Don’t bury good points “under sea of dross,” says Judge Carr

When we arrive to interview Mr Justice Henry Carr, he is nowhere to be seen. After his clerk embarks on a mission to find him, circling the building several times, she returns only to announce rather ominously: “I think he might be with the chancellor, so he might be a while.”

As it turns out, Carr arrives just minutes later, and after a brief photoshoot, we’re ready to go.

Carr, who was appointed to the England & Wales High Court’s Chancery Division in 2015, was a renowned IP barrister for more than thirty years. It is candid therefore, that when we ask him what irritates him most in court, he answers: “Probably the things I did myself as a barrister without realising they were annoying.”

Elaborating, he explains that he doesn’t like being interrupted by barristers, particularly when they already have a reply speech due.

“If one barrister interrupts another, it stops me concentrating on what’s being said. Occasionally it’s necessary, often it isn’t. That is something you need to learn, especially younger advocates,” he says.

He also finds it irritating when people “indiscriminately take numerous points” just because the whole legal teams wants those points to be taken.

“You tend to find that really very good points are lost because they are buried under a sea of dross. You lose confidence because if the first five are nonsense, you reach the sixth and think, ‘I still have to look at this with an open mind,’ but it’s more difficult.”

For Carr, preparation is everything – and he finds that barristers who are well prepared come across better in court. This was a skill he honed over many battles as an advocate, when he would allow at least twice as much time to prepare a case as it would take in court.

“When I was a barrister, I had a very detailed note but would tend not to follow it; the mere fact of making a very detailed note gets the thing in your head and provides structure,” he says.

He says that a very important aspect of preparation is deciding which points to pursue and which not to.

“The more you prepare, the more you realise, ‘if I don’t win on the first point, I’m not going to win on the second,’” he adds, reaffirming that quality, not quantity, is important in his court.

On his own approach to cases, Carr is equally as thorough as in his barrister days. Before trial, he will usually have two days of reading, sometimes pouring over “many bundles.” He tends to focus greatly on the skeleton arguments, aiming to read as much of the evidence as he can.

“However, if it’s a long trial and you start reading all the witness statements, by the time you read the 15^th you’ve forgotten what the first said,” he admits.

He tries to get the issues on board before the case starts, coming each morning and reading the statements of the witnesses that day, “so that I’ve got it in my head when they start giving the evidence.”

This is very different to being a barrister, for whom a case might take six weeks to prepare, so he relies on the barristers to introduce him to the issues.

“As the case goes on, you get it in more and more detail, and finally I find that I really get it when I’m writing the judgment. That’s when you really explore it in great detail,” he adds.

To write a full reasoned judgment, it typically takes at least twice as long as the trial, sometimes longer, Carr explains.

“The sooner after the trial I can do it, the easier it is; if you leave it a long time after, it gets very difficult.”

Carr employs other strategies to ensure that he doesn’t miss key details.

“If it’s a complicated case, I say to the parties at the end of a trial, ‘I want a table which sets out the live issues that you want me to decide,’ because by the end of the trial the issues can be very different to in the beginning.

“‘I want bullet points about why you should win on that issue and I want references in the long document where I will find the detail,’ which I then find means I don’t forget anything,” he reveals.

The process for ex tempore (unreserved) judgments is different because usually they are provided on the spot. Carr explains that he tries to give an ex tempore decision in any case that lasts for a day or less, unless it involves an important point of principle which requires more time.

Four years after being appointed to the High Court, Carr says that he loves the variety of being a judge.

“I love the fact that one week I will be hearing a case about patents and then maybe trademarks, and then I’ll hear something very interesting about insolvency, then tax, then landlord and tenant.”

Carr has learned a “huge amount” about other areas of law, and this is important for anyone who wants to become a chancery judge or an IP judge, he says.

“You need to be capable of taking in all of these different areas because at least a third of your time will be spent doing non-IP stuff, which is very, very interesting, and that’s been a great source of satisfaction to me.

“Often I come home at the end of a day and think, ‘I would never have had a day like that as a barrister. I’m not trying to sell anything, not trying to push anything, just trying to do the right thing,’” he adds. 

