Around 100 barristers practice intellectual property law in the UK. A small group, the London IP bar is influential in the development of IP law across the UK and Europe. And although famed for their skills of oral advocacy, barristers remain a closed book for many in European IP. The culture at the IP bar is elusive. The upheaval of Brexit and uncertainty around the UPC means this often-reticent part of the legal community is making its views known.
14 June 2019 by Amy Sandys
“I’ve cross-examined Bruce Springsteen.” Now well-regarded among IP barristers, it is this case from 1998 of which Guy Tritton, barrister at Hogarth Chambers, is most proud. A glance over Tritton’s CV shows the background expected from an eminent member of the IP bar who first made his name in criminal and then copyright law.
Education at one of the UK’s leading private schools, Eton College, was followed by a BSc in Natural Sciences at Durham University and a postgraduate diploma in law. Tritton was then called to the bar in 1987.
He is a keen jazz pianist; there are several online photos showing a kayaking expedition in the Arctic Ocean with his father.
And apparently subverting the norm is a family trait. “My mother was a barrister, and that was inspiration,” says Tritton. Clare Tritton specialised in competition law, still unusual for a woman in the mid-20th century. And while Guy Tritton now specialises in media and IP, it seems arguing the hilt is part of his psyche.
“I learnt to cross-examine in the Crown Court, the main criminal court of England and Wales. I was a criminal barrister for 15 years. Criminal barristers are the best advocates at the bar,” says Tritton.
Now he is part of a group that in 2001 merged two chambers. The barristers set up a boutique IP chamber, Hogarth. It is one of the five chambers in London at the forefront of UK IP law. Tritton is one of the 100 or so barristers specialising in IP. All are self-employed; all are trained to think on their feet.
Although in some respects the role of a barrister is not so different to a solicitor’s, it remains opaque to many in continental Europe. Barristers are an integral part of the UK justice system, but the culture is subject to scrutiny and speculation – not least from its own members. Like a solicitor, preparing written submissions for cases and having in-depth subject knowledge is part of the job. But it is the core skills of oral advocacy and cross-examination that define a barrister. “You have to rise above the facts and law and find a convincing case theory as to why you should win,” says Tritton.
Guy Burkill, barrister at Three New Square, says it is telling that in most IP cases, solicitors will still engage barristers for court appearances. “This is even though in many cases the solicitors have the right to appear themselves,” he says.
Multiple rounds of long briefs are followed by a short oral hearing in countries such as Germany. In the UK, emphasis is put on oral evidence. The bipartite system is also an unusual quirk of the profession, especially regarding the designation of Queen’s Counsel. This is also known as ‘taking silk.’ The profession splits into two rankings, with anything under a silk a junior.
“People often look to move to silk after around 20 years,” says Brian Nicholson, a recently-appointed QC at 11 South Square. As the name suggests it is a position technically awarded by the Queen. Less glamorously, recommendation by a panel sees the actual title given.
Another key difference between being a junior barrister and taking silk is that an appointed QC will spend more time leading the case and the advocacy. But another barrister told JUVE Patent that, for a client, choosing a junior barrister often represents better value for money. “It’s in our interest to give lots of advice. This means the client will pay for the services of a junior barrister but end up receiving expertise from a QC.”
This system of mentorship means many junior barristers at the beginning of their legal career are guided by eminent names in IP. Pupillages and mentoring by barristers, many of whom go on to become IP-specialist judges, foster the incoming generation.
Richard Meade, barrister at 8 New Square, says, “I was very lucky I ended up in 8 New Square, and I was doubly lucky that (Supreme Court judge) David Kitchin was my pupil master. I was triply lucky that I got some really good cases early on with David, and with (former Court of Appeal judge) Robin Jacob who was our head of chambers, and a QC at the time.”
Meade is now an eminent IP barrister, recently representing Actavis in the 2017 Actavis vs. Eli Lilly case regarding equivalents. Regarding likely future applicants to the judiciary, his name is often mentioned. Meade already sits as a deputy High Court judge.
