She gave an expected answer – “Just from North London” – but in her head she was shouting, “Yes, actually I have!”, because her route to the High Court bench, Chancery Division has involved some unusual detours.
“I wanted to be a barrister from an early age.” Comprehensive school, law degree at Cambridge, BCL at Oxford, Bar School and called to the Bar in 1984, she was the first lawyer in her family. “I got a second six at what is now Monckton Chambers in competition law, which I had enjoyed studying at Oxford. I wasn’t intending to practise in it but my desire for a tenancy was at the time all-consuming. I remember standing in Gray’s Inn Square one summer’s evening and saying to myself, ‘I so desperately want to do this’.”
Vivien became the first woman to be taken on in Chambers. “There can’t be many women of my generation who aren’t almost constantly aware of being a woman in a predominantly male environment. The advantages? If you did a very good job, people were slightly surprised and perhaps remembered it more. But overall it wasn’t an advantage. Women had to prove every day that they were competent in a way that men didn’t have to. I was never treated disrespectfully. The clerks were good to me and I got my fair share of quality work.” Her competition practice thrived and in 1992 she became Standing Counsel to the Director General of Fair Trading.
During this time, at the request of her former pupil-master, (now) Sir Christopher Bellamy QC (“to whom I owe a lot for influencing my career”), Vivien was editing the competition law “bible”, Bellamy and Child, eventually producing three editions.
A new chapter
In 1995, Vivien left self-employed practice. “I had stopped enjoying it. It was frustrating that so many competition cases got bogged down in procedural wrangles. In addition, I was nervous before hearings and I didn’t feel the compensating buzz that others did.” What is now the Government Legal Department snapped her up for the Treasury. “In government service there was high quality work and more variety.” Vivien helped pilot the giant Financial Services and Markets Act 2000 through Parliament and to implement it afterwards. “It was the largest bill to go through Parliament at the time and we had to draft over 100 statutory instruments, some of which were mini-statutes in themselves.” This is unique experience for a judge. “The intellectual exercise of drafting legislation is very different from judging. There is no set of facts against which you are considering the law. You have to decide – against every potential set of facts – what you want to achieve and choose the words to achieve it; and it’s more difficult than it sounds.” Does legislative experience help with judging? “Yes, in developing understanding of the process by which legislation comes about and in challenging superficial interpretations put forward by counsel. But remember, the words are what they are: speculation about them should not be taken too far.”
A move to the Ministry of Defence to work on international humanitarian law broadened Vivien’s experience, as did a secondment to the Office of Speaker’s Counsel in the House of Commons, before she returned to the competition world and got her foot on the judicial ladder by becoming a tribunal chair at the Competition Appeal Tribunal in 2005. Did her expertise help there? “I could get to grips with the issues more quickly and spot bad points. Counsel cited my book at me – usually in reliance. I don’t think I’ve ever quoted from it in my judgments and I’m not aware of it being proved wrong.”
Current work load
One of 19 Chancery judges, Vivien does the whole range of Chancery Division work including trusts, insolvency and breaches of directors’ duties, as well as competition law. In April, she was appointed President of the Upper Tribunal (Tax and Chancery Chamber). “I like tax: the focus on language, unpacking the meaning of everyday words we use all the time. For example, what does it mean to ‘use’ something or to dispose of something ‘to’ somebody? And tax has become an important area of debate about what is fair in society.”
What would now be a “good day” for Vivien? “I enjoy case management. A good day is when I’ve resolved lots of procedural points, set a realistic timetable and got the case on track. So far as conducting trials is concerned, a good day would be when I’ve listened to arguments and witnesses and can now grasp where everything slots in and what I have to decide. In a long case this may take some time. It’s important to have the confidence that that moment will come and not to get panicky.”
Vivien’s advice to counsel? “I get enormous help from counsel on the law. The best ones help the judge come up with the structure of the judgment, rather than just set out their submissions on individual points.”
When writing a judgment Vivien aims to make it “readable and entertaining”. “Tell the story of the case. The parties want to know how you describe what happened, especially whether you believe their witnesses. Every long case will raise about three times as many issues as you can fit into a judgment. Take care with what you need to decide and what you don’t.”
Not surprisingly, Vivien is a fan of the appointment process that brought her to the bench. “In the days when shoulders had to be ‘tapped’, my shoulder wouldn’t have come to anybody’s attention for tapping. The current transparent system acknowledges that some people with exceptional legal skills may have chosen to use them in a different legal context. For me, the turning point was the influential work of the late Dame Juliet Wheldon (when Treasury Solicitor around the turn of the century) to make government lawyers eligible for senior judicial posts. When I left Chambers in 1995, my one regret was that I would never be able to be a judge. Once the position changed, I knew I really wanted to be in the High Court and I don’t mind saying that I planned carefully how to get there.”
The assessment process was not as big a deal for Vivien as for others. As an employed barrister she had been used to interviews, to applying for posts, to providing evidence of skills and competences and to being assessed on a regular basis. Now she mentors others and has a mentor of her own. “When I became a judge I was asked if I wanted a mentor and I said yes. I consult him about once a month, not on what the answer in a case should be but more on procedural points, for example, when counsel argues ‘other judges always do this’, he will say ‘yes’ or ‘absolutely not’. There is, however, much less use of judges as a sounding board than one might expect (in contrast to chambers). It’s the job of the judge to decide and you don’t become a judge unless you can handle the responsibility.”
Vivien clearly enjoys working with her fellow judges. One thing which has surprised her was the work which they do behind the scenes. “Almost every judge is on a committee or project or helping to draft the judiciary’s response to a consultation. For the past year I have been working with a Commercial Court judge to set up a new specialist list for financial markets cases and I am also a liaison judge between the Lord Chief Justice and the bodies regulating the legal profession. It all has to be fitted round the day job of judging.”
What is Vivien’s advice to today’s law students and new practitioners? “I’ve always enjoyed the law. It’s entertaining, varied, totally man-made, reflecting the huge complexity and the paradoxes of human nature. Don’t assume you will just have one job in your career; and, if you change from one job to another, everything builds on everything else – you are not junking your past and no experience is wasted. Do what you want to do. Don’t be frightened of change.”
Contributor Anthony Inglese CB