As one of the leading media lawyers of his time, Brian Thomas Neill was at the forefront of headline-grabbing court cases involving the Profumo and Thalidomide scandals and the publication of notes of confidential meetings of the UK Cabinet. His name hit the news again two decades after his retirement, when a previously-unpublished report which he had written in the 1970's into possible sexual misconduct at the BBC was revealed in the wake of the Jimmy Saville affair. Nothing in Neill's time as a Judge achieved such public prominence. Indeed, The 'Times' obituary of "Brian Neill, QC, barrister" dismissed the whole of his eighteen years on the Bench in a single paragraph. But Neill's judicial career saw him become one of the less likely (given how firmly his professional background was rooted in press-related litigation) Commercial Judges of the modern era.
Sir Thomas Neill does not appear to have been much photographed, but this image shows the strong resemblance between the railway clerk-turned-insurance-magnate and his lawyer sons, Brian and Patrick.
Neill was born in London in 1923, and grew up in Hampstead. He was the second of four children of Sir Thomas and Annie Neill. Thomas had begun his working life selling railway tickets in his native Ireland, switched to working in an insurance office, rose to sit on the Board of the Pearl Insurance company, one of the largest British insurers of the day, and was knighted for his work as a pioneer of national health insurance. A busy man, he did not become a father until he was in his mid-sixties, was approaching seventy when Brian was born, and died while Brian was a boy. The eldest of the four Neill siblings, Catherine, became a leading specialist in the treatment of heart defects in children. The youngest, Patrick, followed Brian into the law and became a QC with a commercial side to his practice, although he achieved greater prominence as Warden of All Souls College, Oxford, from 1977-1995. (In 2003, Patrick, who by then had become a crossbench peer as Baron Neill of Bladen ran for election as Chancellor of the University. The rival candidates included former Commercial Judge Thomas Bingham. Neill and Bingham split the law vote, easing former politician Christopher Patten's path to victory.)
Brian Neill went to Highgate School. He won a place to read classics at Corpus Christi College, but enlisted as a junior officer in the Rifle Brigade before beginning his studies in earnest. He saw action in Normandy as commander of a motorised infantry platoon with 11th Armoured Division. Injured during the attritional fighting around Caen, he carried for the rest of his life a shrapnel splinter which surgeons decided could not safely be removed from his abdomen. He nevertheless returned to his unit as it fought its way into Germany.
One April day when 11th Armoured was north of Hanover, it received a warning about a possible outbreak of typhus centred on a nearby German camp for "political prisoners". A few days later, Neill joined a group of curious junior officers who went see this facility for themselves. The camp was Bergen-Belsen. Neill remained in Germany as part of the army of occupation for eighteen months after the end of the War in Europe. A day watching the Nuremburg War Trials decided him on a career at the Bar, and, he switched from classics to law when he returned to Corpus Christi after demobilisation. He was called to the Bar by the Inner Temple in 1949, and became a tenant at One Brick Court, not the common law and commercial set which was home to Patrick Devlin, but a neighbour in the same building. (In days when sets of chambers were tiny by modern standards, such sharing of addresses was relatively routine.)
There was relatively little work for junior Barristers in any area of law in the immediate post-War period, and several years passed before Neill was able to establish any sort of practice. In the early stages of his career, he had to take whatever work was going, and his earliest reported cases (which were few and far between) were divorce actions. Neill retained a family side to his practice into the 1960's. But, as that decade progressed, he focussed increasingly on libel and defamation, and developed a good practice acting for and against newspapers. His chambers' fortunes tracked Neill's own, as One Brick became one of the most prominent media and defamation sets in London. In his most high-profile appearance as junior counsel, Neill was sent along to Court to make a public apology on behalf of an Italian magazine which had accused Secretary of State for War John Profumo of having an affair with model Christine Keeler. Aside from the imputation that the married Profumo was an adulterer, the accusation was damaging for the fact that Keller was also on friendly terms with the Russian naval attaché in London, suggesting the possibility of security leaks. The apology prevented a libel trial, but proved to be rather wasted: within a few weeks, Profumo was forced to confess that the magazine's claims were true, and that his repeated denials of (including in a statement to the House of Commons) had been a pack of lies. Neill no doubt delivered the apology in his customary deep and mellifluous voice, a wonderful asset for any advocate, but particularly for one appearing in libel actions, which were often tried by jury.
