Anthony David Colman (he was always 'Tony' to friends and colleagues) was closely associated with the Commercial Court for virtually the whole of his working life. As one of its leading practitioners during his career at the Bar, as the author of the principal text on the Court's practices and procedures, as a founder of the Commercial Bar Association, and as a fine Commercial Judge, he made a significant contribution to the maintenance of the Court's high standards and international reputation.
Colman was born and raised in Harrogate, the only child of Solomon and Helen Colman. Solomon was an insurance broker, which perhaps helped inspire in his son an interest in commercial law. Colman went to school at Harrogate Grammar, where he acquired a lifelong love of cricket. He still occasionally turned out for Bar and Bench matches the best part of half a century later, although his bowling pace had by then declined from medium-fast to medium-slow. His feat in propelling the School to a famous victory with 8 wickets for 29 runs in 10 overs in the final of the Arthur Barrett Cup (for under-17s) remained one of his proudest moments. Although the South East of England was his main home for most of his life, he always considered himself Yorkshire, and often took walking holidays in his home county.
Colman's departure from Harrogate Grammar coincided with the beginning of the end of National Service in the United Kingdom. Men born in 1938-1939 were the last to be called up. In an early symptom of what became another abiding passion, foreign travel, Colman volunteered for a posting overseas. He spent two years in a pre-Wall, but still divided, Berlin, as a Sergeant in the Education Corps, teaching literacy and numeracy skills to infantrymen of the British Army of the Rhine. During the winter of 1957-1958, he lived in rooms overlooking Spandau Prison, from where he could watch Rudolf Hess and Albert Speer take their daily exercise.
More pleasantly, Berlin also offered plentiful opportunities for opera-going. Colman was a devotee, although his musical tastes were not always theatrical: he also enjoyed Bach.
After his discharge from the army, Colman studied law at Trinity Hall, Cambridge, where he proved a tremendous success, winning a scholarship, participating in debates at the Union, graduating with first class honours, and arguing a point of contract law in a moot before former Commercial Judge Lord Justice Kenneth Diplock. Called to the Bar by Gray's Inn in 1962, Colman served his pupillage with the colourful Christopher Staughton (another future Commercial Judge) at 3 Essex Court. But he made his professional home next door at No 4, the young set which had been established in 1961, when the Lord Chancellor's Department had dictated that 3 Essex Court could not have 4 Queen's Counsel, and must split. 4 Essex Court was only six barristers strong when Colman joined, but already numbered four future Commercial Judges among its tenants: Michael Kerr, who was Head of Chambers, and, among the juniors, Michael Mustill, Anthony Evans, and Mark Saville.
Colman began his career as the workless days of the 1950's, when junior tenants in commercial chambers would allegedly gather to gaze in wonder at the rare sight of a set of instructions, were giving way to the commercial litigation boom of the 'sixties and 'seventies. By the mid-1960's, he was making frequent appearances in reported shipping, sale of goods, and insurances cases. He made a flying start, for practically his very first case, which arose from a transaction in bulk lard, went to the House of Lords (Garnac Grain v Faure [1968] AC 1130: Colman's side lost). He was soon being led by the principal commercial QCs of the time, including Michael Kerr, John Donaldson, Anthony Lloyd, and Michael Mustill. Before the end of the decade, he was arguing cases on his own. In The 'Bede' [1969] 1 QB 173, he persuaded Eustace Roskill that the appointment of Anthony Lloyd under an arbitration clause which required "commercial men and not lawyers" rendered the arbitration null and void; while in The 'Delian Spirit' [1972] 1 QB 103, he convinced the Court of Appeal that his clients' liability for delay was limited to demurrage, notwithstanding that their breach extended beyond the laytime provisions to other clauses of the voyage charter.
Busy as his flourishing practice kept him, Colman found the time to re-vamp 'The Practice Of The Commercial Court'. After a single edition in 1902 under the authorship Theo Mathew, first editor of The 'Reports Of Commercial Cases' and eldest son of J.C. Mathew, the first Commercial Judge, the book had fallen into obscurity. This was probably due to a combination of lack of demand (Theo had primarily aimed the book at practitioners who were unfamiliar with the Commercial Court, but the Court had rapidly established its own specialist Bar, who knew its ways) and Theo's abandonment of commercial practice for life as a libel specialist. But Colman realised that the text might usefully be brought up to date in the light of Practice Notes and Directions since 1902, and, in particular, to take account of Order 72 of the Rules of the Supreme Court, which had been instituted in 1964 to regulate the Court. The 2nd edition of 'Mathew's Practice Of The Commercial Court' was published in 1967, with Colman credited as editor. By the time the next version appeared in 1983, as 'The Practice & Procedure Of The Commercial Court', the Mathew association had been dropped, and Colman was given sole authorial credit. The change reflected the fact that, other than retaining part of Theo's account of the Court's origins, Colman had essentially written a new book.
