8 months ago

IB April 2018

EULOGY Eulogy for Mr

EULOGY Eulogy for Mr Justice Gilbart The eulogy was given by Sir Brian Leveson LJ on 12th April 2018 Once again, we gather in this court to mourn the death of an illustrious member of the Northern Circuit legal community. During the night of 19th March last, having suffered without complaint over so many years, the Honourable Mr Justice Gilbart died, at the age of 68 years, just eleven days before he intended to retire. In his passing, we have lost a real personality with a penetrating intellect, a remarkable judge with tremendous insight into the way in which human beings worked. Furthermore, we have lost a very good friend. Although presenting as a bluff Northerner, Andrew James Gilbart was born on 13 February 1950 in the South of England and, like Churchill, was half American and proud of it. He was educated at Westminster School and Trinity Hall, Cambridge where, I am told, he captained the football 2nd 11, characteristically directing operations but, unusually for a midfielder, confining himself to a circle on the pitch with a diameter of about 20 yards from which all his instructions to the rest of the team could be heard. He was called to the Bar in 1972 entering chambers in Manchester that later became known as Kings Chambers. He was pupilled to Nigel McCleod and a contemporary of His Honour Philip Raynor QC and Steven Sauvain Q.C. He went on to recruit a bewildering array of talent not the least being the late Mrs Justice Patterson, Sir Peter Smith and Her Honour Judge de Haas Q.C. in the 1970s and Nicholas Braslavsky Q.C., Vincent Fraser Q.C., David Manley Q.C. and Anthony Crean Q.C. in the 1980s as well as many others. What a fortune he could have made as a talent scout for one of two well-known Manchester football teams: please note how a Liverpudlian shows no favours. Like most circuit practitioners in what my children would call the olden days, Andrew started with a mixed practice in crime, civil work and some planning. He developed, however, into being a formidable planning lawyer. Both as a junior and, after 1991 when he took silk, he built a planning practice of national significance, enjoying the trust and confidence of a number of developers and businesses with national reach. By way of example, he worked for the major operators of motorway service areas or MSAs as they are known in the trade and was involved in a number of major inquiries for new service areas on the network. This enabled him to indulge in his passion for interrogating highly engineers about their junction modelling which I am told to most planners is somewhat dull if not incomprehensible but for which Andrew had what is described as an unnatural enthusiasm. I am told that he actually visited every MSA in England and actually liked them so that when one of his juniors suggested getting off the motorway for a bite to eat he would refuse – even when the junior offered to pay. The junior observed: “God, he loved his work”. The high point of Andrew’s career at the bar was his work on the second runway for Manchester Airport. Initially, he was due to be led by David Keene Q.C. but, as occasionally happens, David’s appointment to the High Court bench was Andrew’s opportunity. He took full advantage of it and successfully shepherded a very controversial proposal over the line to consent. A number of stories about the man come from that inquiry. First, he spoke of the huge responsibility placed on his shoulders and the immense pressure he felt under, that is until the day that one of the third parties decided to present his evidence in rhyming couplets to the accompaniment of a tuneless recorder player. There clearly must be something to planning inquiries that I never appreciated but it was at that point that Andrew realised that he must have been in the middle of a Monty Python sketch. More significantly for Andrew, however, when paid for the Inquiry, history relates that it triggered a money laundering investigation by his bank! Throughout his practice – and indeed, throughout his career, Andew was always happy with stories that told against him. It was he who recounted the occasion when he was running late for an inquiry and burst through the doors at 10.00 am with boxes and papers flying everywhere. Having taken his seat, his junior leant across and said soto voce but for enough people to hear “The ego has landed”. Neither did he always get the last word. He was involved in an inquiry in Wales where the name of the site was at least 40 letters long with only two vowels. The Inspector, who was Welsh speaking, repeatedly corrected Andrew’s valiant efforts to correctly pronounce the name. However, as Andrew continued to err, the Inspector mischievously decided that he would help to smooth the proceedings by referring to him as Mr Gilbert, resulting in Andrew repeatedly and angrily telling him that his name was Cornish, causing the Inspector then to point out that, in that case, Andrew ought not to be struggling with God’s own language! It would be unfair to call Andrew pedantic but he was a stickler for grammatical and linguistic