Some barristers, like Mark Engelman of Hardwicke, practice as a solicitor and later return to the bar. “I realised science and law might be a perfect fit for an IP barrister when I began applying for my pupillage,” says Engelman. “I moved to Clifford Chance to specialise in IP, then did corporate and IP work for a few years. Returning to the bar, I was armed with the experience of being a solicitor and a client.”
Sets such as Hogarth are quite recently established. Other sets such as 3 New Square, 8 New Square and 11 South Square have a long and eminent history in IP litigation. Different still are chambers like Hardwicke, which contain barristers practising all areas – from IP to construction and engineering, to personal injury.
How clients are charged also varies between chambers. One barrister told JUVE Patent that some on the IP bar will drop prices to retain clients. Mostly barristers maintain a fixed price point, charging per hour for advisory or paperwork and fixed sums for hearings. Burkill says, “Lawyers are not cheap, and barristers are no exception.”
Prices range from the low hundreds for junior juniors to the high hundreds – and sometimes thousands – for IP silks.
But despite what one barrister describes as “their certain collective reputation”, barristers from all chambers enthuse about the collegiate and friendly internal atmosphere. This is despite the independent working and contentious nature of legal advocacy. “There’s enough good work to go around,” says Nicholson. Socials are arranged, drinks receptions are attended, and barristers often team up on cases to provide a broad spectrum of expertise.
Mark Engelman says, “A variety of academic backgrounds and scientific specialities means both the barrister and client benefit from a case being examined from these other angles.”
Even between chambers, say some barristers, the atmosphere is at worst defined by friendly competition. At best, the junior barristers and silks socialise and collaborate. Furthermore, as Nicholson says, “Talking to other members of chambers is a good way to keep your finger on the pulse.” But as one London barrister says, “There is no doubt some IP chambers are less friendly than others.”
He explained to JUVE Patent that “barristers are bad at recruiting. They recruit people like them and this self-perpetuating nature can lead to a less than pleasant experience at the IP bar”. The recruitment of the same type of people naturally leads to a certain level of group thinking.
“What is and isn’t acceptable becomes blurred. Barristers will push ethical boundaries because those who trained them condone pushing ethical boundaries.”
One thing that most barristers can agree on, however, is the fast-paced and unpredictable nature of the job. Currently, the most unpredictable facet seems to be the delay to the Unified Patent Court.
It is still unclear when the German Constitutional Court in Karlsruhe will decide on the complaint against the Unified Patent Court. If it does materialise with UK participation, the IP bar could impact litigation proceedings in the pan-European court. And many IP barristers are supportive.
“I am a qualified fan of the UPC,” says one barrister. This is a sentiment echoed by all who spoke to JUVE Patent. Even the more sceptical say that, even if the UK being an essential part of the UPC is an overstatement, it is important and attractive.
This importance is partly down to the UK’s patent judges. All are well-regarded across Europe. In fact, the high quality of the UK judiciary and bar, from where most judges are recruited, could significantly impact the UPC. When the UPC put out a call for expressions of interests, all QCs were told to put their names forward.
The speciality of the UK bar also means it could have a significant role to play in UPC litigation. The knowledge and skill of barristers is sought after in Europe. At least two barristers told JUVE Patent that European lawyers are asking members of the UK IP bar to intervene in difficult IP cases.
Burkill says, “Specialist advocates can make a real difference in any kind of contested proceedings. This is just a ‘safe pair of hands’ or by navigating a difficult and complicated case to a positive outcome. This is as true in the UPC as anywhere else.”
But the longer the wait, the faster some members of the London IP bar are losing interest in the project. Meade says, “I think the IP bar is good at litigation and good at oral advocacy. I was excited about, and pro-, the UPC project. The Brexit uncertainty and the German ratification delay has been really unfortunate.”
The excitement is fading. Barristers are frustrated with the perceived lack of urgency in Germany.
However, it is also the case that the UPC might cause some UK IP practices to suffer. “The economic effects of Brexit and Brexit uncertainty could affect the IP bar,” says Meade. Other barristers believe UPC cases would better suit German or French patent attorneys. Given their experience at the European Patent Office and in European courts, this speculation is not unfounded.
