Lunch and speech celebrating commercial litigation in Liverpool
Mrs Justice Cockerill with HHJ Cadwallader and Vice-Chancellor of the County Palatine of Lancaster Mr Justice Fancourt on her visit on 3 May 2022.
Judge in Charge of the Commercial Court Mrs Justice Cockerill visited Liverpool Circuit Commercial Court for a lunch with local commercial practitioners.
In the afternoon she visited Liverpool Law School and delivered a speech celebrating the contribution of Liverpool and Liverpool judges to commercial litigation and the Commercial Courts.
Her speech can be read in full below, and is also attached as a PDF (with footnotes).
Liverpool University School of Law
Tuesday 3 May 2022
Keynote Speech:
Liverpool:
Its contribution to commercial law and the Commercial Courts
Introduction
It is a great pleasure to be here – indeed I will confess that I positively harassed HHJ Cadwallader to put on this event, because I so much wanted to give this speech! And the reason is that – ironically given that Liverpool has only just recently got its own Circuit Commercial Court judge – Liverpool, its businesses and the work that came from them runs through the history of the Commercial Court like the name in a stick of rock.
There is indeed far too much to say to cover it all this evening. I will, for example, barely touch on one of Liverpool’s greatest lawyers FE Smith. I am in hopes that a future event led by Professor John Tribe may focus on him specifically. I will also draw heavily on the work of two other professors – Professor Ross Cranston and Professor Rob Merkin, whose recent books – respectively “Making Commercial Law through Practice” and “Marine Insurance – A Legal History” have much to say about Liverpool’s historic role as a driver of British trade and the influence of trade and the disputes of trade in the development of English commercial law.
That is a very important subject because it has proved the foundation for this country’s success as a centre for international commercial litigation and arbitration – and hence for a legal business whose value runs into many billions of pounds in value every year.
I make this point with considerable confidence because repeated surveys of why international litigants chose to litigate here identifies as one key factor the clarity and certainty of English commercial law – the fact that it is possible to get clear advice as to merits and make sensible commercial decisions about fighting or settling commercial disputes. We see that in research by MoJ in 2015 which asked litigants the reasons for choosing London1 and the NLJ/LSLA’s recent “Litigation Trends and Predictions” survey.
So I would like to spend the first part of this talk looking at Liverpool’s contribution to the development of those principles. along the way of course we will have to deal with some of the more unattractive features of Liverpool’s commercial past. And trust me there is more than one such!
Liverpool: Its contribution to the development of Commercial Law
I will come onto slavery but before I do so I should note that that trade and the vibrant navy which first supported and then helped drive it out of existence was itself dependent on a another unattractive practice – impressment. And there is a rather nice Liverpool based story in Prof Merkin’s book. It concerns the events of 1755 concerning the naval vessel Winchelsea (1755) Burr 367. That vessel was instructed by the Admiralty to impress seamen – our navy depended on impressment and seasoned sailors were in fact preferred. Its captain, Captain Drake, learnt that the merchant vessel Tarleton was due into Liverpool from Guinea and instructed a number of his crew to intercept her and to impress the crew. The barge carrying the men was met with a threat of armed resistance, and the response to a demand to pay respect to the Crown was met with a volley of small arms, causing minor injuries and damage to the barge’s stern post. An armed attempt to board the Tarleton was repulsed, and the vessel managed to reach the port where the crew disembarked and vanished. The result was that the captain and boatswain of Tarleton was held to be liable to prosecution in the Admiralty, although simply on the basis that the captain did not prevent his men from acting as they had. In positive terms he had apparently done no more than wave his hat in a contemptuous manner. Of interest is the report of the events, which described the response of the crew of Tarleton as “insolent and outrageous”. Or as the locals would doubtless say – showing true Liverpudlian grit and spirit.
I can’t however keep the talk so positive. Liverpool’s name features again and again in the commercial cases from the C18 – way before the foundation of the Commercial Court – and these cases inform the development of the commercial law which the court was founded to apply. But one of the slightly terrifying things about tracking back to the early commercial cases is seeing to what extent the civilised edifice of modern commercial law builds on some of the worst aspects of the commercial world of each era.
