Eustace Wentworth Roskill rose higher than any of the other members (McNair, Megaw, Mocatta, and Donaldson) of the impressive group of Commercial Judges which emerged from 3 Essex Court in the 1950's and 1960's. But then he came from a family of high achievers. Born in London in 1911, he was the youngest of four children, all sons, of John Henry Roskill KC and his wife Sybil. John Roskill's father had emigrated from Germany early in the 19th Century. He settled in Manchester, where John started in practise as a member of the Northern Circuit.
Three of the brothers Wentworth Roskill: from top Ashton, Stephen, and Eustace (drawn by Stanley Spencer in 1958).
The law reports indicate that Roskill Senior developed a busy general common law practice, ranging from landlord and tenant to tax, and from crime to local government. His most prominent case was British Westinghouse v Underground Electric Railways [1912] AC 673, which remains one of the most-cited authorities on mitigation of damages. As a junior barrister, he was led by future Prime Minister Herbert Asquith (who had been his pupil master) and future Commercial Judge Reginald Bray, among others. He was appointed King's Counsel in 1903, in the same year as Montague Shearman. John appears to have dropped out of practice during the Great War, when he was only in his fifties. Perhaps his career was cut short by the violent anti-German sentiment which gripped Britain after August 1914. He was certainly the victim of uncomplimentary remarks about his ancestry. One of these, made by an opposing KC in the middle of a hearing, led to punches being thrown in the front row of the Court.
Sybil Roskill was a niece of the radical MP Charles Dilke. The middle name "Wentworth", which was conferred on all four brothers, came from her side of the family. The eldest son, Sir Ashton Roskill (1902-1991), became a successful commercial QC, although he was never quite so prominent as his younger brother eventually became. Ashton left the Bar in the 1960’s, and headed the Monopolies & Mergers Commission for a decade at the end of his working life. Captain Stephen Roskill (1903-1982) had an important influence on the development of gunnery doctrine during the first phase of his Royal Navy career. He was then given responsibility for writing the official history Navy in the Second World War. This led to a second career as a prominent naval historian and biographer after he left the service. Oliver Roskill (1906-1994) was one of the UK's first management consultants. A successor company to the O. W. Roskill Industrial Consultants business consultancy which he founded in 1930 still operates today.
In addition to adopting his father's and eldest brother's choice of career, the young Eustace followed Ashton's educational path. Both brothers went to school at Winchester College, then studied modern history at Exeter College, Oxford, from where both graduated with first class honours. Eustace was called to the Bar in 1932 by the Middle Temple. This was a break from family tradition, since John and Ashton were both members of Inner. He served his pupillage with future Commercial Judge John Morris, then joined 3 Essex Court, where William McNair was joint head of chambers with Henry Willink), and Alan Mocatta and John Megaw were the junior tenants.
The four were all commercial practitioners, 3 Essex having converted from general common chambers to a specialist commercial set in the decade or so after the Great War. But there was not much work for very junior commercial practitioners in the early 'thirties. So Roskill's prospects would have been challenging enough in any event. As things actually happened, his difficulties were compounded by personal disaster. In 1931, the Roskill family home was engulfed by fire. Sybil was killed, Ashton was seriously injured when he jumped from the roof to escape the blaze, and Eustace appears to have suffered an emotional breakdown. Presumably this explains why Megaw became established in practice before Roskill, notwithstanding that he had been called a year later. Making matters even worse, Roskill was stricken by tuberculosis later in the decade. His capacity to recover from these setbacks and eventually establish a thriving commercial practice indicates great reserves of character. It probably also reflects the strength which he drew from a deep Christian faith.
