Cyril Salmon did not spend much of the near-quarter-century of his judicial career in the Commercial Court. But, during one of his brief visits, he made a mark as the trial Judge in one of the most prominent English law contract cases of the post-War period.
Salmon was born in Hampstead in 1903. Originally "Barnett Cyril", he reversed the order of his names some time before the start of his legal career. There was ancestral precedent for name changing, for the Salmons, a successful Jewish business family, had been the Solomons until the 19th Century. Salmon’s grandfather had been a co-founder of Salmon & Gluckstein, the UK's largest tobacconist, and his father worked in the business. The family also owned an interest in J. Lyons & Co, famous for its chain of teashops and range of cakes. Salmon went to school in London, then studied law at Pembroke College, Cambridge. He was called to the Bar by Middle Temple in 1925. Like Colin Pearson a year before him, Salmon was a pupil of Walter Monckton. He joined the chambers in Crown Office Row which had formerly been headed by Robert Wright, who became a King's Bench Judge in the year that Salmon was called.
Jean and Cyril Salmon in 1946, when Salmon was re-building after the destruction of his chambers, the retirement of his clerk, the loss of his junior practice, and the premature death of his first wife.
To judge from reported cases, Salmon made a relatively slow start at the Bar. He did not feature in the law reports during the 1920's, but his name began to appear in the 'thirties, in cases ranging from landlord and tenant to breach of trade descriptions regulations. Family connections helped him to get a start: practically his first reported case was as junior counsel for the defence in Lyons v Keating [1931] 2 KB 535, in which the family firm was prosecuted under The Artificial Cream Act 1929 for mis-selling as "cream cakes" confections which contained not real cream, but a "cream-like paste or substance". Lyons was convicted by the magistrates, but emerged triumphant on appeal when the Court ruled that the 1929 Act applied only to sales of cream as a separate substance, and did not extend to cakes, Swiss rolls, chocolate sponge, or other unhealthy snacks which the firm filled with its sickly mixture of sugar and emulsified fat.
As the 1930’s progressed, Salmon established a very successful general common law practice, and by 1938, he was arguing cases without a leader before the Court of Appeal. But, just as Salmon was becoming one of the busiest common law juniors in London, his career was interrupted by the outbreak of war. He was commissioned into the Royal Artillery in 1940, and saw service with the 8th Army. He was ultimately transferred to a legal role as Judge Advocate, and reached the rank of Major.
When Salmon returned from the Second World War, he had been away from professional practice for five years, his chambers had been bombed out, his clerk had retired, and his wife, Rencie, had died, aged just thirty-three: they had married in 1929, and had two young children. Salmon's obituarists spoke of his strength of will. He demonstrated it now.
Apparently adopting the robustly pragmatic view that things could hardly get any worse, he took on new premises in Paper Buildings and applied to the Lord Chancellor for appointment as King's Counsel, becoming a KC in the same list as Patrick Devlin. (Also in the list was Colonel Louis Gluckstein, Conservative MP and related to the Gluckstein side of the Salmon & Gluckstein tobacco business. Six foot seven and a half inches tall, he was thought to be taller than any MP before him, and, for such a large target, had been fortunate to survive active service in two World Wars.)
Under the circumstances, Salmon was effectively starting again at the Bar. Again, it was a slow start, and it was 1948 before he made it back into the law reports. But reported appearances then became increasingly regular as he once more established a good common law practice. His half dozen appearances as KC or QC in the House of Lords covered subject-matter ranging from landlord and tenant (Goodrich v Paisner [1957] AC 65) to gambling (Hill v William Hill [1949] AC 530, in which Salmon persuaded a majority of the Lords that a gambler's promise to pay his debts in consideration of the bookmaker agreeing not to bar him from its premises was in the nature of a wagering contract, and therefore unenforceable). As leading counsel, Salmon occasionally diversified into more specialist areas: he acted in a handful of divorce actions and made a couple of appearances in Lloyd's Law Reports in sale of goods cases, although commercial litigation did not become a major feature of his practice. In J Lyons & Co v Home Secretary [1950] 1 KB 531, he represented the family firm again, in a claim for compensation for damage done to its Oxford Street premises after the government had requisitioned them during the War. Salmon lost this time, although he no doubt put his family’s case with the relaxed elegance which was regarded as his hallmark as an advocate. Most well-known of Salmon's cases at the Bar was Reading v Attorney-General [1951] AC 507. Salmon's client was a sergeant in the Royal Army Medical Corps, serving in Egypt during the Second World War. He accepted a bribe of £20,000 - a huge sum at the time - to take several trips, wearing his full uniform, in the passenger seat of a lorry which was transporting smuggled whisky and brandy. As the smugglers had hoped, Sergeant Reading's reassuring presence enabled the lorry to pass through various checkpoints without being searched. Reading was rumbled in 1944, reduced to the ranks, and sent to a military prison for two years. To compound his misery, the Lords held that the Crown was entitled to recover the £20,000, on the grounds that he had earned it through misuse of his office.
By 1957, Salmon had again established a position as one of the pre-eminent figures at the common law Bar. This time, his success was cut short by elevation to the Bench. Salmon had been Recorder of Gravesend since 1947, and in early 1957 he was given a full-time judicial post on the Queen's Bench.