Gregson v Gilbert
So let me give you an example: if I look in a textbook I may find this anodyne line: loss caused by or the perishing of a cargo following delay due to the negligence of the crew is not recoverable under a cargo policy that does not cover loss by delay. The case cited Gregson v Gilbert, (1783) 3 Doug 232. So far so dull, you might think?
This case is so awful that it is often said to have been the catalyst for slave trade abolitionists. The vessel Zong was taken as a prize along with a cargo of slaves off the Gold Coast in February and was with her cargo of slaves sold to a syndicate of Liverpool merchants represented by William Gregson, a former Lord Mayor of Liverpool and one of the leading slave traders in the city. For of course one of Liverpool’s less proud boasts is the importance of the city to the slave trade. Bristol and London also bear this stigma, but in the latter part of the country’s involvement in that trade it was Liverpool which was the busiest centre for that three cornered trade.
The Zong embarked on Middle Passage voyage from Guinea to Jamaica in August 1781. She was insured on the Lloyd’s SG form. The policy valued the vessel and cargo in total at £8000, the vessel for £2500 and each of the slaves at £30. The captain fell ill and was unable to carry out his duties, and he delegated his functions to one Mr Stubbs, a former slave ship captain fleeing the region in the face of allegations of fraud. Stubbs, in the belief that he was approaching Hispaniola and not Jamaica, steered away from the island. He was negligent in doing so. Had he not done so the voyage would have been completed successfully and without loss. However, by the time the mistake had been discovered, the vessel was at least three weeks away from Jamaica and becalmed with almost no water on board. 60 of the slaves died from shortage of water, 40 others through thirst threw themselves into the sea and were drowned. Most horribly the crew cast a further 132 chained slaves overboard, allegedly in order to preserve their own lives, the vessel and its remaining cargo.
The case was not (as that form of wording might suggest) a general average case, because the cargo was all owned by one syndicate. The main question in Gregson was whether the vessel had been rendered “foul and leaky” by perils of the seas. There was however also key analysis which informs later cases of the nature of a peril of the sea and the concept of jettison. And, as I have said, it still stands today as authority for a somewhat limited proposition about loss of cargo and negligence when there is no cover for delay. It continues to inspire writing about the slave trade – I recently read a novel which took the case as a central theme.
Syers v Bridge
Now one of the things about which I have spoken a great deal in the last couple of years when we have been celebrating the court’s 125th anniversary is how the impetus for the foundation for the Commercial Court came from the development of commercial law under the aegis of Lord Mansfield in the late C18. He sat with a panel of commercial men to advise him as to commercial customs and he developed principles of law which made English law attractive to commercial men. But I have found a very interesting Liverpool related example of his cutting up rough on evidence of “custom”, which is also still a leading case in its own right.
The case is Syers v Bridge (1780) 2 Doug 526 the Mary a privateer was insured under a policy made on 9 February 1779 “At and from Liverpool to Antigua, with liberty to cruise six weeks, and to return to Ireland, or Falmouth, or Milford, with any prize or prizes.” Mary sailed from Liverpool on 28 February, cleared land on 5 March, began the cruise on 7 March and for a week chased other vessels encountered by her. The direct voyage commenced on 14 March. The cruise was discontinued on 17 April but renewed on 23 April; and the Mary was herself taken by a French privateer on 28 April.
The dispute was as to how the period of the policy was to be calculated. The assured’s claim was (predictably) that only days actually spent in cruising were to be included, whereas the underwriters contended that the period was a continuous one starting from the first day of the cruise. Lord Mansfield’s view, was that the policy was to be construed as a voyage to Antigua but with deviation in the form of cruising to be excused for six weeks en route. Had the policy intended 42 separate days of cruising, it would have said so. In reaching that conclusion he rejected the “market” evidence called:
“unless an usage could have been shewn in favour of this desultory cruising, calling witnesses to support it, was calling them to swear to mere opinion. None of those produced knew of any instance, and, therefore, their evidence ought not to have been received. Yet, I dare say, their testimony had great weight with the jury.”
And this case has become one of the leading cases – still cited in McGillivray – on the question of admissibility of extrinsic evidence.