The relationship between Christine Keeler and John Profumo was the backdrop for Brian Neill’s earliest high-profile Court appearance.
Neill was appointed Queen's Counsel in 1968. His relatively sedate career progression up to that point reflected his slow start at the Bar. (By contrast, Patrick Neill had become a QC in 1966, although he had not started practice until 1952.) But Neill achieved success as a QC which compensated for the difficult early years, with a succession of instructions for newspapers in well-publicised cases. In Attorney-General v Times Newspapers [1974] AC 273, he defended the right of The 'Sunday Times' to publish a series of articles criticising Distillers Company, the manufacturer of thalidomide, a treatment for morning sickness which caused unborn children to develop severe disabilities in the womb. The Attorney-General claimed that the articles constituted contempt of court, because there were ongoing civil proceedings against Distillers. The House of Lords agreed. Neill took the case to the European Court of Human Rights, where he won (forcing the UK government to liberalise domestic law in the Contempt of Court Act 1981). In Attorney-General v Cape & Times Newspapers [1976] QB 752, Neill again represented The 'Sunday Times' in the face of government attempts to stifle publication, this time of extracts from the diaries of former government minister Richard Crossman. The 'Crossman Diaries' included accounts of Cabinet meetings which, the Attorney-General claimed, were confidential. Lord Chief Justice Widgery appeared sceptical about Neill's case during the trial in July 1976, but decided in his favour when he delivered his judgment that October. It was said that Widgery had read the book from cover-to-cover in the interim, and had concluded that it was so monumentally tedious that blocking publication would bring the law into disrepute.
Brian Neill as a Queen’s Bench Judge.
Reflecting his prominence in his specialist field, Neill was appointed to inquiries and investigations relating to freedom of information and the media. He was a member of the Franks Committee which reviewed the workings of the Official Secrets Act, and wrote a report for the BBC into possible misconduct on 'Top of the Pops'. His warning, which remained unpublished for four decades, that young members of the audience were at risk of sexual exploitation proved prescient when it came to light after the exposure of Jimmy Saville's long-term career of abuse. Neill also co-authored a textbook on the law of defamation, which remains in print.
But media and information law did not (quite) account for the whole of Neill's practice as a QC. He also argued cases about architect's negligence, sequestration of union assets, recognition of foreign judgments, and even a criminal appeal about obtaining by deception. And, although Neill was never a commercial practitioner, he maintained an occasional sideline in insurance litigation, with a handful of reported appearances in cases involving motor and employers' liability policies.
Neill became a Recorder, a part-time judicial post trying criminal cases, in 1972. Six years later, he was made a Queen's Bench Judge. Although he had ended his days at the Bar as very much a media specialist, Neill was apparently regarded by the judicial authorities as a good all-rounder, who could be trusted with a range of common law litigation. He began his judicial with a succession of cases about VAT, was appointed to the Employment Appeal Tribunal, and became a regular member of the Criminal Division of the Court of Appeal. Neill's first-instance career also included cases about constructive trusts, European law, immigration, landlord and tenant, and personal injury. Oddly, he does not appear to have spent much of his time as a defamation judge.
