Mark Baldwin: Deputy Upper Tribunal Judge Tax and Chancery Chamber

Background

I was the first member of my family to attend university. After spending my entire life up until then in small Northern cathedral cities (York, Durham and Chester), I finally went to London (for almost the first time) as what was then called an articled clerk in a City law firm. I thought I’d stay a couple of years and then go back to God’s own county, but I’m still here more than 40 years later!

Since qualifying in 1987, my practice has focused on non-contentious tax advice, principally in the fields of private capital funds and investments, real estate and areas where partnerships (and LLPs) are used as business vehicles. For several years before I became a fee-paid judge I was the Chair of the Tax Committee of the British Venture Capital Association (BVCA), which involved commenting on tax policy proposals and draft legislation from the UK and EU. In all that time I had no contentious experience – not even a litigation seat as an articled clerk!

The application

I’m not sure anyone ever feels completely ready to apply. I certainly didn’t. However, I decided to for two principal reasons. First, I was keen to use my skills and knowledge in different ways. Second, I was attracted by the idea of being involved in making decisions about how the law applied in particular circumstances, not just advising, and (in a modest way) contributing to a determination of what the law is in cases of uncertainty.

Before I applied in the competition for the Upper Tribunal, I had been unsuccessful in a couple of general (not tax-focused) competitions for the First-tier Tribunal, so I wasn’t feeling overly confident.

However, I remember the competition advertisement specifically focusing on applicants with a tax advisory (rather than contentious) background, and that made me think that I might have some relevant skills and experience. Also, my work with the BVCA (which involved a lot of dialogue with HMRC/HMT officials) made me think that I could apply my skills and knowledge in different contexts, not “just” in giving advice to clients and helping them with their transactions and structures.

The first point to make is that the JAC process is unlike any private sector recruitment exercise applicants are likely to have been involved in, not least because it runs over several months with long gaps between each stage. By the time I got the result, I think I’d almost forgotten I’d applied!

When I first applied for a judicial role, I hadn’t applied for a job for over 35 years, so the process of filling in any kind of application form was quite alien. Also, the application form is quite unlike a more traditional CV-based application, so it may feel strange for many applicants. Whilst it asks for a career history, by far the most important (and most difficult) part of the application form is the self-assessment. I had never encountered anything like that, even as a recruiter. It’s important to give this part of the form a serious amount of time and attention, carefully choosing focused examples which best illustrate your relevant skills and abilities. It’s natural to feel reticent about “blowing your own trumpet” but you do need to show how you stand out in what could be a crowded field.

Not everyone who reads your application form will have a legal background, so I found it useful to “test drive” the form on various long-suffering family members to make sure that what I’d written was jargon free and clear to a non-lawyer, and that the tone was confident without being arrogant.

I rather enjoyed my selection day. There was a technical exercise for which we were sent some materials, so we could prepare in the same way that a judge would for a hearing. Again, it’s important to be thoroughly on top of that. But don’t do any last-minute revision, like I did – that material was all I could think of for the first quarter of an hour or so and everything else was a blur. You will almost certainly be challenged about something you say in the exercise. Don’t be put off by that. I got drawn into what felt at the time like an application-ending discussion about something I’d said, but it clearly wasn’t as bad as I thought!

The rest of the selection day focuses on skills and abilities, so it’s important to be on top of what you wrote in the application and be able to expand on that and fill in any gaps.

The role

Although my professional background is almost entirely in tax, albeit recently largely in the context of fund management, which is a regulated activity, I have ended up doing quite a lot of financial services work of various types. It wasn’t what I expected to be doing when I applied or was appointed. The issues are very different from tax, but it’s something I enjoy.

The tax work is also much broader that I was expecting. I’m not quite sure what I was expecting here, but I definitely wasn’t expecting my first appeal (one for which I was the principal drafter of the decision) to be about petroleum revenue tax, which was not a tax I’d encountered before.  I think I knew it existed, but that was about the extent of my prior knowledge! Other appeals I have been involved in have dealt with taxes as varied as VAT, SDLT, employment taxes and customs duties, as well as technical procedural issues.

In the tax jurisdiction, judges never walk alone. You will always have a more experienced colleague (a salaried Upper Tribunal judge or a High Court judge), who will take the lead in managing the hearing and with whom you’ll jointly prepare the decision.

Writing an appellate decision is very different from writing a piece of professional advice or even a first-instance decision, but there are opportunities for fee-paid judges to be the primary authors of decisions and plenty of help and guidance when you first come to do that.

Judges (including fee-paid judges) deal with applications for permission to appeal on their own, but these are dealt with largely (certainly initially) on paper, so there is plenty of time to seek advice from other judges.

In the financial services jurisdiction, judges sit with two members who are experienced financial services professionals. So, again, you won’t be on your own and will have colleagues with lots of relevant experience to talk to, but you will need to take the lead in running the hearing. Tim Herrington (the judge who led the financial services work at the time) gave me plenty of guidance before I first ventured out to do that.

The Upper Tribunal is a tribunal whose decisions can have a material effect on the development of tax and financial services law. For any lawyer who works in one of those areas, being involved in that process should be both exciting and a privilege. Its decisions can also have real, immediate effects on the parties, who may be facing large, unexpected tax liabilities or decisions which could end their careers or destroy their reputations. In a very different way, being trusted to be involved in that process is also a great privilege and responsibility. 

For anyone who is interested in these branches of the law,  their development, and wants to contribute to the resolution of significant disputes between private individuals or bodies and the state (loosely understood to include the Financial Conduct Authority), these appointments provide a rare  opportunity to get involved in these processes in a collegiate, supportive environment (so, “go for it!” if you’re interested).

As I indicated earlier, at the time I applied I was quite nervous about doing so and not at all sure, based on my previous experience, that I would ever be ready, but I’m very glad I did.