M’Iver v Henderson (1816) 4 M & S 576
Another example of Liverpool trade underpinning fundamental commercial law concepts is the famous case of M’Iver v Henderson – again highlighted in Professor Merkin’s book. The vessel Tartar was insured for a voyage from Liverpool to Sierra Leone. In January 1814 she was taken by a French warship, and the bulk of her cargo, provisions and arms were either plundered or thrown overboard. She was ordered to be taken to the nearest land, but eventually – after a crew mutiny – she was taken to the Azores, In February 1814. The commander of the vessel then instituted proceedings in the Vice-Admiralty Court for her condemnation. The Master of the Tartar wrote to the assured in March and a notice of abandonment was served on the underwriters immediately. But 3 days before the notice was served the Vice-Admiralty Court rejected the application for condemnation. The vessel was restored to the Master on 11 May, on the provision of security and was returned to Liverpool on 29 May. Was she a CTL?
It was held by Lord Ellenborough that the notice of abandonment was valid and justified, given that the vessel had been plundered, and that possession had not been restored at that time. The key date was that of the commencement of the proceedings, and on that date the guns and stores had been taken, the voyage had been lost, and the appeal against refusal of condemnation had not been heard so that there remained a risk that she would be condemned and the security forfeited. In those circumstances the vessel could be regarded as a total loss. The case is still mentioned in Arnould on the subject of restoration and the judgment is seen as the source for the central principle.
Lloyd v Grace Smith [1912] AC 716
Before I turn from Liverpool’s contribution to commercial law, no such account would be complete without mention of the greatest legal landmark of the early years of the Commercial Court.
That was the first instance decision of Scrutton J (sitting in Liverpool) in Lloyd v Grace Smith [1912] AC 716. The plaintiff, a widow who owned two cottages at Ellesmere Port, wanted to sell the property. To that end, she consulted a firm of solicitors and saw their managing clerk. The latter, acting as the representative of the firm of solicitors, induced the plaintiff to convey the property to himself. The clerk then sold the property in his own name, and escaped with the money. I am glad to say that Mrs Lloyd got her money: a case established that a principal is liable for the fraud of his agent acting within the scope of his authority. The fact that the act is committed for benefit of the principal or for the benefit of the agent has no relevance and the principal remains liable. It is of course one of the leading cases on the circumstances in which an employer can be vicariously liable for a fraudulent employee.
Liverpool’s other contributions to Commercial Law
So much for the shipping side of the equation. But let us not forget Liverpool’s other contributions to commercial law, because Liverpool was the centre of vibrant cotton wool and grain trades. As such – as Prof Cranston tells us – it developed the world leading derivatives market of the early C20 – well in advance of those of the US and indeed London. But of particular importance to commercial law and the current situation, where England is a major centre of international commercial litigation, is the development of standard terms.
That in itself proved influential to the development of English Commercial law. As Lord Mansfield did, judges tested their views of the law against what the market was doing – and often the market won. A lovely example is the case of Cooke v Eshelby (1887) 12 Ap Cs 271. In that case there was a sale by brokers for an undisclosed principal which had gone bankrupt. The trustee in bankruptcy sued the buyers who sought to set off a debt owed by the brokers. The House of Lords said there was no right of set off – given that dual capacity was market practice (i.e. the broker could be acting as agent or in his own name) there was no assurance that he was acting on his own account. “We must not alter the law to fit the views or convenience of the Liverpool Cotton Market”
But of course the Liverpool merchants were not beaten. A Liverpool broker giving evidence to a Royal Commission reported this:
“I told them that if the thing was going on, no man dare trade under those systems. The consequence was that a committee was formed, and a new contract made out which makes every man under that contract himself liable, do you see, as his own principal under every contract…”
And by 1868 we find in Cropper v Cook (1868) LR CP 194 (a Liverpool wool trade case) Willes J:
“By proving that the contract was made in a market where it is usual for the agents to contract in that manner, and the principals knowing of the existence of the custom, or not choosing to enquire about it, must be bound by it.”
The Liverpool merchants had won.
It was the Liverpool Corn Trades Association’s terms, which became those of GAFTA which still govern international grain trades on private or in house terms – that is 80% of the international market and some US$98 million per year3. And the Liverpool Cotton Association is of course the precursor to the highly influential International Cotton Association.
