Frederick James Tucker Frederick James Tucker followed his pupil-master, Rayner Goddard, into the Commercial Court, the Court of Appeal, and the judicial House of Lords. But Tucker, an altogether more relaxed character than his energetic and driven mentor, was never to achieve Goddard's prominence or impact.
Tucker was born in South Africa in 1888, the only child of Frederick and Alice Tucker of Pietermaritzburg. After Alice died when her son was an infant, Frederick senior moved to England, and Frederick senior went to school at Winchester College. He then studied at New College, Oxford, beginning with classics but switching to law after a year. This proved a good move academically, because he only scraped a third in classics moderations, but managed a second in law finals. Tucker was called to the Bar by the Inner Temple in 1914. The Great War broke out before his legal career began. He spent the War in the army in Europe, reaching the rank of Lieutenant.
Breathless excitement in Kensington in October 1937, as Frederick Tucker leaves his home for the House of Lords, to be sworn-in as a King’s Bench Judge by Lord Chancellor Hailsham. Tucker is attended by his chambers’ senior clerk, SIdney Newland, who had been recruited by Rayner Goddard as a 19 year old, and who retired shortly before Tucker’s death, after fifty-six years in the clerking profession.
After his discharge at the end of the War, Tucker made a belated start on pupillage, under Goddard’s supervision. He did well enough to be invited to join the Chambers at the end of his term. Like Goddard, he joined the Western Circuit, practising in the Courts of Bristol, Exeter, Plymouth, Taunton, Winchester, and other county towns in the south and south-west of England. These Courts handled general common law work, and trial was commonly by jury in civil as well as in criminal cases. A fairly tall man, possessed of both physical presence and a pleasant easygoing manner, Tucker had good natural attributes for making a favourable impression on juries. He quickly established a solid mixed practice, with a significant criminal element. His early appearances in the law reports were in cases ranging from rent control and local government to criminal appeals.
Tucker added commercial work to his repertoire after Goddard became a KC in 1923. He took over part of Goddard's junior banking practice, and Goddard led him in a number of reported commercial cases. As a result, he began to make more regular Court appearances in London. But Circuit work remained the focus of his practice. Like his former pupil-master, Tucker relished the social side of Circuit life. A gregarious type, he enjoyed the clubbable way in which the barristers dined together every evening as they toured the Circuit's various Courts. As a result of his preference for provincial work over London practice, Tucker remained very much a generalist with a sideline in commercial litigation, rather than a commercial specialist. This continued after he was appointed King's Counsel in 1933. Tucker argued several banking cases as a KC, but he did not cut a significant figure in the Commercial Court. He was more prominent in taxation and rating litigation than in any other field, though he also appeared in landlord and tenant and tort actions, and he maintained a criminal side to his practice with a number of reported appearances in the Court of Criminal Appeal.
Tucker's career as a KC was short. When Rigby Swift, the senior King's Bench Judge, died in October 1937, Tucker was selected as his replacement. He had had some part-time judicial experience as Recorder of Southampton, and the law journals thought that he was a good choice. Although photographs of Tucker on the day that he was sworn-in suggest a man suffering extreme second-thoughts about his career choice, The Law Times’s prediction that "he is likely to make a very efficient and popular Judge" proved correct. With his generalist background, Tucker was able to handle the full range of King's Bench work, and he tried cases involving consumer credit and insurance, employment, landlord and tenant, local government, and tort and personal injuries. He was a regular member of the Court of Criminal Appeal, and sat as an additional Judge of the Court of Appeal in civil cases for a time during the Second World War. He retained his good nature on the Bench, and was a pleasant and courteous tribunal, though he had a sterner side too: The 'Times' thought that he had a tendency to impose severe sentences in criminal cases, and, when he reached the House of Lords, he spoke in debates about his regrets over the abolition of corporal punishment by birching in criminal cases.
