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Sir Nicholas Pumfrey QC – Obituary

Sir Nicholas Pumfrey died suddenly at home following a stroke early on 24 December 2007. He had recently been promoted to the Court of Appeal and was universally liked and admired. He was widely expected to be further promoted. His death is a tremendous shock to his many friends and colleagues who are still struggling to come to terms with the fact that he has gone.

Nicholas was born on 22 May 1951, the son of Peter and Maureen Pumfrey. His father was a successful solicitor. Nicholas was educated at St Edwards School, Oxford, and then at St Edmund Hall, Oxford, where he initially read physics on an industrial scholarship from the CEGB graduating in 1972. He was an outstanding student but realised that he did not want to practise science and took a second degree in law in 1974. In the summer of that year he moved to London to read for the Bar finding a flat in a beautiful Victorian villa overlooking Clapham Common which remained his London home for the rest of his life. Then, he shared it with friends and it was only half the size it eventually became when he bought the adjoining flat and combined the two into a magnificent apartment.

Even at that age he cut an imposing figure, a large man with a shock of blonde hair. His charming manner and extraordinary learning were already evident. He was then as he remained throughout his life a warm and gregarious man who enjoyed socialising and the company of friends. He could talk for hours on any subject with remarkable knowledge and insight.

After being called to the Bar in 1975, Nicholas joined the chambers of Geoffrey Everington QC which had recently moved to 11 South Square, Gray’s Inn. There he was a fellow pupil with Christopher Floyd and Henry Whittle.

The Patent Bar was not as active in those days as it is now and there were significant periods when they had less work than they would have wished. They taught law to bring in funds and adopted varying devices to while away the time. Nicholas was always happy dissecting anything mechanical and he and Henry spent one summer restoring the chambers clock. He also had an LE Velocette motorcycle which spent many years as a project in his shed.

After the slow start Nicholas’s practice at the bar rapidly flourished and he developed a reputation as a powerful and and effective advocate. As a junior he appeared in a number of ground-breaking cases, such as RCA v Pollard when he persuaded the Court of Appeal to dismiss an action for breach of performer’s rights summarily, an impressive feat when there were several points of considerable legal difficulty in the case. His talents were recognised when he was appointed Junior Treasury Counsel in 1987, a post he held until he took silk in 1990, at the early age of 38. As a leader, his skills were regularly in demand. But it became clear that he was destined for greater things and the only surprise when he was appointed as a Judge of the Chancery Division in 1997 was that he had achieved this at only 46. He served as a Patents Judge until November last year when he was deservedly promoted to the Court of Appeal.

Nicholas was active in the world of intellectual property not only as a judge of the Patents Court but also internationally. He was the only English judge to be appointed as a member of the enlarged Board of Appeal of the EPO. He lectured regularly to international conferences. And he was active in the creation and promotion of the European Patent Litigation Agreement (EPLA). It is to the considerable shame of the politicians and bureaucrats of Europe that in the face of the concerted efforts of industry, the European judiciary and legal profession to create a single forum for patent litigation in Europe, we are still no closer to its introduction.

His premature death is a tragic loss not only to the world of intellectual property but to the law as a whole. As the obituaries in The Times and in the Guardian have noted, Nicholas’s legal expertise and understanding ranged far beyond the confines of intellectual property and his innate sense of justice and fairness led him inexorably to the right conclusion in difficult cases in disparate fields. His decisions in the Prince Jefri (breach of confidence and Chinese walls) and Gore-Wood (abuse of process) cases were notably restored by the House of Lords having in each case been struck down in the Court of Appeal. It was in the world of intellectual property, however, that he was without peer. Rarely can both sides in a complex technical case have had a strong preference for the same judge, With Nicholas, this was common. In recent years he was the tribunal of choice for the extensive litigation concerning mobile telephones. He created the jurisdiction to make declarations as to essentiality under the ETSI mobile telephone standards. That jurisdiction having been confirmed by the Court of Appeal in two unsuccessful appeals against his rulings, he delivered his first and final substantive judgment on that question on his last sitting day.

He was a fine adjudicator. His judgments were clear and easy to follow. As a result, they rarely contained significant errors. He was perhaps at his best when called upon to make interlocutory rulings in lengthy trials. His ability to marshall and summarise the relevant facts ex-tempore and to reach an appropriate and sensible conclusion were awe-inspiring. Some said that he was too fond of discursive discussions during hearings but that reflected his desire to get to the real issues quickly. He sometimes took a long time to write his judgments. This almost certainly came from his overwhelming desire to reach the right conclusion.

But it was his technical expertise which regularly took one’s breath away. There was not an area of technology which he seemed unable to absorb and understand with an almost unerring facility. It was not unknown for him to spot the flaws in an expert’s evidence before the expert; and only Nicholas could have described an expert witness’s conclusion on a matter of complex technical fact as “surprising” with the pinpoint accuracy with which he did in his final judgment. He was well known for his huge expertise in the field of computing. When the rest of us were struggling with Microsoft’s early products, Nicholas moved to unix. He ran a network at home and a full unix system in chambers, connecting them together through a private telephone link when this was unknown outside large specialist organisations. He used complex publishing software to produce his written work, being wholly dissatisfied with the crude word processing programs then available. His knowledge and learning in the arts were also extensive. He would discuss music and literature with considerable expertise. A true polymath, he loved learning for its own sake.

Personally, Nicholas was a private and complex man. Even those who had been his friends for many years knew relatively little of his emotions. Throughout his life he avoided intimate relationships and compartmentalised his friends. He was, as Robin Jacob noted in the Guardian, undoubtedly chronically shy. Despite his traditional style and imposing appearance he was entirely unstuffy and approachable with a penetrating sense of humour. Throughout his time at 11 South Square he could be relied upon to keep us entertained at tea. He was regularly consulted by all of us for advice and guidance on difficult cases and issues. His door was always open and he was more than willing to help.

In his youth he was a keen cyclist and toured France by bicycle with his great friend from Oxford Julian Currall on several occasions. He kept a proud memento of one of these tours on display in his room: a photograph of himself grinning broadly in full lycra standing beside the sign for the town of Largeasse. His collection of bicycles was legendary. At one time there were no less than six, all lovingly handbuilt and carefully maintained by him. He cycled to and from chambers for many years, giving it up eventually after concluding that it was too risky to life and limb.

Nicholas was a committed Francophile. Whilst still at the bar he purchased a small farm in the south of France and set about turning it into his real home. He spent all the time he could there and regularly welcomed visitors. It was there that he kept bees and hunted truffles. He visited his old chambers frequently after his appointment to the bench and kept in close touch with all his former colleagues at the bar. His last visit to 11 South Square was for tea on the Friday before Christmas when he came to deliver presents for his Godchildren there and to chat. He was on sparkling form and looking forward to a new year in the Court of Appeal. Throughout his life he was universally liked and admired. He will be sorely missed by all who knew him.

Nicholas Richard Pumfrey, Born 22 May 1951, BA Phys 1972, Law 1974, Called to the Bar 1975; Junior Counsel to the Treasury 1987-1990; QC 1990; Knighted 1997; Justice of the High Court Chancery Division 1997-2007; Lord Justice of Appeal 2007; died 24 December 2007.

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