David Cozens-Hardy Hirst began his practice at the Bar in criminal cases, made his name as a defamation practitioner, expanded his practice as Queen's Counsel to appear in several prominent commercial cases, and sat in the Commercial Court for the best part of a decade during his judicial career.
Hirst was born in Yorkshire in 1925. His father, Thomas, came from a family of cotton manufacturers. The legal genes came from his mother's side. Margaret Hirst was the daughter of a Norfolk solicitor and a niece of Lord Herbert Cozens-Hardy, a late 19th Century Chancery barrister and Liberal MP who became a Chancery Judge and then succeeded Richard Henn Collins, who had been one of the first Judges of the Commercial Court, as Master of the Rolls.
A significant influence on David Hirst’s career, Neville Faulks recruited Hirst to his chambers and led him in the Commercial Court and in major libel actions. Faulks was a High Court Judge of the Probate, Divorce & Admiralty Division from 1963 to 1977.
A clever child, Hirst won a scholarship to Eton College, where he showed promise at debating and cricket. He enlisted as a junior officer in the Royal Artillery in 1943, but suffered a bad injury during training, and was not fit for service before the Second World War ended. After a spell in military intelligence in the Far East, he was demobilised and entered Trinity College, Cambridge, as a history student, later switching to law. He was a keen debater at the Union, but lost out in the elections for President.
Hirst was called to the Bar by the Inner Temple in 1951. After pupillage in a general common law chambers, he joined the South Eastern Circuit and began his career in the criminal Courts in and around London. His first appearance in the law reports was as junior counsel for the prosecution in R v Newland [1954] 1 QB 158, the "pottery case" in which the defendants were prosecuted for distributing unlicensed "items of decorated domestic pottery" for sale on the domestic market. (In the highly-regulated post-War economy, the bulk of Britain's pottery production was destined for compulsory export, to generate foreign exchange.) The case was legally significant for the decision in the Court of Criminal Appeal that conspiracy to commit a public mischief was a criminal offence at common law. The eight week trial was the longest ever at the Old Bailey up to that time, and Hirst was given an unusual amount of responsibility for someone so junior. He made such a good impression that one of his leaders, future High Court Judge Neville Faulks, invited him to join Faulks's own chambers. This was the common law set at One Brick Court, which was already home to future Commercial Judge Brian Neill.
Hirst continued to appear in criminal cases for the rest of the 1950's. He was again junior counsel for the prosecution in Board of Trade v Owen [1957] AC 602, in which the House of Lords established a form of "double actionability" test for conspiracies to commit offences abroad. But he increasingly expanded his practice into civil litigation. His reported civil cases included disputes about rights of way, landlord and tenant, and planning. In Kndig v Hepburn [1959] 1 Lloyd's Rep 183, he was instructed (led by Adair Roche's son, T.G. Roche QC) in an insurance case before Kenneth Diplock. He appeared in a handful of other Commercial Court cases during the 1960's, including the large-scale Praet v Poland litigation, the consequence of a falling-out between a Belgian insurer and its London underwriting agents. Hirst was led by his mentor, Faulks, who was by now a QC. The assessment of damages hearing alone lasted thirty days.
Like his chambers colleague Brian Neill, however, Hirst came to focus increasingly on the defamation and media side of One Brick Court's work. From around 1960, he appeared in a succession of reported cases acting for newspapers and other publishers in defamation, breach of copyright, and contempt of court actions. With Faulks, he appeared in two legally significant defamation appeals in the House of Lords: Associated Newspapers v Dingle [1964] AC 371, in which the Lords rejected an argument that the damages payable should be reduced because the value of the plaintiff's reputation had already been impaired by previous publications of the same libel; and Rubber Improvement v Daily Telegraph [1964] AC 234, which concerned the inter-play between ordinary meaning and innuendo.
