England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice The Strand London WC2A 2LL
		27 July 2006

Thursday 27 July 2006


 


1. THE LORD CHIEF JUSTICE: Mr Attorney, when I was appointed Master of the Rolls in 2000 I was in the final stages of the BSE Inquiry and somebody had to hold the fort in the Court of Appeal. Lord Justice Nourse was appointed Vice-President of the Civil Division of the Court of Appeal, a post never before occupied, in order to fulfil the role of Acting Master of the Rolls. On his retirement I thought it would be a good idea to perpetuate this position, so that there would be an identified deputy to act if I were abroad. I asked Lord Justice Simon Brown if he would accept the appointment. He did so on terms that I warranted that this would not involve him in any duties when I was in England. When, in 2003 he stood down, I appointed Lord Justice Brooke to succeed him. He did not make the same stipulation.
2. Henry Brooke is someone who has always believed in pro-actively exploring to the boundaries the potential of any responsibility he has undertaken. He saw his new position as a challenge, and it was only after he had taken up office that I became fully aware of the extent to which there existed possibilities for assisting me in the performance of my duties.
3. When Sir Anthony Clarke succeeded me as Master of the Rolls, Henry presented him with a memorandum, eight pages long, of his role as Vice-President. This included maintaining a close relationship with the Court of Appeal office, and in particular with David Gladwell and the lawyers, editing the Annual Review, helping to set up the Court of Appeal web-site, assisting in the design of the court's IT, visits to the Citizens Advice Bureau, the Bar Pro Bono Unit and the Personal Support Unit, leading the team dealing with asylum work, and overseeing the editing of the Asylum Bench Book and the Court of Appeal Bench Book, and much else besides.
4. It takes a little time to get to know Henry Brooke. His clerk, Elizabeth, sent me a note which says: "He wears his robes like a catwalk model -- off the shoulder". He has a slightly craggy exterior and an unruly and unruled head of hair (which is one of the more cogent arguments for wigs in the Court of Appeal), and which can even lead to an impression of slight disorganisation.
5. If so, the impression is totally misleading. No one, who does not have a rigid self-discipline, could achieve even half of the contribution that Henry Brooke makes, and from his earliest days in the law has made, to so many different aspects of the administration of justice in this country. When you come to know him, you also become aware of his sense of values, his humanity and his care for his fellow men and women.
6. Those latter qualities explain the unique contribution that Henry Brooke has made to race relations in the law. He became a Member of the Bar Council in 1987 as Chair of the Professional Standards Committee, and, after he had been elevated to the Bench in 1988, he chaired the Bar's Race Relations Committee for three years.
7. In 1991 he persuaded Sir Igor Judge, who then chaired the Criminal Committee of the Judicial Studies Board, of the need to train judges in race awareness. This led to his appointment as the first chair of the Ethnic Minorities Advisory Committee of the Board. His Kapila lecture on the Administration of Justice in a Multi-Cultural Society was widely circulated in the Commonwealth. Thus he has been responsible for the fact that over quarter of a century both the Bar and the Bench have received training in race relations.
8. I started with race relations because this is one of the causes about which Henry feels passionately. Where do I go next in a life and career which, Google tells me, has generated over two million entries on the internet? Perhaps to the beginning.
9. Henry Brooke was born seventy years ago to parents who were, I think, to be the first husband and wife team to be given life peerages. He and I go back a long way. I first met him in the early sixties when his father was Home Secretary. He had come down from Balliol with a double first, not in law, but in Greats, and he was running Cumberland Lodge. I had bought a house in Dulwich, which I shared with a number of friends. These included David Vaughan, now the doyen of the European Bar, Richard Guy, who practises at the Bar in Cornwall, and Henry Brooke. We had a garden, the pride of which was a magnificent rose bush. Richard Guy was responsible for this, although he did not have green fingers. We had sent him to the garden centre, where he had asked, unsuccessfully, first for rose seed and then for rose bulbs.
10. But the bush that he brought back grew to reward us with magnificent and fragrant flowers. One day I arrived home to find the bush stripped bare. No one professed to know what had happened. The next evening I was invited to dinner by some young ladies who shared a house in West Square. There, on the table, was a magnificent display of roses. I admired them. "Oh," they said, "Henry Brooke brought them yesterday evening".
