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Joshua Rozenberg
Wednesday 6th April 2011
Sumption plays hard to get
The revelation that Jonathan Sumption QC will not be taking up his expected appointment to the Supreme Court until he has a window in his diary has infuriated his future colleagues.

Frances Gibb reports in The Times today that Sumption will not take up his appointment before 2012 because he is booked to appear for Roman Abramovich in a case against Boris Berezovsky, a fellow oligarch. The lengthy hearing is scheduled for the autumn and gossip among barristers' clerks puts Sumption's fee as not unadjacent to £10 million.

The story is also in The Lawyer. I think The Times had it first but I will correct this if I am told otherwise.

I first heard this story a couple of days ago. That doesn't count as confirmation because the details suggest to me that I heard it from the same source as Frances Gibb.

I didn't follow it up particularly assiduously because, to be honest, I didn't find it plausible. The seat on the court previously occupied by Lord Saville has been vacant for more than six months. How could it be held open until next year?

It used to be the case that a barrister offered a seat on the bench would take it up immediately. If a deferral was allowed, it was always on condition that the appointment remained confidential.

The reason is obvious: a barrister who is about to become a judge is thought to have an advantage over his or her opponent. How much more must that be so if the barrister will soon be in a position to overturn the decisions of the judge before whom he is appearing?

That is not to say that Mrs Justice Gloster, who is expected to hear Berezovsky v Abramovich, is likely to be intimidated by having a future member of the Supreme Court appearing before her. But how would it look? What would we say if a Russian court allowed one side in a dispute to secure the services of a senior appeal judge?

There seems every reason to suppose that Sumption's opponents will ask the court to refuse to hear him. Mrs Justice Gloster would be wise to grant such an application in order that justice may be seen to be done.

Failing that, as one senior legal figure said, Sumption should be allowed to take the case only if he donates his fee to the consolidated fund — from which judges are paid — and draws a judicial salary instead.

I strongly suspect, but cannot yet confirm, that senior judges tried unsuccessfully to persuade Ken Clarke, the Lord Chancellor, to block Sumption's appointment. They will have even more ammunition now.

If Sumption really wants to be the first lawyer to leapfrog two court tiers since 1949, he would be well advised to return his brief and take his seat. Playing hide-and-seek with the Supreme Court does nothing to enhance its reputation — or his.

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April 8th, 2011
11:04 AM
The most alarming thing about this case is that itreveals Sumption to lack judgment. Which, one would have thought, was a prerequisite for the job.

April 8th, 2011
10:04 AM
@jezhop Quite: I don't see any problem with Berezovsky v Abramovich and the imbalance of power with having someone not yet a Supreme Court judge arguing before a High Court Judge - they'll just get on with it. I do agree with Rozenberg about what it says about Sumption - and that it would be prudent of him to make a gesture with the fee he's getting. Is there any other reason for him to keep the case on, other than cash?

robin towns
April 7th, 2011
7:04 PM
It is now clear that the unnecessarily complicated (& now public) appointment process foisted on us by Blair & Falconer - a process that makes the election of a mediaeval Venetian doge look simple - is inherently flawed. If Mr Sumption can be (& is to be) allowed to play ducks & drakes with the process to suit himself then I am surprised that any senior member of the judiciary should even want to be considered for appointment to a tribunal which is fast losing credibility.

April 7th, 2011
11:04 AM
I do not see any issue with a the scenario of Sumption appearing before Gloster J (or indeed any High Court Judge). This is similar to the frequent occurrence of barristers appearing before other barristers sitting as arbitrators or Deputy Judges. We are fortunate to have a system in England where integrity (both perceived and actual) transends any perceived potential for conflict. The fact that Berezovsky/Abramovich have chosen to litigate in England is surely compelling evidence of this.

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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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