Mosley, Max

Christ Church (University of Oxford) [physics]

Call to the Bar
Gray’s Inn (1964)

3 Pump Court

Sterling Winthrop Group Ltd v Farbenfabriken Bayer AG (No.3) [1967] FSR 190; [1967] R.P.C. 326
Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)
Mosley v United Kingdom (48009/08) [2012] EMLR 1
Mosley v Google Inc [2015] EWHC 59 (QB)

Further References
M Mosley, Formula One and Beyond: The Autobiography (Simon & Schuster UK, 2015)

Facilitator: How did you become a patent barrister?
Max Mosley: [I was in] Common Law Chambers with Maurice Drake who later became a High Court Judge. Then there was a question of what Chambers to try to get into. And patents were very attractive for two reasons, one was it was well paid, but the other was – patents and trade marks, I should say. The other attraction was that I could arrange my life so that if I wanted to be at Monza on the Friday, I could. Whereas if I was doing Common Law or Crime or things like that, you can’t just move your cases around, or the clerk can’t. So that meant I was very free to do what I wanted to do, provided I got the work done. So that led me to ask if I could join the Chambers. It was then the Chambers of somebody called Levy. I can’t remember his first name.
Facilitator: Stanley Levy?
Max Mosley: Yes, that’s it, a Silk. But already by then R.G Lloyd was the sort of driving force in the Chambers. Then eventually Levy retired and I remember doing one case with him – not in court, but an advising case -and then it was R.G Lloyd. Of course R.G Lloyd was mainly trade marks and he was the author then of ‘Kerly on Trade Marks’, which was the sort of Bible. So he was mainly trade marks, he did a certain amount of patents, but then there was Peter Hayward who was more patents. And there was Raph Lunzer, who was more patents than trade marks. I was really more interested in trade marks on the whole and also I got involved in the Bayer case and that was a big case of course (see Sterling Winthrop Group Ltd v Farbenfabriken Bayer AG (No.3) [1967] R.P.C. 326). Then there was a man who had been in industry and came back to the Bar who is – I’ve probably left somebody out, but that’s more or less it. And then Peter Hayward found the life at the Patent Bar really rather stressful and that’s why he decided to go to teach in Oxford. I think he was in St Peter’s College and I think he died recently. And I was sort of the other way. I found it not quite stressful enough and so that’s why I was doing things like racing in the spare time.
Facilitator: Did you have scientific background?
Max Mosley: Yes, I did Physics at Oxford and that’s pretty well essential. I mean, it’s very difficult to go to the Patent Bar without Science. For example, Lord Neuberger – who is one of our big judges now -went to Christ Church at Oxford, same as me, and he did Chemistry – probably did a lot better than my Physics. But I mean it was quite a good training because people who did Law at University had the advantage of not having to do Part One of the Bar exams. But, on the other hand, people who did some other subject particularly a science subject had quite a big advantage as it teaches you to think in a different way, which is quite useful. Whereas academic Law and Law as you practice tend to be rather different. And then people who were good academic lawyers used to find the Bar quite difficult because they would find it hard to make their mind up. On the one hand, it is this and on the other hand it’s that, and that used to always annoy the clients. But the best lawyers would tend to be a bit like that, anyway…..
Facilitator: Was it very small, the Patent Bar?
Max Mosley: It was tiny. I mean the Bar as a whole was about 2000 people. Now I think it’s something like 14,000, maybe more. I mean the patent bar was very small and everybody knew each other and it worked very well. It was our chambers, Guy Aldous’ chamber across the road in Pump Court, Francis Taylor Building and that’s it. It was very small and it worked well together because the clerks knew each other and it was a nice little community. It’s probably a lot bigger now I suspect.
Facilitator: You also mentioned a case about a Formula One Trade mark that you were instructing…
Facilitator: …but you didn’t mention who was the Barrister. The Commercial QC…?
Max Mosley: Yes. Gordon Pollock QC.
Facilitator: Gordon?
Max Mosley: Yes.