11. If Henry turned to law a little later than the rest of us, he made up for lost time. After a pupillage with Peter Webster he was awarded a tenancy in those distinguished chambers which are now Fountain Court -- indeed your own chambers, Mr Attorney, and those of the President. There he rapidly built up a huge practice which ranged from instructions from Wilde Sapte to represent Westminster Bank, to a wide range of work, including matrimonial, much of it on legal aid, sent by Anthony Gold & Company, then a small firm in Streatham. Henry worked with prodigious speed -- so much so that whereas each member of chambers had a single file of outstanding fee notes in the clerks' room, Henry had two. Michael Lerego, who now heads those chambers, remembers receiving returns from him. Files of jumbled carbon copies of correspondence would have been placed meticulously in order, accompanied by a brief note in Henry's distinctive hand, dated shortly after the papers had been received, stating what needed to be done.
12. He took silk in 1981. Two years later he was made a Recorder and appointed counsel to the mammoth Sizewell 'B' Nuclear Reactor Inquiry, to which end he, a classicist who had never studied any science, taught himself nuclear physics, or so rumour has it, and I have no doubt that rumour is correct, for his ability to master any topic explains his response to the arrival of information technology.
13. In 1985 the Bar set up its first committee on IT, chaired by Henry Brooke. They wrote to all chambers asking whether they would like help with the practical application of IT. Fifty per cent did not reply. Half of those who did stated that they could not imagine any way in which IT could help them.
14. Henry must take much of the credit for the sea change which subsequently occurred which saw the Bar ahead of large sectors of the solicitors' branch of the profession in the use of IT.
15. On the Bench Henry worked tirelessly with the Lord Chancellor's Department (latterly the Department of Constitutional Affairs) on schemes for the introduction of IT into the court system -- schemes that alas all too often have fallen at the fence of implementation through lack of funds. Legal Technology News accurately stated that Lord Justice Brooke was "one of the most computer literate judges on the bench of any court on either side of the Atlantic today" with the advantage of being a realist "rather than a techno-enthusiast forever jumping on to every new gizmo band wagon that rolls along".
16. I would need the assistance of a computer to keep track of the various IT committees on which Henry Brooke has served during the nineteen years that he has been striving to bring the court's IT into first the 20th and latterly the 21st century -- although it might be more truthful to say that the efforts are still to bring the standards up to those of the last century. He was the first judge to be a full member of a Court Service Board, and, in 2001, because of his unparalleled experience, he was appointed by Lord Woolf as Judge in charge of Modernisation (JIM for short). He has described his experience in this area as "snakes and ladders". The promise of £1.1 billion for IT for criminal courts -- up a ladder. The promise of £260 million for IT in the civil courts -- a further ladder. Superb team work between civil servants and judges -- and in this context Mr Justice Cresswell deserves special mention -- in preparing the programmes for modernisation -- up a long ladder -- and then, wham, down a huge snake, the withdrawal of the majority of the funding.
17. Despite this, there have been some advances -- the computerised claims production centre at Northampton, Money Claims Online, Possession Claims Online, the LINK system, XHIBIT (although not all agree that this deserved the priority it received), and the provision of lap-tops and IT facilities for judges. So the industry of Henry and those who have worked with him at the IT coalface has borne some fruit.
18. Allied to his enthusiasm for IT has been his determination that the public should have free access to judgments as soon as they have been approved by the court. In 1999 he chaired a meeting in London which led to the formation of the multi-disciplinary "Free the Law" movement and to his taking the Chair of BAILII (the British and Irish Legal Information Institute) which has achieved so much in this area.
19. These activities would be more than enough to provide a full workload for most people, but Henry has done them in his spare time. His mainstream activities included chairing the Law Commission in the three years 1993, 1994 and 1995. This important post requires the highest intellectual ability and knowledge of the law, coupled with leadership and administrative skills. You can see why Mr Justice Brooke was selected for the job. It has also traditionally earned the holder swift promotion to the Court of Appeal on relinquishing the chair. Thus, in 1996, though not quite as swiftly as he deserved, Henry was promoted to the Court of Appeal.
20. The contribution that he has made to jurisprudence in that court, particularly since he has been presiding, has been immense, reflecting his learning in the law and powers of analysis. A dissent in his court is a very rare event. I cannot start to catalogue this jurisprudence, but it has been particularly notable for the innovations that he supplied to making civil procedure effective and thus securing access to justice. Procedure is the life-blood that makes justice work, and Henry is the past-master of civil procedure. As general editor of the White Book his practice is to set out in his preface judgments of the Court of Appeal with important implications for procedure -- and he is the author of most of them. Let me just mention two of his innovations: the Bhamjee Order, which has been a vital tool in dealing with the problem of the obsessive, meritless litigant; and the Corner House case, where he formulated important principles in relation to protective costs orders. A firm believer, as am I, in the merits of alternative dispute resolution in the appropriate case, he gave a powerful boost to this by refusing costs to a party that had unreasonably rejected an offer of mediation in Dunnett v Railtrack. He has also played a leading role in sorting out the almost intractable issues in the field of costs that followed the introduction of conditional fee agreements.
