do something about that. So I think the Financial Remedies Court is a major achievement.
Who would you pick out as the leading figures during your career?
If I go back to the days when I was at the Bar there were some very good trial judges. I think Michael Eastham was a wonderful trial judge. And there were some very bad trial judges. When I was in silk the system was so questionably correct. You could say to your clerk, ‘look, we’re going to go and fix this case’, and you’d say, ‘Richard, for heaven’s sake fix it in front of Eastham J and under no circumstances will I ever appear in front of X again’. The relationship between the Clerk of the Rules, Ruth Few, and the Bar clerks was so ‘you scratch my back’ that it happened. I don’t know whether it does now, but we were able as specialist silks to see that the cases that mattered were tried by the judges who were best able to try them.
But I think that it’s important to understand that a judge is a member of a team and the team has a leader. So if you’re a trial judge in the Family Division, the President is very important and he is managing his team. He’s leading his team. And he needs to have a lot of skill in doing that because they’re sometimes pretty difficult people and they don’t want to cooperate with the President, the leader, and Stephen Brown was very good at that. And in the Court of Appeal your leader is the Master of the Rolls and I was working for Tom Bingham all the way through to David Neuberger. The outstanding Master of the Rolls was Harry Woolf. Such a brilliant leader.
What in particular marked him out?
Huge empathy for everyone who was in his team. He had such care for us all. If you had anything in your private life that was going wrong, or if you had a death in the family or something like that he would be so supportive. I can’t really express my admiration for him in that way as a leader. And it’s terribly important. Tom Bingham was a cerebral figure, he was a brilliant figure, but he hadn’t got that talent at all.
Is empathy then the most important characteristic in a judge or are other characteristics equally if not more important?
It is only important in the team leader. I think it’s very important in the President of a High Court Division. And it’s terribly important in the Master of the Rolls. He’s got 30 judges working under him. And I dare say, in the Supreme Court, I have no idea, but I dare say the President has the same function, but leading a much smaller team.
And who would you pick out as the great Presidents of the last 50 years in the Family Division?
I think I only worked for Stephen Brown who was President when I went in and when I left. He was followed by Elizabeth Butler-Sloss and she was followed by Mark Potter who was followed by Nicholas Wall and by that time I was observing them from afar rather than working for them.
What characteristics or strengths do you think first instance or appellate judges ought to be able to demonstrate? What are their competencies if not empathy?
I can think of so many really good trial judges. You know Michael Eastham, I’ve instanced. I had huge admiration for Edward Cazalet and for Michael Connell. Since then there have been wonderful judges, people like James Holman, selfless, dedicated, really exceptional people. And I think we all know that vanity in a judge is a dangerous thing. Selfless dedication is what you are entitled to ask of judges whether they’re in the Court of Appeal or at first instance.
One of the great attractions of working in the Court of Appeal is the sense of community, that you’re put together as a trio for a spell of 6 weeks, and then you all go somewhere else, but everybody was in my experience impressively clever and always without any of that dangerous vanity. They were all real team players and it was a great privilege really to work in that atmosphere.
If you had to pick out the finest advocates that you’ve seen in front of you over all those years either at first instance or appellate advocates, who would you name?
James Comyn could charm the birds from the trees. He was supreme. And that’s why everybody wanted him. They wanted him at the Old Bailey, they wanted him in the latest sensational defamation trial. He was such a seductive cross-examiner. So mild, so reassuring. People felt ‘oh we can trust this man’.
A good cross-examiner has those qualities – rather than aggression?
Well, every advocate has his or her own style, but I particularly admire that.
And what about in more recent years? Who would you pick out?
I think the best advocate if I’m again going back was a silk called Peter Boydell. He was the top silk in planning. He was the top silk at the parliamentary Bar when I was doing that work. If you were against him you just were mesmerised by his skill. He could put before the committee a complicated scene and make it seem simple. He never hesitated. He never paused. it just came. You thought this must be right, so convincing.
And what about in the financial remedies field? You’ve already mentioned Nicholas Mostyn.
Nicholas Wilson was a jolly good advocate. Robert Johnson was pretty good. Paul Coleridge was pretty good.