Practically his first reported case was in the Commercial Court (British Imex v Midland Bank [1958] 1 QB 542, which is still cited in relation to what form of bill of lading is acceptable for presentation under a documentary letter of credit). After that, however, he barely heard another commercial case, although, as was more or less compulsory for Queen's Bench Judges of the 1950's, he tried his share of actions about hapless stevedores falling into ship’s holds or being struck by cranes. But in 1961, he was the trial Judge in one of the major commercial cases of the decade, Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1961] 1 Lloyd's Rep 159. The 'Hong Kong Fir', formerly The 'Antrim', was a twenty-five year old general cargo ship. Salmon found as a fact at the trial that its ageing and idiosyncratic engines required the constant care and attention of "a chief engineer of exceptional ability, experience and dependability". Unfortunately, the incumbent Chief Engineer was "a very difficult man" who, shortly after the ship had commenced service under a time charter, had a blazing row with the Captain, stormed off the vessel, and was summarily dismissed. The owners selected his replacement on the strength of a brief interview conducted in the middle of the night at a London railway terminus. The new Chief Engineer had not been to sea for five years, and had been sacked from his previous job for drunkenness. He concentrated his time on board on drinking rather than maintaining the engines, which suffered a series of breakdowns.
The ‘Hong Kong Fir’ in ‘Antrim’ days: a reliable ship, given a first-class Chief Engineer.
The 'Hong Kong Fir' spent substantial portions of 1957 undergoing repairs and unable to perform any services under the charterparty. To add insult to the charterers' injury, hire rates fell dramatically, so that they ended up paying well over the market price for a ship which did not work properly. They claimed that they were entitled to terminate the contract, and refused to pay any more hire. It was relatively clear that the shipowners were in breach of their contractual duty to keep the ship seaworthy. The real issue in the case was whether or not the breach entitled the charterers to terminate the contract. Salmon decided that it did not. In upholding his decision, a Court of Appeal which included Frederic Sellers and Kenneth Diplock re-stated the classification of contract terms in English law, and the case is widely acknowledged as the modern foundation for the concept of "innominate terms".
Salmon presided over one other notable commercial case. In Slattery v Mance [1962] 1 Lloyd's Rep 60, a Lloyd's syndicate insured a yacht which was consumed by fire. When the owner made a claim on the policy, the insurers contended that he had set fire to the yacht himself in order to make a bogus claim. This threw up a legal issue about who bore the burden of proof, but what made the case really striking was that Salmon sat with a jury, one of the very last occassions this happened in a commercial action. The jury found in favour of the owner. The lead underwriter for the Lloyd's syndicate, and therefore the named defendant in the action, was Henry Stenhouse Mance. Three decades later, his son Jonathan would sit as a Commercial Judge, before going on and up to the Court of Appeal and the Supreme Court.
For the rest of his Queen's Bench career, Salmon dealt with a range of work, including defamation, local government, personal injury, planning, rating and tax. His general common law practice had prepared him for the variety, and he performed well. He also tried criminal cases on Circuit. Salmon was an advocate of human rights to an extent which caused the press to dub him "liberal". But the description was potentially misleading. Certainly, he was not inclined to be indulgent towards criminals. On the contrary, his very concern for the rights of the individual predisposed him to think that wrongdoers who infringed those rights should expect to be visited with the force of the law. As well as first-instance criminal work, Salmon became a regular member of the Court of Criminal Appeal. He joined the full Court of Appeal in 1964,. Significant for commercial lawyers among his cases as Lord Justice were Morris v Martin [1966] 1 QB 716 (liabilities of a sub-bailee), The 'Heron II' [1966] 2 QB 695, (remoteness of damages in contract), and Seager v Copydex [1967] 1 WLR 923 (an important staging-post in the development of the law of misuse of confidential information), although it was Nagle v Feilden [1966] 2 QB 23, which condemned the Jockey Club's blanket ban on women trainers as unlawul, which gained most public attention.
Salmon was appointed a Lord of Appeal in Ordinary in 1972. At nearly seventy, he was comparatively elderly for a new Law Lord, a reflection of the fact that he had lost half a decade of his career to the War. His time in the Lords was interrupted by the Royal Commission on Standards of Conduct in Public Life, which he chaired, and by periods of illness, so that he perhaps delivered fewer judgments than might have been expected. Still, within the space of a week in 1977, he contributed judgments in two major shipping cases, The 'Aries' [1977] 1 WLR 185, confirming the rule limiting rights of set-off against freight, and The 'Laconia' [1977] AC 850, relating to withdrawal for non-payment of timecharter hire. He retired in 1980, but sat on a few appeals after that, and made the occasional speech in the Chamber of the House of Lords.
Salmon had apparently been prone to rather obnoxious sarcasm at the Bar. Challenged as to whether he was presuming to teach a magistrate's clerk his job, he allegedly replied that he wanted to get back to Chambers that day, and so could not spare the time. But he appears to have mellowed on the Bench, and was generally remembered for patience, courtesy, and charm. He re-married, in 1946, to Jean Morris, a divorcee with four children of her own. It was a happy union, and lasted until Jean's death in 1989. They bought a weekend home in a former pub in Sandwich. This was not only ideal for golf, one of Salmon's favourite pastimes (he became Captain of St George's; he also enjoyed fishing), it also enabled him to adopt the most inspired style and title of any Law Lord. Baron Salmon of Sandwich died in a Canterbury nursing home in 1991, survived by his son and daughter. By then, the family businesses were already becoming things of the past: tobacconists had fallen out of fashion, and J. Lyons & Co had been sold and broken up, although the name still survives on the label of a variety of grocery products. The 'Hong Kong Fir' did not last so long: it was broken up for scrap in 1969.
Lyons Tea Rooms were once a high street mainstay. Salmon encountered mixed fortunes in litigation on behalf of the family firm.