21. Is there a risk, Mr Attorney, when one has talent such as his and occupies a position as lofty as the Vice-President in the Civil Division of the Court of Appeal, of all this going to one's head? Not if one is married to Biddy. If Henry and I go back a long way, Biddy and I go back much further, for in 1958 in Cambridge we used to sit together listening to Professor Hobsbawm lecturing on economic history -- an experience that has been largely responsible for my enthusiasm for the law. How wise and how fortunate Henry was to marry Biddy, who combines common sense with a sharp and dry wit.
22. Like so many of his colleagues in the Court of Appeal, Henry's success has been built on the foundation of a happy family, to which he is devoted and which is devoted to him. I am very glad that not only Biddy, but Henry's sister Honor and his children Michael and my God-daughter Caroline have been able to be here this afternoon.
23. When he wrote to the Lord Chancellor giving notice of his intention to retire, Henry said that this was because it was generally accepted that judges should not serve beyond the age of 70, and not because he had run out of steam. The latter was a statement of the obvious. Henry, you have promised to come back to help us when we need you, and need you we shall. So this, happily, is not farewell but au revoir. I know that all here share in my great affection for you and wish you well in the future.
24. THE MATER OF THE ROLLS: I agree. It is common in this court to say that there is nothing one can usefully add. However, in the case of Lord Justice Brooke there is a good deal I could usefully add, but I propose to keep my powder dry for an occasion in the autumn.
25. THE PRESIDENT OF THE FAMILY DIVISION: I have been privileged to know Lord Justice Brooke for almost 45 years since we both joined my old chambers at about the same time -- again those of you, Mr Attorney. At that time, as Henry may recall, information was contained in books, ingenious objects operating on the hinge principle. In those balmy days we frequently appeared in tandem on the instructions of a particular firm of solicitors with a busy criminal practice in the outer reaches of London, on whose instructions we would regularly visit court together in order to represent the separate interests of an assortment of "likely lads" and "loveable rogues" (as our instructions invariably described them), who were alleged to have engaged in some joint criminal enterprise or other.
26. We felt flattered to be described as the solicitors' "heavyweight team", but whether that was on account of our peculiar talents or our considerable size only became apparent when on one occasion violence was feared in the precincts of the court which I was to visit, and I found myself with a brief which had been marked:

"FOR MR POTTER OR MR BROOKE OR ANYONE ELSE IN CHAMBERS WHO IS OVER 6 FOOT 3."

27. Gradually our practices became more "esoteric" and our careers have largely moved in parallel ever since. But, if truth be told, Henry Brooke's rise to eminence has always been "summa cum laude", whereas mine has had more the flavour of "mirabile dictu". As the Lord Chief Justice has already remarked, Henry Brooke is a first in Greats, and, as is so often the case with such august beings, he has, as you have heard, progressed through life mastering topics and disposing of tasks which, however complicated or intimidating they might appear to lesser mortals, have simply come as grist to his mill.
28. I was once told by our respected clerk who had wide experience of the Bar at large and was himself a clerk in chambers which produced both Lord Scarman and Lord Bingham, that Henry Brooke's capacity to assimilate complicated papers in a single reading and deliver an urgent opinion in manuscript (easily legible with the aid of a magnifying glass) was greater than that of any barrister he had even encountered. But, as Sir Max Beerbohm once said, "No man -- save possibly Daniel -- has ever come well out of being lionised".
29. I prefer to pay tribute to Henry not simply as a respected colleague of quite extraordinary and diverse talents, which he has devoted to the law and the administration of justice for most of his life, but as a friend of long standing and a very good and a thoroughly decent man.
30. Again to echo the Lord Chief Justice, one of Henry's greatest assets is his wife Biddy, whom I have known for almost as long as I have known him. Consulted this morning in a somewhat conspiratorial fashion with a view to finding anything even to Henry's mild discredit, so that I could present a balanced picture to the world, she could do no better than to deprecate his persistent refusal in a domestic context to engage in any form of argument, or administer even the mildest rebuke.
31. That is not perhaps a picture immediately familiar to all practitioners. I suppose Henry Brooke's outstanding characteristic over a long career -- apart from his intellectual brilliance -- has been his fundamental decency and his willingness to help not only his colleagues but his fellow man. The most prominent example of this, I think, has been his tireless work in race relations and the advancement of ethnic minority interests.
32. I, too, wish him the happiest of retirements. His presence on a permanent basis would be sorely missed. But, short of abandoning the habit of a lifetime and jointing "Workaholics Anonymous", it is difficult to think that we will not see him returning on occasions to the Court of Appeal to help it out in busy times. For my part, I can only hope that he will.
