How did you find the process in applying for Silk?
It was very wearing, not just in terms of the work involved, but also because of the length of time that the process takes. Initial planning starts well before an application is lodged and then it is nearly a year before the result is known.
What do you credit your success to?
Insofar as I have success at the Bar, I believe this is due to my focus upon the client, both lay and professional. I try to keep in mind how I would feel if I was the client. I would not only want the correct answer, but also have that answer provided clearly and speedily.
Do you see the Chancery/Commercial Bar having a future?
Without hesitation, yes. Barristers are consulted in order to provide independent opinions and skill in advocacy. Those are perennial requirements, and the Bar will continue to meet them.
What is the worst professional advice you’ve been given?
To be told: This is a case you can’t lose. Such advice is conducive to laziness and lack of preparation. Many years ago I was instructed in a case, where my client was resisting an application for an injunction. The solicitor had prepared the evidence, and told me that it was obvious the applicant would fail, for at least four reasons. I believed him, and took success for granted. I was wrong. All the four reasons proved illusory, and the injunction was granted.
Is there any professional advice you would give ?
Yes. Never ask a judge to go on a site view when you have not viewed the site already. Very early in my career I was instructed to defend a claim for possession of a flat in Portsmouth. The ground for possession was damage to the flat, in particular putting pictures and other items on the walls. My young pretty client assured me that the complaints were trivial, and that her flat was very well looked after. During the hearing I invited the judge to view the flat. He agreed. My opponent, the judge and I travelled to the flat. My client was correct, the flat was well looked after. However the walls and ceiling had mirrors, and the remaining spaces were covered with pictures of young ladies, whose attractions were all too obvious. I lost the case. My more experienced opponent told me afterwards that his client had suspected that his tenant was “on the game” but he had no evidence. The site view provided it.
Why did you become a barrister and not a solicitor?
Whilst still at grammar school I obtained a summer job in a local solicitors’ office. I frequently found myself photocopying papers to accompany instructions for barristers. When I enquired why I was doing this I was told that all the tricky and interesting questions were sent to the barristers. Rightly or wrongly, I decided that, if I was going to study law, then I should become a barrister.
What advice would you give to someone at the junior end of the Bar reading this?
Act as though each case is your first case. All barristers remember their first case, and they work really hard on it. If you approach each case as your first then the rest is easy.
What has been one of your most interesting cases and why?
Barrett v Bem is very memorable. On the day he died Martin was visited in hospital by one of his sisters, and her daughter. A short will was written out by the daughter, giving everything to her mother. Two nurses “witnessed” the will. The will was contested. The case was tried by Vos J. The daughter and one of the nurses said that Martin’s signature was genuine, and was made by him without assistance. A leading handwriting expert gave evidence that the signature was far too good to be genuine. The judge preferred the handwriting evidence and found the will to be invalid. My client was appointed to represent Martin’s estate. Disclosure orders revealed accounts at three banks near Martin’s home. In addition they uncovered a will made 2 years before Martin’s death. The original will had been collected by the daughter, and its existence concealed by her. The daughter “found” the second nurse, and the Court of Appeal directed a retrial. The retrial took place before Vos J. The second nurse contended that Martin was “assisted” to sign his will. The other two witnesses (in a reversal of their earlier testimony) said that they now remembered that this is what had happened. Vos J preferred the evidence of the handwriting expert, that the signature was not “assisted”. However he decided that the will had been signed at Martin’s direction, and was valid pursuant to s9 of the Wills Act 1837. The Court of Appeal disagreed. They considered that the ingredients of s9 had not been satisfied, and the homemade will was invalid. The case is now a leading authority on s9.
The daughter has failed to pay back the money she received from Martin’s estate, thus the case continues…
Mark Warwick QC was interviewed by Guy Hewetson of Hewetson Shah