Neill sat recurrently as a Commercial Judge from 1980 to 1984, and delivered around thirty Commercial Court judgments on topics including arbitration, carriage of goods by road and by sea, insurance, and shipbuilding. None of them achieved leading-case status, but Telfair Shipping v Innersea [1985] 1 WLR 553, about when the cause of action accrues (so that the limitation period begins to run) under an implied indemnity in a charterparty, has regularly been followed, while RH&D International v IAS [1984] 1 WLR 573, a carriage by road case, was the first reported decision applying the rule that cargo claims cannot be set off against freight outside carriage by sea. Neill did a good job in the Commercial Court. Few of his decisions were overruled in the Court of Appeal, and, in most instances, his judgment was so obviously sound that neither party even bothered to appeal in the first place. Neill did not contribute materially to the development of commercial jurisprudence. But he had a firm grasp of the law, and a reputation for being able to identify, and state in concise terms, the key principles to be extracted from previous cases.
Neill proved equally dependable in other areas of Queen's Bench work, and his all-round ability was rewarded with relatively early promotion to the Court of Appeal in early 1985, after less than six years on the Bench. He sat often on commercial appeals, including The 'Houda' [1994] 2 Lloyd's Rep 541, which established that an owner is entitled to a reasonable period for reflection before obeying a time charterers' instructions; The 'Angelic Grace' [1995] 1 Lloyd's Rep 87, an early authority for the now well-settled principle that arbitration clauses should be construed liberally, in order to facilitate "one-stop adjudication"; and The 'Glacier Bay' [1996] 1 Lloyd's Rep 370, a prominent case on liability for oil pollution. Displaying his full range, Neill also participated in appeals concerning administrative law, companies and insolvency, crime, employment, European law, family law, housing, immigration, intellectual property, landlord and tenant, legal aid, mental health, planning, negligence, nuisance, personal injuries, tax, and trusts. He was also prominent in defamation appeals, and sat as a member of the Board in a few reported Privy Council cases.
Neill left full-time judicial office in 1996, after eighteen years and around one thousand reported cases. He was a couple of years short of the prevailing judicial retirement age of seventy-five (and was not bound by that age limit in any event, because he had joined the Bench before it became compulsory). But, in his own words, "presiding over a division of the Court of Appeal day after day was burdensome, and I thought that I should go while I was still reasonably bright". "Going" did not mean retirement. Neill continued to sit in the Court of Appeal part-time for another two years, sitting on around a further fifty reported appeals. One of his last reported cases, The 'Berge Sisar' [1999] QB 863, raised an important point of shipping law as to whether the holder of a bill of lading ceased to be liable under the Carriage of Goods by Sea Act 1992 once the holder endorsed the bill to someone else. Neill agreed with trial Judge John Thomas that the holder did not cease to be liable, but the House of Lords thought otherwise: [2002] AC 205. Neill also presided over the Court of Appeal of Gibraltar (another part-time post) from 1998 to 2003, established a busy practice as a commercial arbitrator and mediator, and oversaw new editions of his work on defamation law. His eightieth birthday in 2003 was marked by the publication of a collection of essays in honour of "the Quintessential Judge", with contributors including Law Lords and former Commercial Judges Thomas Bingham and Mark Saville: a mark of the high professional regard in Neill was held.
Neill attending the annual legal service at Westminster Abbey during his time as a Lord Justice of Appeal.
Neill married Sally Backus in 1956. They had three sons and a collection of grandchildren, and enjoyed family holidays on the Isle of Wight and also in the Mediterranean, where they visited sites from classical history. Neill's other pastimes included tennis and, in more sedentary moments, a love of fine wine. He was also interested in information technology, and was an early judicial proponent of the use of computers in the legal system. He became a governor of his old school, and was active in the Worshipful Company of Turners, one of the City of London's ancient livery companies (the turners in question being wood-turners). He was the Company's Master in 1980-81, fifty years after his father had held the same office.
Sally Neill died in 2009. Her husband outlived not only her, but his sister and his two younger brothers. Brian Neill died in December 2017 aged ninety-four years and four months, the longest lived of all Commercial Judges bar Robert Wright. The following year, One Brick Court, to whose reputation as a leading media set he had made a significant contribution, was dissolved.