33. THE ATTORNEY GENERAL: My Lord Chief Justice, summing up a career as full and as industrious as that of Lord Justice Brooke is difficult. You have succeeded, touching on the length of his judicial career, work with the Bar Council, the Law Commission, and his very distinguished professional career in chambers. I do remember that time. I remember when Lord Justice Brooke attended the Sizewell Inquiry, from which from time to time he would issue an edict that junior members of chambers could come and attempt to deal with some particular point about which he knew their clients would be concerned.
34. But summing up what Henry Brooke is, is perhaps more difficult. He is a worker, a doer, someone who "hoovers up" work. There is in a book by Douglas Adams an expression that you can make things invisible by making them someone else's problem (an "SEP"). No SEP has ever passed Henry Brooke. Nothing has ever been someone else's problem. Time and again we have seen in the work that you have done, identifying problems that need to be dealt with, not always seen by others, but after the event everybody happy that you have dealt with them. I recall the multi-issue of how to make amendments once we went into computers. The Bar had not grappled with the idea that red ink, green ink, purple ink, brown ink did not work on computers. As I recall, it was Lord Justice Brooke who identified for us a system which I have certainly never grasped, but I am sure works extremely well.
35. Tackling the court's web-site, anonymising asylum seekers, helpful coders at the end of each judgment to set practitioners in the right direction with the appellate procedure -- so prodigious is the work that when in chambers it is said that Henry Brooke, whilst a pupil on one occasion, was asked to devil a request for further and better particulars for Peter Scott, he produced a long, detailed, probing request for particulars. Not that long afterwards he was asked by Christopher Bathurst on the other side to devil the answer. Whether simply through strong independence of mind or lack of recollection, he responded by saying that the request was oppressive, that there was no justification in most of the questions, and refused to answer them all.
36. This independence of mind became very important when Henry Brooke took over as Chairman of the Law Commission. The Law Commission was established as a result of legislation produced by a Labour Government in 1965. It was bitterly opposed at the time. Eloquent speeches were made in particular by one Member of the House of Commons who said there was absolutely no need for any such body as the Law Commission in order to settle criminal law. His name was H Brooke, but the genetic point of view was not transmitted to Henry. Henry Brooke was probably the first Law Commission Chairman to recognise that part of the responsibilities was not simply identifying what the changes needed to be to the law, but making sure they happened by engaging the politicians, by going on the radio, and by arguing the case. The present Chairman of the Law Commission put it to me that this demonstrated a point of view that it is possible for a member of the judiciary to engage with a Home Secretary without judicial independence being affected. I observe simply that that remark has been made.
37. I entirely share the views that the Lord Chief Justice and the President have made about the importance of Biddy next to Henry. She has been enormously important as part of his life, but also as part of chambers' life. We look forward -- and I am sure this will be repeated by others -- to seeing both of them as part of chambers for a very long time to come. We wish you, notwithstanding that, a very, very full and happy retirement.
38. MR STEPHEN HOCKMAN QC: May it please your Lordship, it is a privilege to have this opportunity to say goodbye to Lord Justice Brooke on behalf of the Bar.
39. Earlier this year the Lord Justice gave a lecture to the Environmental Law Foundation. In that lecture he disclosed a number of biographical reminiscences, some of which deserve to be repeated this afternoon because they perhaps reveal the mark of the man. He refers, for example, to his father who, as has been mentioned, became a Cabinet Minister under Mr Macmillan nearly 50 years ago. From him, the Lord Justice says, he learned the immense importance of attention to detail -- a quality which no doubt served him well in the responsibilities which were to follow in his legal and judicial career.
40. He describes an appearance on behalf of the Kew Society to object to a scheme to widen the South Circular Road at Kew Bridge. One of the members of the Kew Society (his clients), a BBC television producer, told him that he was a better advocate than Perry Mason.
41. As Lord Justice Brooke (Henry Brooke as he then was) rose through the profession, he selflessly began to give of his time to the regulation and representation of the Bar. As we have already been partly told, he became successively Chairman of the Computer Committee (as it was then called), the Professional Standards Committee, the Professional Conduct Committee and the Race Relations Committee, all of which roles he fulfilled with great distinction.
42. I think it may, however, have been following his appointment to the Bench that his interest in information technology drove him to make a particular impact in this sphere, and indeed to make the contribution to the freeing of the law, of which you, my Lord, have spoken already, and about which I think I ought to say a little more. The problem of making the law available to all was identified as long ago as the seventeenth century when Thomas Hobbes, the famous philosopher, waxed indignantly at the difficulties which confronted the layman in ascertaining what the law was, and concluded that there ought to be as many copies of statutes available as there were copies of the Bible.
