The fifth Commercial Judge to become a Lord of Appeal in Ordinary, Alexander Adair Roche less obviously merited a place in the highest Court than any of his predecessors, but owed his elevation to sold all-round ability and, perhaps, to an element of chance.
Roche (he always used "Adair" as his first name) was born in Ipswich in 1871. His family were doctors on his father's side and merchants on his mother's. As a boy, Roche used to drive his father around the countryside by dog-cart to visit his patients, an experience which left him with a lifelong love of horses and of the outdoors.
Roche was educated in Ipswich and at Wadham College, Oxford, where he studied classics. His College contemporaries included future Lords Chancellor F.E. Smith and John Simon, and all-round sportsman C.B. Fry, who played cricket and football for England and was (allegedly) invited to become King of Albania. After graduating, Roche worked for a while for an uncle who was a shipping solicitor. This experience appears both to have encouraged him to enter the law and influenced his chosen field. Called to the Bar by the Inner Temple in 1896, Roche did pupillage on the North-Eastern Circuit and launched his career in the Courts in Newcastle, Durham, and Leeds. He did a mix of common law work to begin with, including criminal cases. But Newcastle was one of the hubs of the British merchant navy, with plenty of shipping litigation, and Roche quickly concentrated on commercial work. He also established an Admiralty practice. As his success grew, Roche began to receive London instructions. By the early years of the 20th Century, he was appearing regularly in the Commercial Court, working with prominent leaders including Carver, Hamilton, and Scrutton. As one of the counsel in the 'Titanic' inquiry, he was commended by the Chairman, Lord Mersey (formerly Commercial Judge John Bigham).
Prominent among Roche's cases at the junior Bar were Wehner v Dene [1905] 2 KB 92, on an owners' duty to account to a charterer for any bill of lading freight in excess of the charter hire, and Kish v Taylor [1912] AC 604, in which Bailhache and Roche persuaded the Court of Appeal that a diversion for the safety of the ship and crew was not an unlawful deviation, even if it only became necessary because the ship was unseaworthy.
Roche became King's Counsel in November 1912, aged just forty-one. The appointment came at around the time that Clement Bailhache was made a Judge. Roche inherited a share of Bailhache's practice and, once J.R. Atkin followed Bailhache onto the King's Bench in 1913, became one of the most prominent commercial KC’s. He also maintained an Admiralty practice, and was active in prize litigation after August 1914. Roche argued more than a dozen cases in the House of Lords and Privy Council, including Williams v Agius [1914] AC 510, on the vexed question of whether and when sub-sales should be taken into account in assessing damages in sale of goods cases (the Lords held firmly that the damages should be assessed at market rates, without reference to sub-sales: but subsequent cases clouded the picture); and The 'Zamora' [1916] 2 AC 77, an important Prize appeal in which the issue was whether the Crown had prerogative power to alter the substantive law of Prize (the Privy Council held that it did not). Roche's advocacy was described as “forceful”, but his opportunity to demonstrate it as leading counsel was short-lived. He was appointed to the King's Bench in October 1917, at the same time as Arthur Salter (Roche had apparently declined an earlier offer of a Judgeship).
The legal press generally thought that he was a good choice, although The ‘Solicitors' Journal’ grumbled about the number of judicial appointments from the Commercial Bar. This reflected warnings which had been made in the 1890's, and from time to time since then, that the Commercial Court would encourage narrow specialism and produce practitioners who did not have the experience to handle the wider King's Bench caseload. The criticism was baseless. For one thing, only Bailhache and Atkin among the existing Kings Bench Judges of 1917 were commercial specialists. For another, with occasional exceptions (of which Bailhache was the most prominent), Judges who had practised in the Commercial Court proved more than capable of dealing with other areas. Commercial litigation, where the facts were often complex and questions of law were relatively common, was more intellectually demanding than most King's Bench work. This was why not all generalists were fit to try commercial cases, as practitioners and litigants had pointed out for years before 1895, although some generalists, such as Reginald Bray and Arthur Salter, did become regular and successful Commercial Judges. But anyone who was good enough to do well in the Commercial Court was likely to be able to handle other King's Bench cases. Atkin, who became a well-regarded criminal Judge, was a recent example, and Roche himself was to prove the point. In contrast to the reclusive Bailhache, Roche thoroughly enjoyed leaving the confines of London and the Commercial Court to go out on Circuit and try a wide variety of common law cases. An important factor in this was that Roche always remained a countryman at heart. His main pastimes were hunting (he took his horses on Circuit), shooting, and fishing, and he had more opportunity to enjoy these when touring the provincial Circuits than when trying commercial cases in London.
