Colin Hargreaves Pearson ascended to the highest court without having excelled either as an advocate or as a Judge, although he did manage feats of considerable judicial endurance, presiding over a succession of mammoth Commercial Court cases in the 1950's. But his true strength was as head of committees and inquiries. So it was a severe disappointment to him that his major work, an exhaustive investigation and report into reform of the compensation system in personal injuries cases, was essentially ignored by government and Parliament.
Colin Pearson in July 1970, during one of the inquiries which became his speciality. This one concerned a dockers’ strike.
Pearson was born in Minnedosa in the Canadian Province of Manitoba in 1899, the youngest child of Ernest Pearson, a lawyer, and his wife Jessie. The family moved to England when he was a child, and he went to St Paul's School in London. He served with a machine gun unit in the Brigade of Guards towards the end of the Great War. (His elder brother was killed in action.) After demobilisation, Pearson studied classics at Balliol College. He made a good start with a distinction in his first year exams, but fell away to end his short career as a classicist with a second class degree. By then he, he had decided to follow his father into the law. Pearson was called to the Bar by the Inner Temple in 1924. He served his pupillage with Walter Monckton, an up-and-coming junior barrister who went on to act for British and Indian royalty (he advised Edward VIII during the abdication crisis of 1936) and eventually became a Conservative cabinet minister.
But the shape of Pearson's career was more profoundly affected by the professional bond which he formed with a future Labour Lord Chancellor. William Jowitt, a common law barrister with a significant commercial element to his practice, had enjoyed a heady year in 1922, becoming King's Counsel the day before the general election, in which he was elected as a Liberal MP. Jowitt lost his seat in 1924, but remained active in the Liberal interest, and was keen to get back into the Commons. Juggling a flourishing career at the Bar with his political commitments, Jowitt needed someone to help him with his paperwork and case preparation, and recruited Pearson to his chambers in 1 Brick Court.
Like a later Jowitt protege, Patrick Devlin (it was Pearson who encouraged Devlin to apply for the position as Jowitt's new "devil"), Pearson acquired a substantial rating and valuation practice through his association with Jowitt, In 1930, he was appointed Junior Counsel to the Commissioners of Works & Public Buildings, inferentially through Jowitt’s patronage, and most of his reported cases as a junior barrister related to rating or other real property issues. Sometimes, they had a vaguely maritime flavour: Crown v Mersey Docks & Harbour Board (1931) 39 Lloyd's Rep 45 turned on the correct rating category for grain warehouses in Liverpool docks, while the issue in London & North Eastern Railway v British Trawlers Federation [1934] AC 279 was whether a railway company which owned Lowestoft docks could prevent lorries accessing the pierside to collect the catch from the local fishing fleet (the company was trying to compel the trawlers to dispatch their fish to market by rail: it lost). But Pearson did not practice in the core commercial areas of sale, shipping, and insurance. He did branch out beyond rating and property from time to time though. In Civilian War Claimants Association v The King [1932] AC 14, he appeared with Jowitt in a House of Lords appeal about the distribution of reparations paid by Germany under the Treaty of Versailles; and he was Walter Monckton's junior before the Privy Council in a dispute about the proper location of the boundry between Quebec and Labrador (an question of commercial significance, since major forestry rights depended upon the answer).
In 1931, Jowitt lost his government post, his seat in the Commons, and his membership of the Labour Party amidst the acrimonious fallout over MacDonald’s decision to form a National Government coalition with the Conservatives. Pearson was sufficiently well established by then as a junior counsel of choice for government work that his career survived his patron's sudden fall, and he continued to appear sporadically in reported cases during the 1930's, usually in litigation with a national or local government aspect. He was almost always led by more senior counsel. An exception (and a rare venture into criminal litigation) was R v Boseley (1938) 26 Cr App Rep 99, an appeal by a Maidstone estate agent who had been convicted of stealing client funds. But this outing in the Court of Criminal Appeal did not offer Pearson an opportunity to polish his advocacy skills: appearing for the Crown, he was not called upon to make any submissions, as the appeal was peremptorily dismissed.
Pearson secured another standing counsel role in 1937, this time for the Society of Auctioneers. But this did not produce a run of high-profile instructions. In fact, inthe period before the Second World War, there were more references in The Law Times to Pearson's contributions to debates of the Hardwicke Society than to his Court appearances. For all of his enjoyment of debating, Pearson never made a great splash with his courtroom oratory: Devlin thought that "he was not a great advocate". He became Recorder of Hythe in 1937. Given his relatively low professional profile, the fact that the outgoing Recorder was his former pupil-master, Walter Monckton, may have had something to do with this.