43. Having been (I see the Chairman of the Law Commission nodding in front of me) elected President of the Society for Computers and Law in 1992, Henry took up the cudgels to try to persuade people in this country that we needed a body similar to what was then a rather new body in Australia called AUSTLII, which was dedicated to making statute and case law freely available on the worldwide web. In England at that time the only source of law reports was the publishers, and even transcripts had to be paid for. There was no system for disseminating judgments, otherwise than the slow and expensive paper process.
44. In February 1997 he put his name to a paper by the Society's Executive in response to a government paper called Government Direct, and it was this which launched the notion of an "AUSTLII" in this country.
45. In that same year, 1997, the Court of Appeal, as many will remember, had been grappling with hundreds of cases resulting from the automatic strike-out provisions of the then County Court Rules and the difficulties caused by the slow and expensive dissemination of Court of Appeal case-law on the subject. In April 1997, Lord Justice Brooke, Lord Justice Saville (as he then was), together with Lord Justice Waller (who happily succeeds as Vice-President of the Court of Appeal, Civil Division), demanded in the case of Bannister v SGB that their judgment be made available immediately on the internet. May I quote a sentence or so from that judgment:

"The text of this judgment is to be made available immediately on the internet. If this country was in the same happy position as Australia, where the administration of the law is benefiting from the pioneering enterprise of Australian Legal Information Institute (AUSTLII), we would have been able to make this judgment immediately in electronic form to every judge and practitioner in the country without the burdensome costs that distribution of hard copies would necessarily impose ...."

46. In that way, and thanks to further efforts by Henry, things began to move. You, my Lord, referred to the meeting in November 1999, which he chaired, at which I had the privilege to speak, and which resulted in pledges of money for a British form of AUSTLII. Thus it was that in the year 2000 BAILII (the British and Irish Legal Information Institute) came into existence. The initial trustees were Henry Brooke, Lord Saville and Laurie West-Knights QC (whose recollection has kindly provided me with many of these details).
47. Henry is still today the Chairman of the Trustees of BAILII. He has steered it towards a situation in which it has a massive number of users each day for its enormous free and searchable database of judgments.
48. At the same time, as I suspect most people will be aware, Henry Brooke was making increasing use of technology in the cases which he tried. His practice was to engage in proactive case-management through the use of e-mail. Many a Member of the Bar, and perhaps even of the Judiciary, who has received an e-mail from Henry timed at some unearthly hour, perhaps even well after midnight, with the self-effacing but inaccurate explanation later proffered that it was probably due to an error in the time clock on the computer. Such stories, I venture to say, illustrate both his dedication and his essential modesty.
49. The President has referred to the dangers of being lionised. In fact, it was Professor Vernon Bogdanor in a recent Gresham lecture who described Britain's judges as "lions under the throne". As we record the retirement today of Lord Justice Brooke, and wish him well, we have to observe that one of those lions is perhaps about to move a little distance from the throne under which he has been so well positioned for these last 18 or 19 years.
50. I agree entirely that, seeing the vigour and the enthusiasm of the man, one may suppose that, in one guise or another, we shall continue to see him and that to our great delight the lion's roar will still be heard.
51. MR MICHAEL NAPIER CBE: May it please your Lordship, on behalf of the Law Society it is with somewhat mixed emotions that we anticipate the retirement of Lord Justice Brooke. The mixture is a feeling of considerable pleasure to wish him a long and happy retirement, but also a feeling of sadness that the Judiciary will be losing a member with special knowledge of a once obscure area of law that has relatively recently started to trouble the sharp intellect of the Court of Appeal. I refer of course to the law of funding and costs, which means in practice that legal minefield of conditional fees that has spawned so much satellite litigation for the Court of Appeal to resolve frequently in the leading judgments of Lord Justice Brooke.
52. During a career at the Bar, unless they are really unlucky, barristers can steer clear of issues relating to funding and costs, leaving such mundane matters to their clerk and instructing solicitors. So it would probably have been unfamiliar and almost certainly unwelcome territory for the Court of Appeal to engage in a series of cases unravelling the almost intractable, if not certainly unattractive, problems relating to the costs and funding of civil claims. However, Lord Justice Brooke quickly mastered the challenge, and although he may not have expected to find this particular aspect of his long and distinguished judicial career included in the list of his achievements today, it is appropriate for me to say: Henry, we will miss your judgments on costs.
53. May I also speak from the personal perspective of a solicitor who in 1982 was able to observe at first hand the advocacy skills and legal acumen of Henry Brooke QC. Your Lordship may not remember the idyllic Yorkshire location where we first met. It was Doncaster Railway Station. Together with and assisting your instructing solicitor, who was disabled and in a wheelchair, your Lordship had travelled from London to attend the Industrial Tribunal in Sheffield. There you would represent the Guardian Royal Exchange Insurance Company in defence of a relatively minor but legally quite interesting equal pay and equal treatment claim brought by one Douglas Barber, whom I happened to represent.
