An After Dinner Speech given at the Waldorf for The KCL Bar Mooting Society
I am honoured.
I want to thank:
(i) Hanyi Xie President of the King's College London Bar and Mooting Society this year for allowing me this opportunity.
(ii) Oktay Vatan Yener Treasurer (Trustee) | Academic Year 2024/25
(iii) Honoured Guests
Forgive me if I repeat myself, at my age I am entitled to that luxury. I think I might have given this talk to a group of you who may have come back for more. I promise to expend no more than15 minutes of your time.
My Career
I studied at KCL, pharmacology, I was actually at Chelsea which merged with KCL in my 3rd year between 1981-4.
I studied the GDL (CPE) at City University and then the Bar (BPTC) at the ICSL. Later when I sat on the Education Committee of the Bar Council, we authorised 8 other institutions to teach the Bar. Then it was just ICSL. Now ICCA is back as 1 of 10.
I then undertook pupillage – with John Bowers KC (now Master of Brasenose College Oxford) and with 3 pupil-masters at a set of chambers known as Francis Taylor Buildings during 1987-8.
I could not get into the IP bar so went to work at Clifford Chance and then Denton Hall. I stayed in IP. I didn't requalify. At Clifford Chance I met a man called Mr John Olsen – a brilliant US lawyer who later became instrumental in my future. That was in and around 1990. His clients ranged from Apple Inc, through Mastercard to Logica.
Gozo
Meanwhile in 1987 on the island of Gozo a man called Adrian Jacobs, ex-accountant, ex solicitor, ex banker, ex inmate at Ford Open Prison, met a man called Christopher Little a literary agent in a bar. Adrian Jacobs had written a short-illustrated story for his niece and was looking for a publisher. He had written it whilst in prison for fraud. It was 15 ½ pages long. It described Willy the Wizard, a magician, who entered a competition to become the best wizard of all competing wizards.
(i) The competition was announced in a Castle;
(ii) Willy was not allowed to use spells within the confines of the castle walls;
(iii) The competition was announced by a French aristocrat Madam Dix Neuf;
(iv) Willy deduced the main task in the bath;
(v) He had to rescue people from a group of humans from half-kangaroo half-human captors on an island. He won and received 40 gold tokens.
Christopher Little said he rejected Adrian's book. He wanted Adrian to rewrite it. It was too dense. Adrian published it himself -1000 copies.
Lord McKay
Meanwhile, Margaret Thatcher had also left the Bar after qualifying as a Biochemist at Oxford. It is fabled she too found the IP bar impenetrable. She therefore deconstructed it. Appointed Lord McKay as Lord Chancellor (1987) and enacted the Legal Services Act 1990 - the beginning of the merger of the 2 professions. Barristers as of 1990 no longer had a monopoly over rights of audience in the higher courts and solicitors no longer the exclusive right to refer instructions to the Bar - the beginning of the Bar Direct. Later when appointed by Gray's Inn I wrote a submission to the BSB on the issue of whether 1–3-year qualified barristers should have direct access rights.
Dunlop & The Body Shop
I moved to in-house – Dunlop Slazenger – 1992 -1994 - we licenced the Dunlop, Slazenger and Puma brands across the world. You would find them on items from clothing to umbrellas. We actually made a profit every year - we were a team of 3. 2 salesmen and a lawyer. I was taught by a man called George. He wasn't a lawyer but had such sense of detail that taught me to be meticulous at drafting contracts.
I left after a few years to work at The Body Shop. I was left with both non-contentious and contentious legal work. Drafting agreements and litigating IP cases around the world. 60 countries in all.
I had the last say on cosmetic product labelling after the marketing team signed off the labels to the likes of White Musk Bath and shower gel.
My 1st contract was with the Kayapo Indians of the Brazilian Rainforest who collected Brazil nuts for the Body shop products. In exchange The Body Shop built medical centres and schools.
I travelled to foreign parts to oversee trade mark litigation. I seemed to be sent to all areas of the world where wars were going on. South Korea, Northern Ireland and Israel. The Body Shop didn't have a redundancy package per se.
BACFI
I joined my in-house barrister union The Bar Association for Commerce, Finance and Industry. I managed to work my way up to Chairman when after 5 years I saw an advertisement in the Times. An IP set in Lincoln's Inn sought a new member of chambers. I applied was panel interviewed and was offered a membership of 7 New Square. A specialist IP set. That was 1999.
BACFI was for employed barristers and I had become self-employed. I missed out on the chairmanship. I was under-qualified as a self-employed barrister.
It was a decision between leave a salary and drop to zero. I took the risk. I had saved some money and plunged, But fortunately just as the dot com bubble took place.
Apple
That John Olsen of Clifford Chance began instructing me as an independent practice IP barrister. Apple, Inc was my client. It was the biggest brand in the world. I became Apple's standing counsel for many years.
Liberty of London took me out for lunch. I recall it vividly. I had also managed to obtain the first of what were to become a few non-executive directorships, a domain name registration company. It all helped those fragile beginnings at the Bar.
I took every opportunity to market by speaking at IP events and write IP articles. I slowly built up my IP practice and …
Harry Potter
… meanwhile, in 1990 (3 years after Adrian Jacobs) a Joanne Murray was on a train from Manchester to London, she had conceived all 7 books about Harry Potter but didn't have a pencil or pen. She was meeting her then boyfriend.
