Wyand, Roger

Downing College (Cambridge)

Call to the Bar
Middle Temple (1972); QC (1997); Bencher (2005)

1 Essex Court

Bristol Myers Co v Beecham Group Ltd [1974] FSR 43
Yates Circuit Foil Co v Electrofoils Ltd [1976] FSR 345
Congoleum Industries Inc v Armstrong Cork Co [1977] RPC 77
Polaroid Corp’s Patent (Best Method Appeal) [1977] FSR 233

Roger Wyand, Catnic and the Protocol, Intellectual Property Institute, 1995

Facilitator: Could you describe your background and education leading up to when you decided to become a barrister?
Wyand: I am Canadian. I was born in Canada and I went to school in Canada. Then I came over here and did four terms at an English school and then went to Cambridge, reading science. And whilst I was at Cambridge all my friends were reading law and they seemed to have quite an easy time and enjoyed their subject very much. As a scientist, I was having to do hours of practicals and everything else. And so that seemed rather like hard work and I also started thinking about what I was going to do when I left university. I didn’t really want to be working in a lab or doing that sort of thing.
Facilitator: Which college did you attend?
Wyand: I was at Downing College, which in those days was a science and medicine college, whereas now I would say it’s the premier law college due to John Hopkins, who was the tutor there in my time.
So I decided that I wanted to do law. It seemed more interesting. But I’d started off wanting to do chemistry and then I wanted to do physics. So I changed from chemistry to physics. And I thought I wanted to get complete qualification rather than having mixed one, so I carried on with science for the three years. Then I decided to become a barrister at that stage. I suppose I’d done a quite a lot of debating, particularly at school in Canada, and so I thought more on the advocacy side than anything else. I was quite friendly with John Hopkins by that time. He was tutor to all my friends at Downing. He recommended me to go into what was at that time called the Patent Bar. People didn’t call it IP in those days. He put me in touch with a solicitor who did that sort of work. And I spent a day sitting in his office reading through papers, which meant absolutely nothing to me.
Facilitator: What was the name of the solicitor?
Wyand: It was Needham, who at that time was a partner in Bird & Bird. But shortly after I spent a day in his office, he left to setup Needham & Grant with Gregor Grant.
So I decided that I would try patent work and I was put in touch with Amédée Turner. He agreed to take me on as his pupil. I think I was the first pupil in those Chambers that didn’t have to pay. Amédée waived the pupillage fee. David Micklethwait was the junior tenant above me and he did have to pay the pupillage fee. His pupil master was John Burrell. And so that’s how I got into being a barrister and specifically, being a patent barrister.
Facilitator: When was that?
Wyand: I left Cambridge in 1970. I had to do the Bar exams. And because I had a degree, but not in law, I had to do the three lots of Bar exams. But you were allowed to do Part 1 A and Part 1 B in the same year. You didn’t get exemption from any of the exams but you were allowed to skip a year, as it were.
So you had exams in May and September and then started the Bar final course in October. And that year was the first year that people with a law degree had to do the Bar final course. So they had to do the whole of the course rather than just sitting the exams. And one had to do it at The Inns of Court School of Law. So contemporaries of mine didn’t have to do that course. – Immediately after their Cambridge exams in September, they could sit the Bar exams and perhaps start as a pupil in the October of the year they graduated.
The year after that, the law graduates had to do the course. So in my tutorial group at The Inns of Court School of Law there were Cambridge graduates in law. So Peter Goldsmith, David Oliver and several others who had first class degrees in law from Oxford or Cambridge, or Bristol in one case, had to do the course and were rather bored because it was a repetition. But it made the tutorial groups very interesting because it was quite a high level discussion on topics that I’d never considered before. Although as I said, they were rather bored with having to do them. I did my Bar exams finals in 1972. I started pupillage in ’72 but wasn’t called until ’73 because I hadn’t eaten enough dinners when I was doing the Bar exams.
Facilitator: Do you remember meeting Amédée Turner for the first time?
Wyand: Yes. I can remember going into this very strange room in Chambers. Amédée collected art deco objects and furniture et cetera. He had a very nice room with all sort of bits, which during the course of my pupillage he was still collecting. He bought a desk that had been the French Interior Minister’s in the late ‘20s or mid ‘30s.
Facilitator: What type of questions did he ask you?
Wyand: Not very many, really. In those days I didn’t have to produce a CV. We just had a little chat and that was about it.
Facilitator: Was the clerk there?
Wyand: No. And there was no one else applying for pupillage at that time. I was the only applicant to those Chambers. I applied to Blanco White’s Chambers as well. They were in Francis Taylor Building at that time. I had an interview, but I can’t remember who it was with.
Facilitator: Walton?
Wyand: No, Welsh…
Facilitator: Kynric Lewis?
Wyand: Yes, yes. Kynric Lewis. Again, it was the same sort of interview. I can’t remember exactly what I was asked. And while I was there, I was introduced to Hugh Laddie, who was a fairly junior tenant at the time. That was just to give me an idea of the sort of work that he did. I was offered pupillage by Amédée fairly shortly after the interview and I heard nothing from Kynric Lewis until late September, when he offered me a pupillage. But by that time I’d already accepted the pupillage from Amédée.