Facilitator: But was he a trade mark specialist?
Max Mosley: Well, you see, the thing is that if you are in a very big trade mark thing you would sometimes have a Silk who was a trade mark specialist, like R.G. Lloyd, and then one of the top four or five Silks at the Bar. And in those days, about 15,16, 17 years ago, Pollock was probably the number one Commercial Silk. Nowadays you’d probably go to maybe Pannick, for example David Pannick, one of those very, very big expensive Lawyers. And they sort of brought a general thing to it. And particularly then if it was going to the Court of Appeal, they would be much more experienced in the Court of Appeal and at one application in the Bayer case, Lloyd was led by somebody who, I can’t think of the name, but he was then the equivalent of Pollock or Pannick or one of those top, top Silks.
Facilitator: Yes. I think Sydney Kentridge did some, it might have been. Or Pat Neill. So some of the Commercial Barristers. Jonathan Sumption as well…
Max Mosley: Yes, that’s all more recent yes, absolutely. I mean I can’t remember, but it wasn’t Kentridge, it was even before him I think. This would have been somebody who reaches absolute peak in the late 60’s – so a long time ago.
Facilitator: But I think you are right, when it goes before the Court of Appeal or the House of Lords, the Patent Bar was not very good in the….
Max Mosley: No, no.
Facilitator: They were too technical for…
Max Mosley: Absolutely and then you needed more of a generalist. These cases are always big cases. There’s lot of money, so they could afford to hire one of the top Silks, and did, and nobody seemed to mind. I mean somebody like R.G Lloyd, very, very good in the Patent office and in front of the Judge they knew, like Lloyd Jacob. But once it got to the Court of Appeal and House of Lords…Those top Silks can more or less turn their hand to anything and perhaps what they have to do, as do the Court of Appeal Judges. And I remember being with three of them, including Robin Jacob, that had a big patent case, really difficult one, and Robin Jacob wrote the judgment, and then one of the other two Judges who’d got a very good sense of humor – and they were both at this dinner so it was quite funny -wrote to the other Judge saying, “I’ve read Robin’s judgment, but I’m really sorry I can’t agree with it and I’m going to write a dissenting judgment so you you’re going to have to decide”. And of course the other one was thinking, “Oh my God, he’ll have to go through the whole histoire of the thing, and then and write a really good balancing judgment”. But of course, it was just a joke. I can imagine working with them would have been quite fun, behind the scenes. Another of them said -talking about careers, and not the same one who said about fairly clever – and he said, “What you have to understand, there are four stages.” He said that, “When you are a junior then you take Silk, it is completely different; then you go on the bench and it is different again; and then you go in the Court of Appeal and it is again a whole new career.” And he said, “That’s what stops it being boring.” And I said, “Well, that’s great as long as you get Silk, get on the bench and get in the Court of Appeal, which are not by any means certainties.” So you can see it as a career. I remember Robin Jacob saying, “You know, you should have stayed at the Bar and done that.” And I said, “I don’t think I would have got there”, but you never know.
Facilitator: What made a good advocate in your view? Was it to be tough?
Max Mosley: I think you have to have the armory – The ability to be everything from very nice and bright gentle to being really quite tough and aggressive. And of course, the great art is knowing when to deploy which one and when to be aggressive and when not to be aggressive and sensing. Because in the end, you’re not there to do anything or to impress anyone except the judge, and of course, also the jury. [In my first year] I did five jury trials and that was fascinating. I mean they were quite low level things, – I think it was a dangerous driving, and there was a receiving stolen goods and so on. Actually, I was quite fortunate because I think if I’d gone into the Criminal Bar, I might have stayed there because the interaction with the jury is fascinating and you could sense what they were thinking and you could sense which way to sort of push it and – but of course that went with the Patent Bar and the Patent Bar was more intellectual.
Facilitator: Was it very quiet in terms of clients or was it a lot of work in the Patent Bar?
Max Mosley: I always had enough because as you got on, people would come to you. But to begin with the Barristers that had too much work would get more junior ones to do it in return for half the fee. That was a sort of arrangement.
