Gardner Leader (as well as Brexit) in the Supreme Court


In order for the UK to leave the EU and give effect to the recent referendum, it must first notify the European Council pursuant to Article 50 of the Treaty of the European Union. On 3 November 2016, the High Court ruled that the Government cannot legally begin this process without first consulting Parliament as legislation (and not the Government’s power alone) is needed in order to end the UK’s membership. The four day hearing started in the Supreme Court on 5 December 2016. It heard an appeal brought by the Government, which argues that it has the necessary prerogative powers to be able to act alone. It is a constitutionally significant moment, as for the first time all 11 Justices heard a single case. It was broadcast live on the websites of both the BBC and Channel 4. The number of visitors to the court’s website (which streams every hearing) has risen 70% in November 2016, compared to the corresponding month last year.

I would personally like to think that this spike in interest is as a result of the case of Lowick Rose LLP (in Liquidation) v Swynson Limited and another, which was heard on 24 November 2016. This was the first time that Gardner Leader LLP has been in the Supreme Court, and I was fortunate to assist Michelle Di Gioia, who has overseen this firm’s previous successes in this case in both the first instance decision in the High Court and in the Court of Appeal. Walking into court room 1, setting up our laptops and files and sitting behind Counsel was unbelievably exciting. There are no witnesses called at Supreme Court hearings, with advocates basing their oral submissions on their respective written cases, lodged prior to the hearing. There is almost an air of informality, judges do not wear wigs and they sit at the same height as everyone else (unlike other courts). Counsel were not robed and nor were they theatrical in delivering their message. It’s a question and answer session of the highest order.

At a recent lecture, Lord Neuberger, the court’s President, has commented on the importance of ensuring that hearings are less adversarial and more like a seminar. All three court rooms as well as the court’s museum are open to schoolchildren, tourists and interested parties, who are able to walk in and out of hearings. There is a great sense of occasion at the beginning of every session when the whole courtroom rises to the likes of Lord Neuberger, Lord Mance and Lord Clarke, judges that you hear of when studying law and who are now determining your firm’s own case. The court hears a very limited number of cases (84 last year) and only those that raise points of law of general public importance. We now eagerly anticipate the outcome that we are expecting in the New Year. Clearly the Justices will have their hands full in the meanwhile.

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