http://ipkitten.blogspot.com/2019/07/sir-henry-carr-qc-1958-2019.html

Mr Justice Henry Carr, regaling us with stories
of the history of Anton Piller orders and trade
secrets at the Rolls Building in 2017

“Isn’t it much simpler than that?”, Henry remarked.  It was never really a question, more of a gentle statement to the other person that they were making a mountain out of a mole hill.  Henry Carr QC, or Mr Justice Carr as he later came to be known, had a particular knack for cutting through the “dross”.  But his greatest skill was being able to tell someone that they were horribly, obscenely wrong about something, in a way which made them like him even more.  And like him, we did.  Immensely.

Henry at the bar

After studying law at Oxford (first class honors) and earning his masters in law in Canada, Henry James Carr was called to the Bar in 1982 and took Silk in 1998.  His legal education was not lost on those in patent litigation who did not study science at university.  If anyone suggested that a technical background was necessary to do patent litigation, one need only say “but look at Henry, and he is one of the best silks” and then, later, “one of the best judges”.  No one could argue.  “He was one of the best natural advocates at the Bar”, explains Tom Mitcheson (Three New Square).  “I for one never stopped learning from him.”

Henry spent his entire career at the Bar near the beautiful gardens of Gray’s Inn at 11 South Square.
He was pretty much everyone’s favorite barrister.  “See if Henry is free and if he isn’t, try again!”, would come the instructions from partners and clients.  He was the ultimate “client whisperer”.  If you had a challenging client, steadfastly not listening to your advice, Henry was called in.  A dial-in detail was provided and then, a mere 20 minutes later, the advice that had been previously and consistently rejected will have been completely devoured by the client, with requests for seconds.  Brian Cordery (Bristows) shares these memories:

“Working with Henry as a barrister, whether as a Junior or a Leader, was always a rewarding experience.  He had an almost uncanny knack of taking arguments which had been developed to a point and making them sound like world-beaters in front of the Court.    Henry was also exceptionally good with clients, putting them at ease in the most challenging of circumstances with his charm and good humour as well as his razor-sharp analysis.”   

Tricky application on your plate?  Henry would swoop in and find your two best points, discard the rest with a “I am not going to address that”, and low and behold, your order was obtained.    As Mr Justice Arnold said in an interview with MIP,  “[he] was one of the leading IP advocates of his generation.” James Marshall (Taylor Wessing) said that “[h]is thinking was so quick, electric.  That, combined with a tremendous feel for how a court was reacting, or would react, made him a truly outstanding advocate.” 

Needed a laugh and a good story? Cue Henry who would regale an enraptured audience from the deceptively muted beginning  –  “It was like that time I was in…”  – to the invariably entertaining end – “…and then he ended up fleeing the country!”  Justin Watts (WilmerHale) said it was this humor and sense of fun that immediately drew people to Henry:

“Henry’s sense of humour always cracked me up.  I particularly enjoyed his tale of a challenge set by a fellow member of the Bar, that Henry could not work the word “Merovingian” into his submissions in the morning of a very complex patent trial.  The end of the morning approached, with no sign of a segue into medieval French history.  Finally, as the morning drew to a close, Henry said to the judge: “Well, judge, as Mrs Merovingian would have said, is that a convenient moment”.  And so he won the challenge, and the judge was left wondering who on earth Mrs Merovingian might have been. “

James Marshall agrees, “he had a marvellous sense of humour, with a most memorable laugh.”

A rite of passage for us lucky junior IP lawyers was being summoned to Henry’s room in chambers for a collaborative drafting session.  I, like many a junior lawyer before and after me, would usually be stationed at his computer, feverishly tapping away as he and his brain paced around the room, fluidly dictating a pleading, evidence or notes for a hearing. When you weren’t at his computer, you were sat across from him as you briefed, discussed and stressed tested points for a hearing.  You got to watch his mind at work, as he listened to the excruciating detail in which junior lawyers are immersed and then quickly convert and reduce the avalanche of facts into punchy, one sentence legal summaries.  “How does he do that?” a trainee once whispered to me.  “Magic…”, I shrugged. 