Too old for active service in another World War, Pearson worked in the Treasury Solicitor's Department from 1939-1945. Returning to the Bar in 1945, he made his first reported appearance in a clearly commercial case, Canada & Dominion Sugar Co v Canadian National (West Indies) Steamship Co [1947] AC 46, a leading authority on when qualifying words in a bill of lading will prevent the bill from constituting a representation as to the condition of the cargo on shipment. Pearson was led by Devlin KC (they lost), who was six years younger and had been called to the Bar five years later, but had already been leading counsel for two years. Pearson became King's Counsel himself in 1949. The party had forgiven Jowitt's sins by then, and he was Lord Chancellor in Atlee's government, responsible for making recommendations for appointment as KC. Reflecting the unspectacular course of his career to date, Pearson’s name appeared more or less in the middle of the list of new KCs, which was published in order of seniority. (The most junior appointee that year was Rose Heilbron, while Helena Normanton's name was second from the top: they were the first women admitted to the senior Bar.)
Pearson appeared in even fewer reported cases as a KC than as a junior, and in most of them he was led by a more senior KC. But he did begin to acquire some profile as a commercial practitioner. Hiram Walker v Dover Navigation (1950) 83 Lloyd's Rep 84 was another bill of lading case; while in Onassis v Drewry (1950) 83 Lloyd's Rep 250, Pearson was retained by Greek shipping tycoon Aristotle Onassis in a doomed attempt to convince the Court that a time charter (which Onassis had flagrantry repudiated) had never been binding because the charterer had not been validly incorporated at the date of contracting. His most well-remembered case was Reading v Attorney-General [1951] AC 507. Pearson and his leader, future fellow-Law Lord Cyril Salmon KC, argued that an army sergeant who had earned a second income by accompanying smugglers’ lorries, dressed in full uniform, to minimise the risk of their being stopped by the police, was entitled to keep his ill-earned pay. The House of Lords held that Sergeant Reading was liable to account for breach of fiduciary duty.
Pearson's career as leading counsel was shorter even than Devlin's three year spell. In early October 1951, he was made a Judge of the King's Bench Division. Recommending Pearson for appointment was one of Jowitt's last acts as Lord Chancellor: the Conservatives replaced Labour in government at the general election later that month. As a first-instance Judge, Pearson heard quite a number of cases which centred on ships. But, with commercial litigation in the doldrums during the 1950's, a significant proportion of them involved personal injuries to stevedores or seamen, not cargo claims or charterparty disputes. Pearson also tried a large number of non-marine tort cases, as part of a varied diet of general common caseload which included defamation, local government and licensing, and tax. He was a regular member of the Court of Criminal Appeal, and was one of the Judges - and briefly President - of the Restrictive Practices Court.
But, for someone who had come late to commercial practice at the Bar, Pearson spent a rather surprising share of his time as Commercial Judge, presiding over the Court in 1957 and for an extended period in 1960. Among his reported cases, Carlos Federspiel v Twigg [1957] 1 Lloyd's Rep 240 was important in relation to appropriation of goods and passing of property in international sales, while Pearson grappled with the elusive concepts of "weather working day" and "safe port" in Compania Naviera Azuero v British Oil & Cake [1957] 2 QB 293 and The 'Eastern City' [1957] 2 Lloyd's Rep 153 respectively.
But Pearson was most prominent in largescale commercial litigation. Whether it was pure coincidence, or whether he was specially selected for the role because he had a high boredom threshold, Pearson was trial judge in both of the biggest Commercial Court trials of the 1950's.
The explosive destruction of the newly-built ‘Atlantic Duchess’ in Swansea Docks in 1951 (above) and the mysterious loss of the aged ‘Tropaioforos’ (below) in fine weather in the Bay of Bengal in 1957 resulted in the Commercial Court’s biggest cases of the 1950’s. Pearson tried them both.
The 'Atlantic Duchess' [1957] 2 Lloyd's Rep 55 arrived at Swansea docks in early 1951, carrying a cargo of Iranian crude oil under charter for BP. It was the tanker's maiden voyage.While the cargo was being discharged, the oil ignited, blowing up the ship and killing seven of the crew. The shipowners claimed that the crude had contained an abnormal level of butane, making it unusually flammable and turning it into a dangerous cargo which BP had not been entitled to load. The trial of their laim for breach of the charter occupied thirty-one days and eight counsel, six of whom later became Commercial Judges (Megaw, Mocatta, Donaldson, Kerr, Staughton, and Hobhouse). After picking his way through the detailed technical evidence, Pearson concluded that the owners had not proved their case. Impressively, he delivered his sixty page judgment within a month of the conclusion of the trial: Mocatta thanked him for his "monumental patience and care", suggesting that "no Judge could possibly have taken greater care or trouble in this case".
The 'Tropaioforos' [1960] 2 Lloyd's Rep 469 lasted even longer (and kept future Commercial Judges (Mocatta, Roskill, Kerr, Brandon, Mustill, and Staughton busy). The elderly cargo ship had taken on water and sunk while crossing the Bay of Bengal. When the owners claimed on the hull insurance policy, the insurers found aspects of the claim curious. Weather conditions had been good, and the sinking was unexplained, other than by vague suggestions of collision with an unidentified underwater object. The vessel had gone down suddenly at the end, but the crew had somehow had time to pack their suitcases (yet they had forgotten to take the ships' documents with them into the lifeboats). And escalating repair bills and difficulties finding gainful employment for the ship might have given the owners reason to think that they would be better off if the ship sank, leaving them to claim on the insurance. After six weeks of evidence and argument, Pearson decided that this was indeed what had happened, and that the owners had deliberately sunk the ship in order to make a bogus claim. Again, he got his judgment out in under a month.