So the development of standard terms is one huge aspect of driving modern legal business, as recent research has indicated. The recent Oxera Report for Legal UK says this:
“One of the remarkable facets of English law is the extent to which it is the international standard for contracts in many internationally mobile markets. This internationally mobile standard creates a range of economic benefits to the UK, contributing to the location of the cluster of international businesses located in the UK (including parts of the UK that have a different domestic law), reducing transaction costs for UK firms trading internationally, and building the UK’s international influence. …
If competition were to cause UK maritime business to move elsewhere and possibly be governed by a law other than English law, this would represent a significant loss to the UK. A stylised illustration of potential impacts identifies the following.
• A 10% reduction in UK maritime business could mean a loss to the UK economy of approximately £400m each year.
• A reduction of 30% in UK maritime business could lead to a loss of approximately £1.2bn to the UK each year.”
Liverpool’s Commercial Judges
I mentioned earlier the reasons why international litigants chose the commercial Court. Well, the second thing international users always identify is the quality of the judges, and here again the Court owes a great debt to Liverpool.
Lord Russell
Let me start at the top with Lord Russell, a great LCJ. He started as a solicitor before joining the Northern Circuit, and he made Liverpool the focus of his early practice. He was an almost instant success. Liverpool generated a significant quantity of shipping, marine insurance, and sale of goods work, and much of it was tried locally, particularly in the Court of Passage, a city court with ancient origins and with a jurisdiction somewhere between the county courts and the High Court in London. He became one of the outstanding barristers of his generation and served as Attorney General until shortly before he became Lord Chief Justice. He is particularly revered by the commercial judges because he was the Lord Chief Justice who founded the Commercial Court and sat himself while LCJ in the court. His third son, Frank, and Frank’s son Charles, both became Law Lords and adopted the Killowen title.
Joseph Walton
Then there is Joseph Walton – he was the dominant leading counsel of the Court’s first 5 years. Born in Liverpool and was the son of a local merchant. He studied at the University of London, where he was awarded a first class degree, joined Lincoln’s Inn in 1865, and was called to the Bar in 1868. Walton joined the Northern Circuit, in order to practise in his home city, and was a pupil of Russell while Russell was making his name as a Liverpool junior. Practice for him – though not for others – was slow and he therefore found time to become an early editor of the White Book. He became a QC in 1892 – and finally his career took off. In the first volume of The ‘Reports of Commercial Cases’, covering the period from March 1895 to July 1896, he made thirty-five appearances: the next best figures being sixteen and then ten. He argued the final appeal in Rose v Bank of Australasia [1894] AC 687, the case which became, in a legend created by Scrutton, the cause for the creation of the Commercial Court. The story – for those who don’t know it is that the first-instance Judge, John Compton Lawrence, who knew absolutely nothing about commercial law, made a monumental mess of the trial and so shocked was the market that the calls for a specialist court became deafening. Walton was then Chair of the Bar 1898 and joined the bench in 1901. His was a very popular appointment. Sadly his promise did not translate. He became one of the first judges to demonstrate that courtesy if partnered with indecisiveness does not make the best commercial judges. The successful commercial judges have, I am sorry to say been more famous for their decisiveness and lack of courtesy: see for example Scrutton and another Liverpool judge to whom I shall come.
John Bigham – Viscount Mersey
More successful as a judge was Walton’s fellow Liverpudlian and contemporary – and rival -John Bigham – later Viscount Mersey. His father was also a local merchant who wanted him to join the business but Bigham wanted the Bar – or politics – or both. Another pupil of Russell, his family connections got him a rather better start than Walton and he took silk after only 10 years. He then appeared in more than a dozen reported cases in his first year as a leader. He also managed to get elected as MP for Liverpool Exchange.
In 1897 he went on the bench and straight into the Commercial Court. He was not actually a huge success as a judge – it turned out that his feel for the right answer was not as acute as his ability as a litigator and one can find a fair scattering of howlers among his judgments. It may be suspected that his political connections helped him to a fairly quick appointment as head of Admiralty Probate and Family division. He retired in 1910 supposedly due to “ill health”. He was elevated to the peerage as Lord Mersey. A wit who considered Bigham big-headed asked why he had not taken the whole of the Atlantic as his title. Bigham joked back that he had left that for F E Smith, QC, MP, and fellow-Liverpudlian (who actually confined himself to the title Lord Birkenhead).
Doubts as to the reality of his ill health were only confirmed when in 1912, he shot to public prominence as Chair of the inquiry into the loss of the ‘Titanic’, making some important recommendations about safety at sea. He then proceeded to preside over an international maritime safety conference in 1913 and chaired several other major wreck inquiries, including that into the sinking of the ‘Lusitania’ during the Great War. He also returned to the Bench – sitting on Privy Council appeals in prize cases from 1914-1916.