Facilitator: Was there any concern about money at the beginning?
Wyand: From my point of view, yes, there certainly was. I knew that during pupillage and essentially during the whole 12 months, I was unlikely to earn anything, and thereafter it would be rather slow. Essex Court had an advantage in that we shared the clerks with a set of Oxford and Midland circuit crime and civil Chambers. And so for the young tenants there was a certain amount of basic, low level work. That meant you could go off to a county Court somewhere and embarrass yourself without having anybody that was ever going to instruct you being present to see it, and earn a small amount of money as well. I used to go off and do undefended divorces in Swindon, Gloucester and Oxford.
Facilitator: And do you know a little bit about the history of Essex Court?
Wyand: Well, Christopher [Morcom] is the one who really knows the history. I arrived just after there’d been a bit of a shake out. That was when Sir Kenneth Swan retired. I can’t remember who the other people were, but I understand that…
Facilitator: Shaw retired as well, didn’t he?
Wyand: Shaw? Yes. I think Swan had retired earlier. It was Shaw and one or two others, I think. I understand that prior to that it was rather like a gentlemen’s club and some of them weren’t too concerned about earning money. That goes back to what you were saying earlier about some of them not needing to work.
Facilitator: I think a bit earlier tax exemption became an issue as well.
Wyand: I don’t think that affected those Chambers so much. That certainly was Guy Aldous and the Rolls-Royce case. I think it was that one. Yes, because at that time, once you’d retired, you didn’t have to pay tax on any income that you received after that. And then they changed the law.
Facilitator: I think that was before you arrived.
Wyand: Yes, that was ‘68, ’69. But it’d had a big effect, I think.
Facilitator: And what type of work were you doing as a pupil?
Wyand: As a pupil, it was Amédée’s (Turner) work, which was two main things. One was patent oppositions in the Patent Office. That’s because at that time, until the ’77 Patents Act, you could do what was called a belated opposition. So if someone applied for a patent, you had a period of six months after the patent was granted when you could oppose it. So there were a lot of hearings in the Patent Office with barristers instructed. So for instance, Shell and Monsanto, whichever one applied for a patent the other would oppose it. And it was pretty much automatic. With the ’77 Act, that went. You didn’t have to oppose within any particular time limit, so there was much less work in the Patent Office. Amédée’s practice was in large part opposing patents in the Patent Office, but he also did patent infringement actions, the big ones.
Facilitator: there were also some patent extensions, weren’t there?
Wyand: Yes, that’s right. I think it was the Harrier Jump Jet patent. Amédée was involved in that quite a lot. And there were also compulsory licenses in pharmaceutical patents. Again, those were in the Patent Office. There were hearings to determine the terms of a license, the royalty rate and what other terms had to be in the licenses.
Facilitator: And how did the relationship between pupil and pupil master work in practice?
Wyand: Well, he left me to it to a certain extent. But I was producing drafts for him, which he then either used or mangled or binned. He would set me something to do and I would give it to him and then he would say whether he thought it was good or whether he needed to change things. And he would give me points of law to look up and that sort of thing.
Facilitator: So it was mainly written work and not so much oral?
Wyand: It was mainly written work. Well, written work, but for instance, for a point of law I wouldn’t necessarily be writing it. I would be, as it were, giving him a presentation saying, look here are the cases, this is what these ones seem to be saying et cetera.
Facilitator: And who was in Essex Court when you arrived?
Wyand: John Burrell, Christopher Morcom, Amédée Turner and David Micklethwait. That was it on the IP side.
Facilitator: Was John Burrell the Head of Chambers?
Wyand: John Burrell was the Head of Chambers, yes.
Facilitator: And what do you remember about him as an advocate? What was his background?
Wyand: He was Welsh. I believe he was brought up speaking Welsh. He came from North Wales. He was very good at trade marks. In terms of his advocacy, he was bit like bulldozer. He knew his stuff but he didn’t like to be deflected by a judge taking him out of the order of his speech. I would say that was his one weakness.
Facilitator: His father was also…
Wyand: Yes, his father (Robert Burrell) was a very top trade mark Silk. In fact, John was very kind to me and gave me his father’s wig when I was called to the Bar. I still have it and still use it.
Facilitator: And David Micklethwait. Was he also doing IP?
Wyand: Yes, he was doing IP. He was John Burrell’s pupil. He was only a year ahead of me. But he did become very friendly with Amédée Turner and Amédée’s family. I think I saw David about year ago. He popped into Chambers. But other than that, I haven’t really seen him since he retired from the bar. But Amédée does see him quite frequently. David Micklethwait’s father was a patent agent, as they were called in those days.
Facilitator: How has pupillage changed from your time to today?
Wyand: Well firstly, it’s much more competitive. It wasn’t at all competitive in my time. I think Simon Thorley was the only other (IP) pupil at that time. Every year there might have been one or two pupils across the whole of the IP bar in the early stages. Now it is much more competitive.
