Clement Meacher Bailhache was born in Leeds, educated in London, began his working life in South Wales, returned to London to qualify for the Bar, went back to Wales for the early years of his career as a barrister, returned to London again when he became a success, moved to Hertfordshire, and died in Suffolk. Perhaps this wandering history influenced the determinedly fixed position which he adopted on the Bench: Bailhache did not like going Circuit, and spent by far the greater part of his judicial career in the Commercial Court.
Clement Bailhache Senior. It seems a reasonable inference that Clement Junior acquired both his interest in the law and his enthusiasm for facial hair from his lawyer-turned-minister father.
Bailhache's father, another Clement, was a Baptist Minister. Clement Senior was descended from French Huguenots who had settled in Jersey, and he had planned a legal career on the Island before taking up the ministry. His sermons made sufficient impact on his congregations that a selection was collected for publication in 1880, shortly after his death. He married Emma Meacher, hence the middle name chosen for Clement Junior, who was the couple’s eldest son. The family moved to Islington when Bailhache was about seven. He went to the City of London School, then studied law at London University. After graduating with distinction, he qualified as a solicitor. He served his articles in London, but established himself in practise in Monmouthshire. Like Charles Arthur Russell a generation before, Bailhache discovered that he was a natural advocate while arguing cases in the local courts. Unlike Russell, however, he demonstrated his skills in the County Court, rather than before the magistrates: Bailhache never had any taste for criminal work, either as a practitioner or as a Judge.
Changing professions, Bailhache was already in his thirties when he was called to the Bar by Middle Temple in 1889. He returned to Monmouthshire to start his new career, reckoning that he would be more likely to pick up instructions there, where the local solicitors already knew him, than in an unfamiliar locality,
This move paid off, because Bailhache always appears to have had work, in spite of an enormous falling-out with the rest of the of the Welsh Bar. Bailhache had sold his share in his solicitors' practice to his partners when he had switched to the Bar, and they kept his name in the firm title. When Bailhache returned to Wales to begin his new career, a member of the local Bar complained that this use of Bailhache's name amounted to advertising on his behalf, contrary to the etiquette of the Bar. Implausible though the claim seems today, the officers of the Welsh Circuit supported the complaint, and the Circuit refused to admit Bailhache as a member. The boycott was intended to make it more or less impossible for Bailhache to practice in Wales. But the plan backfired. The strong-willed Bailhache simply ignored the Circuit, and the local solicitors, far from joining the Bar in shunning Bailhache, chose instead to boycott any QCs who refused to have him as their junior. But, in spite of the sterling support of his former solicitor colleagues, Bailhache’s success was steady rather than spectacular: The 'Law Journal' spoke of "twenty years of steady plodding". Still, Bailhache made a good enough name for himself to relocate his practice to London in the 1890’s, and he picked up some Commercial Court work after 1895.
The turning point in Bailhache’s career came with his appointment as King's Counsel in 1908. Between them, John Andrew Hamilton KC and Thomas Edward Scrutton KC exercised an unbreakable hold over Commercial Court trial advocacy, and other commercial leaders were left to fight for the cases which they were too busy to take on. Bailhache quickly won a share of this work when he became a KC. When Hamilton became a King's Bench Judge in early 1909, Bailhache immediately replaced him as Scrutton's closest rival, appearing in most of the Court's major cases. After twenty years at the Bar, it was hardly overnight success, but it was dramatic nonetheless. Bailhache shared Scrutton's bearded appearance, which was highly unusual at the Bar of the early 20th Century. Since one bearded man in a barrister's wig inevitably looks much like another, Bailhache bears some resemblance to Scrutton in his photograph: they must have made a striking sight arguing against one another in Court.