She met Christopher Little who became her literary agent. She wrote her 4th book about a Harry Potter, who was
(i) a student wizard;
(ii) he entered a competition announced by a French aristocrat;
(iii) He was told the task in the prefect's bathroom;
(iv) He had to rescue his wizard friends from the Mer people.
Meanwhile Adrian Jacobs had passed away and his copyright in Willy the Wizard transferred to a Paul Allen, his trustee in his estate.
Lincoln's Inn
Back in Lincoln's Inn, in 2007 it was a late winter's evening, it was raining, I met a solicitor and a man who had met Adrian. He had been in a taxi when he read an article about the then famous JK Rowlings and her book Harry Potter and the Goblet of Fire. I was instructed to proceed for copyright infringement against JK Rowling's and Bloomsbury Publishing, her publisher.
My opponent was my pupil master John Baldwin, the High Court judge my other pupil master, a David Kitchen, now Lord Kitchen. We prosecuted copyright (with Johnathan Raynor James who had just argued The Davinci Code case) and the author of the leading work Copinger on Copyright. It was an attempted strike-out by both JK Rowling and Bloomsbury of Adrian Jacob's copyright claim to the plot line of Willy the Wizard. She lost in part.
Intel v CPM
Shortly after, the pupil who beat me to membership of my pupillage chambers was in the United Kingdom Intellectual Property Office arguing that Intel had rights over the name Intelmark even though Intelmark was used for telemarketing sales and Intel world famous for computer chips. My opponent, now a High Court judge himself. There was a flaw in the case on the evidence which we spotted at the very 1st hearing. We just kept quiet about it in the UKIPO until the hearing, on appeal to the High Court we raised it, we raised it again in the Court of Appeal and again on a reference to the Court of Justice of the European Union and back to the Court of Appeal. We fought it out and it became the lead EU and UK authority concerning something called trade mark “dilution”. It has been referred to in 150 cases since by the Court of Justice of the European Union itself.
The Nurse
But despite those cases my most exciting was one of my early ones – a defamation case. A nurse of Caribbean extraction had syringed the ear of an Asian man whose partner was a Black African law student. She, the partner of the patient, had been excluded from the procedure and taken her exclusion to be racism. She wrote a letter in those terms to the nurse's employer and a few others. I was instructed for the nurse to pursue the ex-law student for defamation. I had explained that the only people who sue for defamation were the very rich or the very stupid. The very words of Gatley on Libel. Which of those 2 was my client?
The wife of the partner who had written the letter agued strike-out this based upon the 1-year limitation period in defamation. She was represented by a City law firm, comprising 3 solicitors and specialist defamation counsel. My client was only on a nurse's salary and the other side on a the newly invented Conditional Fee Arrangement, a no-win-no-fee agreement. £30,000 was at stake at the 1st hearing. If we lost she would have lost her home. When we won at my first outing in the defamation court, I felt I was floating on air out of court. I was so worried for her, but she succeeded. Thank God.
The Future
Enough of me and now the future:
In my opinion for what it is worth:
(i) There will be more on-line hearings.
(ii) E-disclosure – we need to understand in detail the creation of digital documents, their creation and storage methods, filing systems, software platforms and how they work, transmission systems, upload mechanisms download mechanism, recipient systems and in detail. We need to understand our IT experts and possibly try and become them;
(iii) AI - neural networks – need to be understood by mechanism, the lack of under-standing demonstrated by a New York case which identified 7 legal authorities hallucinated by the machine, Chat GPT. We also require a deep knowledge of deep fake, even when it comes to evidence:
The Dubai-based barrister describes how his client was alleged to have threatened another party over the phone, but the client was adamant that he had never uttered the alleged threat. The matter seemed to be put beyond doubt when “an audio file was produced which included a recording using the precise words my client had been accused of”. The barrister continued:
“perhaps for one of the first times in the family court, we managed to prove that the audio file had not been a faithful recording of a conversation between the parties but rather a deepfake manufacture.”
Sir James Mellor, yes the same James Mellor, in May 2024, gave a meticulous 230 page judgment in Crypto Open Patent Alliance v Craig Steven Wright concerning a claimant who claimed to be Satoshi Nakamoto, the creator of Bitcoin. Mr Wright had produced 47 forged documents. Expert analysis of the forged documents revealed that they were written using software that was not available in 2008 - they contained ‘anachronistic metadata' created by Wright to resemble Satoshi's seminal 2008 white paper which launched Bitcoin. Mr Justice Mellor has now referred the papers in the matter to the CPS to consider whether a prosecution should be commenced against Dr Wright.
Now Quantum physics & particle entanglement aka quantum computing – will speed up the AI/Deep Fakes.
My Guiding Principles:
So I commend legal practice to you with these lessons I've earned:
(a) Its not the 50 rejections it's the 1 acceptance that counts, see footnote: 7 New Square.
(b) If you have nothing to say, say nothing, see footnote Intel.
(c) Be nice to the people on the way up, you will meet them again on the way down; see footnote: all of the above.
(d) Keep after dinner speeches short or you will either be replaced by AI or deep faked by it, see none of the above.