Facilitator: Like deviling..?
Max Mosley: Deviling it was called, exactly that yes, exactly, and that was the word. So you always had plenty to do, but not always on your own account and then bit-by-bit you started getting the papers – a little pink ribbon around them – and it sort of built up.
Facilitator: It was drafting pleadings as well…
Max Mosley: Drafting pleadings, drafting letters, drafting letters before action because Solicitors would very often come to you to draft letters which really they could write themselves, but then they’d got the sort of insurance of having somebody do it. The other reason I got involved in the Bayer case, which was a huge case, I was in Chambers in August and nobody else was there and there was an urgent application and so there was nobody to do it except me. So I did it and I went with the Solicitor and the Solicitor was very experienced and had been doing this case for years, and in a way probably should have done the application himself, but anyway, got a very junior Barrister. Fortunately, it all worked. So then I was in and that was just luck. But a lot of that was being in Chambers in August, quite deliberately taking a holiday at another time, because if something came along you would get it because [there was] nobody else.
Facilitator: Do you remember the clerk [in 3 Pump Court]?
Max Mosley: Yes. I mean I can picture him there, but oh, what was his name? Bert Martin. I remember him very well and he was always very helpful to me and when I left he was sure that this was just a sort of phase and I would come back and work seriously. And he was very helpful at arranging the schedules so that I could do what I wanted to do. I was sorry to leave in a way. They were all nice, it was good place to work. There was the clerk and he had a female assistant who was mainly R.G Lloyd’s PA, but she also helped him.
Facilitator: R.G Lloyd, have you got any recollection of him? He was Welsh?
Max Mosley: Yes, he was very Welsh and he was quite fiery and I really liked him. For example, I remember going with him to do a case in the Patent Office, where they also dealt with trade marks, and the patent agent came with us and Lloyd was making the case very carefully and the patent agent, at just the wrong moment, interrupted seemingly to help and Lloyd was furious. He turned around to him and he said, “You’ve buggered up the whole case!”, and he walked out. In one way it was deeply embarrassing, whereas in another way it was very funny. I mean I had to not laugh obviously. And that’s fairly typical of him. I mean he didn’t stand any nonsense. He was a prominent member of the Liberal Party and they got him or gave him a peerage, as I remember. That was towards the end of my time, or maybe after I left, but he did get a peerage. So he became a member of the House of Lords, where I think he’d have probably been very valuable because he had a lot specialist knowledge. He was generally great fun and made good jokes, but as I’ve said, he didn’t suffer fools gladly. But if you got on the right side of him, he was fine, and as I said, I got along with him very well.
Facilitator: And Bernard Budd?
Max Mosley: Bernard Budd was a very nice man, but quite boring and he was – I suppose he’s dead now so I can say what I like – but he was at a certain level. I think he took Silk, but that quite surprised me. That was after I’d gone. I did a sort of pupilage with him to kind of get into the ways of the Patent Bar. This was all quite an informal sort of pupilage. I mean for example, when he was in the Indian Civil Service he told the story to somebody, and then it got repeated, that he had nowhere to sleep. I think he was a travelling Magistrate or something like that. He was sleeping by the side of the road and somebody, sort of very ordinary poor person, came and quite near where he was sleeping, defecated. And Budd thought it was absolutely outrageous, in a sort rude and offensive et cetera, et cetera, and told somebody the story. Of course, we all told it to each other, and were thinking [it was] extremely funny. But I mean he was sort of a person who wouldn’t have realized that we four would think that that was really funny. And then he used to – he was very involved in some sort of charity in the East End of London. I think it was one of those sort of semireligious ones, I’m not quite sure. And he used to go there a lot. But he was a good person – a really sort of good, solid citizen, but quite…
Facilitator: I think Whitford J. didn’t like him.
Max Mosley: Yes, he did not like him…that’s interesting.