Facilitator: Was there a policy in Essex Court of only taking a few pupils?
Wyand: It would only have been practical to take one pupil at a time, really.
Facilitator: Every three years or…?
Wyand: Yes. It depended a bit on who applied because, as I said, I was only a year after David Micklethwait. Nowadays, we generally take a pupil for a year, and the pupil is sent around to different people in Chambers. They’ll maybe three months with one person, three months with another, and if someone has got a big and interesting case, then the pupil may be put with them. Whereas in my time, you were pupiled to someone and it was two six month periods. But I mean, we did generally have a year with the same person.
Facilitator: And was the decision about taking a pupil made by Amédée or John Burrell?
Wyand: By Amédée, I think. I don’t think it was a Chamber’s policy at that time. Within a few years it did become more of a Chamber’s thing. But it was up to the pupil master to decide whether he wanted to take a pupil and if so, whether it was this one or that one.
Facilitator: And could you say something more about the layout of Essex Court? You were on the first floor, weren’t you?
Wyand: Yes, the first floor.
Facilitator: How many rooms were there?
Wyand: The rooms tended to be interconnected. There was one big room, which was Amédée Turner’s. That room was at the back, so it looked over Middle Temple Hall. John Burrell’s room was straight ahead as you came in the door, so it looked out over Essex Court. There was a tiny little room on the left as you came in, which I think had originally been the clerk’s room. Then if you turned right and went towards Amédée’s room, on the left there was a room which was, I suppose, maybe 14 feet square. It had one window which looked out on to a ventilation shaft between Essex Court and Brick Court. Then there was another door at a right angle. So there was a door where you went in looking towards the window. You then turned right by the window and then there was a door there, which went into a room at the back. That room was beside Amédée Turner’s but not as big as Amédée’s. And the only way to get into it was either through Amédée’s room or through the one with the window onto the ventilation shaft.
Facilitator: Was it very different to Lincoln’s Inn? I mean, one of the major changes at the Patent Bar was the move to Gray’s Inn and Lincoln’s Inn.
Wyand: Yes. I suppose, that was largely through Chambers growing. I mean, in our case it was because we split with the common law set who we shared our clerks with. We then did a merger with a civil, criminal set above us, which the Midland and in Oxford Circuit said didn’t want to join in. So they left and we merged with this other set. But after two or three years we fell out with them so we, the IP lot, went up to Raymond Buildings.
Facilitator: And you mentioned that you shared clerks. Who were the clerks?
Wyand: It was Frank Fitzgibbon and Geoffrey Maw. From time to time there’d be a gofer as well.
Facilitator: Do you remember Frank Fitzgibbon?
Wyand: Oh yes, yes. I don’t know whether you’ve heard the story about when he got the job as junior clerk. I think he was 15 or 16, maybe. He was bought his first pair of long trousers to go work there. They had a wall mounted type telephone where you had to pick it up and put it to your ear and speak into the microphone. He had to stand on a box to reach the telephone. And one day, when the senior clerk was out, the telephone rang and he had to take a message. It was from Lady Swan to tell Sir Kenneth Swan that Mr. Holman Hunt had been knocked down and taken to hospital. He was one of the Pre-Raphaelite artists. Frank thought that this was a test, but it was a real message. Frank couldn’t believe this was a real message and he thought he was being tested for his ability to write down and communicate this message to Sir Kenneth Swan.
Facilitator: How different was the role of clerk then compared to today?
Wyand: Well on the whole, they had much more power. They were being paid 10% of everybody’s fees and they controlled things much more than nowadays.
Facilitator: Were they like confidents or friends?
Wyand: Yes. I mean, obviously Frank was older. Geoffrey Maw was more my age and I was really quite friendly with him. He was Godfather to one of my children.
Facilitator: Roy Nicholls mentioned that sometimes Stephen Gratwick would ask him to go to court and check up on how well pupils were performing and to see how the judge reacted to them.
Wyand: Well, yes. Frank and Geoffrey wouldn’t tell you they were coming but they’d pop into court to see how you were in court because they had to sell you to the solicitors. So they wanted to know what they could say.
Facilitator: Was there a sufficient amount of work when you started?
Wyand: No we sat around and twiddled our thumbs quite a lot. But as I said, it was an advantage having the small work from the other side of Chambers. That did get one some practice of advocacy.
Facilitator: Do you feel that there was not enough work more generally?
Wyand: I think that’s right. But we were probably the smallest of the IP sets. And when I joined, neither John Burrell nor Amédée Turner were QCs. So although you’ve got that photograph of John Burrell standing outside, my name is not up there. I was a member of Chambers at the time, it’s probably just the sign writer hadn’t got round to it.
Facilitator: What other Chambers were around at that time?
Wyand: Well, there were the two sets in Pump court. So that’s Douglas Falconer’s set, which became Willy Aldous’ set, and Bernard Budd’s, yes.
Facilitator: And Alastair Wilson?