54. Eight years later in 1990 the European Court of Justice, in the by then seminal decision of Barber v GRE, made a landmark ruling on equality of pension entitlement for men and women. By that time you were on the High Court Bench and although your client, the Guardian Royal, ultimately lost the case in the ECJ, in the earlier stages, as you reminded me the other day, you had successfully won the argument in the Industrial Tribunal and the Employment Appeal Tribunal. All those years ago back in 1982, I learned, as I chauffeured you and your instructing solicitor from Doncaster to Sheffield, that, opponent though you may have been, your demeanour as a friendly and worthy opponent was patent, and the proceedings in the IT and the EAT were conducted in the utmost good spirit.
55. Thank you then for the friendly and professional manner in which throughout your career your Lordship has been involved with solicitors during your time at the Bar and on the Bench. I well recall your Lordship's readiness as Chair of the Law Commission to maintain a close dialogue with the Association of Personal Injury Lawyers about the series of reports on damages that were part of the Commission's programme, and your energetic attempts afterwards as Chair to ensure (not always successfully, however) that the reports should not gather dust on the government shelf.
56. May we also thank your Lordship for your energy and tenacity as judge in charge of modernisation of the courts, pursuing with characteristic determination the need for more resources for IT, to assist the civil process and access to justice, a cause in which the Civil Justice Council has been happy to work with you. Your Lordship has not been slow to remind solicitors of their duty to participate in the IT revolution, as has already been observed. Speaking at the Law Society conference in 1993, you made clear your wish to read the riot act about the way that solicitors' firms were not moving into the IT age. Ten years later at the 2003 conference your Lordship described the IT challenges to solicitors as the "central educational and leadership role of the Law Society". Your advice has, I hope and believe, been heeded.
57. To conclude on a personal note, may I thank your Lordship and particularly Lady Brooke for explaining to me at a reception of one of your favourite charities, Prisoners Abroad, the huge difference it makes to someone incarcerated in a foreign jail to receive through the post something as basic as a toothbrush. The humanitarian side of the judiciary is largely unseen and not sufficiently appreciated, but that special aspect of your Lordship's persona is an important part of today's many accolades that the Law Society is pleased to join, recognising and applauding as it does your Lordship's outstanding contribution to the law and justice.
58. MISS ANESTA WEEKES QC: My Lord Chief Justice, it is an honour and a privilege to speak of my knowledge of the contribution made by Lord Justice Brooke to the development of the training of the Judiciary. If I may, my Lord, I would like to go back to something that you referred to earlier and that is Lord Justice Brooke's training in ethnic minority issues.
59. Some sixteen years ago, about 1991, Lord Justice Brooke embarked upon a venture which was not only radical in its nature, but it was the first of its kind for the Judiciary. With the backing and the support of the then Lord Chief Justice, Lord Taylor of Gosforth, he set up the Ethnic Minority Advisory Committee of the Judicial Studies Board ("EMAC"). He persuaded the then Lord Chancellor, who readily provided the necessary funds for race awareness training for all judges, from magistrates to the senior level.
60. To assist with this task Lord Justice Brooke invited a number of distinguished persons to sit on EMAC. They included Lord Dholakia, who is now in the House of Lords but then in 1991 was a member of the Commission for Racial Equality. He brought the problem of race awareness to the Judiciary following the controversial Dr Roger Hood Report. Trevor Hall, his enthusiastic and committed Vice-Chairman, who, during the time he was on EMAC, became the adviser on race issues, directly reporting to the Home Office. And last but not least, Goolam Meeran, who is now President of the Employment Tribunals.
61. The learning curve for everybody on EMAC was steep. Lord Justice Brooke attended many seminars and many conferences, where he encountered many different responses to the training initiative. Many judges welcomed it. Some had doubts. Others wondered whether it was necessary to spend so much time and money on such matters. All views were important. For the first time non-judiciary from the wider community took part in the training sessions. Everyone attended and, whatever their views were, they had an opportunity to express them, to take part in this historical event. There were many enjoyable moments. People did not think that you could laugh about race relations, but you can.
62. Lord Justice Brooke used his "craggy exterior" to great effect when he needed things done, but alongside that exterior came the quirky humour and the human touch. We spent many a night at his favourite restaurants in London with and without his wife. They do say that alongside every great man walks a great woman. I first heard his wife laugh before I met her. I have never forgotten it since.
