SIR DAVID JAMES TYSON KITCHIN TO SWEAR HIS OATH OF ALLEGIANCE AND JUDICIAL OATH AS A JUDGE OF THE COURT OF APPEAL

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1 IN THE COURT OF APPEAL Royal Courts of Justice Strand, London, WC2A 2LL Date: 6th October 2011 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE MASTER OF THE ROLLS THE CHANCELLOR OF THE HIGH COURT THE VICE PRESIDENT OF THE QUEEN S BENCH DIVISION LORD JUSTICE KITCHIN SIR DAVID JAMES TYSON KITCHIN TO SWEAR HIS OATH OF ALLEGIANCE AND JUDICIAL OATH AS A JUDGE OF THE COURT OF APPEAL Present in the (packed) Court of the Lord Chief Justice of England and Wales: Judges of the Court of Appeal and the High Court of Justice Judges Clerks Staff of the Royal Courts of Justice Members of the Bar Solicitors Patent Agents Trade Mark Agents and Members of the Public Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: Fax No: DX 410 LDE info@martenwalshcherer.com

2 SIR DAVID JAMES TYSON KITCHIN SWORE HIS OATH OF ALLEGIANCE AND JUDICIAL OATH AS A JUDGE OF THE COURT OF APPEAL THE LORD CHIEF JUSTICE: Mr. Alexander, the Court has had the pleasure of receiving the Oaths of Lord Justice Kitchin as a Lord Justice of Appeal. Lord Justice Kitchin was called to the Bar by Gray s Inn in His pupil master was Robin Jacob. (Laughter) What a difficult start! (Laughter) What talent to overcome it! (Laughter) Being a judge, I am being entirely fair because I would not have said that if I had not seen Robin Jacob down there so that at least it was said in his presence. I do not expect that he will respond but, being Robin Jacob, he probably will say something. (Laughter) Having overcome that problem, like another Lord Justice of Appeal sworn in recently from the Chancery Division, he started writing books. What is it about the atmosphere in the Chancery Division that makes people want to write books and books with extraordinary titles? Patent Law in Europe and the United Kingdom: can there be a book about that? (Laughter) Kerly s Law of Trade Marks and Trade Names: can there be a book about that? Crime is so much simpler. They just call the book Criminal Law. Having written those books or perhaps while writing those books, a magnificent practice developed for a man of exceptional brilliance. He took Silk in 1994 and was appointed a Deputy High Court Judge in Importantly, so far as the Bar is concerned, he became Chairman of the Intellectual Property Bar Association, but then, unfortunately, the Lord Chancellor took him away after only a short time as Chairman of that important association. He was described on his appointment as the patent star. Well, I wouldn t know a patent star if I saw one (Laughter) but I read it in a book. (Laughter) And so he came to the High Court Bench in Then, of course, he sat in the Patents Court and became a senior judge there. But it was thought a good idea to widen the horizons of the patent star and so he became a Chancery supervising judge on circuit in Wales, the Western Circuit and the Midlands. That gave him a taste for life in the country, and, if I may say so, a great deal of warmth and affection followed him in the short time that he was there. I do not think being a Chancery supervising judge is the test. It is nothing like the great moment for a Chancery Division judge when, never having sat as a Recorder, we asked him to come and sit here in the Court of Appeal, Criminal Division. That was right up his street! (Laughter) But he participated in a very important decision which required his brain power Low Template DNA evidence. The rest of us would have all been at sea without David. He could do crime; he could do anything. So it was thought he had better come to the Court of Appeal and here he is. We have acquired in the Court of Appeal a judge of very high standing, who will confirm the international reputation of our Patents Court in litigation which takes place over patent questions, and in the Court of Appeal we have acquired, too, someone who will be the kind of all-rounder that we need all the time. Lord Justice Kitchin is immensely welcome to the Bench of the Court of Appeal.

3 Mr. Alexander? MR. DANIEL ALEXANDER QC (8 New Square): Kitchin. My Lords, my Lord Lord Justice The Bar is always delighted to join your Lordships in welcoming those who have been elevated to the Court of Appeal. It is a privilege for me, on behalf of the Bar and indeed all of the legal professions concerned with intellectual property, including solicitors, patent agents and patent attorneys, to adopt what your Lordship has said and to wish Lord Justice Kitchin well as he embarks on his new responsibilities. (Laughter) I was, perhaps in echoes of the Prime Minister, particularly urged to change my speech just before delivering it by the President of CIPA, who was particularly concerned to say that those other than the Bar extended a particular welcome to Lord Justice Kitchin. My Lord, as one of your former pupils, I have a particular pleasure in adding a few words to those of my Lord, the Lord Chief Justice. There are many here who have benefited from your Lordship s guidance and education over the years as a leading advocate and as a judge. In welcoming you to the role of perhaps the principal intellectual property specialist in this Court, the question on everyone s lips is whether your appointment heralds any change in approach. (Laughter) As the Lord Chief Justice has said, you have followed closely in Lord Justice Jacob s footsteps as the leading junior and silk at the patent bar, the senior judge of the Patents Court, and the Chancery supervising judge for the Midlands, Western and Wales Circuits. I venture to suggest that, with your appointment, unchanged will be the wholehearted commitment and energy which you will devote to this task. Many of us believe that, in an attic somewhere in this building, there is a picture of a man, ghastly, haggard and old. There must be because no other explanation exists for the fact that Lord Justice Jacob left office looking and some say behaving even younger than when he took up the position. (Laughter) That regime may be a regime but it is not ancient. Unchanged too will be the commitment to seeing UK law in its European and indeed international context. Here, your Lordship s finely tuned diplomatic skills may be, and let me put this diplomatically, particularly well suited to the task of dealing with the challenges that these European influences throw up. Your Lordship s predecessor s approach to references to the Court of Justice might be described on occasion as sometimes more hortative than inquisitive, the real doubt, for the purpose of the acte claire doctrine, being not so much what the correct view of the law was, but whether the Court in Luxembourg could be persuaded to share it.

