On most weekday mornings my colleagues will be making the short walk from chambers to Cardiff’s rather grand crown court building. Most of the time, my route takes me a little further on, to the much less imposing Civil Justice Centre. I’ve ventured into the building from time to time, to attend different functions. But last month, I actually went in to speak to a judge. I hadn’t switched to crime – although I do miss it sometimes. Lady Justice Nicola Davies had agreed to speak to Counsel, and I went to ask her about life as a Court of Appeal judge and the journey that took her there.
I often find it a bit intimidating speaking to a judge I didn’t know in their pre-judicial days. But as I start to record, Nicola Davies LJ puts me at ease, laughing at my quip that maybe someone should administer a caution, and is engaging and pleasantly platitude-free.
As someone who practised outside Wales for nearly 10 years before returning home, I am naturally interested in why she took the decision to make her career at the Bar over the border. Family connections with London played a part – the judge had an aunt living there whom she’d visited regularly, but she adds: ‘I had a sense that, in Cardiff, women were being steered towards practices in crime or family, and I didn’t want to do that. I wanted a broad-based practice encompassing both crime and civil work…
‘That was a major reason for choosing to practise in London, namely the breadth of possibilities that, in the late 70s, it offered to a woman’. One hopes that things have changed now – as a man I’m probably not best placed to opine on that – but the lesson is clear: pigeonhole people because of gender (or any other characteristic) and talent will be lost.
The breadth of practice that London offered may have been greater, but a distinguished practice that ended up focusing on medical law would still have left areas to which a new High Court judge would bring little personal experience. I wonder whether there were any fields in which she’d sat as a judge and thought, I’d have liked to do that at the Bar?
‘Defamation,’ comes the reply. ‘I sat on defamation cases as a puisne judge. I found the legal concepts fascinating, the facts were also very interesting, and I was always impressed by the quality of the advocates in front of me. It was a totally new area, but I found it challenging and interesting, and I thought this must have been challenging and interesting as a barrister’.
A nice answer to someone who does defamation cases, and one that the defamation Bar will enjoy, although I did confess to a little sadness that she won’t get to hear argument on an interesting point on s 1(2) of the 2013 Defamation Act that I arose in a recent trial, as no-one’s appealing.
Readers of Counsel obviously have a keen professional interest in the sort of advocacy that judges find helpful. ‘The most helpful advocate is the one who has done his or her homework. I look to an advocate to be wholly in charge of the facts and the relevant law. I expect an advocate to be focused, to identify the relevant points and put them succinctly before the court. Repetition adds nothing to an argument, still less flamboyance.’
Ascending the judicial hierarchy brings another change – the switch from trial judge to hearing appeals. I’ve read that Lord Devlin loved hearing trials but hated being an appellate judge, so I ask the judge if she feels the same.
‘I’ve enjoyed moving up. I’ve found it absolutely fascinating. The spectrum of work; I sit in either a two- or three-judge court, and I enjoy debating the merits of a case with colleagues… I wouldn’t say one role is more interesting than the other. Now I’m dealing with law and proven facts, whereas as a trial judge I was starting from scratch.’
On the basis that a happy judge is always more pleasant to appear before, that’s good news for the Bar. Giving perhaps an indication of the emotional toll that sitting in cases must take, the judge continues: ‘In each case, you’re managing courts, but I felt as a trial judge, in managing a court, you’re managing people, and people’s emotions, and emotions can run high in any litigation.’
So, how does a Court of Appeal judge deal with times of pressure?
‘I’m organised. I prioritise what has to be done, and if necessary compartmentalise my day. Whatever has to be done, will be given an allotted time. In terms of stepping away, as a barrister I always ensured I had one complete day off, which tended to be Saturday. If I had to work a Saturday, the pressure was really on. In the judiciary, I’ve taken the same approach. And I still aim for one complete day off.’
Does she manage it? ‘Mostly.’
After a grammar school education, she went to study law at Birmingham University. ‘I did law at university because I thought it would get me a job. But I didn’t enjoy studying law.’
English or history would have been her preferred subjects.
‘What I enjoyed about history was the analysis. Analysing the many disputes, the wars, the causes, and of course analysis is an integral part of the study of law. English I didn’t see in quite the same analytical way. I was analysing, but the great advantage was reading the literature. What I missed studying law was just being able to read so much English literature. I loved it, I felt it broadened me. If someone had told me I could have done English or history and then done a conversion course, I’d have done it.’
Lords Sumption and Bingham are well-known examples of history graduates turning to law and making a reasonable fist of it, but I recalled F Lee Bailey recommending that would-be lawyers study English, and Clarence Thomas – a Gullah speaker who lacked confidence in his English – studied it out of a desire to improve his command of the language. I ask about the prose-writing element of judging.
‘I had the good fortune to be led by Richard du Cann. He said to me, “Read, and read, and read.” To broaden your vocabulary, to better understand words and the nuances of words. I enjoy good writing, good prose, I can’t say it has directly influenced me as an advocate or a judge. I think I’ve stopped short at admiring it!’
"'I expect an advocate to be focused, to identify the relevant points and put them succinctly before the court. Repetition adds nothing to an argument; still less flamboyance.'"
Nicola Davies LJ didn’t head straight for the Bar. After university she started training as a solicitor, and had a spell as an investment analyst in the City before opting for a career in advocacy. As with Lord Neuberger, the City’s loss was the law’s gain. So, after a career that saw her take silk at 39 and reach the Court of Appeal, what’s been the highlight?
‘My four years as Presider in Wales. To return to Wales, in a role I’d never have dreamt of when I left Bridgend Grammar, was wonderful. I sat in north Wales, south Wales, I travelled throughout Wales. I was supported throughout by the Bar, fellow judges and the staff. I did interesting cases, I went to interesting events. And it was just very good to be back again in Wales.’
A regular returner to Wales, in July Davies will receive an honorary doctorate of laws from Swansea University. The mention of this brings out her pride in her homeland, and in another Welsh woman riding high in the law. ‘That’ll be enjoyable, not least because heading the law department in Swansea is Professor Elwen Evans QC.’
David Hughes is a barrister at 30 Park Place Chambers in Cardiff. He has a broad common law, commercial and public law practice.
Welsh firsts: Dame Nicola Davies grew up in Llanelli and Bridgend, Wales and was educated at Bridgend Girls Grammar School. She was the first in her family to attend university and the first lawyer in her family. She is the first Welsh woman to be appointed QC (1992), a High Court judge (2010), the Presiding Judge of the Circuit in Wales (2014-2017) and to the Court of Appeal (2018).
Medical law practice: Dame Nicola Davies established a broader based practice in London in crime and civil work. She specialised in medical law encompassing clinical negligence, crime, regulatory work and inquiries and acted in a number of notable cases including Sidaway v Board of Governors of the Bethlem Hospital, the Cleveland Child Abuse Inquiry and Bristol Heart Surgeons Inquiry at the General Medical Council. She also represented Dr Harold Shipman at his criminal trial and Professor Sir Roy Meadow at his professional disciplinary proceedings.