Henry at the bench  

When he went to the bench in 2015, lawyers and clients were thrilled.  His renowned skills at the Bar were easily transferred.  “[H]e remained as sharp in Court as he had been in practice, but never losing his courtesy and good humor,” says Tom Mitcheson.  “Henry’s clarity of thought and exceptional communication skills served him well as a Judge,” Brian Cordery recalls.  “His rulings – be it on legal issues such as plausibility or procedural issues such as confidentiality – are densely packed with common sense.”

Most importantly, Henry understood the commercial reason why parties went to court.  They wanted commercial solutions and a quick, efficient and flexible court service.  As Richard Vary (Bird & Bird) remarks – a direct user of the courts when at Nokia:

“I was impressed with how keenly he understood the need for the courts to provide a service to our industry and how courts can contribute to economic growth. There was never any arrogance that some judges have that parties are subservient to the court: he clearly felt that the relationship was the other way around. ”  

Lord Kitchin (UK Supreme Court) remembers:

“For many years Henry was the outstanding silk at the IP Bar: the person to go to for the most important and challenging cases. He fought like a tiger but with a forensic ability and lightness of touch that made him a formidable cross examiner and, for judges, an absolute delight to listen to. Henry then became a judge of the High Court and brought to the Bench all the brilliance, wisdom, energy and charm that were his hallmarks. His contribution to the law in only a few years as a judge was remarkable. But above all else I will remember Henry as a loving and generous friend with an enormous sense of humour. I am going to miss him more than words can say.” 

Henry, the person

But, it was his charm, kindness and humanity that makes this loss so great.   No pompous overtones or words you had to look up in a dictionary.  Did they misuse the trade secrets?  No, they “nicked” them.  Are there reams of correspondence, letters and evidence?  No, there is just “dross”.   Is a case “challenging to win with some untested legal arguments and less than robust evidence”?  No, “there is no hope in hell”.  He spoke to you like a normal person.  Like your brother, dad or friend.  And, as such, you immediately warmed to Henry.  Indeed, as Tom Mitcheson QC notes, “Henry was a friend to everyone in the IP community.  All of us who were lucky enough to work with him enjoyed his company.” “As well as being so brilliant and thoughtful,”  remembers Michael Burdon (Simmons & Simmons), “he was a very nice person – forever polite, generous, modest, fun and considerate.”

Henry on tour, often accompanied by his wife Jan, was a treat.  A bit more relaxed, and thus even more fun, we got the joy of him in New York, Cancun, China, Milan, Germany and even further afield.  Daryl Lim (John Marshall Law School and Fordham) saw Henry in action many times:

“Sir Henry’s legacy in IP law will be defined by more than the sum of his work as barrister and judge, great as those were. He embodied civility, professionalism, and kindness. He displayed these qualities with aplomb whether delivering a memorable Christmas keynote address to an enraptured crowd, or whether he was listening intently as you spoke across a tiny dinner table. Abroad at the Fordham IP Conference, his words, always spoken with a measured cadence, illuminated and guided us through many complex IP developments in the UK as well as the E.U. more generally. When he spoke, we listened. May his life and legacy continue to inspire us all.”   

Always with a sense of adventure, it didn’t take much convincing over drinks in New York at Fordham last year to encourage him and Jan to come to Cancun, where AIPPI was holding that year’s World Congress.  Richard Vary “enjoyed chauffeuring him around the Yucatan peninsula after AIPPI and then losing horribly to him at pool!”

Henry died last week at the age of 61.

The news of his untimely death has hit the IP profession hard.  I struggle to put into words what Henry meant to me as an IP lawyer.  He watched me grow from a tiny trainee tentatively directing him to documents in bundles, to a senior lawyer leaping across desks in his courtroom to slap post-it notes on barristers.  Like so many, I have never known my IP career without Henry.  As such, I can only think I am struggling because I cannot believe or accept that he is gone.  There won’t be any more jubilant mini-catch-ups on the latest IP intrigue at the next London IP event.  There won’t be any more court appearances where we get to enjoy Henry gently raising eyebrows at a party’s submissions (good or bad), while shooting a glance at the other party to gauge their reaction.  There won’t be the sound of the distinctive laughter emanating from a circle of engrossed, dark-suited IP lawyers.  Lord Kitchin put it simply:  “We have lost a wonderful and remarkable man”. 