But these mega-cases were an abberation in what were the Commercial Court's quietest years. Both commercial activity and commercial litigation were at a low ebb through the 1950's, and by the middle of the decade, Pearson, Devlin, Kenneth Diplock, and William McNair were taking it in turns to preside over a tribunal which sometimes had no work at all. They - and Lord Chief Justice Goddard, himself a former Commercial Judge - were so concerned about the malaise that they persuaded Lord Chancellor Kilmuir to set up an investigatory process to find out why commercial litigants had apparently become reluctant to use a Court which had been established specifically to meet their needs. Pearson, who already had experience of committee work (he had been on the Rules of Court committee and had conducted a report into the treatment of funds held at Court) was selected as the judicial member of the inquiry.
Some of the factors behind the decline in commercial litigation were entirely beyond the Court's control. Years of widespread mergers and acquisitions in international trade had reduced the number of potential litigants, and the relatively large concerns which remained were often reluctant to devote cost and effort to anything other than high-value disputes; while the introduction of the New York Convention had made it easier to enforce a London arbitral award overseas than a High Court judgment, boosting arbitration at the Court's expense. But the Commercial Court Users Conference also concluded that the Court had gradually lost the discipline and good habits of its early years. The Judges had become tolerant of lengthy and discursive pleadings and of unnecessary applications which caused delay, and more formal in their approach to matters of evidence and proof. The report eventually led to the introduction of Order 72 of the Rules of the Supreme Court, which gave the Court a formal foundation in the Rules for the first time, sweeping the Notice As To Commercial Cases away after nearly seventy years. By the time the new Order took effect, commercial litigation had already begun a natural increase in response to improved economic conditions, and Pearson had moved onwards and upwards from the Commercial Court to the Court of Appeal, becoming a Lord Justice in 1961.
Pearson was not particularly active in commercial appeals. His most prominent cases were Rookes v Barnard [1963] 1 QB 623, on economic torts, and Hedley Byrne v Heller [1962] 1 QB 396, on tortious liability for negligent misstatements. The House of Lords in Rookes disagreed with Pearson's view in Rookes that a threat to break a contract could not found a claim for the tort of intimidation (1964] AC 1129), and the Lords overruled Pearson on the law in Hedley Byrne ([1964] AC 465), though, by way of consolation, they held that he had arrived at the correct result on the facts. But Pearson's opportunity to make an impact in the Court of Appeal limited. Performance of his judicial duties was interrupted by further service on the Rules Committee, the beginning of a ten-year term as Chairman of the Law Reform Committee, and an inquiry into disputes in the electricity supply sector. And, after only four years, he was promoted again to become a Lord of Appeal in Ordinary. By adopting both a Canadian title and an English one, he managed to secure for himself the distinction of the longest appellation of any Commercial Judge to reach the Lords. He had barely taken his seat before he embarked on more inquiry work, investigating industrial disputes involving shipping, air transport, steelworkers, dockers, and teachers.
Pearson's cases in the Lords ranged from obscene publications to tax, and from employment to deportation. He was a member of the panels in Albacora v Westcott [1966] 2 Lloyd's Rep 54, which analysed the meaning of "properly and carefully" in Article III r 2 of the Hague Rules and Prenn v Simmonds [1971] 1 WLR 1381, which has often been regarded as the startging point for a new "contextual" philosophy in the interpretation of contracts. But it was not for his judicial work as a Law Lord that he would be best remembered. In 1973, Pearson embarked on the mission which he regarded as the culmination of his career (which says something about what he thought of his day job). For five years, he pondered almost full-time (he retired as Lord of Appeal in 1974) on reform of arrangements for the financial support of personal injuries victims, visiting numerous countries to study their systems. In its final report, his committee essentially recommended a move away from fault-based compensation through the law of tort to a scheme based on social security. The Pearson Report generated a great deal of political and public interest, and favourable comment in some academic circles. But there was minimum appetite at Westminster for changes as profound as Pearson proposed. Disappointed, Pearson made one final appearance in the Lords in 1978, then retired from public life. He died in January 1980, survived by Sophie, his wife of forty-nine years, and their son and daughter.
As his conspicuous success as head of committees and inquiries, often in contentious circumstances, would suggest, Pearson was very good at getting on with people. He was gentle, courteous, patient, and enormously popular. Paying public tribute at the opening of the day's judicial hearings in the House of Lords on 2nd February 1980, Senior Law Lord and former Commercial Judge Kenneth Diplock remembered Pearson as "a man of great modesty and great kindness", of whom it could be said that "not only has he made many friends, but, what is perhaps more difficult, I do not think he ever made an enemy". The Bench and the Bar filled Temple Church for Pearson’s memorial service, on 4th March 1980.