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Lord Leggatt, Justice of the UK Supreme Court
Lord George Leggatt, Justice of the Supreme Court of the United Kingdom, was in India last week to attend the Fifth Round Table of the Commercial Bar Association (COMBAR) as a judicial guest.
Lord Leggatt read Philosophy at King’s College, Cambridge and studied at Harvard University as a Harkness Fellow.
After qualifying as a barrister in England, he was a Bigelow Teaching Fellow at the University of Chicago Law School and worked at the law firm of Sullivan & Cromwell in New York, before joining Brick Court Chambers in London in 1985.
He practised as a barrister until 2012, specialising mainly in commercial cases, and was appointed King’s Counsel in 1997. He also sat as a Recorder (part-time judge) in criminal cases for 10 years.
He was appointed as a judge of the High Court in 2012, assigned to the King’s Bench Division, and was promoted to the Court of Appeal in 2018.
In April 2020, Lord Leggatt became a Justice of the Supreme Court.
During this visit to India, Lord Leggatt was invited to a breakfast event hosted by the Indian Arbitration Forum and from there, he was given a tour of the Bombay High Court. He attended a few courts and interacted with some of the judges there.
A day before going back to the UK, the judge had a chat with Bar & Bench’s Neha Joshi and shared his first impression of the Indian courts and how India can be a leading destination for international commercial arbitration.
Neha Joshi (NJ): Did you gain any insights about ‘justicing’ while interacting with Indian judges?
Lord George Leggatt (GL): I had a great opportunity to see the Indian justice system in action right after the breakfast meeting of the Indian Arbitration Forum at the Bombay Yacht Club. At the meeting, I met a group of very nice lawyers, including Raj Panchmatia. Raj called Justice Gautam Patel, who invited my wife and I to the Bombay High Court to have lunch with all the judges that day. Justice Patel organised everything. He’s a fantastic character. Lunch was arranged in the judges’ meeting room and afterwards, we had a full tour of the Court. It is a wonderful building, the High Court, and we saw the museum and the library.
I also went into three courtrooms and listened to the arguments for a while. One was Justice Patel’s court, and the other courts were those of Justice KR Shriram and Justice Manish Pitale, who spoke at the Yacht Club. What I found extraordinary is how busy the courts are here. And how many cases they have on their lists. And what pressure of work there is. I mean, that is just phenomenal. Because there’s no equivalent to that in England.
The other judge I’ve met on this visit is former Supreme Court judge, Justice L Nageswara Rao. It was a privilege to share a platform with him at the COMBAR Round Table. We spoke from our different perspectives on two topics: value or otherwise of oral evidence in arbitration proceedings, and the public policy defence to enforcement of arbitration awards in the Indian and UK courts. I learnt a lot from Justice Rao and found the comparisons very instructive.
NJ: How different are the challenges a UK judge faces compared to what Indian judges face?
GL: I would say given the pressure of work and the number of cases, it seems that however hard the judges work here, there are just so many cases that it seems impossible to deal with them efficiently. One of the judges of the High Court told me that there’s a system where people who have urgent cases stand up at the beginning of the day and say ‘I’ve got something really urgent.‘ It takes him an hour to work out which ones are urgent. Obviously, that’s an hour of the day gone before you can actually start the business.
And there’s clearly a problem here because I understand that there are meant to be about 90 judges at the High Court, but only about 60-something (67) are appointed. So not enough judges, either. We did have a problem in England a few years ago, when there were some unfilled vacancies in the High Court, but now it’s back to full strength. And we have never had that same pressure of business.
NJ: What are the other reasons you saw for the increased burden on judges in India?
GL: I haven’t got enough insight into the Indian system to understand all the reasons. But one thought that occurred to me concerns awards of costs. In England, the winner of the case has their costs paid by the loser, usually about two-thirds of the actual figure. And people have told me here that although in principle you’ll get an order for costs if you win, in practice, they say you’d have to go through more litigation to recover a substantial sum, and normally you end up getting only a very small sum compared with the costs you have actually incurred. And it did seem to me that if people know that the case is going to take years to come to court and that, even if they lose, they’re not going to have to pay a lot of costs to the opponent, that may encourage people possibly to bring claims that are not good claims. But as to whether that’s true or not, I can’t say because I don’t have enough knowledge of the system.