In the EPO, cross-examination only happens when factual questions are contested. It is very unusual for UK barristers to practice this oral advocacy in Munich.
But a functioning London division would concentrate on pharmaceutical cases. For barristers with a specialisation in the field, there is an opportunity to work alongside European colleagues. Barristers in the UPC can also add to the understanding of technical detail. Large pharmaceutical companies are also willing to pay the high barrister fees.
Views differ between chambers, however. Engelman says, “Unless the UPC mechanics fall into place, pharmaceutical disputes are unlikely to be heard in London.” On the other hand, no UPC might not be the worst outcome for barristers. Pharmaceutical companies may be reluctant to put the validity of their most important patents on the line across all of Europe.
The UK offers strong alternatives. High Court judge Colin Birss is well-known for reforming the Intellectual Property Enterprise Court (IPEC). As a forum for IP litigation it is now well-regarded. Litigants also favour the UK High Court due its rigorous procedures and in-depth knowledge of patent law.
“Judgments of our Patents Court are highly respected internationally due to a wealth of experience,” says Burkill.
For some IP barristers, the imminent threat of Brexit and UPC turbulence are causing the most disruption. The UK’s important IP practice and market size once meant European litigation would be naturally drawn to its courts. However, some barristers believe this no longer the case. It is at least partly down to Brexit fear.
Furthermore, the fear of repercussions from Brexit has gone beyond speculation. Several barristers interviewed by JUVE Patent said that their practice has been negatively impacted. JUVE Patent has also seen email enquiries from European attorneys, asking about the post-Brexit plans of London-based IP barristers. One barrister has lost cases to IP practitioners in Europe due to the uncertainty of the UK court’s role.
A hard Brexit could see the European Court of Justice as no longer the last point of appeal for UK law. The European Patent Office will still receive patent work, and London courts cannot so easily enforce judgments passed in Europe.
Engelman says more work is being handed over to German advocates, particularly noticable in his IP speciality of trademarks. “But the problem is,” says Engelman, “no-one seems to know what will happen.”
JUVE Patent found that a pro-remain view is strong across all chambers of the London IP bar. Michael Edenborough, barrister at Serle Court, says, “The IP sets tend to be more remain due to so much of their work being European.” A notable exception is Martin Howe, an intellectual property QC at 8 New Square and member of the European Research Group (ERG). The ERG strongly advocates, from a conservative standpoint, for the UK’s departure from the EU. However, this seems to be an unusual perspective among the profession.
But politics and the law have long existed in a dichotomy. Brexit is an exception in that it transcends traditional political boundaries; the pro-remain tendency of the IP bar does not prevent some IP sets from having political leanings. “Some sets in particular are quite right-wing,” says Edenborough.
This can mean retaining an old-fashioned take on class structure and etiquette. “In one chamber, until about 20 years ago you simply would not be admitted unless you owned a horse and were a keen rider. Everyone rode – it was just what you did.”
This, at least, is no longer common practice. But there is a tendency for barristers to be cut from the same cloth. This is no secret among those at the IP bar – and among those who wish to join it.
Initiatives to promote diversity, including fairer application systems and maternity leave, are redressing the historic imbalance at the IP bar. A more corporate image for chambers, for example more emphasis on marketing and events, is helping foster a common approach to policy. There is still a way to go. For example barristers from non-white backgrounds remain the exception. A maximum of just 15% of IP bar silks are women.
But, says Nicholson, “The bar has worked hard at addressing diversity in the last 20 years. There’s a more objective application process, more of a mix of members in chambers and a wider scope of representation.” And applicants are no longer required to ride, or even like, horses. Proficiency at jazz piano is not an expectation. The rooms of most barristers remain endearingly messy, strewn with a mixture of personal effects, papers and discarded coffee mugs.
Opinions around the UPC and Brexit are just as chaotic. While the bar is almost vehemently remain-supporting, being in or out of Europe presents its own problem – not least when the UPC is involved.
Despite this, all barristers stress that their commitment to the IP bar means it is more vocation than job. “My only regret about being a barrister is not returning to the bar sooner in my career,” says Engelman.