Max Mosley: He didn’t have it. You know, some people do and some people don’t and he just didn’t. Whereas Lloyd certainly did and then Budd would have been the sort of person who, if he was irritating the Judge, would have sort of ploughed on whereas a really good advocate senses that this isn’t happening and finds another way. And then of course, there were well-known tricks with the Judge when I was there – I think he was called Lloyd Jacob. And it was always famous with him that what you have to do was decide what your best point was and then make all sorts of other points slowly and steadily, but not your best point and at a certainly moment he would say, “Mr. Mosley, couldn’t you argue that – whatever the good point was” and [you’d say], “Well I’m very most grateful to your Lordship.” Because it was his point, it won because you had to let him make it. This was always the story. And of course, different Judges, different techniques. And of course, they tend all to be at a certain level, or at least certainly in those days, I think still now, and then some are exceptional. Wonderful at coming to the point, seeing what mattered, seeing what didn’t matter, which was also important for an Advocate. But yes, I mean, so Bernard I think – Hayward was a sort of more of a – he was – he was clever, no doubt he had it, but he just wasn’t sort of tough enough for the Bar, and…
Facilitator: Too academic, perhaps?
Max Mosley: Exactly. I think he was very happy in an academic atmosphere, which in a way one can understand because you are surrounded by like people and think in a certain way. But there again you see, one of my contemporaries who became an Appeal Court Judge and we were having those sort of exchanges sometimes how about careers and I was telling him how interesting what he’d done must be and he was saying I’d had so much more fun. And then I said yes, but you spend your life with really clever people. “Fairly clever” he said. I mean, I know exactly what he means and of course, when you look back, you remember the good parts and the fun parts, you don’t remember the really boring parts.
Facilitator: Do you have any recollection of Raph Lunzer?
Max Mosley: He was very good, very thorough. I never saw him perform in court, so I wouldn’t know. But I would have thought he would have got on fine with everybody. I didn’t know what you’ve just said – that he stopped the Bar and went to the European Patent Office. That is surprising and I would have thought he would have been sufficiently successful at the Bar to want to stay, but he may have been a little bit too academic, a little bit too gentle. He was a very nice sort of gentle person. I mean he was great to share a room with and had the same sense of humor as me although I’m a different sort of person. You couldn’t say anything against him, he’s just a really nice person and perhaps he was too nice for the Bar I don’t know, but it surprises me.
Facilitator: Did you meet Blanco White?
Max Mosley: No, he was a great name, because he’d done the book, but I mean I probably met him just to say hello, but I couldn’t claim to have known him at all.
Facilitator: Or Aldous – Guy Aldous?
Max Mosley: Again, big name and of course and I can’t remember which one was the – that was the father – which one was the Judge – the son was the Judge?
Max Mosley: Aldous became an Appeal Court Judge.
Facilitator: Yes.
Max Mosley: Yes, I think he did. Yes, so Guy Aldous was far too grand for me to know, I was very junior. And then William was about then I think, but probably just starting. I didn’t know anyone. They were in Chambers the other side of Pump Court.
Facilitator: Yes, I think the father retired and it might be Lloyd as well because there was a regulation of taxes that Barristers…
Max Mosley: Absolutely right, because…
Facilitator: In the late 60’s.
Max Mosley: Exactly. When I was there, all your outstanding fees, when you stopped, were tax free. So what people would do is, they’d say to the solicitor don’t bother to pay me, and they’d let the fees build up and of course it suited the solicitors because they had the money on deposit they were getting interest. And then at a certain point that stopped. And I never quite understood on what basis. There was sort of fiction about – anyway that’s what happened and [that caused] a lot of people to stop, absolutely. So they could collect a big cash tax free sum and then couldn’t continue at the Bar, but they could advise or they could consult or they could be an Arbitrator and all sorts of things.