But although we have lost much in his passing, we were gifted with so much more by his presence.  His fierce intelligence and fiercer kindness, his passion for law and litigation and his humor and humanity.  Henry inspired generations of lawyers to pursue IP with the same sense of passion, fun and purpose that he brought to every aspect of his career and life.  His legacy and our memories will continue for generations.   

“I will miss him dreadfully.”  We, like Mr Justice Birss, will and already do.

On behalf of the IPKat team and members of the IP community across the world, our heartfelt condolences go to his wife Jan, his children, friends and colleagues.

___________________________________________________________

More Memories

“Henry was both a lovely man and inspirational. He is a huge loss to his family and friends, and also to the IP community in the UK and around the world.”

– IP Partner (London)

“I am one of few practitioners (left alive I suspect) who remember the huge number of proceedings under the 1977 Act relating to patents granted under the old 1949 Act and endorsed” licences of right”.Under the ’77 Act these patents had their term extended automatically from 16 years to 20 years.However the then government (Patent Office) ,thinking this extension was a gratuitous gift, to patentees decided as, a compromise, to subject the patents in return for bonus years, to automatic endorsement. For most patentees this was not a matter of great significance but it was soon realised by the pharmaceutical industry that the last few years of their extended monopoly (and by far the most profitable years) was being eroded. By the same token the then fledgling generic industry realised that here was an amazing pot of gold for those generic companies that got these licences. I had the pleasure of acting for many of the big pharma companies in fighting fiercely about the terms of the licences and all the big barrister guns were duly lined up with some cases going to the Court of Appeal, the House of Lords and later to the ECJ. Against us in many of the cases, at all levels, was the young barrister Henry Carr . He did a tremendous job for his clients and was a constant source of frustration to us all on the other side. I later worked with Henry and found him a delight. I am very sad.”

– Kevin Mooney (Simmons & Simmons)

“I am deeply saddened and shocked. Henry was a brilliant, highly respected advocate and Judge, and leading light of the profession. He had a remarkable intellect. Most important of all, he was a lovely, kind and modest person, and he had true integrity. He will be missed sorely by us all. My thoughts and condolences are with his family at this extremely difficult time. I worked closely with Henry, whilst I was IP Federation President (2012 to 2014). Henry’s brilliant advocacy and strategic thinking at the time helped us to shape UK HMG IP policies and legislation positively in the area of designs for example. Henry’s views carried real weight at the time in the IP world. This notably culminated in a positive UK IP Act 2014. Henry’s brilliant unsung contribution to the UK IP framework in this regard greatly benefited UK business in practical terms. Characteristically, Henry never claimed any credit for what he had done, and he always down played his contribution.”

– Bobby Mukherjee (BAE)

“Henry was incredibly generous with his time and attention, including to those at the outset of their careers. The delight he took in his work was unmistakable, and I will always be grateful for the encouragement and practical guidance he shared with me, as a then undergraduate law student with an interest in intellectual property. “

– Ellie Wilson (Trainee Solicitor, Virtuoso Legal)

“I knew Henry since 1986, but only started to work with him properly in the 90’s. Two patent cases from that time we worked on together stick in the memory, when he was a leading junior and the sole barrister on the case. I remember coming to his house in Fulham, one weekend in 1996, notionally at least to assist on a skeleton. We sat in a very light room Henry found ideal. I am not sure what contribution I actually made, but I certainly valued Henry’s collaborative approach. He was very good to work with. Always quick to praise when he felt that was deserved. It was genuine, never flattery. When he did not agree with a course he was diplomatic, kind, persuasive and, above all, no doubt right. Never critical. Henry would always see the positives, but was realistic. He served his clients very well. Immensely popular, universally liked and respected.”

– James Marshall (Taylor Wessing)


If you would like to share your memories of Henry, post them in the comments below or e-mail me. They will be collected and passed on.

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