Eligibility for judicial posts to be widened for trademark attorneys

United Kingdom

The Tribunals, Courts and Enforcement Act 2007, which received Royal Assent on July 19 2007, will enact revised minimum eligibility requirements for appointments to judicial office in the United Kingdom. Insofar as this relates to patents, trademarks, designs and related IP issues, non-lawyer trademark and patent attorneys will be allowed to undertake judicial roles subject to certain restrictions.

The position prior to full enactment, which appears to be taking place on a gradual basis (see The Tribunals, Courts and Enforcement Act 2007 (Commencement No 1) Order 2007), is that only a qualified solicitor or barrister with rights of audience to the requisite judicial level and who has been qualified for more than seven years can undertake such roles. This has been criticized for being overly and unnecessarily restrictive as to the type of candidate who may hold judicial office. Consequently, a consultation paper entitled "Increasing Diversity in the Judiciary" was published by the Department of Constitutional Affairs (now the Department of Justice) in October 2004. Its findings included the following:

  • The current approach excludes members of certain legal professional groups who may possess the requisite skills, knowledge and experience required to perform well in judicial office. People who are not barristers or solicitors are more likely to come from a broader variety of backgrounds.

  • Solicitors and barristers may become eligible for judicial appointment by simply being qualified for seven years despite the possibility that they have undertaken no relevant legal work.

  • The period of time for which a qualification must be held is too long and is prohibitive for people who joined the profession later in life.

The new act sought to address these points by removing the requirement that a candidate have 'advocacy rights' to take a judicial post and replacing it with the requirement of meeting the 'judicial appointment eligibility condition'. The minimum post-qualification period has also been reduced (Section 50 of the act).

The 'judicial appointment eligibility condition' requires that the individual fulfil two criteria: he or she must hold a relevant qualification and gain experience in law. A relevant qualification is one that has been given by a body authorized to conduct litigation under the Legal Services Act 2007 (which is not yet in force); such bodies will include The Chartered Institute of Patent Attorneys and The Institute of Trademark Attorneys. As a result, patent and trademark attorneys may take judicial posts under the new act. To satisfy the 'experience of law' test, the candidate will have to gain post-qualification experience of law for the qualifying period. As it relates to trademark and patent attorneys, the minimum post-qualification period is five years. Furthermore, there will no longer be a requirement that the legal experience gained be from full-time or paid work.

The act will amend a raft of legislation, including the Copyright, Designs and Patents Act 1988 (Section 145) and the Trademarks Act 1994 (Section 77), and will replace the previous minimum requirements to hold judicial office. When the act comes fully into force, the 'judicial appointment eligibility condition' will also be the test for individuals seeking to chair copyright tribunals and become appointed persons able to hear appeals from decisions of the Trademarks Registry at the UK Intellectual Property Office.

Henry Burkitt, Hammonds, London

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