63. Throughout Lord Justice Brooke remained committed, determined and undeterred by criticism. Above all he remained positive. What was the result of the training? The Judiciary as a whole were convinced of its merits and understood that race awareness training must be an integral part of the work of the Judiciary. Most importantly, the perceptions of black and white people who work within the criminal justice system, and the perceptions of ethnic minority defendants of the judiciary, were altered for the better because they could see that the Judiciary took this matter seriously. Lord Dholakia, who regrets that he could not be present today, considered that the one sole event which changed the way many people from all cultures and walks of life view the Judiciary was EMAC. The change was undoubtedly for the better.
64. Lord Justice Brooke, credit to you for your work is richly deserved. Perhaps the most important result of all your work is that you gained the respect of those you trained, and you have enthused many with your commitment to continue the work. You have left intact the training you began all those years ago. It has developed with all the necessary changes for the work of judges serving an even more diverse society now in 2006. You did not know then how important and central your work would become, not just to the Judiciary but also for our multi-cultural society.
65. The Judiciary will for ever be grateful to you for doing what you did. We can be proud of your efforts on race awareness training because it put the Judiciary a full ten years ahead of all other public authorities who did not at that time have the statutory duty to promote racial equality. That did not happen until April 2001, and as we all know that was brought about by the Race Relations (Amendment) Act 2000 which followed the Stephen Lawrence Inquiry.
66. May your retirement from the Bench be content and enjoyable.
67. MR DAVID RAILTON QC: My Lord, pupillage with Henry (as he then was) was an exhausting experience. I had the honour of being his last pupil in 1980 when he was a very busy and very grand junior. At that time his practice was extremely wide, covering broadly anything on which anyone was prepared to instruct him. I was never aware of him turning down any piece of work on the grounds that it might be outside his experience. On the contrary, each new set of instructions was a challenge, and the less familiar the territory the more interesting the challenge. Each set of papers he received would be consumed voraciously, with a speed of assimilation and output which was quite intimidating to a pupil. Those, of course, were the days before personal computers or word processors, and his output was limited only by the willingness of the hard-pressed Fountain Court typing pool.
68. Any work I did for him which was more or less right would be greeted with a warm smile, coupled with disbelief that it had taken so long. Any work I did which failed to spot some hidden point, which of course Henry would have seen immediately, would be greeted with a long face, racked with disappointment -- a look which only Henry can produce and which most people who have appeared in front of him are likely to have seen more than once.
69. As a pupil master, though, he was a living example of what a barrister should be, exuding all those qualities about which my Lord has already heard today: a ferocious intellect, unshakable integrity, very hard-working, thorough, invariably courteous (including to his pupil) and with an eccentric sense of humour – indeed, everything we have come to expect in our leading judges. But as a pupil master perhaps his greatest attribute, and what made pupillage with him so special, was the extraordinary enthusiasm and sense of fun which he brought to everything he did. As he told me on my first day with him, he never could quite believe how he came to be paid for something he enjoyed doing so much. That energy and enthusiasm has never waned.
70. When I was with him he was led from time to time. He would invariably do everything in the case and with only a few exceptions would usually regard any input from the silk as at best unhelpful. In due course I had the pleasure of being led by him in a number of cases. In trying to emulate my pupil master, I attempted in the first case to get to grips with the details of it and run it as he had shown me. But, as I should have guessed, this was wholly unacceptable to Henry. He took me to one side and told me firmly (as I should know) the sole role of a junior was to provide moral support and, he added, when the case was outside Central London, company for lunch.
71. Later, when he went on to the Bench I would appear in front of him from time to time. He, of course, would never make any comment concerning pupillage which in any way related to the merits of the case. He confined himself to the administrative aspects of it. In this he adopted a dangerously wide concept of corporate responsibility. If the documents had by chance been properly prepared by the responsible trainee, with everything in order and filed on time, Henry would generously proclaim to everyone in court that I must have learnt something from being his pupil. But if, alas, the trainee had made some horrible error, such as mis-photocopying some obscure page of some even more obscure bundle, which Henry of course had read, he would shake his head, and that long face racked with disappointment would re-appear and there would be no mention at all of any pupillage.
72. Henry, on behalf of all your pupils, thank you for everything you have taught us. After a very distinguished career at the Bar and on the Bench, we wish you and Biddy the very best of luck in what we know will be anything but an idle retirement.
73. LORD JUSTICE BROOKE: Thank you very much. I have told Lord Justice May that I might be willing, if needed, to go back to first instance judging in my retirement, so be warned. If I were a first instance judge today, I would reject most of the evidence I have heard as totally incredible and untrue.
74. I feel like the man in the television series who turned up at his own memorial service. The only difference is that he was dressed up as a tramp and sat at the back, while I am dressed up like an eighteenth century gentleman with a place in the choir stalls.