propriety. In the days before tracked changes he would spend many happy hours going through proofs looking for such mistakes. At the end of a 3 hour epic, after he had poured over every word of a planner’s proof - the planner, clearly rattled, was moved shyly to ask “yes, but do you actually have any comments upon the planning merits of my evidence”? He carried that approach through to the bench and the junior in that case recollects Andrew responding to one of his feeble submissions by suggesting that he was making a “synoptic” point. When counsel confusedly asked “my Lord?” having no clue as to what the word might mean when used outside of an RE lesson, he turned to his opponent and said “Will you explain please: the poor chap was educated in Yorkshire.” Besides his national planning practice, Andrew found time to be Head of 6 In Brief

EULOGY Chambers and a force for good at the Manchester bar. He became an Assistant Recorder in 1992 and a Recorder in 1996. He demonstrated his versatility by chairing Mental Health Review Tribunals between 2000 and 2006 by which time he had been appointed to the circuit bench in Preston. He made an immediate impression both in crime but also as a deputy High Court judge in the Administrative Court. Never shy about coming forward, he provided enormous support for the then Recorder, His Honour Judge Russell Q.C. and continued to enjoy any joke, particularly one at his own expense. He was adored by the staff although some of the ushers were surprised and concerned when Paula gave him a Christmas present of some singing lessons. Andrew was wont to practise in his room, but his style owed less to bel canto and more to can belto! In 2008, after the appointment of Sir David Maddison to the High Court bench, Andrew succeeded him as Recorder of Manchester. Now he was in charge and he led from the front in all that he did. He worked prodigiously hard and it took a court comprising of the Lord Chief Justice, the President of the Queen’s Bench Division and the Chairman of the Sentencing Council to say that it was not the role even of the Recorder of Manchester to set guidelines for sentencing in the riot cases. Andrew took it all in good part and, as one of the members of that constitution, I am happy to acknowledge that although we disagreed with his assuming the role of providing national guidance, much of what he said was adopted and thereby emanated with the authority of the Court of Appeal. Andrew spent 5 years as Recorder of Manchester and it is a testament to him that it was widely recognized that appointment to the High Court bench was inevitable. Indeed, that appointment was announced in May 2013 and a provisional swearing in date arranged. But it was then that fate took a hand and Andrew was diagnosed with cancer. For over a year he underwent major surgery, never once complaining, never once displaying anything other than robust enthusiasm and confidence that he could deal with all that life could throw at him. His appointment was delayed until his doctors advised that he could take it up and so it was on 1 October 2014, to much rejoicing by all his friends, that he finally became Mr Justice Gilbart. As a judge, Andrew carried all the Northern good sense into his work; he did so volubly and it did not matter whether he was sitting at first instance, when his was the only judicial voice, or in the Court of Appeal as he did on several occasions with me. Andrew did not do quiet and whatever Francis Bacon might have said about ill tuned cymbals, it did not matter to Andrew. He could not have been called diffident and was not shy about coming forward and entering into the forensic debate. He had a very strong sense of fair play and was the ideal judge to see through the illegal approach taken by the Secretary of State to Gypsies and Travellers. In another case, he upheld the right to paint your house in red and white stripes. In the words of another planning judge (for I would not dare say this of my colleagues) he put some fuddy duddy planning hating judges from the Court of Appeal back in their box along the way. His approach is well summarised by the last Chief Justice, Lord Thomas of Cymgiedd, who first met Andrew when they were both undergraduates at Trinity Hall. Although they saw each other from time to time, he did not really get to know him again until he became a judge but records that he had not changed at all – the keenest mind, great fun, strong views and boundless energy. He comments: “We worked together on various projects to try and improve the delivery of justice on the Northern Circuit. He was a brilliant Recorder of Manchester, dealing so well with some very difficult issues and supporting the judges to the hilt. His appointment to the High Court was so welcome and I sat with him on several occasions when his mastery of the papers and his incisive interventions invariably made counsel pause and think. He was in his element on the last case on which I sat with him which was an appeal where he was able to deploy his expertise in the two areas in which he excelled - the vires of a local authority to run a nationwide prosecution