Colman was appointed Queen's Counsel in 1977, aged just thirty-eight, and after only fourteen years in practice. By then, he was father to two daughters. He met his wife, the artist Angela Glynn, at a party in 1963. In a roomful of unstimulating legal company, Colman, himself a skilful painter, made an impression by announcing that he was off to Greece the next day to paint the scenery. Angela and he married in 1964. His professional success enabled them to buy a holiday home on Sifnos in the Cyclades in the 1970's. It was an apt location, given how much of his work came from Greek shipowners. Later, the family made their main home at an 18th Century former paper mill at Sarratt, in Hertfordshire. Colman spent happy hours there, trying to impose horticultural order on the extensive grounds. The property also housed his extensive collection of 17th Century books of all types, from history to economics, and from politics to gardening.
Colman made the transition from junior barrister to QC without losing any career momentum. He made ten appearances in Lloyd's Law Reports for 1977, and maintained a leading profile in subsequent years. Prominent cases included The 'Angel Bell' [1981] 1 QB 65, which was important in establishing the boundaries of the recently-invented Mareva Injunction jurisdiction; The 'El Amria' [1981] 2 Lloyd's Rep 119, an early authority on stay of proceedings commenced in England in breach of a foreign jurisdiction clause; Amalgamated Investment v Texas Commerce [1982] QB 84, the foundational case of the modern law of estoppel by convention; and The 'Popi M' [1985] 1 WLR 948, the leading authority on discharge of the burden of proof in insurance claims. In a sure sign of his star professional status, Colman was occasionally instructed in cases removed from the commercial core of his normal practice. In News Group Newspapers v SOGA [1987] ICR 181, he acted for union interests in relation to the year-long industrial dispute which followed the relocation of The 'Times' from Fleet Street to Wapping. Smith v Eric Bush [1990] 1 AC 831, a professional negligence action against surveyors, was also out of his usual course, and was one of several cases which Colman argued in the House of Lords. In his last Lords appearance, Hiscox v Outhwaite [1992] 1 AC 562, former 4 Essex Court colleague Robert MacCrindle had heard an arbitration in London, but had signed the award in Paris (to where MacCrindle had fled in the 1970's, a refugee from punitive UK tax rates). Colman persuaded the Lords that this geographical happenstance did not deprive the English Courts of their supervisory jurisdiction, and so did not preclude the possibility of an appeal on point of law. (The report of the case refers throughout to "Coleman": like his Commercial Court contemporary Thomas Morison, Colman was plagued by people getting his surname wrong.) Alongside his Court work, Colman maintained a busy practice in commercial arbitration, both as counsel and as arbitrator. And, at a time, when it was still comparatively rare for English barristers to ply their trade overseas, he established a sizeable practice in the Far East, particularly in Singapore.
Colman had a fine, clear and cultured courtroom voice. Sometimes when he was in full flow, enthusing about an interesting point of law, it could sound almost affectedly refined. But there was no shred of pomposity to his advocacy, or to his personality. On the contrary, he was profoundly good-natured and down to earth, unfailingly patient and polite no matter how slow his judicial audience, and kind and encouraging towards junior lawyers. He was clear-headed and calm under pressure, key characteristics for an advocate. He also had a keen eye for detail, and an appetite to put in the hard hours essential for proper case preparation. In the days before developments in ergonomics made such things fashionable, he had a raised desk made so that he could work standing up, to make sure that he did not fall asleep in the small hours.
In 1990, Anthony Diamond QC, the last founding member of 4 Essex Court who was still at the Bar, left to become a specialist Circuit Judge. Colman succeeded him as Head of Chambers. Around the same time, he was hard at work as one of the prime movers in the creation of the Commercial Bar Association. He was Combar's first Treasurer from 1989 to 1991, and its second Chair from 1991 to 1992. His reign at 4 Essex was short. He had been made a Recorder in 1986, and had sat as a Deputy Judge in the Commercial Court. In 1992, was appointed to a full-time judicial post as a Queen's Bench Judge. The move proved fortuitously well-timed, for it enabled Colman to avoid the internal wrangling which subsequently surrounded 4 Essex Court's controversial move away from the Temple to premises outside the Inns of Court.
Colman was not a conspicuously creative judicial thinker, but he was an outstandingly lucid one. He was adept at identifying the seam of principle which ran through an apparently disordered collection of previous cases. Just as valuable was his knack for then stating the principle in clear and concise terms. His judgment in The Moonacre [1992] 2 Lloyd's Rep 501 provided succinct guidance on the concept of insurable interest, and he similarly distilled a welter of authorities into manageable propositions of law in such cases as Balfour Beatty v Chestermount (1993) 62 BLR 1 (the "prevention principle" in construction contracts), Yasuda v Orion [1995] QB 174 (agents' duty to keep records); Excess v Mander [1995] 1 Lloyd's Rep 358 (incorporation of arbitration clause from one contract by words of reference in another); and The 'David Agmashenebeli' [2003] 1 Lloyd's 92 (the ambit of a Master's right and obligation to clause bills of lading). In The 'River Gurara' [1996] 2 Lloyd's Rep 53 and Westacre v Jugoimport [1999] QB 740 respectively, he resolved novel points about the application of Hague Rules package limitation to containerised cargoes and the scope of illegality and public policy as grounds for refusing enforcement of an arbitration award. His decisions in both cases were upheld by the Court of Appeal. He proved his powers of endurance in Nederlandse v Bacon & Woodrow [1997] Lloyd's Reinsurance Law Reports 678, in which the trial began in January 1995 and ended (after various breaks and interruptions) in November. His judgment ran to 120 pages. It was characterised by an engagingly readable style, as his writing invariably was.