75. If I shut my eyes, I can go back in time to the scene in this court on 28 July 1988. It seems only yesterday. I was sworn in that morning as a Queen's Bench Judge. We also had the valedictory for the then Registrar of Criminal Appeals. There I was in my new red splendour for half an hour against a background of boring black gowns like we see today, a bit like a baby penguin surrounded by his elders and betters at the zoo. It was then that my 77-year old mother-in-law expressed surprise at all the law reports on the bench. She said that the Lord Chief Justice was supposed to know all the law without having to look it up. He did not. Plus ca change.
76. I went back to visit her when the Court of Appeal went to Newcastle last month. She is now 95 and very frail. I have asked myself since that visit: what would I have said if she had asked me what I had achieved in the last eighteen years?
77. I could have told her I spent a lot of my time explaining the CPR. Or that I did quite a bit to explain how CFAs worked. I might have added that I was a bit of a dab hand with ATEs and BTEs. Or that I introduced paragraph numbering into the judgments of the English courts. And then, when pushed to think of anything else, I might have told her, as the Lord Chief Justice has said, that I invented the Bhamjee Order. Just think of that: On his tombstone let it be written, "He invented the Bhamjee Order". I would then have asked here, "Will that do?" And because I have never been able to do any wrong in my mother-in-law's eyes, she would say, "It all sounds pretty good to me", without understanding a word of it.
78. The other day a female law lady said to my wife, "Henry doesn't only take on all the boring cases which none of us wants to do: he even seems to enjoy them". You will not see my name much in the official law reports, except when I am being reversed by the House of Lords. But if you read the second edition of Adrian Zuckerman's book on Civil Procedure carefully when it comes out soon, you will see 120 judgments from my division of the court, most of them over the last six years, and most of them written by me.
79. I do not encourage any of you to read any of them. You would be bored stiff after the first two. But they are a memento to a moment in our legal history when it was really quite important that the judges of the Court of Appeal should speak with one voice when interpreting the CPR. Somebody must have thought that we were much more likely to speak with one voice if I was asked to write all the judgments.
80. This is the last time I will come to this court, except as a spectator. The first time was nearly fifty years ago when I saw Lord Goddard CJ here trying a personal injuries action. I did not take to him, and I do not think that this incident had anything to do with my deciding to start reading for the Bar at the age of 25. It was some time after that that I became Nicholas Phillips' tenant in Dulwich for eighteen months without the benefit of Rent Act protection; and still later that I started to ply my trade as an advocate alongside Mark Potter. As he has said, we often used to go to Stratford, Ilford, Romford and all stations to Southend to plead the causes of those young men who were the clients of a firm of Romford solicitors. The instructions, such as they were, that their managing clerk invariably gave us ended: "Counsel is therefore instructed to appear for this likely lad and will kindly do the necessary" -- not always terribly easy.
81. That was all long ago. Now I am 70 and I am saying goodbye to a job I love and to a court I have loved ever since I joined it in 1996. I cannot say "goodbye" without saying "thank you". Thank you to all my colleagues in the court who have made it what I believe to be the friendliest, as well as the most hard-working court in the land. They said that I seldom dissented because I usually bullied one of them into agreeing with me. Thank you to my two marvellous clerks who are both here today, Chris and Elizabeth, and to my indefatigable judicial assistants. Thank you to my usher, Adrian, and to my law reporters -- this sounds rather grown-up -- Matthew, Dilys and Kate. Thank you to all the staff and lawyers of the Civil Appeals Office, who have turned up in such force today, and who have given us wonderful service over the years. Roger Venne and David Gladwell, in particular, have rendered quite outstanding support to the judges of the court. We have been extraordinarily lucky to have them both.
82. Thank you to all the staff at the Royal Courts of Justice, and to the staff of all the NGOs who support our work here, who have helped me in so many ways since I first became a judge eighteen years ago. Thank you to the lawyers who have appeared before me, who have usually been such a help. Thank you to the lawyers and staff at the Law Commission, who contributed to the astonishingly happy three years I spent there. And thank you, too, to the litigants, particularly perhaps to the litigants in person, who are so important and who pose such challenges to our judgecraft skills. I will even (you may not believe this) miss the vexatious litigants, who rank among their number some whose ingenuity has always attracted my profound admiration, even when I have had to say "no" to them, as I usually did.
83. Thank you to my wife and family. They always did their best to keep my tendency to chronic judgeitis in remission by challenging every single thing I said on those very rare occasions at home when I was able to get a word in edgeways.
84. That is all I want to say, except thank you all for turning out today on such a hot day to say goodbye. Au revoir. Auf wiedersehn. I shall miss you all.

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