NJ: A recent study revealed that there were 3,47,820 outstanding cases in magistrates’ courts in the UK at the end of September 2022, down from 422,000 cases in mid-2020. What are some of the measures courts in the UK have taken in the recent past to address case pendency?
GL: When I said that we don’t have problems of excessive delays in the UK, I was talking about the civil courts. However, there is a problem with a backlog of work in the criminal courts in the UK at the moment. That has been a growing problem partly caused by lack of funding, and then it got worse during COVID-19. We have jury trials for many criminal cases and it was found to be impossible to have jury trials during COVID. And so a big backlog developed. To help reduce the backlog in the Crown Courts, where jury trials take place, magistrates were given extra sentencing powers so that they could deal with more serious cases than before. They were given the power to impose a maximum sentence of up to a year’s imprisonment for a single offence – whereas before it was six months. But that has simply increased the caseload and backlog in the magistrates’ courts. Another measure taken has been to hold more court sittings, but that seems to have had only a limited impact.
NJ: The system by which Indian judges are appointed by other judges has come under criticism of late. How does the appointment system work in the UK? How is your system insulated from executive interference?
GL: In the UK, there is a body called the Judicial Appointments Commission, which selects candidates for judicial appointment. It’s an independent commission set up about 20 years ago. Before that, judges were chosen by the Lord Chancellor, who is the Minister of Justice. The Lord Chancellor made the appointments on the advice of civil servants, who consulted the sitting judges, and he usually would follow their recommendations. But the system was not completely immune from executive interference.
The new system, the Judicial Appointments Commission, is made up of some judges, members of the legal profession and also non-lawyers. You have people who have a background as an accountant or a doctor or a member of some other profession. The idea is that there ought not to be just judges selecting judges. That is thought to be too cosy. The members of the Commission are themselves appointed through an independent process, to make sure there can be no executive interference. It also operates more transparently than the old system.
Appointments to the High Court and above used to be by invitation, but now it is by application for every judicial job. One can apply when they advertise for vacancies. So when I applied to become a High Court judge, I was short-listed and interviewed, and every interview panel consists of five people – three non-lawyers and two judges. You also get asked for referees. Then, when I applied for promotion to the Court of Appeal (an intermediate court between the High Court and the Supreme Court) it was the same process. And then the same for the Supreme Court. Of course, the judges who interview you are appropriate in seniority to the level of the court that you’re applying for. So, when I applied to the Supreme Court, the two judges on the interview panel were the President of the Supreme Court, the equivalent of your Chief Justice, and our Lord Chief Justice, who is the head of all the courts in England apart from the Supreme Court. And then the lay persons were the heads of the Commission from England and Wales, Scotland and Northern Ireland, because all those have separate systems up to our Supreme Court.
Obviously, there are advantages and disadvantages of having non-lawyers involved. The judges are better equipped to judge the legal skills of the candidates. But so far, the system has worked in keeping appointments completely independent of the executive. Every now and again, there are suggestions that the government would like to or might change the system. There was a time a few years ago when the UK left the European Union and our Supreme Court decided Miller’s case holding that the Prime Minister had acted unlawfully in suspending Parliament, which the government didn’t like. After that, they were talking about changing the appointments system. But it hasn’t happened.
NJ: There has been a lot of debate about increasing the age limit for retirement for Indian judges. What was the thought process behind increasing the retirement age of UK judges to 75 years?
GL: Our retirement age has recently gone up from 70 to 75. That occurred in January 2022. So I’m 65. I was expecting to retire at age 70. Now if I want, I can stay till 75. The idea being that people live longer, they can carry on working longer, it’s a waste of talent if they retire when they still have a lot of skill and experience to contribute. If people retire at 62 from the High Courts here, and 65 from the Supreme Court, that seems very young to me!