But the recovery was slow going. While Ashton, with nearly a decade's head start, began to build up a steady portfolio of reported cases during the 1930's (like his father, he had a broad practice at this stage of his career), Eustace made no appearances in the reports before the outbreak of the Second World War. Virtually his first case in Lloyd's, in October 1939 (led by Willink), concerned the effect of the War on a time charter: Westralian Farmers v Damps. Orient (1939) 65 Lloyd's Rep 109. The Court held that the charter's war clauses were not engaged, so that the contract carried on regardless of hostilities. The same was not true for Roskill's embryonic career in private practice. The after-effects of tuberculosis disqualified him from military service, and he followed McNair into government legal work at the Ministry of War Transport, advising on issues arising from the requisitioning of ships and trying to resolve the status in international law of British ships stranded in foreign ports. (Ashton, meanwhile, somehow managed to maintain a High Court practice alongside war work for MI5.)
Eustace's career belatedly took off after the end of the War. In one of his first appearances back at the Bar, he and McNair appeared against Ashton (whose practice had by then become more commercial-focused) in a time charter cancellation case: A/S Tankexpress v Compagnie Belge (1946) 79 Lloyd's Rep 451. They lost, but, in the post-War period, the younger Roskill steadily caught up with, and then surpassed, his brother's professional success. From 1946, his name was constantly in the law reports in a succession of Commercial Court shipping and marine insurance actions. He was frequently led by McNair, for example on Monarch v Karlshamns [1949] AC 196, a House of Lords appeal raising questions of causation and remoteness following the interruption of a charterparty by the War, and The 'Unitas' [1950] AC 536, one of relatively few (by comparison with the Great War) Prize appeals to the Privy Council to emerge from the conflict of 1939-1945. He also worked with other prominent commercial KCs, including Willink, Patrick Devlin, Kenneth Diplock, and Thomas Roche, son of former Commercial Judge Adair Roche. In Yorkshire Equipment Co v Tweed Fishing Co (1948) 82 Lloyd's Rep 90, a dispute about the sale of a trawler, Roskill was led by the notable F. Ashe Lincoln KC. Lincoln had been called to the Bar in 1929, served with distinction in the Royal Navy in the War, brought a libel case in response to complaints made about him to the Bar Council in the 1950's - he lost, on the basis that the complaints were protected by privilege - and was still arguing cases in Court in the early 1990's. And in Blane Steamship v Minister of Transport [1951] 2 KB 965, he was led by his own brother, Ashton, who had become a KC in 1949 and practised mostly commercial law after the War. Instructed by time charterers, the Roskills arguedthat a contractual right to purchase the ship could still be exercised after the vessel had become a constructive total loss. They lost. Roskill's former pupil master, John Morris, was one of the Judges in the Court of Appeal.
Useful contacts acquired through his war work contributed to Roskill's success, with a good proportion of his instructions emanating from the Treasury Solicitor. But he was also retained by most of the leading commercial solicitors in London. By the late 1940's, Roskill was increasingly arguing cases on his own. In The 'Illisos' [1949] 1 KB 525, he valiantly attempted to persuade the Court of Appeal that both Patrick Devlin as arbitrator and Frederic Sellers in the Commercial Court had been wrong to think that "deficiency of men" in a time charter off-hire clause did not cover a case in which the ship had the right number of crew, but they refused to work. Predictably, the Court was not convinced. But this was good practice for the sorts of hopeless mission with which Roskill would increasingly be entrusted later in his career. By the early 1950's he was so busy that he needed juniors to help with his caseload. 3 Essex Court colleague Mocatta became a regular opponent.
Roskill became leading counsel in 1953, not as King’s Counsel, but Queen’s, now that Elizabeth II was the reigning monarch. Megaw was appointed in the same year, as were two future Lords Chancellor, Hailsham and Elwyn-Jones. Notionally, Roskill had been in practice for the best part of twenty years by then. To all intents and purposes, however, his career was less than a decade old, leaving aside periods of illness and the War, and he was in effect a precocious QC.
Roskill during the 1960’s.
He was also an instantly successful one, and the flood of work continued unabated. Roskill made nine appearances as QC in the Lloyd's reports for 1954. (Ashton made only two.) In 1954, that increased to a dozen, and he maintained that level of prominence for the rest of the 'fifties. Perhaps no commercial practitioner since Joseph Walton had made such a barnstorming recovery after an uncertain start. Shipping was the core of Roskill's practice, with some international sale of goods and marine insurance work. His juniors included a crop of future Commercial Judges: John Donaldson (who had been Roskill's pupil), Michael Kerr, Henry Brandon, Anthony Lloyd, Michael Mustill, and Christopher Staughton.
