Civil Mediation Council

Sir Henry Brooke

A tribute to Sir Henry Brooke from Sir Alan Ward

It is with sadness that I report the untimely death of Sir Henry on 29 January 2018, my predecessor as Chair of CMC.  He was 81.

The bare bones of an illustrious career conceal his major contribution to the improvement of legal practice both here and abroad. He was called to the Bar in 1963, took silk in 1981, was appointed a judge of the Queen’s Bench Division in 1988, elevated to the Court of Appeal in 1996, retiring in 2006. He will, however, also be remembered for his ensuring progress to diversity at the Bar, of harnessing his enthusiasm for technology to revolutionise the handing down and publication on the web of all judgments, for his service as Chairman of the Law Commission and latterly for guiding Albania’s judiciary in their progress to legal reform.

I remember him as a good friend whom I got to know as we hacked around the County courts, magistrates’ courts and quarter sessions. We will not forget his enthusiasm for mediation and, as I look back, I recall how Henry and I once a long time ago, perhaps unwittingly conducted the first in-court mediation in the Family Division. Henry was acting for a very well-known comic actor, much loved on stage, film and television. I represented his former wife, herself a less well-known actress. The dispute, as I imperfectly recall it, concerned access to the children and it was bitterly contested principally because Henry’s client was utterly humiliated by his wife’s adultery committed not with another leading light of the profession but with her hairdresser! Henry sidled up to me to say his client could not face the prospect of a battle in court but wish to explain matters to the judge in the privacy of his room, an unusual request. The judge, the late Marven Everett QC, who had seldom ventured into the Family Division, was bemused but agreed. “I’m so distressed about all of this,” said the actor to the judge, “can’t you just please sort it out for us.” “I am sure it would help, your Honour,” said Henry. And so we began a judicial mediation, I like to think the first of its kind. As you will not be surprised to learn, we reached agreement.

In later years I had the pleasure of being out on circuit with Henry and his lovely wife Biddy to whom I offer my deepest sympathy. There was much laughter in the lodgings. Not long afterwards we were both in the Court of Appeal and I was fortunate in having Henry as my “winger” for that most anxious of cases, the separation of the Conjoined Twins Appeal in 2000 where the central issue became whether it was lawful or whether it would be murder to separate the twins knowing that the act of severing the common aorta would inevitably kill the weaker twin. Henry, drawing on work he had done in the Law Commission, was a tower of strength.

Tony Allen adds this memory to CMC’s tribute:

My first encounter with Henry was much more formal and possibly altered the history of mediation development in England & Wales. In 2002, Karl and I were invited to speak to an assembly of 28 Court of Appeal judges about mediation and civil justice, convened by Lord Phillips, then Master of the Rolls in the RCJ. We boldly asserted that it would not be long before a court would use the relatively new CPR to penalise a successful party for unreasonably refusing to mediate, as a sanction for unreasonable litigation conduct. This was a controversial idea in those days and had not happened before. In the front row was a tall judge with his eyes closed, wearing hearing aids in both ears, and I thought to myself "oh well, there's one lost cause, I suppose!” 11 days later, Henry Brooke ( for it was he, unbeknown to me) presided over the Court of Appeal in Dunnett v Railtrack ‚Äč and made just such a decision for the first time.  It shook the foundations of civil practice then and that decision remains one of the great triggers for mediation development, however much some other judges disagreed with it then. Karl and I count that as one of the most useful afternoon seminars we have ever conducted in terms of mediation development!’

Henry had to undergo cardiac valve surgery on 29 January 2018 but, alas, did not survive the operation. As his son tweeted, ‘The surgeons say my Dad’s heart was just too big: this won't come as a surprise to anyone who knew him.’ It is certainly no surprise to me. Here was a judge of great humanity, of prodigious energy, for whom nothing was too much trouble especially if it enhanced the sum of human happiness. The world of mediation has much to thank him for as he would be seen to have been a giant in the field. Farewell Henry, dear friend.