Wyand: Yes, he was in those Chambers.
Facilitator: Ralph Lunzer?
Wyand: Yes. Who else was there?
Facilitator: Francis Taylor?
Wyand: Yes, Francis Taylor Building was there. They were probably the second set at the time, because what is now 11 South Square, Queen Elizabeth Buildings, that’s where Stephen Gratwick and Geoffrey Everington were. There was also New Court, in the Temple. That was where Whitford had been, I think. Whitford went on the Bench just before I started pupillage. So I never saw him as a practitioner. But I would think that took a big bite out of New Court’s income. They were never much after that, and they’ve essentially disappeared.
Facilitator: What about Peter Stuart Bevan?
Wyand: Well, Peter Stuart Bevan had died by the time I came. Amédée Turner was Stuart Bevan’s pupil. But as I say, Stuart Bevan had died before I came to the Bar.
Facilitator: Another Chambers that disappeared was Tookie’s.
Wyand: Yes.
Facilitator: Then Michael Fysh??
Wyand: Yes, Michael Fysh then joined Francis-Taylor Buildings.
Facilitator: Do you remember whether that was…
Wyand: No, Tookie had left before it.
Facilitator: Russell-Clarke? They were all in the same…
Wyand: Yes, I think so. I mean, Russell-Clarke wasn’t practicing by the time I came to the Bar. Whether he’d died or whether he’d retired, I don’t know. Tookie was the same. Bruce Spalding was in New Court. John Fitzgerald is the one remaining person from those chambers, I think.
Facilitator: Nicholas Bragge was in there.
Wyand: Nicholas Bragge was in there and Geoffrey Hobbs in was there for a while before he moved to Essex Court Chambers.
Facilitator: And did you regard this Chambers as part of the Patent Bar or…?
Wyand: Not really, no. 5 New Square was essentially copyright, a bit of trade mark and passing off. But it was largely Chancery at that time. I mean, their copyright work was very strong but they didn’t do patents. They were part of the IP Bar and some of them did occasionally show up for, what was then called, the Patent Bar Association. But everyone looked at them slightly strangely when they came along.
Facilitator: And regarding the history of the Chambers, you mentioned previously that you started at Essex Court and then moved to Gray’s Inn at some point.
Wyand: We moved to 1 Raymond Buildings when we fell out with the common law set.
Facilitator: Was that in the ‘80s or ‘90s ‘?
Wyand: That was in ‘90s. That was 1995, I think. Yes, it was before I took Silk. I took Silk in ’97. So it would be about 1995, yes.
Facilitator: The Head of Chambers was..?
Wyand: Christopher (Morcom).
Facilitator: Weren’t you Head of Chambers at some point?
Wyand: No, I became Joint Head of Hogarth Chambers some years after we had merged with 5 New Square. Alastair and I are Joint Heads of Chambers. But I became joint Head of Chambers here about six or seven years ago. It was when Kevin Garnett went to Munich. Even though he’d not done patent work before, he went to the European Patent Office. But he had a chemistry degree.
Facilitator: You haven’t said much about Geoffrey Maw.
Wyand: Yes, Geoffrey. Well, I think he was a very good clerk because what he did, which isn’t practical now, but he read every bit of work that the barristers did to price it. That’s because it wasn’t done on a time basis, or not to the same extent it is now. So you would give him a piece of work to send out and he would read it. Then he would ask you approximately how long you spent on it, asking maybe some questions about the substance of it, and then he would come up with a fee. And that was a pretty good way of doing it because he was intelligent enough to understand what the work was about and what it involved. So he would factor in what it was worth to the client, as well as the amount of time that it took.
Facilitator: Do you think clerks are important in terms of the sustainability of a set of Chamber? For example, one of our other interviewees told us that the reason their Chambers collapsed was because the clerk was too nice. Clerks are crucial for the sustainability of chambers.
Wyand: Well certainly, a good clerk makes a very big difference. I mean, Ian (Bowie) has been here now for about three years. And because he came from a very busy set, he actually had a lot of influence with the other clerks and with the court listing and solicitors. And we have noticed the difference, because we’ve always been a smaller set, certainly in terms of turn over. He brings a level of respect that we probably haven’t had previously and it does make a big difference. You can survive without a top class clerk but having a top class clerk does make a big difference.
Facilitator: I think Geoffrey Maw was before in an IP set and then moved to Essex court?
Wyand: Yes, he was a junior clerk at Queen Elizabeth Building. Roy (Nicholls) was his senior clerk there. And he and a lady called Rochelle were junior clerks together there. And actually Rochelle did work for us later. She joined Geoffrey for a while, before then going up to South Square and working with Roy Nicholls up there, again.
Facilitator: One of your first reported cases was in the House of Lords. What do remember about appearing before the various different courts?
Wyand: Well, in that case, and my other early cases, I was second junior. I was very lucky because Amédée was very busy and had several large patent actions, so I was involved in those during pupillage. And when I finished my pupillage, I was given a junior brief in those. So that was how I got in the House of Lords, effectively from my first case. I mean, apart from a Juvenile Court case, which was my very first one.