As the author of the main text on the practice and procedure of the Commercial Court, Colman was naturally interested in cases which raised points of litigation practice, and he delivered significant judgments in the field. In Berliner Bank v Karageorgis [1996] 1 Lloyd's 426, he established the important practical point that a plaintiff who is concerned that a default judgment might not be enforceable abroad may ask the Court to hold a trial, even if the defendant has refused to participate in the proceedings. In The 'Laemthong Glory' (No 1) [2005] 1 Lloyd's Rep 100, he defined boundaries for a developing practice by which plaintiffs made repeat without notice applications for a Mareva injunction. Colman was an energetic Judge In Charge of the Commercial Court from 1996 to 1997, overseeing the 4th edition of the Commercial Court Guide and the creation of a library of unreported judgments, and introducing an abridged procedure for the taxation of costs (a forerunner of today's summary taxation). He discharged the function of Judge In Charge, and all of his judicial responsibilities, with the same enthusiasm and natural courtesy which had been one of his hallmarks as an advocate, and he effortlessly managed to be both highly respected and well liked. Many of the insights and practical tips in his classic lecture to Combar about advocacy in the Commercial Court remain relevant and useful more than twenty years on.
The ‘Derbyshire’ (originally named ‘Liverpool Bridge’), the largest British ship ever lost at sea. The upper photo shows how ventilation pipes on the bows were exposed to heavy waves when the ship was fully laden and the deck was relatively close to the water. Colman concluded that damage to these pipes during Typhoon Orchid was the initial source of the catastrophic flooding which tore the ship to pieces in around two minutes after the forward hatch cover collapsed. The lower image, where the ship is in ballast, conveys its immense size.
In 1999, Colman was temporarily withdrawn from judicial service to preside over an investigation into the sinking of MV 'Derbyshire'. The 1,000 foot long bulk carrier, laden with 160,000mt of iron ore, had disappeared in a typhoon south of Japan in 1980. 44 lives had been lost. No distress signal had been received. It was the largest British ship ever sunk. A first investigation in the 1980's failed to reach any definite conclusion, for lack of material evidence. But in 1994, a search team funded by the International Trade Federation found the wreck, 2½ miles beneath the surface of the Pacific. Following surveys of the site in 1997 and 1998, Colman was supplied with 135,000 photographs and 200 hours of film footage. He concluded that heavy pounding by waves during the typhoon had damaged ventilation pipes on the bows, allowing the foremost compartment to flood. This had slowly dragged the vessel down by the head, exposing the enormous hatch covers to the waves. When the covers collapsed under the strain, seawater flooded into the vast holds, and the ship broke apart. Colman recommended that hatch covers and other critical items on similar ships should be made stronger, and made a variety of other important proposals for increased safety at sea.
Good work on public inquiries had helped smooth the course of earlier Commercial Judges up the judicial ladder (Samuel Porter and Eustace Roskill, for example). This, combined with Colman's manifest intellectual fitness for the Court of Appeal, made his failure to win promotion mystifying. Possibly time was against him, since he was already almost fifty-five when he arrived on the Bench (although he was technically not subject to the reduction of the judicial retirement age to seventy, which post-dated his appointment). Perhaps he was a victim of that perennial career risk for really good Commercial Judges, being perceived as a narrow specialist. Colman tried his share of criminal cases, and he took his turn in the Criminal Division of the Court of Appeal. But he did not exhibit much enthusiasm for the broader range of Queen's Bench work: aside from crime and a handful of outings in the Admiralty, virtually all of his first-instance cases were in the Commercial Court.
Colman in “retirement”, during his tenure as a DIFC Judge.
Whatever the explanation, Colman remained at first-instance until his English judicial career ended in 2007. Departure from the Bench gave him more freedom to go walking in Yorkshire and painting on Sifnos, as well as for family time (he now had four grandchildren). But Colman had no intention of fully retiring. He found fresh judicial employment in Dubai, where the authorities took a more enlightened view of the value of the wisdom and experience of senior professionals. He was one of the early Judges of the Dubai International Financial Centre Courts, and Deputy Chief Justice from 2010 to 2013. He took on more investigatory work, with a five-year inquiry for the government of Trinidad & Tobago into the collapse of several local financial institutions. It was a demanding commission which attracted a great deal of media attention, and the workload affected Colman's health for a while. But he recovered to pick up the third strand of his post-Commercial Court career, as a much sought-after commercial arbitrator, both in the UK and abroad. He also became a regular speaker at arbitration conferences around the world, which gave him plenty of opportunity for travel.
With all of these activities, and the demands of the garden at Sarratt, Colman remained busy and cheerful until his sudden and unexpected death in 2017. A memorial service was held at the New London Synagogue, where he had worshipped, and the bell of village church on SIfnos was tolled in tribute.