A disappointing number of Commercial Court Judges acquired a reputation for being short-tempered and sometimes (or often) disagreeable. Frederick Arthur Greer (who used "Arthur" for his first name) was not one of them. On the contrary, Greer was remembered as one of the most pleasant and best-liked of all Commercial Judges. His unceasingly pleasant disposition was all the more admirable for the fact that Greer experienced both professional and personal hardship in his life.
Greer was born in Liverpool in 1863, the first child of Arthur and Mary Greer. His apparently tireless parents subsequently had another thirteen children. Arthur Greer senior was a scrap-metal merchant who divided his business activities between Liverpool and the Isle of Man, where he had been born. In the 1880's, his company, Henry Bath & Son Ltd, concluded an eye-catching deal by buying the hulk of The 'Great Eastern', the Isambard Kindgdom Brunel-designed paddle steamer which had been the biggest ship in the world for thirty years: so big was the ship's hull that the scrapping operation took eighteen months to, and Baths had to resort to a wrecking ball to break up the structure.
Arthur junior was sent to school in Aberdeen, and then attended Aberdeen University (and spoke with an Aberdonian accent for the rest of his life). He was an excellent student, and obtained a first class degree in mental philosophy. He was called to the Bar by Gray's Inn in 1886, and started practice on the Northern Circuit, which included Liverpool. Greer's home city was a regional centre for shipping and commercial litigation, and several prominent figures from the Commercial Court's early years - Russell, Kennedy, Bigham, Walton, and Pickford - had launched their careers there. But Greer found the Bar slow going at first. Finding little work, he supplemented his income by writing for Liverpool newspapers. At one point, pessimistic about ever making a success of the Bar, he nearly abandoned the law for a full-time career in journalism. He did not make an appearance in a reported case until Marrow v Flimby [1898] 2 QB 588, a worker's compensation appeal arising out of a fatal accident in a Cumbrian coal mine.
But, once given a chance, Greer made a good impression, with the Court of Appeal describing his advocacy as "excellent" and "very able". With the turn of the century, he began to find steady work. There was a general common law element to his practice (he was instructed in reported cases about local government rates and insolvency), but sale of goods and shipping cases were increasingly prominent. Greer was also retained in the occasional Admiralty case, most prominently The 'Marpessa' [1907] AC 241, a collision action involving a cargo ship running into a dredger in Liverpool docks. The case reached the House of Lords, with Greer and his leader, Pickford, emerging victorious. In the same year as that decision, Greer established a London base, although he maintained a Liverpool presence until the end of his career at the Bar.
Greer was appointed KC in 1910. He had another difficult start in this new phase of his career. In his first major case as leading counsel, Lloyd v Grace Smith [1912] AC 716, Greer had the challenging task of arguing that a widow who had visited a Liverpool solicitor for investment advice, and had been swindled out of her modest property by the managing clerk, did not have a claim against the solicitor. It is a considerable testament to Greer's professional skill that he convinced a majority of the Court of Appeal. But the House of Lords agreed with the trial Judge, T.E. Scrutton, that the solicitor was vicariously liable for his employee’s wrongdoing. While the case ended in failure, it was good for Greer's profile, and he began to appear increasingly often in the law reports. Although commercial work was an important part of his practice, Greer was never solely a Commercial Court specialist: he appeared in cases about employment, industrial accidents, landlord and tenant, and local government, as well as in shipping, sale, and banking disputes and, during and just after the Great War, a few Prize actions. The slow build to Greer's career at the Bar meant that he was already well into his mid-fifties when he was made a King's Bench Judge in 1919. He was also showing clear signs of the severe arthritic condition which was to cause him great pain and loss of mobility, particularly in his right hand, during his judicial career. The Law Journal warmly welcomed Greer's appointment. The rest of the legal press was respectful rather than enthusiastic, presumably a reflection of the fact that he had spent much of his career as a “Liverpool local”, away from the London limelight.
Greer followed in the path of other great Judges during his judicial career: (from top) he replaced J.R. Atkin in the King’s Bench Division and J.E. Bankes in the Court of Appeal, and succeeded T.E. Scrutton as senior Lord Justice. Remarkably, of these four exceptional common lawyers, only Atkin reached the highest court as a Lord of Appeal in ordinary.
Greer replaced Commercial Judge J.R. Atkin, who was four years younger, but was already moving up to the Court of Appeal. Greer himself soon began sitting in the Commercial Court, and most of his reported first-instance decisions were commercial. But he shouldered his share of Circuit work, did substantial service in the Court of Criminal Appeal, and made occasional forays into such areas as employment, landlord and tenant, and local government. Greer's performance as a first-instance Judge was characterised by scholarly legal learning and infinite patience and courtesy. He was never known to be rude, did not interrupt counsel unnecessarily, and did not irrevocably make up his mind before the end of the argument. But the benign exterior covered a razor-sharp intellect. Greer was clear-headed and decisive. He stated his conclusions in well thought-out judgments which were easy to follow and showed a thorough understanding of the law. He was the trial Judge in prominent commercial cases including Brandt v Liverpool (1923) 15 Lloyd's Rep 123, where the issue was when a contract of carriage could be implied between a carrier and a bill of lading holder, and Snia Societa v Suzuki (1923-24) 17 Lloyd's Rep 78, an important authority on damages for breach of charterparty. In Reidar v Arcos [1926] 2 KB 83, Greer held that a demurrage clause liquidated the owner’s damage for detention where the charterer failed to complete cargo operations within the laydays, but that it did not prevent the owner from recovering additional damages where the charterer had also committed a separate breach causing a different sort of loss. When the case reached the Court of Appeal, the notoriously (and uncharacteristically) obscure judgment of J.R. Atkin, Greer’s King’s Bench and Commercial Court predecessor, left shipping lawyers confused about whether a separate breach was actually necessary for owners to circumvent a demurrage clause, or whether a different sort of loss was sufficient: the point was still being debated nearly a century later in The ‘Eternal Bliss’. But Greer’s actual decision - that the owner was entitled to recover additional damages on the facts - was upheld, as it was in virtually all of his reported cases which went to the Court of Appeal.