I think it’s just worth saying that the whole art of advocacy has changed dramatically. When I’m thinking of what was wonderful advocacy I’m thinking of the days when there were no skeleton arguments. There were no written submissions. There were no endless files. There was no pre-reading from the judges because they got nothing to read. So if you were going into the Court of Appeal you could open your case and they were hearing from you for the first time what the case was about and they’d sit there. By the time your opponent got up he had to completely shift what had become the sort of received view of the case. So very different skills. I remember once when I was a trial judge I was sent to do a stint in Liverpool and there was an advocate up there who was maybe the most successful family silk. He was called David Harris. There I was in Liverpool and he comes in and he says something about his skeleton argument. I said ‘Mr Harris. What’s a skeleton argument?’ I’d never heard of it. It was completely foreign and it’s not that long ago.
Do you think better justice was done without all this pre-prepared paperwork or is it just the way it is?
I tend to think it was better in its own way, and of course also, Nicholas Mostyn I think changed the art of advocacy because he was so numerate. I don’t know where he’d acquired this skill. Maybe at school, maybe at university? I don’t know where he got it, but he was so good with figures. And so he was reducing his submissions on paper to figures. I think that changed things. You almost had to be an accountant as well as an advocate to keep up with him whether you were his opponent or you were the judge in the case.
One of Nicholas Mostyn’s recent passions is of course, to have taken up the cudgel of transparency. In Clibbery v Allan and Lykiardopulo you expressed views about the confidentiality of financial remedy proceedings, and you’ve obviously seen his recent judgments.
I quite understand all the arguments. I just know that I was starting in Mitre Court in the early 60s and there were senior juniors in chambers doing the sort of Charles Russell work. The big clients in those days were the English landed class and occasionally English tycoons. The pop culture was going to come 15 years later. The English landed gentry were terrified of the papers and one thing that we always said was you needn’t worry, absolutely not a word will come out. That’s what I was brought up with: that these were private proceedings. And so when I was pontificating in those cases in the Court of Appeal I was really only expressing what I believed to be orthodox and an important orthodoxy that people are entitled to privacy. But of course the world has completely changed. Do I think all these people known as celebrities are deserving of privacy? Why should they be? They court publicity all the time in their lives. That is their meat and drink, their source of revenue. Why should they suddenly think that they’re entitled to privacy?
Does that justify the removal of privacy from everybody who goes through the Financial Remedies Court?
Well, you know, I think also the world has changed in that there were then no alternatives. You knew that if you couldn’t agree you had to get a judge to decide. But that’s not the world we now live in. You can do a private FDR, you can arbitrate, you can do all kinds of mediation. I think now litigation is elective. And if you elect that you should understand that one of the consequences is that it may be reported.
What if one side wants to have privacy and the other side is quite happy to have it in the open? Perhaps for tactical reasons?
In the end I think it’s very difficult to make absolute rules. I think case-by-case has always been the foundation of discretion and I don’t think that the judges should be deprived of discretion on an issue like that.
Do you think it’s odd that financial remedies cases in the Court of Appeal have always been in open court? Do you think there’s any justification for the difference?
I remember an occasion in which somebody came in and tried to persuade us that the hearing in the Court of Appeal should be in private. We laughed at such a ludicrous submission.
Why is it so different do you think?
I think partly because you accept as gospel what you’ve always been used to. You think it must be gospel because that’s the way it’s always been. And again, I think it’s a not a bad thing to have as a deterrent. You’ve had as part of the public service the skill and wisdom of a trial judge who has spent days agonising over your case and given you a result. And unless its plainly barmy I think you should get on with it.
So the publicity of the Court of Appeal will act as a deterrent to stop you in your tracks with the first instance decision?
I think a lot of people would think that the Court of Appeal was a very unattractive next step because of the considerable additional costs and then if you add in it’s going to be in open court that’s another consideration that they should factor in.
You read about the figures that people spend on lawyers.