And of course then you see one of the contemporaries, but not at the Patent Bar, but in Gray’s Inn was Lenny Hoffman and he – and there used to be a little group of about eight of us who would always have lunch in the same part of the same dining room and chat away every day. Robin Jacob was part of that, and Lenny Hoffman who was much older.. He seemed [to us] like a really old man. He was 32 and I think when we were all about 25, 26, 27 that sort of thing. And I met him again all those years later back in 2009, 2010, to sit on a panel and make a little speech in Gray’s Inn, and there were lot of Judges and other people. Then he came up and he said, “Do you remember me?” Of course I remembered him, and I’d followed his career, you know how one does. And you never think people are following your career, but you follow theirs. So anyway, he’d just got the age where he was 75 and would have to retire and so then he set up arbitration and he goes somewhere like Singapore. And I would imagine having been a Supreme Court House of Lords Judge, he’d probably get very big fees. And he was an illustration to me of complete waste. There he’d done all these brilliant judgments and he is obviously just as clever as he’d always been. But anyway, I think most of them ended up in the Court of Appeal, one or two ended up in the…
Facilitator: In the Privacy Case did you think of hiring someone from the Patent Bar ?
Max Mosley: No, I went for specialists…
Facilitator: I think some people from the Patent Bar they also do what was breach of confidence.
Max Mosley: Some of those things yes, they could do, but because I had a specialist solicitor, Dominic Crossley, he went to a specialist Barrister, namely David Sherborne. And so we started from there. And I’ve been doing stuff with then ever since, like the Leveson Inquiry, and all the various other things that were going on. So there’s been a lot of activity around there. Of course, being at the Bar has been very useful to me because I sort of understand – you think you know nothing or you’ve forgotten it all, but in fact there is a sort of basic understanding which you don’t have if you haven’t been at the Bar. And also having practised, because when we had to be the Formula One group, one of the team principals was a law graduate. And so when there was a question they’d say, “Well, ask Max because he is a Lawyer”, and this other guy would say, “I’m a Lawyer too.” And I remember saying to him, “Oh yes, you’ve got a Law degree but you’re like somebody who’s read all the dirty books but never been to bed with a girl.”
Facilitator: Not practising.
Max Mosley: There is an element of truth in it. So anyway, it’s been useful. Of course what annoys me a little bit now is that I’ve had this sort of campaign for Privacy and so on and the newspapers say that it’s me getting vengeance. But I did all the stuff for road safety with nobody close to me involved in an accident. It’s just that I found myself in this position of real power at the top of the FIA, and therefore able to do something, so I did something. And then I found myself in this situation where I had firsthand knowledge and I had a certain amount of legal knowledge, but I also had the financial means and I thought, it’s completely wrong that somebody who’s got no money, can’t sue a major newspaper. There should be some means. So I got involved, but of course when one says, well, somebody who’s got no money shouldn’t be shut out of the courts and it’s not really right that the newspapers should regulate themselves without any outside supervision at all, it’s hard to argue against that. So instead of arguing, they adopt an ad hominen approach and attack you personally.
Facilitator: And the Bar has been helpful?
Max Mosley: I think so…
Facilitator: Because I mean I was wondering perhaps Barristers because they are so individualistic they quite like litigation in this case – but if there…
Max Mosley: Yes, there’s an element of that but I think most good lawyers will advise you not to sue if you can avoid it, because it’s really a lose-lose situation. I think they are very honest, most of them. Very honest in the advice they give and selfless in a sense. There was an evening at Gray’s Inn where I had to make a speech, and this was about 2010. I remember saying that it was quite evident that the Murdoch Press had got the government under control, they got the police under control and to some extent, even Parliament. I said, the only people they haven’t got under control are the judiciary and so it’s the judiciary who are going to have to deal with this problem because nobody else will. And afterwards a couple of my contemporaries, who were both on the Bench, came up and said, “You’re absolutely right, but of course we can’t do anything unless somebody brings something in front of us”, which of course is true. So I took the hint. And I mean, if you live in a democracy, it’s wrong that a newspaper proprietor or two or three newspaper proprietors have huge influence over the government. Particularly people who are not even British subjects. Not even an Englishmen, living abroad, paying no tax here. I don’t blame Murdoch actually. I blame society for allowing him to do it. Society has to say, “Look, no, you mustn’t do that.”
Mosley, Max