So, while Roche spent much of his first-instance career in the Commercial Court, and the majority of his reported cases were commercial, he happily and competently dealt with areas such as crime (where he had a reputation for taking a liberal approach to sentencing), employment, landlord and tenant, and tax. He also sat for a time trying Admiralty cases in the Probate, Divorce & Admiralty Division. Roche shared some judicial characteristics with Arthur Salter, who joined the Bench at the same time: he was decisive, clear and succinct in his judgments, and not much given to extensive analysis or citation of authority. He was a very reliable Judge: very few of Roche's reported judgments were overturned on appeal. But he was not a dynamic or imaginative. Perhaps not surprisingly for someone whose keenest interests were sporting rather than intellectual, Roche had little interest in developing legal principles. Although well over three hundred of his first-instance decisions cases were reported, it is difficult to locate any notable contribution to legal thinking among them. It is rare for cases from Roche’s first-instance career to be treated as leading authorities, although Strathlorne v Andrew Weir (1934) 49 Lloyd’s Rep 306, in which he was upheld by the Court of Appeal (1935) 50 Lloyd’s Rep 135, is sometimes cited in the context of an owners’ right to be indemnified by a time charterer.
This lack of juristic flair must have been one reason why, after making a flying start to his judicial career with appointment at the young age of forty-six, Roche then rather stalled. It was seventeen years before he was raised to the Court of Appeal. This was an even longer wait than John Sankey's fourteen years, and Frederick Greer and Robert Wright, both of whom had joined the King's Bench and Commercial Court after Roche, were promoted ahead of him (in Wright's case, direct to the House of Lords). Although the legal press acknowledged that Roche was good enough for the Court of Appeal, there was still some surprise when he was eventually promoted in 1934.
Given that Roche was now into his sixties, it seems unlikely that anyone expected him to rise higher. Yet, like Sankey, Roche was destined to spend only a year in the Court of Appeal before moving on to greater things. In 1935, he was made a Lord of Appeal in Ordinary in place of Wright, who had been made Master of the Rolls. If Roche's promotion to the Court of Appeal had been moderately surprising, his elevation to the Lords was, on the face of it, mystifying. The nation's highest Court, responsible for resolving novel and difficult points of law, was not a natural environment for a Judge who had no reputation as a legal thinker. (As if to reinforce the oddity of Roche's selection, the vastly more eminent T.E. Scrutton, whose death had given Roche his chance in the Court of Appeal, had never made it the Lords.) A possible explanation was that, if another commercial lawyer was wanted as a replacement for Wright, the options were limited. Greer, a more natural choice, other things being equal, was in his seventies, and already thinking about retirement. But, reading between the lines, two other considerations may have been in play.
First, Roche had made a nuisance of himself in the Court of Appeal with constant complaints about pay and conditions (promotion to Lord Justice did not come with a pay increase) and the size of his tax bill. Kicking him upstairs may have been a way of removing an irritant and giving his colleagues and the Lord Chancellor’s Department a break from his grumblings. Second, Wright was a reluctant Master of the Rolls. He had only accepted the post on the basis that he would be go back to the Lords after a brief term of office. Perhaps Roche was seen as a convenient short-term place-holder, pending Wright's return. In the event, Wright was made a Lord of Appeal in Ordinary for the second time in 1937, and Roche quietly retired at the beginning of 1938, after one of the shorter careers in the history of the judicial House of Lords. His most significant contribution to commercial law during his time as a Law Lord was in fact delivered on a return visit to the Court of Appeal, where Roche appears to have been helping out with the Court's heavy work-load: his judgment in Tyndale v Anglo-Soviet Shipping (1936) 54 Lloyd's Rep 341 established that a maintenance clause in a charterparty will generally be construed as imposing a due diligence obligation, even if it is apparently expressed in absolute terms.
It was said that Roche enjoyed the judicial atmosphere of the House of Lords more than that of the Court of Appeal. But he was nevertheless happy enough to retire well before his seventieth birthday (when there was no compulsory judicial retirement age) to devote more time to his outdoor pursuits. He sat on Lords and Privy Council appeals occasionally for another decade, and, in this capacity as a “retread”, sat on the panels in Fibrosa v Fairbairn [1943] AC 32, which established that money paid under a frustrated contract could be recovered if there had been a total failure of consideration, and the puzzling The ‘Greystoke Castle’ [1947] AC 265, which appeared (contrary to orthodoxy) to permit the recovery of pure economic loss in negligence.
But Roche’s contributions in the highest Court left no real impression on the substance of English law, and his reputation rested on his career as a highly capable and versatile first-instance Judge, not on his appellate work.
Adair Roche lived to enjoy a lengthy retirement. He had bought a country house at Chadlington in the Oxfordshire countryside in 1920, and he continued riding to hounds until he was eighty, after which he concentrated on fly-fishing. He married Elfreda Fenwick in 1902, and they had two sons and a daughter. The younger son, Lieutenant-Colonel The Honourable Thomas Gabriel Roche, QC, was called to the Bar by Inner Temple in 1932, served with the BEF in France and as an intelligence officer with the Special Operations Executive during the Second World War, established a commercial practice, appeared in close to a hundred reported cases in Lloyd's Law Reports, and was Recorder of Worcester for more than a decade. Elfreda died in 1955. Her husband followed in December 1956.