Bailhache's defining characteristics as an advocate were focus and brevity. He would work out what was his best point, say it once, then stop. The 'Times' thought that few leading counsel had ever said so little. But what he said was effective. When Scrutton followed Hamilton to the Bench in 1910, Bailhache became the clear leader of the commercial Bar. His nearest competitor was the precocious James Atkin KC, a former pupil of Scrutton, and a dozen years younger than Bailhache. In just four years as a KC, Bailhache made nearly a hundred appearances in the Law Reports, including more than a dozen House of Lords appeals. Most well known today is Kish v Taylor [1912] 604, in which Bailhache (appearing against Atkin) persuaded the Lords that neither unseaworthiness itself nor a deviation which was only necessary because of unseaworthiness terminated a contract of carriage of goods by sea. Thomas v Portsea [1912] AC 1 was for many years the leading authority on when a bill of lading provision cross-referring to a charterparty will be effective to incorporate the charterparty arbitration clause. Bailhache won that appeal too. On the other hand, in Sassoon v Western Assurance [1912] 561, not even the combined powers of Atkin and Bailhache, appearing alongside one another for the insured, could persuade the Lords that the incursion of water through the seams of a derelict barge was a fortuitous peril of the sea, rather than an inevitable consequence of wear and tear. (In a sign of how times have changed, the insured cargo in that case was a consignment of opium.) Alongside pure commercial work, Bailhache also developed an Admiralty practice as a KC, arguing cases in the Probate, Divorce & Admiralty Division.
In 1912, the King's Bench Division lurched into one of its regular crises. The root problem, as it had been for years, was the drag on resources exerted by the Circuit system. With a significant proportion of its Judges on Circuit at any time, the Division seldom had spare capacity in London. Even a relatively small increase in work could quickly produce a serious backlog of cases at the Law Courts, while desperately-needed Judges made a leisurely tour of sleepy market-towns, trying mostly minor crime and the occasional tort. The Division became so bogged-down in 1912 that Parliament immediately authorised the appointment of an additional Judge and established a commission to investigate possible reforms. By the time the St Aldwyn's commission reported, the crisis had passed as the volume of business dropped back to pre-1912 levels. But Bailhache was the lasting beneficiary of the emergency, for he was selected as the additional Judge.
On the Bench, Bailhache saw no need to alter the straight-to-the-point philosophy which had shaped his career at the Bar. It was an approach well-suited to commercial litigation, and, Bailhache naturally sat regularly in the Commercial Court from the outset. But his early caseload extended to other King's Bench work, including employment, insolvency, intellectual property, licensing and rates, local government, planning, tax and, unhappily, to crime. Here, Bailhache's methods were less successful. He had never had a criminal practice. He does not appear even to have sat as a Recorder, trying criminal cases on a part-time basis while still at the Bar. So he had no prior experience of criminal cases, and he found that he did not approve of the way in which they were habitually run. Bailhache became known for scrutinising criminal indictments like civil pleadings, and criminal counsel who were generally unaccustomed to interventionist Judges found themselves closely interrogated about the nature and scope of their case. If it seemed to Bailhache that the defendant was guilty, he would suggest that the defence withdraw their not guilty plea in order to save time and costs. It was one thing for a Judge sitting in the Commercial Court to hint at potential difficulties in a party's case, with a view to encouraging a sensible commercial settlement. But judicial neutral evaluation was less appropriate in criminal litigation, and dropping heavy hints about guilt before the jury had even heard any evidence was not very conducive to a fair trial. Bailhache was not highly regarded as a criminal Judge.
The disdain was mutual. Bailhache had been a commercial specialist for his whole career at the Bar, and was not motivated to change. He had no regard for crime, or for Circuit work generally, or, indeed for any King's Bench business outside the Commercial Court. He took the opportunity provided by the litigation-boom of the immediate post-War period to settle down more or less permanently in the Commercial Court. No Judge before him, and probably none since, spent such a large proportion of his career in the Court. Bailhache could not escape the obligation of all King’s Bench Judges to try crime on Circuit. But he largely shunned the general run of the Division’s business, and virtually all of his reported decisions from 1919 to 1924 were commercial.
Clement Bailhache may well have heard more Commercial Court cases than any other Judge, but he left a negligible photographic record. This is the only clear image available, and the date is unrecorded.