service and the issues which would arise if they could. It was a true demonstration of his remarkable intellect, his good humour, his industry and his ability to find a just and practical solution.” In summary, as a planning lawyer and a judge across a wide range of jurisdictions, he leaves a conspicuous legacy. To other judges, he was warm hearted and a source of never ending wisdom and encouragement with wise cracking banter and teasing which will be much missed. He would always help, even if he would not turn down his sound system playing Joe Bonamassa or some other blues artist. But the wicked sense of humour and the characteristic chuckle – frequently directed towards himself – was never far away for he never took himself too seriously; to take a sporting analogy he was the kind of person whose passing would be celebrated by a minute’s applause, never a minute’s silence. Two examples. He met an old colleague and friend at a charity ball before Christmas. As his opening gambit he told the barrister that one of his cases was “utter bollocks” and that he had certified as such; this was not said in a hurtful way and was not taken as such. The response was that the judge had amused the barrister’s kids with his predilection for abbreviations. He had peppered his judgment in the claim brought by “Working Title Films” by using the abbreviation “WTF”. When asked whether he knew at the time what the abbreviation stood for in “textspeak” he said “I didn’t at the time but I f***ing well do now!”. The second example relates to a member of the bar well known to take every point at every opportunity. Andrew and I had sat together in a series of appeals which he had pursued at tedious length. Andrew’s last e mail to me, dated 5 March, demonstrated that he was still paying attention to all that happened. He sent me a Bailii link to a decision of the Administrative Court in which for the same client, the barrister had tried again. Andrew’s comment: “And I thought that it was me that was irritatingly tenacious”. I must say something about the last few years which, for me, have been peppered with many conversations with Andrew about his health. In November 2016, when he learnt that his friend and colleague of some 38 years, Frances Patterson, had cancer, he described it as awful news indeed. His e mail went on: “somehow the news that an old friend has cancer is worse than finding out you have it yourself – at least then you have some input into the fight against it”. In December of that year, under the heading, “It only happens to me”, he reported that he had collapsed at his stepson’s wedding and needed a new aortic valve. The following month he said that the 1950 model had been replaced with a 2016 version. In 2017, recuperating, he said that his brain was working and he was looking for paper applications to do. Later that year, he was determined to put off his second hip operation until the vacation but could not, in the end, do so. When it was delayed twice, he wondered who had forgotten to warn the witnesses. After the operation, we corresponded and I observed “you are clearly indestructible”. He said that there was more of him that were replacement parts than had been original. Then at the end of the year, bowel cancer returned in his lungs so he was, in his terms, ‘off games’ but he joked about that. In January he reported two bits of news, under the heading ‘latest tweet from the equine voicebox’. He described the news as pulling in opposite directions on the noise reduction front. First, President Trump would not be opening the embassy, thus less noise. Second, he was still going strong thereby more than compensating for the reduction in noise. Andrew took his illness as he took everything in life. He got on with it. There was no self pity, no recrimination and no slacking off of his standards; in musical terms, he continued to live life fortissimo. His approach to illness was a model of how to deal with one’s own mortality: brave, certainly, but good humoured and, above all, defiant of what fate thought it had in store for him. Lord Burnett (who regrets his inability to be in Manchester today) has asked that I record his profound admiration for the way in which Andrew coped with the travails that life threw at him and speaks of it as inspirational for all who knew him. I spoke to him some days before his death. His remained strong in spirit. He had nothing but praise for the medical care he had received. From first to last, he was larger than life in every sense; direct, warm-hearted and a great man. We can only look on in wonder and rejoice in our friendship with him. We offer to Paula, and to Tom and Hannah his children along with their children, to Ted, Sam and Hannah, his step children and their two children born this week, along with his sister Marian, brother Paul, brother in law Peter and his wider family our deepest sympathies. We have lost a good friend and a solid rock in the sea of ever changing values and opinions, yet I know that our loss is nothing compared with theirs. We will all miss him enormously. We are very much poorer for his passing. In Brief 7