But Hirst's most high-profile libel case, Dering v Uris [1964] 2 QB 669, turned not on the law, but on its own appalling facts. Wladyslaw Dering OBE, a Polish-born, British-naturalised, former concentration camp surgeon, now practising quietly in North London, sued author Leon Uris and the publishers of his novel 'Exodus'. Dering's case was that the book's assertion that he had performed 17,000 castrations, sterilisations, and experimental operations on inmates at Auschwitz without administering anaesthetic was libellous. Among other complaints, Dering said that the true number of such procedures which he had performed was closer to 1,000. Newspaper reports of the evidence of several Auschwitz survivors gave much of the British public its first detailed insight into what had happened at the extermination camps in Poland during the War. The 'Times' thought that "an English jury has never had to listen to such horrifying evidence". Remarkably, the jury decided that Dering had indeed been libelled. But this proved the hollowest of victories. The jury awarded derisory damages of one halfpenny. Thanks to Hirst, who had advised his clients to offer a nominal settlement of £2, which Dering had rejected, Dering ended up paying most of the costs of the action. (Dering was one of several cases in which the law reporters misidentified Hirst as "David Hurst".)
The British government awarded Wladyslaw Dering an OBE for his hard work running a Colonial Medical Service hospital. The trial in Dering v Uris shone a rather different light on his medical practice record.
Hirst was appointed Queen's Counsel in 1965, after barely a decade in practice, a reflection of his enormous success. Media law remained a cornerstone of his practice as a QC. The most significant defamation case from this stage of his career was Cassell v Broome [1972] AC 1027, in which he won exemplary damages for Captain Jack Broome, the commander of the close escort for Arctic Convoy PQ17, who had been unjustly accused of responsibility for the grim events which had resulted in the almost total destruction of the convoy. But Hirst significantly broadened his range of work after he became leading counsel. Acting for the Bee Gees, for Paul McCartney after the break-up of the Beatles, and then for all of the Fab Four in litigation with their manager, Allen Klein, represented a relatively natural extension of his media practice. But, in altogether more radical departures from his established field, he also appeared in cases about statutory compensation for riot; expulsions of members of political parties; family settlements; share options; passing-off, patents and other intellectual property disputes; and race relations.
Hirst as a Queen’s Bench Judge.
The fact that Hirst was instructed in such diverse and unfamiliar areas is a clear indication of the high regard in which his forensic powers were held by solicitors and clients. An irrepressibly exuberant personality whose advocacy was marked by an enthusiastic and rapid delivery (but also by clarity both of diction and of argument), Hirst committed himself to each of his cases, whatever the subject matter, with boundless enthusiasm, energy, and persistence. This was not always enough to guarantee success. In Schuler v Wickman [1974] AC 236, the House of Lords refused to accept his straightforward submission that the word "condition" in a commercial agency agreement meant "condition". He lost again in a commercial case in UCM v RCB [1981] 1 Lloyd's Rep 605, a letter of credit action in which his junior was a young barrister, otherwise lost to history, named Anthony Blair. Indeed, Hirst was rather unlucky in commercial litigation. His most prominent commercial action after Schuler was probably Fraser v Furman [1967] 1 WLR 898, an important insurance case which established that an insured does not breach a "reasonable precautions" provision in a policy unless its conduct is reckless. Hirst was on the losing side again. But, while Hirst appeared in more commercial cases as a QC than he had done as a junior, insurance, sale of goods, and shipping disputes never really became a major component of his practice.
Apparently quite tireless, Hirst found time outside the demands of his practice to take on extra responsibilities as head of One Brick Court and as a member of the General Council of the Bar. As Chairman of the Bar from 1978 to 1979, he insisted on the importance of an independent profession of self-employed advocates, and resisted proposals to extend higher court rights of audience to other lawyers.
By the late 1970's, it was the orthodox conviction at the Lord Chancellor's Department that anyone who served a term as Chairman of the Bar must, by definition, be a suitable candidate for the High Court Bench. But Hirst did not feel ready to become a Judge in 1979, and rejected the offer. He eventually joined the Queen's Bench early in 1982.