Frederick Greer
Frederick Greer was born in Liverpool in 1863, the first of thirteen children. His father, Arthur Greer senior was a scrap-metal merchant who bought the hulk of The ‘Great Eastern’, the Isambard Kingdom Brunel-designed paddle steamer which had been the biggest ship in the world for thirty years.
Greer started practice on the Northern Circuit, which included Liverpool. His first major case as leading counsel was Lloyd v Grace Smith (on the wrong side). He went on the bench in 1919 and was the trial Judge in prominent commercial cases including Brandt v Liverpool (1923) 15 Lloyd’s Rep 123, where the issue was when a contract of carriage could be implied between a carrier and a bill of lading holder, and Snia Societa v Suzuki (1923-24) 17 Lloyd’s Rep 78, an important authority on damages for breach of charterparty. He was elevated to the Court of Appeal in 1927 before retiring in 1938. During his time there he sat on a number of famous commercial appeals including Bell v Lever Brothers [1932] AC 161. Greer was given a peerage the year after his retirement. He took the title Baron Fairfield, after his Merseyside home, Fairfield House, in East Caldy.
Frederic Sellers
One of my personal favourites out of the whole canon of commercial judges is Frederic Sellers – a truly local man – and by the appearances a very nice one.
His father a shipowner ran a line of coastal vessels. Frederic attended University in Liverpool. He also had “a good war”, attaining the MC and two bars and writing to his wife roughly daily (the Imperial War Museum has a cache of 1700 letters between them6). Their son, Norman Sellers, was a Circuit Judge in Preston.
Frederic started out locally and one can track him through the Lloyd’s Reports in cases (usually with a Liverpool connection) involving bills of lading, charterparties, collisions at sea, negligent navigation and pilotage, and insurance. There was also a sprinkling of fatal accident and personal injuries claims, which cast further light on the local businesses of the time. In Poland v Parr [1927] 1 KB 236, Arthur Hall, a Liverpool waggoner on his way home for lunch, thought he spotted the 12 year old plaintiff stealing a bag of sugar from one of his employer’s vehicles. He struck out at the boy, who fell under the wheels, and was so badly injured that his left leg had to be amputated. Sellers persuaded the Judge of the Liverpool Passage Court that, since Hall was employed as a waggoner, not a security guard, he had not been acting in the course of his employment, and his employers were not liable for his tort. But he and his leader came unstuck on appeal before the mighty triumvirate of Bankes, Scrutton, and Atkin, who overturned the decision. The case was for many years cited as a leading authority on the scope of vicarious liability.
He had a major role in the litigation arising from a major local maritime disaster. HMS ‘Thetis’, was a T-Class submarine, built for the Royal Navy by Cammell Laird of Birkenhead just before the Second World War. On 1st June 1939, it sailed into Liverpool Bay for sea trials with one hundred and three men on board,. During the afternoon, the torpedo officer decided to open the inner doors of the 6 torpedo tubes for an inspection. When the inner door of No 5 tube was opened, water poured in, flooding the two forward compartments and sending the submarine to the bottom. The vessel was equipped with a rudimentary escape system, designed for use by one person at a time. Four men made it to the surface, but the fifth panicked and opened the hatch too soon, rendering the system inoperable. The ninety-nine men left on board suffocated. When ‘Thetis’ was salvaged three months later, the No 5 tube outer door was found open, and a check-valve which should have indicated to the crew that the tube was full of water was blocked by splatters of paint.
A wave of negligence claims was brought against the Royal Navy, the builders, and subcontractors, and Sellers was instructed for Cammell Laird. It is not a pretty story: in Duncan v Cammell Laird [1942] AC 625, the House held that the Admiralty was entitled on national security grounds to withhold production of documents relating to the design and construction of ‘Thetis’. This made the already difficult task of determining what happened even more challenging, and in Woods v Duncan [1946] AC 383, the Lords held that the sinking was unexplained, and that there was insufficient evidence to justify a finding that either Sellers’ clients or anyone else had been negligent.