NJ: In India, Supreme Court and High Court judges get appointed to other tribunals or arbitration forums after retirement. What is the trend in the UK?
GL: They might go and sit as arbitrators. There are some public service jobs available, such as Commissioners who oversee covert surveillance by the police and intelligence services. They sometimes go and sit in other courts overseas, like the Cayman Islands or Bermuda or Gibraltar Court of Appeal, and the Singapore International Commercial Court. Sometimes, there are public inquiries, they may appoint a retired judge to conduct a public inquiry. For example, there was an incident when a tower block burned down in 2017, causing many deaths, and there has been a very long inquiry into the causes and lessons to be learned from that disaster led by a retired judge. Sometimes, judges when they retire are happy just to stop work altogether!
NJ: Indian judges face quite a lot of trolling on social media. Is it as bad in the UK? How do judges deal with something like that?
GL: No, trolling on social media is not, at least at present, a problem faced by judges in the UK.
NJ: Do you see India becoming a hub for international commercial arbitration in the near future? What needs to change for this to become a reality?
GL: I would have thought so. I mean, there’s so much potential because the Indian economy is expanding so fast. There must be more and more commercial disputes. And especially if the courts are slow and overburdened, arbitration is perfect for getting a speedy decision. I think India ought to be leading in this part of the world and not letting Singapore take the lead.
I can’t really give a good opinion on what needs to change, because I’ve not been an arbitrator here. I can tell you one thing that surprised me. Justice Rao was saying that when he sits as an arbitrator, the arbitration hearing can go on for days, with many days spent questioning witnesses and hearing oral arguments. A friend of mine, an English barrister who came and appeared as counsel in an arbitration here in Mumbai a few years ago, has told me the same thing. He said the hearing kept getting adjourned, and there were delays all the time.
I think if you want to have an efficient arbitration system that international parties want to use, you must have hearings that run through continuously and last no longer than necessary. What we do in London arbitration is that there’s a timetable agreed upon for the hearing. There is a little bit of flexibility, but the hearing has to be completed within the overall time agreed so it doesn’t drag on and on. There is one system which I think is a good one called the ‘chess clock’ system. You might decide okay, we are going to have 20 hours each for examination and cross-examination of witnesses. You can use your time how you like. But when the clock is running for you, that’s coming out of your share. That’s one way to do it. I do think that it is essential for the efficient conduct of both litigation and arbitration to have a timetable set in advance for the hearing.
NJ: With the liberalisation of the Indian legal market, do you see law firms in the UK expanding their presence here?
GL: I am sure they would definitely like to come. Whether it will happen, I don’t know. Certainly, if they can employ local lawyers. I think English barristers might find appearing in the Indian courts a bit difficult – the court system is quite different. But I think in arbitration, definitely. And of course, in England, we have many barristers of South Asian background and heritage. Often they can speak an Indian language as well as English and have more cultural understanding maybe. So it’s not only a white British lawyer who would like to practise here. There are lawyers from Indian backgrounds working in the UK. I think a lot of English advocates will be very keen to do work here if they can. That was one of the reasons for this visit arranged by COMBAR, in the hope of generating and building relationships.
NJ: Given the fact that more Indians are being called to chambers in the UK, do you see an improvement in the quality of Indian lawyers?
GL: Yes, this has happened. It is quite a recent thing. It seems that quite a few Indian advocates are now joining commercial barristers’ chambers. I’m sure there is an improvement in quality. But I think just as it would be hard for somebody who has only practised as an English barrister to appear in Indian courts without the experience of it, the same is probably true for Indian advocates appearing in the English courts. I think it’s easier in arbitration, because it is more informal and more similar anywhere in the world. And you don’t have the same clamour of advocates competing to be heard as when you go to a court here. I think an English barrister would be a fish out of water in an Indian court because they expect things to go more slowly, they are used to waiting for the judge to take time to write things down. There isn’t the same crush of people, with hundreds of cases to get through. There is more time in arbitration hearings, which English barristers are used to.