I think they’re totally shocking. You know Margaret Booth, a very long time ago, in a case I can’t remember what it was called, said this is a scandal.4 And she should know because she’d been Joe Jackson’s junior of choice for a long time, so she knew all about legal costs in upmarket cases. And everybody’s had a go since. James Munby fulminated about it and didn’t make any difference.5 Nicholas Mostyn has now said the government should do something about it.6 And actually I rather agree, but I think the problem is that those on the bench who try and make the case they’re all poachers turned gamekeeper. I mean look at Nicholas Mostyn, you know he was milking the cow for years and then is suddenly saying this is disgraceful. I felt the same myself. I had some wonderful years immediately before Cleveland. And you know I was being marketed by clerks who were paid to get the best fee the market would bear and I never said to them, ‘look, I don’t think we should be asking for that’. I said, ‘OK, if you can get it, Richard, you get it’.
But with the benefit now of a few more years from when you were poacher, do you have any immediate suggestions as to what could be done to stop the exorbitant expenditure on legal costs?
It seems to be an ill for which there is no cure. I was part of the group that dismantled Calderbank because it was the Ancillary Relief Committee which I was chairing at the time and I went along with it. But was it sensible? I think Calderbank worked quite well as a restraint on unnecessary litigation costs. It really did make people think. If it was nicely pitched, it was risky to turn it down.
So at the time those who didn’t like Calderbank offers won the day. Do you regret that decision?
I was chairing the committee as a Family Division judge. So I was maybe too complacent about it. I didn’t really challenge those who were arguing for change. If the majority wanted I’d say, ‘okay, that’s it, give it a try’.
Would a return of some form of Calderbank be your number one family reform?
I don’t know how practical it is nowadays to try and resurrect that mechanism. But mechanisms of various sorts have been very helpful. I’m thinking of the forensic accountants who developed the Duxbury model. What a wonderful tool that’s been.
There’s now new tables for pensions.
I don’t know anything about them, but I do think that there’s a lot to be said for a more formulaic approach as exists in Canada. Formula has proved pretty unpopular here because it was tried in child support and has attracted a lot of criticism. There are clever minds who could come up with something which would simplify by the invention of some sort of standard which could be applied to most cases.
So stepping out of the law, what would be your desert island piece of music, film and book be?
Well, as a piece of music I would take Schubert’s last three piano sonatas. They’re usually performed by some great pianist on a single disc. So you get three sonatas for one. Or his final quintet. They are really moving. For me Schubert is a god like genius. As for a film I would choose an old French film made in the war called Les Enfants du Paradis. You know you see endless films and you never remember a single shot. Once I saw that, it was embedded in my memory. I mean as a piece of theatre it’s just unforgettable. And as for a book I’m a great admirer of a book called The Transylvanian Trilogy written by Count Miklós Bánffy. A most interesting man. A great Transylvanian landowner who was dispossessed, humiliated, his whole country was given away at the end of the first war. And then he himself was reduced to abject poverty by the communist regimes in post-war Hungary. He was for a time foreign minister for Hungary. He was also a great theatre director. He had a pretty sad life towards the end, the last 20 years of his life were pretty miserable but he continued writing short stories. All his estates and grand houses in Transylvania had been taken away and he was living there in poverty, and eventually he got to Budapest and died about a year later in the 40s. This book that he wrote which is very long should be at least on the same level as Proust, it’s that sort of length of book, and it’s more readable.
And what luxury would you take to your desert island?
Luxury has been my Achilles heel all my life. So I’m no stranger to luxury. And there’s hardly an area where I haven’t indulged in luxury. From shoes ... It’s one of my great shames really how materialistic and hedonistic I have been all my life. Maybe no longer. Maybe I’m becoming more penitent. So what would I take? There’s no point in taking marvellous cheese, because it’s either going to be eaten or it’s going to go bad. Maybe take a marvellous bottle of wine, but you know you either sit and look at it for years or you drink it and it’s gone. I think I’d be inclined to take with me some single object easily portable weighing not more than maybe a pound and in dimension no bigger than a foot and then every time I looked at it I would admire its beauty, remember the circumstances in which I had acquired it, its provenance, its history. That it had been part of my life really.
Sir Mathew. Thank you very much indeed.