Just to digress on that for a second, I was sitting in chambers one morning, when Frank Fitzgibbon came in and said, “You have finished your first six months, haven’t you?” I said, “Yes.” Then he said, “Well I want you to go to the juvenile court up in Marylebone.” One of the members of the other side of Chambers had done a hearing and it was adjourned to that day, and it hadn’t been noted in the diary. So he wasn’t available and I had to go up. I’d never been in the juvenile court before because they’re closed to the public. So I had to go up. I think it was for the sentencing. He’d been found guilty or whatever. Maybe he pleaded on the first occasion. It had been adjourned for reports. So I had to go up and read these reports, meet the client and the solicitors and do mitigation, all without having previous knowledge or noting of it. So that was my first actual brief, but I think the Bristol Myers (1973) case in the House of Lords was probably my second brief. But also Yates Circuit Foil was one where again I’d been Amédée’s pupil. It came on immediately after I’d finish pupillage. So they instructed me there. Amédée was Blanco White’s junior in that case. And … Armstrong Cork v Congoleum (1976) was another case, where I had had quite a lot to do with it during my pupillage and they gave me a junior brief. In fact, over the years I’ve done a lot of work for Bird & Bird, which all arose because they were one of Amédée’s main instructing solicitors.
Facilitator: Karl Arnold.
Wyand: Karl Arnold, and subsequently David Harriss and Miles Gaythwaite.
Facilitator: Trevor Cook?
Wyand: Trevor Cook, yes.
Facilitator: Morag?
Wyand: Morag was a bit later. I think Trevor, was probably doing his articles during the Yates Circuit Foil case, and so was Miles Gaythwaite. David Harriss started at about that time as well. David Harriss and Miles Gaythwaite both qualified as patent agents and then became solicitors.
Facilitator: Did you or Amédée (Turner) have a retainer with Bird & Bird?
Wyand: No.
Facilitator: Because it looks like they were constantly coming back to you in almost every case you had, more or less like Bristows with Stephen Gratwick.
Wyand: Yes, certainly Bird & Bird have been my main…
Facilitator: And Herbert Smith?
Wyand: I never did much for Herbert Smith. Although the Bristol-Myers case was originally Herbert Smith. . Then I think it went to Bristows. I think the final hearing was Bristow’s. Kodak v Polaroid was Bird & Bird as well. That was the first time I was instructed by Bird & Bird in a case that Amédée wasn’t involved in.
Facilitator: How do you remember the, that case so I think it was a major case.
Wyand: Yes. I mean, the only bit that got to court was the interim injunction application, which was one of the first major ones following on from American Cyanamid. And the significance of American Cyanamid really was that up until that time the interlocutory injunction was decided by a sort of mini trial based on the merits. What American Cyanamid said was that the main emphasis should be on the balance of convenience. And for several years afterwards, that made it quite difficult to get interim injunctions in patent cases. That’s because patent cases were generally about money. And whereas in trade mark cases you can say there’s unquantifiable, irreparable damage, with a patent case you ask what’s the profit and what’s the loss of profit? That’s what it’s all about. But in American Cyanamid itself, there was an injunction granted because in that case the patentee was trying to break into the market and was being prevented by the market leader who was infringing their patent.
Facilitator: Was this regarded as a negative or positive change?
Wyand: It was negative as far as patent cases were concerned. It was positive as far as trade mark, passing off and that sort of thing. When I first started, Amédée had very few interim interlocutory injunction cases. Some years later, I was doing a lot of interlocutory injunctions. It was a much more feasible thing to do. I think there are probably fewer again now.
Facilitator: Are there any other cases which, although you weren’t participating in them, had an impact on your practice? British Leyland v Armstrong, for instance.
Wyand: British Leyland was certainly very significant. That was one of Alastair Wilson’s triumphs really, because everybody thought that he was on a hiding to nothing. He managed to win in the House of Lords, much to various people’s surprise. I mean, that did have an effect, but I don’t know that it affected my practice much.
Facilitator: I think most cases involving design copyright and industrial copyright went to Francis Taylor Building. Is that right?
Wyand: Yes, I think that’s probably right. I’ve done odd design cases over the years, but certainly most of my work is patent and trade mark. I did do the Procter & Gamble v Reckitt & Colman case. And with Philips v Remington, I was being led by Simon Thorley. So that started before I took Silk and then it continued on after I took Silk. But I was being led in that. Whereas the Procter & Gamble case was really the first one on the community registered design right. So that was my main design case. We won at first instance and then Robin (Jacob), incorrectly, decided against us on appeal.
Facilitator: When you look back at these cases is the idea of winning of losing important to you? I’m curious because when we spoke to Aldous he said that when you lose, you have to move on.
Wyand: Yes, that’s correct.
Facilitator: So would you say that it’s necessary to maintain a certain degree of detachment?