In the massive The 'Tropaioforos' [1960] 2 Lloyd's Rep 469, a marine insurance claim which lasted for more than forty days before Colin Pearson in the Commercial Court, Brandon and Staughton were both his juniors, appearing for insurers against the shipowners' counsel team of Mocatta, Kerr, and Mustill. Cross-examining the Master, whose ship had inexplicably sunk in calm weather in the Bay of Bengal, Roskill began by inquiring how it was that the witness, when roused from his sleep in the middle of the night with the appalling news that the engine room was flooding uncontrollably, had found time to shave pack a suitcase before hastening to the lifeboats. (The officers of the vessel who rescued the crew of The 'Tropaioforos' had been struck by how cheery and well-turned out the shipwrecked men had been.) The case was one of Roskill's great forensic triumphs at the Bar: Pearson dismissed the claim, holding that the vessel had not been lost by perils of the sea, but had been deliberately sunk in order to make a bogus claim on the insurance policy.
A thoughtful Roskill returns home to the Temple after a day in the Court of Appeal in the 1970’s, while John Donaldson photobombs the background.
Tall and thin, with a pleasant but sometimes disdainful-sounding voice and a face which naturally assumed a severe expression when at rest, Roskill could be an austere presence in Court. This was entirely misleading, because he was fundamentally kind-hearted and affable, and pleasantly self-effacing in company, with no pomposity about him. He enjoyed the social side of the Bar and the Inns of Court. For many years, he lived in a flat in the Temple during legal term, and was always generous with encouragement and advice for members of the Bar.
Among Roskill’s other high-profile cases as a QC (all in the House of Lords) were Renton v Palmyra [1957] AC 149, on the construction of charterparty exceptions clauses and the impact of the Hague Rules on responsibility for loading; The 'Saxon Star' [1959] AC 133, the first (and still leading) case to grapple with how the Hague Rules operate when incorporated into a charter; The 'Aello' [1961] AC 135, in which the Lords redefined the concept of an "arrived ship"; Tsakiroglou v Noblee Thorl [1962] AC 93, a frustration case arising out of the closure of the Suez Canal; and Scruttons v Midland Silicone [1962] AC 466, in which the House of Lords repudiated the notion, which had been floated by Viscount Sumner and Lord Justice Scrutton half a century before in The 'Grelwen' [1924] AC 522, that a sub-contrator is automatically entitled to the benefit of exception clauses in the head contract.
Ashton was Eustace’s opponent in Scruttons (and several or Eustace’s other cases as QC). Eustace lost. He also lost every other case which he argued in the Lords in the 1960's. Far from being a sign of failing powers, this was a mark of his success. By the end of the 1950's, his reputation was so sky-high that clients repeatedly sought him out for completely hopeless cases, on the basis that only he could possibly salvage anything from the ruins. The result was a succession of more-or-less inevitable failures in doomed causes.
In 1961, Roskill almost, and quite unexpectedly, found himself the head of a new chambers. Returning from a Friday afternoon in Court against one another, he and Mocatta, 3 Essex Court's two QC's, learned that the Lord Chancellor's Permanent Secretary had dropped into chambers in their absence to discuss the futures of its two senior juniors, Donaldson and Kerr. Donaldson and Kerr had recently applied to be made Queen's Counsel themselves. The goods news from Lord Chancellor Kilmuir was that he was minded to recommend them for appointment. The bad news was that he had decided, supposedly in the interests of competition, that no set of chambers should have more than two QC's, and so 3 Essex would have to break up as a condition of Donaldson and Kerr being elevated. Mocatta and Roskill agreed that the former would remain at No 3 with Donaldson and half of the junior tenants, while the latter would lead Kerr and the rest of the juniors to found a new chambers next door at No 4. Just as the new arrangements were about to be implemented (and after Roskill had spent a small fortune decorating his new room), the Lord Chancellor's Department unleashed a further surprise by offering Mocatta a place on the Queen's Bench. When he accepted, Roskill decided to stay at 3 Essex after all. But it was not for long. Roskill's painful losing run at the Bar was ended by his own appointment to the Queen's Bench in April 1962.
