UK High Court judge Richard Arnold says he believes judges are not only required to interpret the law but to also create new laws and precedents, in a wide-ranging interview where he talks to Managing IP about his approach to cases, how to spot a badly prepared case and his views of counsel from the bench.
Asked whether judges are merely arbiters or if they can take on the role of influencer, he says that of course judges make laws. This is done through incremental developments of common law and interpretation of statutes.
He references website-blocking cases as an example – in which internet service providers were ordered to block access to websites hosting copyright-protected content and later trademark-infringing material as well.
“It so happened that it fell onto me to pioneer and develop the remedy of website blocking in this jurisdiction,” he says, adding that he set the agenda on this remedy for IP owners by chance. “I had no notion that that was what I was going to be doing until it was brought before me,” he says. “I found myself not so much developing an area of law as creating it.”
Echoing old comments made by Lord Reid, he says: “The idea that judges don’t make laws is a fairy tale, and we don’t believe in fairy tales anymore.
Cross-border collaboration is also increasingly common, Arnold says. He notes that foreign case law – particularly judgments from the Netherlands and Germany – have been quite influential and that judgments from courts in England and Wales are also assessed overseas.
The full-length interview, in which Arnold also shares his views on what in-house counsel can do better; the judicial recruitment crisis and why he does not consider himself to be a “judicial superman”, will be published on Managing IP and Patent Strategy shortly.