Wyand: Yes. I mean, we had one junior tenant who lost a case that he felt he ought to have won. And I think he felt so affected by that, that not long afterwards he left the Bar and went to work in-house for a company. You have to move on, you have to forget about it. – But that’s not to say you don’t feel it strongly at the time. I mean, the ones you feel most strongly about are the ones where you really feel it was a travesty of justice that you lost. But the other thing that Willy Aldous used to say, which I think is very true, he said, “If somebody says they’ve won 90% of their cases, that’s not a sign of a good barrister. It’s a sign of someone who is giving too cautious advice. You ought to be losing almost as many as you win, if you are giving proper advice.”
Facilitator: Would you say that as a barrister, you were more of a defendant? Like Alastair (Wilson), for example.
Wyand: Yes, Alastair was more of a defendant. No, I think on the whole, I’ve been sort of pretty evenly between defendant and claimant.
Facilitator: How different did you find appearing before the ECJ?
Wyand: It’s very different. It’s a much smaller amount of oral advocacy because you are only given 20 minutes or whatever, and they’re strict on that. There’s a story about Geoffrey Hobbs. I was doing Interflora v Marks and Spencer’s against him in the Court of Justice. We’d been given 15 minutes and Geoffrey asked for extra time. They gave him an extra 10 minutes or something. I bumped into him at breakfast on the day of the hearing and he said, “Did you ask for an extra time?” I said, “No.” He said, “You know they’re very strict.” I said, “Yes I know.” I went first and I finished on time because I’d been through my speech, cut bits out and so on with my junior. I sat down with about five seconds to spare and then Geoffrey went up. He was on point five out of seven or something, when the president of court said, “Mr. Hobbs, you’ve had your time.” And Geoffrey said, “My Lord, can I just finish this point?” The president said, “Mr. Hobbs, you’ve had your time.” Then there was a click and he switched the microphone off. That is the difference. Well, nowadays, one tends to get a bit of a guillotine in the High Court but it is never 15 or 20 minutes. A judge might say, “Okay, we’ve got a day left, you can have the morning and you can have the afternoon, and we will finish today.” You know, you get that, but you don’t get, you’ve had your time. Click!
Facilitator: And regarding judges, I believe you’ve appeared before Whitford and Graham. How different were their styles compared with judges today?
Wyand: Very different from the modern judges. In those days, they tended not to have read the papers beforehand. Whitford was a very fast reader. But where it made a difference was in interim injunction and interlocutory injunction hearings because all of the evidence was written. Nowadays, when you go into court the judge has read it and you can just refer to the various bits.
Facilitator: If you have the skeleton…
Wyand: Yes. In those days, they didn’t have a skeleton and they hadn’t read the evidence, so you read the evidence to them. Except with Whitford, you’d be reading page two of a 10 page affidavit and he would say, “Yes, I’ve read it.” Because he did read very fast. And some people weren’t prepared for this. You know, they were going to make their points as they went through reading it, and that didn’t happen. But also, with Whitford’s judgments you couldn’t tell who had won and who had lost until the very last line. His last line tended to be, “Nevertheless, I find for …” And the he’d say either the claimant or the defendant, whichever it was. He built you up all the way through and then suddenly… And of course nowadays, you get the draft judgment handed down several days ahead of time because you have to proofread it for them et cetera. In those days, it was just read out in court or extemporary. You get a few ex tempore judgments now but not many.
Facilitator: The length of trials has changed as well.
Wyand: Yes, trials are much, much shorter now. Because of skeleton arguments and because of witness statements. And because in those days, there weren’t witness statements you had a proof of evidence and you had to get the evidence out in chief. So without asking leading questions, you had to get the witness to say what you had written down in front of you, which wasn’t always possible.
Facilitator: And the Patents County Court?
Wyand: Yes. I mean, it was a total failure at first because it had the same procedure as in the High Court. And so what was the advantage of going there? It wasn’t any cheaper. Patent attorneys had a right of audience but they didn’t necessarily want to exercise it. Some did. But the quality of the judgments in the early days was not very good.
Facilitator: And how did you find your move to the Bench as a deputy judge? Were you prepared for the change? Did you find it difficult perhaps not to intervene too much? I mean, naming no names, but some judges have a reputation for interrupting.
Wyand: Well, some more than others. But actually, when I’m giving a talk at a seminar or something about appearing in court, one thing I say is that I like to be heckled by the judge because without that, you can’t tell what they are thinking. And the worst thing you can have is when they don’t say anything. I had this at a hearing in the trade mark registry on one occasion. The hearing officer just sat there and didn’t say anything. Then at the end when the decision came out, there were various points that the hearing officer had decided which hadn’t really been argued and so I hadn’t had a chance to respond to them. Whereas with the IP judges that we’ve had with the last 20 years, that would never happen because they are asking you questions. Some people get upset by it. But I like it, because it gives me a chance to answer questions that you wouldn’t necessarily know were troubling them.
Facilitator: Do you think it had an influence, at least in the Court of Appeal, when Aldous or Pumfrey went up to…?