Sellers went on the bench in 1946, to the Court of Appeal in 1957 and in both he sat in a range of important cases, and his sound common sense meant that he was very rarely overturned on appeal. He retired in1968 and enjoyed 10 years of peace and tranquillity – attracting not even an obituary when he died.
Lord Hobhouse of Woodborough
Finally we will come to another of my personal favourites – and the only one of these great Liverpool judges I ever encountered. When I started in practice the judge in charge of the Commercial Court was Mr Justice Hobhouse. His name was spoken with equal amounts of respect and fear.
John Hobhouse was another judge born into the Liverpool commercial world. His father John was a partner in Alfred Holt & Co, a successful Liverpool shipping firm which operated the Ocean Steam Ship line. Young John was educated at Eton and Oxford, and called to the Bar. He was a pupil of Michael Kerr at 3 Essex Court and then moved to Henry Brandon’s Admiralty and shipping chambers at 7 King’s Bench Walk. While he had a hugely successful practice as a junior he did not rush taking silk – waiting eighteen years and taking silk in 1973. Less than ten years later he went on the Bench. There he was the terror of junior counsel and solicitors. As the Commercial Court’s biographer says:
“If he thought that a point was bad, he would dismantle it mercilessly through tough questioning. If he thought that a point was really bad, he would adopt the even more crushing tactic of saying nothing at all, allowing counsel to ramble on to the end before dismissively announcing that he did not need to hear from the other side. And he had unsettling foibles. At the summons for directions, he was known to strike out parts of pleadings on his own initiative if he considered them sub-standard, or to require the parties to show cause why the case should stay in the Commercial Court.”
Put it this way – nearly everyone of my generation has at least one Hobhouse story; made perhaps worse by the fact that he really was never wrong. He spent 11 years at first instance before progressing to the Court of Appeal for 5 years, finally finding his spiritual home in the Lords where he gave over 200 judgments – many of them including Turner v Grovit [2002] 1 WLR 107 – of huge importance. Always they repay re-reading; even if often I have to read them twice to properly understand them.
But with the tour of the judges arriving at my own era, this bring me to date.
Liverpool and commercial litigation today
Liverpool is (obviously) a very great city with a huge number of facets to it. It retains some of the traditional shipping and trading businesses. It is the home to a range of more modern established businesses – such as Unilever, Very and of course the odd football business.
The kind of entrepreneurial skills seen throughout my whistlestop tour of the commercial history (which have been produced in the next generation of so many great commercial judges) are still being exercised by local businesspeople. At the same time there is so much going on across the range of modern business areas – looking at the local chamber of commerce membership that is more than apparent.
Where there is so much business there will be business disputes. – That being the case it is wonderful that we now have a specialist Circuit Commercial Court Judge here, in the talented form of HHJ Neil Cadwallader. If you read his judgment in Pharmapac v HBS Healthcare [2022] EWHC 23 (Comm) – it is a classic example of what the CCC is here to do. It is a case concerning a contract for supply of covid face masks, raising issues of whether time was of the essence a repudiation, decided promptly with a clear judgment delivered very shortly after trial.
And we also have the broader church of the other Business and Property Courts. Represented in particular this evening by my friend and opposite number from the Chancery Division – Vice Chancellor Fancourt. The BPC’s are still a relatively recent innovation, but they have huge advantages for litigation outside London. Local businesses can bring all their disputes to specialist judges here in Liverpool, whether the problem is a contractual dispute, a construction dispute, a property or intellectual property issue.
And we are very keen that users know that the local courts are fully supported by the High Court bench. I must make it very clear that we are positively keen to come and sit in suitable disputes locally. So Fancourt J, who as Vice-Chancellor supervises the local BPCs is here often – indeed he has been here sitting this morning. Similarly as far as the Commercial Court goes we have a lot of volunteers for suitable cases outside London (and I suspect some of my colleagues would be particularly keen to visit locations with good football teams). We are actively looking for Circuit Commercial cases which we can hear; I heard one in Newcastle, we have others on our list for hearing within the next year. Next week I am off to Birmingham to hear a three week Commercial Court trial where the business in question is local and most of the witnesses are based in the area. In the future we want to see cases tried where they can best be heard for the parties and for that dispute.
So to finish, the message is very much that Liverpool’s contribution to commercial litigation is huge and appreciated, and we look forward to it contributing yet further to the development of commercial law through the cases that will be heard here in the BPCs.