Hirst began his judicial career in the Criminal Division of the Court of Appeal. In his first two years on the Bench, he also heard cases about personal injuries, professional negligence, and, closer to his heart, defamation. He heard his first Commercial Court case in 1984, and sat recurrently as a Commercial Judge for the rest of his first-instance career. He was the Judge in the three-month trial of The 'Litsion Pride' [1985] 1 Lloyd's Rep 537, an insurance claim for the loss of a ship which had been sunk during the Iran-Iraq War after its owners had sent it into the combat zone without informing the insurers. The case was legally significant for Hirst's acceptance that an insured owes a continuing duty of good faith after the conclusion of the contract of insurance, although his views as to the width of the continuing duty were rejected in subsequent cases. His conclusion in The 'Nicholas H' [1992] 2 Lloyd's 481 that a classification surveyor owed a duty of care to cargo owners to ensure that hull damage was properly repaired did not find favour either: the House of Lords agreed with the Court of Appeal that no duty was owed: [1996] 1 AC 211. On the other hand, his analysis in The 'Italia Express' (No 3) [1992] 2 Lloyd's Rep 281 that an insurer is not liable in damages for late payment of a claim was widely accepted as correctly reflecting the common law (the legal position was subsequently changed by statute). As ebullient on the Bench as he had been at the Bar, Hirst generally failed to conceal what he was thinking as a trial Judge, and lawyers and witnesses in his Court were seldom left wondering what impression arguments and evidence were making on their Judge. ("You must be joking!" was one alleged interjection from the Bench, after an implausible answer during cross-examination.) But Hirst's invariable humour and good nature were also obvious to all, and The 'Times' thought that no-one ever felt unfairly treated in his Court.
Hirst was made a Lord Justice of Appeal in 1992. Among his approximately five hundred reported appeals, The 'OT Sonja' [1993] 2 Lloyd's Rep 435, confirming that the scope of the Hague/Hague-Visby Rules is not confined to physical loss and damage, and The 'Gregos' [1993] 2 Lloyd's Rep 435, on the extent of a time charterer's right to order a new voyage in the final days of the charter, were significant commercial decisions. The Court of Appeal decision in The 'Gregos' was overruled by the House of Lords: [1994] 1 WLR 146. But the Lords endorsed Hirst's conclusions in The 'Giannis NK' [1994] 1 WLR 146, which concerned the scope of the concept of dangerous goods at common law and under the Hague/Hague-Visby Rules. Perhaps Hirst's most notable appeal was Three Rivers DC v Bank of England [2003] 2 AC 1, in which thousands of claimants who had deposited money with the collapsed Bank of Credit & Commerce sued the Bank of England for regulatory failings. In a judgment running to nearly a hundred pages, Hirst and Lord Justice Walker agreed with the Commercial Judge that the claim had no realistic prospect of success, and should be struck out without going to trial. Unhappily, a majority of the House of Lords decided (at even greater length) to reinstate the claim. Commercial Judge Stephen Tomlinson was thus condemned to endure an enormously long (and, for the parties, enormously costly) trial which he later condemned as a farce and an embarrassment to the English legal system. (The claimants abandoned their claim before the close of the evidence, rather vindicating Hirst's assessment of its merits.)
Hirst retired from the Bench in 1999. He resisted any temptation to continue sitting in the Court of Appeal as a part-time "re-tread". Instead, he served as the first Chair of the Spoliation Advisory Panel, a newly-created body for resolving claims to cultural objects which were located in Britain but which had been looted during the Nazi era.
Hirst met his future wife, Pamela Bevan, during his studies at Cambridge. They married in 1951, and had two daughters and three sons. Their eldest child, Jonathan (1953-2017), followed his father's path as a barrister, a QC, and Chair of the Bar, and became head of Brick Court Chambers, the commercial set which had once shared a building with Hirst's old chambers. Close to his family, Hirst liked to get through Friday summons lists in the Commercial Court as early as possible so that he could get to the country home in Dorchester for the weekend, to spend time with his wife and children and indulge in his favourite outdoors pursuits, shooting and gardening. Indoors, he was a fan of theatre and opera.
David Hirst died at the Royal Brompton Hospital in December 2011, after a long illness.