There were a lot of them. With his brisk approach and a hard-working nature, Bailhache was an impressively productive Judge. The law reports contain close to 500 of his judgments in twelve years. Bailhache’s most prominent commercial cases were Ralli v Aznar [1920] 1 KB 614, which established that English law will not enforce if performance is illegal in the place for performance, and the great scuttling case of Samuel v Dumas [1924] AC 431, in which the mortgagee of a ship claimed on its insurance after the owners had deliberately sunk the ship in order to make a fraudulent claim on their own policy. Since the mortgagee was not party to the fraud, there was no question of its claim being barred by its own misconduct. The case therefore turned on whether there was a loss by “perils of the sea” when a ship had been deliberately sunk. Earlier authority indicated that there was, and Bailhache found for the mortgagee. But the House of Lords disagreed (although Lord Sumner, dissenting, endorsed Bailhache’s view). Probably of greater interest to the general public, Bailhache was the trial Judge in a clutch of cases arising from the loss of the 'Titanic'. A jury found that the speed at which the liner had headed into the ice field had been negligent, and Bailhache held that the standard terms of the passengers' tickets did not protect the shipowners from liability for death and personal injury.
Bailhache adhered more closely than any Judge since John Bigham to the no-nonsense methods of J.C. Mathew, the first Commercial Judge. He went straight to the real point (or, at least, what he thought was the real point) in every case, came to rapid and clear conclusions, and stated them in judgments which were usually brief and delivered promptly. This produced some good effects, and, in the early 1920’s, Bailhache was getting Commercial Court cases on for trial in an average of two months after the summons for directions. Unfortunately, however, he shared Bigham's fault of crossing the line between being quick and being hasty. He acquired a reputation for making his mind up early, and then stopping listening to the evidence and argument. But his judgment was not always sound. The 'Solicitors' Journal' referred to decisions of "courage and originality", which was plainly a euphemism for "obviously wrong". He was often appealed. In itself, this was not surprising. Commercial Court cases involve more questions of law than most, and any Judge who spent as much time in the Court as Bailhache did was likely to be appealed with unusual frequency. But the appeals tended to succeed more often than was comfortable. Prominent commercial cases in which Bailhache was overruled included Bunge y Born v Brightman [1925] AC 799 (whether a charterer was entitled to a reasonable time to locate an alternative cargo when the intended cargo was delayed by a strike) and Rose & Frank v Crompton [1925] AC 445 (whether a document expressed to be binding in honour only constituted a legal contract), although in Rose & Frank he did have the dubious consolation of being told by the Lords that he had reached the right conclusion, albeit for entirely the wrong reason. Given his unenviable track record in the appellate Courts, it is perhaps not surprising that Bailhache was still a first-instance Judge after a dozen years on the Bench, and none of his obituarists thought that his failure to win promotion to the Court of Appeal was an injustice. His reluctance to leave the Commercial Court cannot have helped his career prospects. It is in the nature of the Court of Appeal that its Judges must be able to deal with cases from all areas of law, and it is no place for the sort of narrow specialist that Bailhache made himself.
Personality may have played a part too. By temperament, Bailhache was not necessarily a natural fit for the collegiate working environment of the Court of Appeal. As his indifference to his ostracism by the Welsh Bar in the 1890’s had vividly demonstrated, he was not gregarious, and he had little interest in the sociable aspects of life at the Bar and on the Bench. Strongly influenced by his Baptist background, he was a rather austere teetotaller, and well-oiled Inns of Court dinners were not much to his taste. This was quite probably another reason for his dislike of Circuit: formal dining with local dignitaries at the Judges' lodgings cannot have held much appeal for him. The rather withdrawn side of his nature may also explain his apparent aversion to having his photograph taken: Bailhache is one of the least well-represented of the early Commercial Court Judges. Contemporary accounts would suggest that his principal pastime was pipe-smoking. But it can be inferred that he also enjoyed the seaside and the outdoors. Clement Bailhache spent the weekend of 7th - 8th September 1924 at Aldeburgh. On the Saturday, he went boating and played golf. He went for two walks after attending Church on the Sunday morning, and died suddenly from a brain haemorrhage that afternoon. Bailhache may have had some forewarning that his health was suspect, for he had made his will only a few months before: written on High Court notepaper, it was characteristically terse, running to fewer than 200 words.
Bailhache was survived by his wife of thirty years, Fanny Elizabeth, and their three children. Their daughter Marjorie married Arnold McNair, celebrated international jurist and elder brother of Bailhache's Commercial Court successor of the 1950's, William McNair.