NJ: Have you read judgments from the Supreme Court of India and the High Courts? What is your opinion of them?
GL: Well, only Justice Rao sent me some judgments to read before I came over for the COMBAR Round Table. Because one of the topics we talked about was public policy as a defence to the enforcement of an arbitration award. He sent me a series of judgments of the Indian Supreme Court showing how the approach to this question in India has changed over time. In fact, one of those judgments had been cited to me before when I was a High Court judge sitting in the Commercial Court in London. But that was in the context of an argument suggesting that it won’t be possible to enforce the arbitration award we’ve got in India, because enforcement will be resisted on the ground that its contrary to public policy and those proceedings will go on for years. That was their argument.
But we don’t get cited to us in the English courts Indian judgments as precedents. And I now think that that is because there’s a lack of awareness amongst English barristers. Indian judgments are not on the databases that we all normally have access to. I think it could be very useful to look at Indian judgments in some cases. So when the right case comes in the future, I’m going to ask counsel, when we’re looking at comparative case law – we often look at cases from Australia, Canada and Singapore, for example – I’m going to say ‘Are there any Indian Supreme court judgments on this point?’ If so, I would like to see them. Because I think we would benefit from seeing them.
NJ: UK abolished the offence of Sedition in 2009 citing the protection of freedom of speech. There are talks of abolishing the offence here as well, but the offence is only kept in abeyance for now. Do you think common law countries should take steps to update their laws?
GL: There’s always a case for looking at the law and seeing if it needs to be updated. But as for the offence of Sedition, I can’t answer that. I think it was abolished in the UK after the Law Commission recommended that. The Law Commission is an independent body which makes recommendations for law reform. I think they thought it was an archaic concept dating back to medieval times but that had never been clearly defined. And for years there had been no or hardly any prosecutions for Sedition in the UK. Certainly, I had never heard of one.
NJ: What kind of a role do you see Artificial Intelligence playing in the courts of UK and the rest of the world?
GL: If by Artificial Intelligence you mean things like ChatGPT or other systems that use machine learning to generate text, there was an interesting report in the British press only last week. A Court of Appeal judge in England said that he’d used ChatGPT to write a paragraph of a judgment. He said it was an area of law that he knew very well. But he asked ChatGPT to summarise the law in that area in one paragraph, and it produced a summary he thought was a good summary, and so he used it. And this has got a lot of news coverage in England. But I think he was saying that there may be a use for artificial intelligence, but not to decide anything, rather to help as a research tool or even to produce a draft which a judge or lawyers can review if they like to work that way, which they can then correct and edit. That could save time.
In the US, judges have law clerks who often write drafts of judgments for the judges. There’s nothing wrong with that, as long as the judge does his or her own work and takes full responsibility for the end product. Maybe I’m old-fashioned, but I can’t see AI replacing judges because machines have no sense of truth or justice – they are just programmed to produce text which reads like what one might expect someone to write after seeing what people have written on billions of webpages, etc.
NJ: How important is it for judges to be technologically competent for an effective justice delivery system?
GL: I think it is not just important now, but essential. First of all, research is so much easier and quicker now, when the databases are just a few clicks away, and you can find all the cases and books online. And then, in our Supreme Court, all the documents in every case are in electronic form for the hearing. So it speeds up the hearing. It is quicker for counsel to just say the page number and it is up on our screen instead of hunting in a file or getting out a book there. And you can annotate the page. I personally like to have the key documents in printed form and take notes manually, because I am used to it. But we have some judges who only use electronic files and take all their notes on their laptops. And of course, we write our judgments electronically. I also think it is essential for judges to have a good understanding of technology to understand cases they have to decide. These days, you need to know about things like cryptocurrencies or bitcoin or smart contracts. I am not an expert, but I try at least to have an understanding of the basic concepts.
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