Joanne Wicks QC: Ahead of the pack

Jess Harrold meets Joanne Wicks QC to discuss her work as one of the leading barristers in property law, including her recent high-profile victories in major cases Franses and EMA Joanne Wicks QC loves her work. Her passion for property law has propelled her to the pinnacle of her profession and has brought her a string of accolades, including being named “Lawyer of the Week” by The Times in March this year, following her victory in two of the most significant property cases of recent years. The impact of Franses In December 2018, the Supreme Court gave its decision in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62; [2019] EGLR 4, involving section 30(1)(f) of the Landlord and Tenant Act 1954 (the 1954 Act) and the question of a landlord’s intention to redevelop. The court ruled in favour of the appellant tenant, represented by Wicks, and its judgment established that, in order to rely on ground (f) in refusing a new tenancy, a landlord must show not only that it intends to carry out the qualifying works, but also that it would do so even if the tenant left voluntarily. Wicks feels that the impact of the case will be considerable in the months to come. “We are starting to see decisions coming through,” she says. “Some of them are applying the Franses test in other statutory contexts where there is a similar test of intention, for example under the Telecoms Code. “It is clear that the impact has been significant. There has been a lot of talk about it in the industry, and what has been revealed, I think, is the extent to which landlords had previously been sort of ‘beefing up’ their schemes with lots of work that they wouldn’t otherwise have done, just in order to satisfy the 1954 Act test.” “My feeling is, like with a lot of important cases, there is likely to be a bit of a bulge of litigation as people get used to it.” [gallery type="slideshow" size="full" link="none" ids="1000559,1000565,1000561,1000564,1000560,1000563,1000562"] Brexit and frustration Then, in February, Marcus Smith J ruled, in Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 Ch; [2019] EGLR 17, that Brexit was not a frustrating event that would terminate the European Medicines Agency’s lease. Wicks represented the landlord, Canary Wharf, and had been preparing for the case to go to the Court of Appeal – however, the EMA withdrew its appeal in July. As a result, frustration of a lease remains only a legal theory, never yet achieved in practice. “Ensuring that the first instance decision is unchallenged has essentially reasserted the orthodox view that it is really, really difficult to frustrate a lease,” Wicks says. “If it had gone the other way – and while there was any realistic prospect of an appeal going the other way – then it opened up the possibility of lots of other tenants thinking, well, do you know what, Brexit is not so great for me, I think I ought to try and argue that my lease has been frustrated.” But while she welcomes the clarity brought by EMA on the question of leases, Wicks feels that question marks remain. “There are still other contracts of land leases out there which may be impacted by Brexit,” she explains. “And so, while we’ve got orthodoxy back in the leasehold context, it wouldn’t be surprising to see that there are arguments still to be made about the impact of Brexit in other contexts.” Listen to the full interview with Joanne Wicks QC Other business Her run of major victories continued at the Court of Appeal in April this year, in Churston Golf Club Ltd v Haddock [2019] EWCA Civ 544; [2019] EGLR 23 – a case concerning “this wonderful thing called a fencing easement”, Wicks says – and she hopes the next will be Duval v 11-13 Randolph Crescent Ltd [2018] EWCA Civ 2298; [2018] PLSCS 177, heard at the Supreme Court on 10 October. While she was not involved in the case before the Court of Appeal, she now acts for the appellant landlord. The case relates to a mutual enforceability clause commonly found in leases of residential blocks of flats where the landlord promises one of the lessees that it will enforce the covenants in the leases of other tenants. Wicks naturally enjoys arguing such important cases – and EMA in particular garnered widespread publicity (including her recognition in The Times). “There is obviously a frisson of excitement,” she says. “And who doesn’t love sending a newspaper piece to their mum and dad and saying, ‘Look what I’m doing!’ But the honest truth is that a lot of the work that my colleagues and I at the property bar do is for high-profile clients, involving interesting and difficult questions of law – it’s just that the cases don’t see the light of day, because they settle. So, it is just chance that you happen to be involved in a case which does go to trial, rather than one that stays under wraps and can’t be talked about.” Appearing in a case like EMA brings an “additional responsibility” to express yourself in a way to avoid being misunderstood by the general press, she adds, citing an example from that trial: “Early on, the judge said, ‘I’m going to assume a no-deal Brexit,’ meaning, look, I’ve got to test this question of frustration against the most extreme case. And that was taken up by some of the mainstream papers to mean that he was predicting that it is going to be a no-deal Brexit – which was not at all what he meant!” But, other than that, the increased media glare does not change the way she views her job. “If you go to trial or an appeal hearing for any client, you are absolutely committed and you want to do your best,” she says. “The fact that it’s high-profile doesn’t really make a great deal of difference to the arguments that you make.” At the end of the day, though, if you win in a major case, surely that comes with a sense of personal triumph – perhaps akin to sporting glory? “To be honest, I don’t have much sporting triumph to call on,” Wicks laughs. “I’m not sure that the egg and spoon race from primary school is going to count. But I think it is probably different from sporting triumph, actually. First of all, it’s really not an individual thing about the advocate – it’s a team effort. But also, how you feel about a win or a loss depends on what you thought was going to happen before you got into the case. “If you win a case that you feel sure you ought always to have won, it often doesn’t feel absolutely fantastic – it’s just a relief not to have messed it up. Whereas you can lose a case and feel great about it, because the judge has accepted one of your arguments, even though, overall, you have always been saying to your client, ‘You’re not going to succeed with this.’ So I think it’s not perhaps as straightforward as other victories and losses in the world outside the bar.” You have to understand that cases don’t usually fight unless there are two legitimate arguments. There are two sides to every case and so, on the law of averages, you probably ought to be losing 50% of your cases As for dealing with the occasional setback, Wicks advises that it is best to be phlegmatic. “I must admit I tend to take the defeats more to heart than the victories,” she says. “It is really easy to beat yourself up and think, should I have done something differently? What I have learned over time is that you have to understand that cases don’t usually fight unless there are two legitimate arguments. There are two sides to every case and so, on the law of averages, you probably ought to be losing 50% of your cases. “Also, the advocate doesn’t have control over everything. You can’t affect the quality of the evidence or how your witnesses give their evidence. The judge may come with a particular view about the law that you can’t dislodge. So, you have to be a bit relaxed about it. I was speaking a number of years ago to somebody who is now a High Court judge and he said, ‘The more senior I get, the less I think that I can predict accurately what a judge is going to decide.’ And I agree.” The Property Bar Association Outside the courtroom, Wicks is the current chair of the Property Bar Association (the PBA), which she finds hugely rewarding. “I love getting to meet people from across the property bar,” she says. “We are a pretty friendly bunch. The PBA is about supporting its members. We have educational events, we have social networking events, we do outreach – for example, our essay competition for students, which we run with EG. “We are always looking to find new ways to support our members. So, for example, we have a project ongoing in relation to wellbeing, conscious of the stresses and strains of being at the bar and how that impacts on people’s health and mental health. We are also in the process of setting up a scheme which will enable us to advise members and others on harassment or discrimination issues. So, it’s really about supporting the property bar in all aspects of their professional lives.” Diversity is also something in which Wicks has had a lifelong interest, having won a competition when she was 12 with a poem about the suffragettes. “The profession has started, but there’s still a way to go,” she says. “The bar is a very different place from where I started out in 1990. It has really changed – it is a more diverse place and there is more understanding of the importance of diversity, both in terms of providing a service to our clients and in terms of ensuring that we reflect the communities we serve. But I am not going to pretend that we are there yet. There is a lot of work to be done in all aspects of diversity. And that is definitely very much part of the PBA’s work as well.” Beyond the bar When not working, Wicks enjoys travel, often with “a bit of wildlife interest” – she is recently back from seeing grizzly bears in Canada – and her own personal wellbeing is found on two wheels. “I love cycling,” she says. “I am very much a leisure cyclist – I like to say that I go at chatting speed only. But I do go out with a couple of mates on a weekly basis, and that’s a really important part of my week, just to get out into the country lanes. I get a bit of fresh air, a little bit of exercise and, most importantly, a gossip at the end of it.” Recreational rider Wicks may not quite be at yellow jersey level on the road, but if the property bar had a peloton, she would be well ahead of it. To send feedback, e-mail jess.harrold@egi.co.uk or tweet @estatesgazette Portraits by Jon Enoch