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Hodge Malek QC
Hodge Malek QC was appointed as a Fee-paid Chairman of the Competition Appeal Tribunal in 2013. He also sits as a Recorder, is a commercial law barrister, academic author, and member of the Inns of Court Conduct Committee.
“All of my experience – as a lawyer, writer and committee chairman – comes together in my judicial roles. A lot of law in courts and tribunals is really the law of evidence and case management. Being the general editor of Phipson on Evidence has helped me to have good working understanding of the law of evidence and this has helped me in my role as a judge in both criminal and civil cases.
“When you join the Competition Appeal Tribunal you are asked to give a lecture to the other members. I gave a talk on disclosure. This gave me the opportunity to review all the cases of CAT on disclosure and to present my views as to how practice in this area may develop in the future. The importance of disclosure in all types of cases is well known, but it is important that its costs are not disproportionate to what is at stake. Disclosure can involve hundreds of thousands of documents, both in hard copy and electronic form. It can be a lot of work, for little result and great cost if it is not handled properly. Most cases are not about fine points of law; they are about fact and what evidence is admissible. So every judge should have a firm grasp of the law of evidence and disclosure. As the jurisdiction of the CAT over private enforcement actions is enhanced, with the proposed introduction of stand-alone claims and opt-out collective redress, issues of disclosure will assume more importance in the CAT than at present.
“I love sitting as a judge. I have sat as a Recorder for some years, and also on various disciplinary committees. I feel it is the most satisfying part of the work I do. If we had professional judiciary in the country where one joins the judiciary after university as a distinct career path, such as in civil law jurisdictions, I would probably have gone down that route.
“The fee-paid Chairman position is challenging as there is a mixture of regulatory work – and I do a lot of that as a barrister – and economics. I was attracted to it because the work of the tribunal is high quality. The tribunal is also run extremely well and has a first-rate reputation. When a case comes into the tribunal it is allocated to a Chairman and two members and they look after it from beginning to end, so the case management is very good.
“The selection process for the role is difficult in the sense that you have got to sell yourself in an application form. Some people like to sell themselves. I don't, but I accept that applicants should be assessed by identifiable criteria in order to work out who is best for the position. Before the interview day, I was given some materials on competition cases and rules. Then on the day, I was left for 45 minutes with a problem which related to that material. It is a pretty good way of testing someone as this is how it works for a judge in court – they look at the papers in the morning and then should be ready to deal with the cases. In the interview they ask all the right questions and are very probing. The interview itself was conducted in a friendly manner and applicants need not be put off by the selection process.
“As a judge you see all sorts of different people with real problems. Judges have in the past been criticised for not living in the real world, and for being elitist and I feel that we are getting away from that. Being a judge is such a rich experience. You have got a lot of responsibility and all you want to do is make sure everyone has a fair hearing and the result is just.”