Wyand: Well of course Pumfrey went up, but I don’t think he heard many cases. But yes, I mean Aldous wasn’t such an interventionist judge. He asked the questions that were necessary but he was nothing like Jacob or Laddie. The present ones ask appropriate questions but it is helped by having skeleton arguments and having the witness statements, which makes the trials shorter. But it does mean the judge has a much higher level of knowing what the other side’s case is when you are addressing the judge, particularly in opening. In the old days, the judge would be guessing what the other side’s arguments were going to be. Now, you stand up and address the judge, and he knows, because he’s read the skeleton argument, what their argument’s going to be and so he is able to say to you, “Well you say that, but Mr. so and so is going to say this, isn’t he? What’s your answer to that?” So it’s made the whole thing much more of an exchange of views, rather than standing up there and lecturing the judge on what he ought to be doing.
Facilitator: So do you feel that things have become proceduralised (and more constrained)?
Wyand: There is an element of that and certainly in the European Court, that’s very true because you get such a small amount of time to address them orally. It is mostly on the written submissions, and it’s just answering a few things that appear from the other side’s submissions because you don’t get the answering on paper. So yes, it has given less importance to the oral aspects of it.
Facilitator: Have you ever had the experience of representing a case which you thought had already been lost from the very beginning but which your client insisted on pursuing in order to litigate about a particular point? I mean, with some patent cases one gets the feeling that the litigation was more about proving a particular point for commercial rather than legal reasons. Even with cases which went up to the House of Lords.
Wyand: I don’t know that I’ve ever had a good fortune to have that type of case. But it’s a dangerous thing to think, because I can think of one case where our client was determined to sue and the solicitor and I both told him that he was going to lose. And I think largely because the client on the other side went to the witness box wearing an iridescent coloured sports jacket, the judge, Douglas Falconer, decided in our favour. And afterwards, the client said, “See! You bloody lawyers are all so pessimistic.” He wouldn’t believe that he’d been incredibly fortunate to win the case.
Facilitator: When did you decide to take Silk? And did you think about delaying the decision for a few years?
Wyand: I did delay for some years. That was partly because Christopher (Morcom) was the only other Silk in Chambers at that time and I didn’t feel very confident about taking on that role. Our clerk, Geoffrey Maw, pushed me for some time and so I did take Silk in ’97.
Facilitator: How different was it compared to today? Did you need to be supported by a judge?
Wyand: It was much easier in those days. You needed two or three references and your income had to be above a certain level. You had to speak to the judges. I think that was actually all that you had to do. The Lord Chancellor’s Department did take soundings from solicitors. But you didn’t put forward referees, and they certainly didn’t have to fill in a 40 page form or whatever saying how you’d demonstrated certain essential skills et cetera. It was pretty straightforward but you never knew why you’d been approved or rejected. I mean, I was given Silk the first time I applied. I only applied once, because I think I’d left it quite late. But those who failed were not told why they had failed. Nowadays, you can get an indication from them of why you failed. They give you a reason, although it’s not very detailed.
Facilitator: And did you find the first few years after taking Silk difficult or challenging?
Wyand: No, I didn’t. I don’t know why. I mean, I’d been pretty busy as a junior up to then. And I kept on being instructed in a couple of cases, where I was being led by Simon Thorley. So that sort of helped. I think there was one big case that I was in as a junior and I was sacked when I took Silk. But that’s the only one I can think of. So on the whole, it was pretty straightforward.
Facilitator: I think some of the regulations had become more flexible by that time as well.
Wyand: You didn’t have to have a junior by the time I took Silk and that did make it easier.
Facilitator: And how did you find your experience of being a deputy judge?
Wyand: Well, in those days you didn’t have to apply. Before I took Silk, I was an assistant recorder in the Patents County Court. So I think that was 1994. Then they abolished…
Facilitator: What did the role of assistant recorder involve?
Wyand: It was a deputy position in the county court system. But I was just for the Patents County Court. But I only did that about two or three times because the court wasn’t busy. Then they abolished the position of assistant recorder because there was a ruling on human rights about having a fair hearing and not having a judge who was at the mercy, as it were, of the government. That’s because as an assistant recorder you could be removed from that position very easily.
So they asked me if I’d like to become a recorder and sit in the County Court and in the Crown Courts. I told them that I didn’t want to do criminal work because I thought it would be dangerous but I would be happy to sit in the county court doing technical cases, and they agreed. So they appointed me. Of course, they had no means of directing the cases with technical content towards me.
So I sat as a recorder in the county court doing possession actions and all sorts of things that I knew absolutely nothing about. But the possession actions were the worst ones because the law is slightly complicated and as a judge you get given the cases that district judges had decided there was a problem with. That’s because if there wasn’t a problem, they would more or less rubber stamp it. But if there was a problem, they went to the judge. So I had to look through these things to find out what the problem was because they didn’t note on the file what the problem was. So that seemed to be a pretty silly thing. So I didn’t really sit very much as a recorder. Then out of the blue, I got a letter from the Lord Chancellor saying I’d been appointed as a deputy High Court judge. Nowadays, you have to apply for that. I didn’t apply. And yes, I enjoy doing it. I wouldn’t want to do it very much. But just doing the odd case is quite instructive.