Within weeks of appointment, he was hearing sale of goods and carriage by sea cases in his natural judicial home, the Commercial Court. He was the trial Judge in The 'Wear Breeze' [1969] 1 QB 219, a significant decision on the recoverability of economic loss in tort, and in The 'Madeleine' [1967] 2 Lloyd's Rep 224, which is still much-cited in relation to the cancellation of time charters. The trial of the insurance claim arising from the ill-fated voyage of The 'Medina Princess' [1965] 1 Lloyd's Rep 361 lasted four months. Presented with a schedule of claims which filled twenty pages of the Lloyd's Reports, Roskill responded with a judgment running to 140 pages, which would be regarded today as long but not exceptional, but which was extraordinary for the times. However, while the bulk of Roskill's reported cases were in the Commercial Court, he could also tackle other areas of law. Before going on the Bench, he had acquired a decade's experience as part-time Judge in criminal cases, and he played an active role in the criminal work of the Queen's Bench Division. He also tried a significant number of personal injuries cases, and occasionally ventured into other common law disciplines, including employment, planning, and tax.
At the Bar, Roskill had a reputation for being decisive, and decisiveness was one of his principal characteristics as a Judge. Another was speed. He seldom found it difficult to make up his mind, and, once he had reached a decision, he was generally eager to announce it as soon as possible. He became known for delivering extemporaneous judgments at the end of even lengthy and complicated hearings.
The grounding of The ‘Medina Princess’ (formerly ‘Grandyke’) off Djibouti resulted in titanic litigation before Roskill in the Commercial Court. The cargo ship had been built (as ‘Empire Tudor’) in 1944 for the Ministry of War Transport, Roskill’s wartime employee. The partially-submerged wreck is still visible, and today attracts both roosting seabirds and boating tourists.
In The 'Wear Breeze', for example, he heard argument for six days and on the seventh delivered an oral judgment which ran to twenty-five pages when written up for the law reports. It was packed with citation of authorities, but, given the limited time which Roskill had had to prepare it, must have been based on fairly outline notes. Even when he found it necessary to write out in full a properly reserved judgment, the delay was typically short. In The 'Medina Princess', only about six weeks (which spanned the Christmas and New Year holidays) elapsed between the end of the marathon trial and the delivery of the doorstop judgment. Roskill's strong sense of certainty and reluctance to ruminate on evidence or submissions for longer than he thought absolutely necessary sometimes got him into trouble. In an early murder case, the Court of Appeal was severely critical of his rough handling of a defence expert, and convictions were set aside. Potentially much more damaging for his status as a commercial specialist, a strong Court of Appeal decided in Onassis v Vergottis [1968] 1 Lloyd's Rep 294 that his approach to fact-finding had been so slapdash that there should be a retrial. Fortunately for Roskill, the Lords restored his judgment (though by a bare majority). His general reputation was a courteous and dependable first-instance Judge, with sound instincts and intellectual depth. He was well-liked. Ironically, his reputation for reliability got him into trouble too, for it was responsible for his selection as head of an inquiry into the site for a possible third airport for London. After two years of evidence and consideration, Roskill's committee opted for the disused (and appropriately named) airbase at RAF Wing, near the village of Cublington, deep in the Buckinghamshire countryside. Economically sound, the proposal was also defensible by most other objective criteria. But it had little emotional appeal for rural residents threatened with aircraft noise. Amid a storm of protest, the government shelved the committee's report, while Roskill was burned in effigy by infuriated rustics. More positively, Roskill's hard work on the inquiry must have made certain of his promotion to the Court of Appeal, which came in 1971. As Lord Justice, he is probably best known for his observation in The 'Hansa Nord' [1976] QB 44 that "in principle, contracts are made to be performed and not to be avoided according to the whims of market fluctuation", one of the most famous soundbites in modern English contract law. He naturally sat on other prominent commercial appeals, including The 'Brede' [1973] 2 Lloyd's 333 (set-off against freight) and The 'Bremer Vulkan' [1980] 1 Lloyd's Rep 255 (the effects of delay on arbitration) and, towards the end of his time, was involved in a surprising number of family appeals.