4 (Laughter) I venture to suggest that your Lordship is more attracted than your predecessor to a more modestly inquisitive approach, not least because, when it comes to references, the law reports are littered with illustrations of the wisdom of the maxim Be careful what you ask for. Unchanged also will be the efficiency, robustness and speed of appellate decisionmaking in intellectual property matters, for which this country is renowned although, as regards robustness, your Lordship has always been able to do a better impression than your predecessor of taking hopeless arguments seriously. (Laughter) That is a reflection of a fundamentally attractive aspect of your Lordship s character: it pains you to say that people are wrong. And on the subject of speed, your Lordship s elevation to this Court has been swift. You were appointed as a High Court Judge only in 2005, and as senior judge of the Patents Court in In that comparatively short time, you have engaged with some of the leading issues in the field. You decided Generics v Lundbeck, now the leading case on insufficiency. I suspect there are many gathered here who still think you were right on that one (Laughter) though perhaps not all. (Laughter) You decided Lily v HGS, a complex case concerning biotechnology on which a decision from the Supreme Court is awaited. You have grappled with employee ownership of inventions and supplementary protection certificates, giving leading judgments on each. No one has entirely escaped from excluded subject matter. On copyright, your decision in Premier League is a magisterial survey of fundamental principles on which the Court of Justice has just delivered its front page news judgment. That case is perhaps of particular interest to members of this Court because the Court there decided that a football game could not be the subject of copyright inter alia because it just involved following rules calling into question the subsistence of copyright in the judgments of this Court or at least those upheld on appeal. (Laughter) You decided the Newzbin case, which also made the news. You have given significant judgments in trade marks, including recently on comparative advertising. You have reflected on the law in the leading trade mark text, Kerly, to which reference has been made, and in other writings. One recent paper is entitled How much for how little. It is, perhaps surprisingly, not about the bills of counsel s costs presented to your Lordship for assessment (Laughter) but about the approach of the law to wide monopolies in exchange for narrow contributions to a technical field. It is characteristic of your Lordship that you end with a question as to whether the approach of the higher courts has done insufficient justice to the requirement for fairness. Patent practitioners, who used to be the back-room nerds of the law, are these days told that it is the industries to which they devote their professional lives that drive the nation s prosperity. You, my Lord, are perhaps now primus inter pares in giving the steer in this area. And while speaking of pares, we are fortunate to have an ideal combination at appellate level of courts which mix judges who are specialist in the subject at hand with those

5 who come from different perspectives, preventing areas of the law from becoming inward-looking provinces, while preserving the specialist knowledge required to decide some of the most complex cases. In that spirit, we look forward to your bringing your skills to bear in other areas. You have made a start, with judgments such as Dance v Savery, concerning the register of common land. My Lord the Master of the Rolls said, on his appointment to the Patents Court some years ago, that he looked forward to turning from an intellectual property lawyer with a comma to an intellectual property lawyer without one. Perhaps your Lordship will move the other way and put a comma in. (Laughter) Your expertise has already been seen in wider fields than the Chancery Division, as the Lord Chief Justice has indicated. You have sat in an important criminal appeal involving issues of Low Template DNA evidence. A well-known appellate judge, who had better remain nameless, said to me once that one of the joys of the job was the opportunity it provided to poke one s nose into other people s business. (Laughter) We hope that you will turn your Lordship s nose for justice to other areas, where it is in demand. In your Lordship s diligent application to serving the interests of justice, you have been supported by your family, in particular your wife Charlotte, who I first knew as an unapproachable musical goddess at the school we both attended. She has kept your spirits up in rare moments of doubt. Not that they generally need much upkeep for you are one of the most positive-spirited individuals one could wish to meet. You look forward when everyone else on the team is looking backward, a tendency doubtless honed as cox of a Cambridge boat in your youth. (Laughter) You are very much your own man with your own views and your own distinctive style of judging, which has been much appreciated at first instance. As practitioners, we all look forward to assisting you in your work and to continue to receive from you, in return, the valuable education we deserve. This Court is lucky to have you and, on behalf of the legal professions, may I wish your Lordship a successful and enjoyable career in it. THE LORD CHIEF JUSTICE: Thank you very much, Mr. Alexander. Thank you all very much for coming. -