Facilitator: But as a deputy judge you did do some passing off and trade mark cases as well, didn’t you?
Wyand: Yes, as a deputy high court judge I’ve done passing off, trade mark and patent infringement. But I’ve also done probate, and various other subjects in which I’m not an expert.
Facilitator: And in retrospect, what do you think have been the most significant changes to the profession?
Wyand: The size of Chambers, certainly. Fortunately, there’s been a big increase in the amount of IP work, so that IP now is really the mainstay of the Chancery division. Without it, I think the Chancery division would be underworked. That’s been brought about by a number of factors. One is the more austere, streamlined procedure, which is partly down to Hugh Laddie and Robin Jacob sort of leading it before the Jackson reforms. That’s made trials shorter and therefore comparatively cheaper than before.
The revamped Patent County Court and now the IPEC have also increased the amount of work, which is very beneficial for the junior people starting off. It’s in a way almost equivalent of the Patent Office oppositions, which I was talking about from when I first started. It gives experience to junior people in Chambers doing the smaller type of work. Until the IPEC came along it wasn’t worse litigating for the amount of money involved.
Facilitator: And how has the relationship with solicitors changed?
Wyand: Well, this is one of the detrimental changes. When I first started, we weren’t allowed to buy solicitors drinks. If we went into a pub, we could accept a drink from them but we couldn’t buy one for them. Yes, there’s much less standing on ceremony and it’s a more sort of equal relationship with solicitors.
Facilitator: And meetings were normally supposed to be here in Chambers, weren’t they?
Wyand: The meetings were supposed to be in Chambers, unless there was some strong reason as to why it had to be at the solicitor’s office. A big exhibit or something or masses of documents. Whereas now, we do have conferences in Chambers but a large number of our conferences are out of Chambers.
Facilitator: So do you think the changes have been more in terms of etiquette or..?
Wyand: Yes. I mean, I was talking about not buying drinks. But also, we weren’t allowed to advertise and we weren’t allowed to have business cards. But it’s moving with the times. I mean, most barristers now don’t stand on ceremony. It’s a much more informal approach. And I think that’s very much appreciated by the solicitors and the clients. It’s more like business rather than the very formal structure that it was before.
Facilitator: Many of the law firms didn’t have intellectual property departments at all, did they?
Wyand: That’s very true.
Facilitator: (Tootal) Herbert Smith only began their IP department when the General Tire case came to them.
Wyand: But it comes and goes, you see. Because some years later, Herbert Smith effectively got rid of their IP department. They have now got an IP department, although it’s mostly life sciences. The magic circle firms have gone in cycles of thinking of IP as a good thing and wanting to get involved and then thinking no, it’s not really worth it. It’s the more specialist firms like Bird & Bird, Bristows, Powell Gilbert et cetera who’ve been the mainstay of the IP work.
Facilitator: Maybe that’s been due to the difficulties caused by the differences between trade mark, copyright and patent litigation. I guess law firms didn’t want to do filing…
Wyand: Again, they didn’t do it. And largely, they didn’t do it because they were getting work from patent agents and trade mark agents. And if they setup in competition with them, they were worried they would lose that referral work and that the agents would go to another firm that didn’t have an IP department. The patent and trade mark attorneys didn’t want to lose their clients or have them poached.
But then it went through a phase of solicitors doing filing et cetera. Clifford Chance did filing. I think McKenna’s were the first one to do filing. Strangely, now it’s gone the other way. Patent and trade mark attorney firms are bringing in solicitors and they are now doing litigation. Back in July, I did a big patent action, for British Gas. And both sides in that case were instructed by patent attorney firms, with solicitors in the firms.
Facilitator: Did you have the feeling that when the EPO (European Patent Office) began, it was going to affect practice?
Wyand: Yes. I mean, I think it did. It did affect things a lot, and the Bar were slow and missed out on that. I mean, Amédée Turner did try to get a Bar presence in Munich. Most hearings there don’t involve barristers. Even the hearings in English don’t necessarily involve barristers. There are a few in some of the big cases. Richard Davis from these Chambers is in Munich at the moment. But the majority of hearings there are taken by patent attorneys. And that was what Amédée saw, along with Karl Arnold and Gerald Patterson, who was in 11 South Square. The three of them tried to have a presence in Munich to try to get that work, but no one else bothered and we lost a lot of potential work to patent attorneys. And one of the concerns about the UPC (Unified Patent Court), if it ever goes through, is that a similar sort of thing might happen there. That if the procedure becomes more like the EPO, then the patent attorneys would do the work themselves and not bother instructing the Bar. Solicitors are concerned about being excluded and the Bar, certainly, should be concerned about being excluded.
Facilitator: And Alicante?
Wyand: Well of course, Alicante doesn’t have hearings. So yes. In Alicante, there is no hearing at first instance, at the Board of Appeals, again there is no hearing, it’s all written. But then going to the General Court, barristers do tend to get instructed for that.