Greer joined that Court himself in 1927, on the retirement of John Eldon Bankes. Modest and self-effacing, he hesitated about accepting the promotion, but was talked around by T.E. Scrutton. Those elements of the legal press which had been muted about his appointment as a Judge enthused about his elevation. The Solicitors' Journal, which had expressed some surprise about his arrival on the Bench in 1919, said that no-one could question his selection for the Court of Appeal, while The Law Journal was sure that he would have been promoted sooner but for the fact that there had been no vacancies on the common law side for years.
Practically the first of Greer’s more than four hundred reported cases as a Lord Justice was Gosse Millerd v Candian Government [1928] 1 KB 717, an appeal from Robert Wright, and the first English case on the Hague Rules. Greer agreed with Wright that a shipowners’ careless failure to keep hatches closed while the ship was being repaired with cargo on board was not “negligence in the management of the ship” within the Rules’ exclusions, and that the owner was therefore liable for damage to the cargo caused by rain. Scrutton and the third member of the Court took the opposite view, but Greer and Wright were vindicated when the case reached the Lords ([1929] AC 223), and Greer’s summary of the legal position is still regularly cited. Greer also dissented in Hain v Tate & Lyle (1934) 49 Lloyd’s Rep 123, which remains the principal authority that a deviation from the contractual voyage, unless waived by the charterer or bill of lading holder, terminates the contract of carriage and deprives the shipowner of the benefit of all contractual exclusions. His view (that there had been a waiver on the facts) was again upheld in the Lords (1936) 55 Lloyd’s Rep 159).
In the famous Bell v Lever Brothers [1932] AC 161, Greer and Scrutton were of one mind that company directors’ failure to disclose breaches of their contracts of service entitled the company to rescind redundancy agreements which the company had concluded in ignorance of the fact that it actually had the right to dismiss the directors without compensation, but the Lords disagreed. In the equally well-known The ‘Liesbosch’ [1933[ AC 449, Greer, Scrutton, and the House of Lords all agreed that a plaintiff’s impecuniosity is irrelevant in the assessment of damages: but, seventy years later, another panel of Law Lords said that they had all got it wrong, and overruled the case (Lagden v O’Connor [2004] 1 AC 1067).
Notwithstanding increasing physical infirmity, Greer maintained in the Court of Appeal the patient kindliness which he had shown at first instance. His affability now extended beyond counsel to the Judges whose decisions came before him on appeal. Unlike some Lords Justices before him and after, Greer did not give the impression that he had forgotten about the challenges of being a trial Judge as soon as he arrived in the Court of Appeal. He generally refrained from criticising first instance Judges in his own judgments. As he explained in his valedictory address, Greer believed that the Court of Appeal should be careful not to say anything which might undermine respect for the lower judiciary. He also joked that all new Judges should begin their careers in the relatively easy-going environment of the House of Lords, and gradually work their way up to the challenge of handling a High Court or County Court trial. But Greer’s geniality did not detract from his strong independent-mindedness and determination to deliver what he regarded as the correct answer in each appeal: he never hesitated to dissent, as he did in Gosse Miller and Hain.
When T.E. Scrutton died in 1934, Greer became the senior Lord Justice, and the regular head of the common law division of the Court of Appeal. Like Scrutton, he was destined not to become a Lord of Appeal in Ordinary, although it was obvious that he was a much more capable lawyer than Adair Roche, who went to the Lords in 1935 after only a year in the Court of Appeal. Greer may have been an unlucky victim of bad timing. He was approaching his mid-seventies when the vacancy arose. Roche was nearly eight years younger, and in better health. In the event, however, Greer outlasted Roche on the Bench. Roche retired in January 1938, while Greer stayed on until October of the same year. Prominent cases in the later stages of his judicial career included The ‘Arpad’ [1934] P 189, on the relative roles of market values and sub-sales in the assessment of damages, and Craven Ellis v Canons [1936] 2 KB 403, in which it was held that a plaintiff who had performed services under a void contract was entitled to a quantum meruit: in answer to the defendant’s objection that a promise to pay could not be implied on the facts, Greer stated that the plaintiff’s right to recovery did not rest on any request but arose as a matter of law, an early recognition of restitution as a discrete branch of the law of obligations.
Greer in 1936.
Greer was given a peerage the year after his retirement. He took the title Baron Fairfield, after his Merseyside home, Fairfield House, in East Caldy. The honour was a fitting public recognition of his distinguished judicial career. Perhaps it was also a tacit acknowledgment that he had been worthy of promotion to the Lords. The peerage qualified Greer to sit as an additional Judge in House of Lords and Privy Council appeals, alongside the full-time Lords of Appeal in Ordinary. But he made only one reported appearance, in a Privy Council family law appeal from West Africa. Otherwise, he retired from public life to live out his retirement at Fairfield.
Greer married Kathleen van Noorden, who was from South Carolina, in 1901, and they had one daughter. Kathleen died in 1937, and he married Mabel Neel, one of Kathleen's friends, in 1939. Frederick Arthur Greer died at home in February 1945.