Carr dismisses the misconceptions about the life of a judge being lonely, saying it’s extremely collegiate and sociable. Attracting more top QC talent to the judiciary – something that lawyers have identified as a concern – requires senior judges to explain how enjoyable and satisfying the work is, Carr says.

He adds that successful QCs should realise that it’s not just nice, but essential, that they make their contribution otherwise the system won’t continue.

“It continues because we have very high-quality judges,” he spells out.

While he doesn’t see his role as a noble pursuit, Carr admits that he was drawn to it because he wanted to make his own contribution to the “great history” of the English legal system.

“That sounds rather grandiose, but in a small way you can.”

Carr takes a significant interest in foreign IP developments, he explains. This can be true for cases decided in the European Patent Convention, where the courts apply the same law, if not the same procedure, as each other.

“Wherever there is a point of principle which has been decided by, say, the Bundesgerichtsof in Germany or a higher court in the Netherlands, I will always wish, if possible, to see the case law.

“Similarly with trademarks and designs, I really do like to see what others have said, and I find it very influential,” Carr explains.

One issue that has gone back and forth from UK courts to Europe is the Supplementary Protection Certificate Regulation. As Managing IP reported previously, of the 26 referrals from European national courts to the Court of Justice of the EU, the High Court made 12 and the Court of Appeal three – more than any other national courts.  

Despite this trend, Carr says that he wouldn’t make references about the regulation because there have been so many. The CJEU has clarified questions “to the extent that they have provided answers, but then you find another question cropping up very soon,” he laments.

As the court has recognised, Carr says, it’s a poorly drafted regulation and there remains a lack of clarity. However, he believes that now it’s for the national courts to work with the guidance they have been given.

Having said that, “there definitely needs to be a rethink of the regulation,” says Carr, who pinpoints Article 3(a) – which requires that the product be ‘protected’ by a basic patent – as one of many issues that needs addressing.

Other areas include claim coverage, he says.

“Is it enough if you infringe or does the patent have to specify in greater detail something that’s within the claims, does it have to give examples? Normally we would say, ‘infringement is enough,’ but the law doesn’t seem to have shaped up that way and that still in my mind needs some kind of rethink.

“The object of the whole thing is to prevent ‘evergreening’ on the one hand and, on the other, to give to the patentee, who may have taken several years after the grant of a monopoly to have obtained product licence approval, an adequate monopoly. At the moment I don’t think it’s quite doing either of those things.”

Back in the UK, the issue of expert evidence has raised questions among some lawyers who wonder how much importance courts place on it. Carr says that in patent cases, it’s still very important and that cross-examination is often extremely revealing. However, he says that the impact of expert evidence in other IP cases is more marginal.

Another theme is registered designs being found valid but not infringed, with some lawyers wondering whether this points to a problem with how designs are being registered. Carr admits that judges have been “over meticulous” in some of those cases, but adds that design owners can still use unregistered rights, which he describes as shorter in duration but very powerful.

“It’s not the only string to the design owner’s bow; you have to give the owner of a registered design a fair crack at the whip without leaning in either direction,” he adds.

We move on to discuss the potential impact of artificial intelligence (AI) on the courts and the IP profession. Carr believes that AI offers a big opportunity to remove much of the “drudgery” of cases, with disclosure and case research being two examples.

Perhaps AI could help with adjudicating more small disputes, he adds, “rather than having endless litigants in person, to whom the whole thing is a nightmare.”

However, he doesn’t think AI can ever replace a lawyer’s or judge’s function because he sees it as more of an art than a science, “where a great deal of compassion is often involved and a discretion which repetitive training can’t offer.”

With the clock ticking, there is time for some final thoughts, and Carr says he hopes that the UK’s participation in the Unified Patent Court – something that is not certain – can be confirmed.

“It presents a tremendous opportunity for the IP profession in the UK, because they are very, very good at advocacy, and I think the system will benefit from the involvement of UK judges.

“It could be a great court,” he concludes.