The battle to preserve the peace of Cublington is still remembered in ”midmost unmitigated England”, in the Buckinghamshire countryside.
Roskill once again generated controversy in a criminal case, when he reduced the sentence on a serving soldier who had assaulted a woman. The case was misreported by the press, and Roskill found himself unfairly accused of releasing a rapist. There were demands for his resignation, but the misunderstanding did not damage his career prospects: he was made a Lord of Appeal in Ordinary in 1980. Since he had been on the Bench for eighteen years, his career advancement had not been particularly rapid, and, with only six years to go before the prevailing compulsory retirement age, he had his work cut out to make a profound impression in the highest Court. In the event, he was distracted for a significant part of his tenure by a second inquiry. After several prominent and expensive fraud trials had ended without convictions, the government speculated that the fault might lie not with the prosecuting authorities, but with the criminal justice system itself. Roskill was commissioned to consider alternative ways of trying fraud. His core recommendation of doing without juries was no better received than his proposal to deafen the residents of Cublington had been. But several of his subsidiary ideas (such as requiring the accused to give details of the nature of the defence before the trial, and pre-trial case review hearings) were adopted over time not just in fraud cases, but in criminal litigation generally.
Back in his proper job as a Law Lord, Roskill threatened the principle of privity of contract by deciding that a sub-contractor could be directly liable to the head employer for purely economic loss (Junior Books v Veitchi [1983] 1 AC 520), and puzzled criminal lawyers with comments about the nature of appropriation - a key element of the crime of theft - which were, at best, difficult to square with an earlier House of Lords decision (DPP v Gomez [1993] AC 442). Junior Books rapidly joined the list of "difficult" House of Lords cases which must be treated as confined to their facts, while Roskill's theories in Gomez were disavowed by the Law Lords in a subsequent case. His judgment in The 'Evia' (No 2) [1993] AC 442 fared better at the hands of posterity, and remains a leading text on safe port provisions in charterparties. In Bunge v Tradax [1981] 1 WLR 711, he returned to the classification of contract terms, which had been the subject of his famous dictum in The ‘Hansa Nord’. After a studious review of the caselaw, he concluded that, notwithstanding his earlier warnings that Judges should not be too quick to categorise a term as a condition, time provisions in commercial contracts should usually be regarded as conditions, a general principle which has been frequently applied ever since.
In Ashville v Elmer [1992] 1 WLR 446, Roskill conjured the spirit of JC Mathew in overruling the Court of Appeal's interference with the Commercial Judge's case management decisions and encouraging the trial of preliminary issues if the pleadings showed that the case turned on specific points. Sadly, later Lords panels proved less robust about resolving cases without a fullblown and expensive trial of the facts, most notoriously in BCCI [2003] 2 AC 1.
Roskill retired in 1986. Although his health had been poor in recent years, he remained strong enough to sit on the occasional Lords and Privy Council appeal into the 'nineties. He also accepted appointments as arbitrator, and heard Takeover Panel appeals for several years. Retirement gave him more time for gardening and listening to music.
Eustace Roskill married Elisabeth Jackson in 1947. They had two daughters and a son, and, when not in residence in the small flat in the Temple, lived at Newtown in Hampshire, from which Roskill took his title in the Lords. He died in hospital in Reading in 1996. Throughout his adult life, he had remained devoted to the traditions of his Inn, his College, and his School, and his memorial service was held in Winchester Cathedral. This was a good thing, since the throngs who attended would have made for a tight squeeze in Temple Church.