Although Tucker tried a few marine insurance and charterparty cases, he was not prominent in the Commercial Court (most of his reported shipping-related cases involved personal injuries to seamen and stevedores, rather than carriage of goods by sea). But in 1941, he was the trial Judge in one of the most important of all wartime commercial cases. In 1939, Fibrosa SA contracted to buy flax hackling machines from Fairbairn Lawson Combe Barber Ltd, Leeds-based manufacturers of textile machinery. Fibrosa made a down-payment when the contract was signed, and Fairbairn agreed to ship the machines to Poland. A few weeks later, Germany invaded Poland and triggered the Second World War. Since Fairbairn could not ship the machines to enemy-occupied territory, Fibrosa treated the contracts as frustrated and asked for their money back. But Fairbairn, who had already started work on manufacturing the machines, were reluctant to pay. At the trial in Fibrosa v Fairbairn [1942] 1 KB 12, Tucker held that the fact that the contract contained a clause extending time in the event of delays or hinderances did not prevent the contract from being frustrated. But he also held that Fibrosa were not entitled to repayment. On this aspect of the case, his hands were tied by the Court of Appeal decision in Chandler v Webster [1904] 1 KB 493, which held that losses lay where they fell when a contract was frustrated. The Court of Appeal endorsed Tucker's conclusions. The House of Lords upheld his decision in relation to the delay clause, but overruled Chandler v Webster and held that money paid under a frustrated contract was recoverable if there was a total failure of consideration. The case thus become a leading authority in the slowly evolving law of restitution, as well as on the inter-action between delay clauses and the doctrine of frustration.
While Fibrosa v Fairbairn was Tucker's most memorable case for commercial lawyers, he was best-known to the general public as the Judge at the trial of William Joyce. Joyce was born in America, raised in the west of Ireland (before independence), and became a German citizen during the Second World War. But in the 1930's, he had (fraudulently) obtained and renewed a British passport. The prosecuting authorities considered that this was sufficient to charge him with treason for his "Lord Haw Haw" propaganda broadcasts for the Germans during the War. He was convicted, and the Court of Criminal Appeal and House of Lords held that Tucker’s direction to the jury had been a proper one. Joyce was hanged in January 1946, the last person to be executed in Britain for treason.
Tucker was promoted to the Court of Appeal in 1945. A year later, Lord Chief Justice Caldecote retired. Prime Minister Atlee decided to break with tradition by replacing him from the ranks of the serving judiciary, rather than offering the job to the Attorney-General as had long been customary. Tucker was mentioned as a possible candidate, and his extensive experience of criminal litigation made him a credible choice. But Atlee opted for a more senior judicial figure, and Tucker's former pupil-master, Rayner Goddard, who had been a Lord of Appeal in Ordinary since 1944, got the job.
In 1950, Tucker himself was offered a position as a Lord of Appeal. He had reservations, because he objected to the way in which the Law Lords were sometimes called upon to deal with issues which were more political than judicial (governments had a tendency to nominate Law Lords to head prominent public inquiries). But he accepted the offer in the end, and spent just over a decade in the Lords. Tucker's all-round common law versatility and good sense made him a useful appellate Judge. Tucker's all-round common law versatility and good sense made him a useful Judge in the highest court. But he was not a profound legal thinker, and, he did not take much interest in commercial appeals in the Lords. He sat on the panels which decided some of the most important shipping cases of the 1950's: Renton v Palmyra [1957] AC 149, which established that, in spite of what the wording might suggest, the Hague Rules left the the parties to a bill of lading to decide for themselves who should be responsible for cargo operations; Maxine Footwear v Canadian Government [1959] AC 589, on the scope of the owners' seaworthiness obligation under the Rules; and The 'Wagon Mound' [1961] AC 388, which had an impact well beyond shipping law by redefining the test for remoteness of damage in tort. But Tucker did not deliver a substantive judgment in any of these, though he put in a good word for the Commercial Court in Fairclough v Vantol [1957] 1 WLR 136, in which he made the point that a dispute which had spent four years enmired in arbitration could have been resolved in a fraction of the time if the parties had taken the key point of law direct to the Court.
Tucker was rather more to the fore in appeals about tax (a topic which was constantly before the Lords in the 1950's) and crime: probably his most prominent judgment was in DPP v Shaw [1962] AC 220, in which he announced that the Law Lords retained jurisdiction to declare the existence of new crimes, and that the defendant, who had published a handy guide to London's prostitutes, was guilty of conspiring to corrupt public morals, notwithstanding that no such offence had existed until Tucker and his colleagues made it up. (Lord Reid, a rather more thoughtful and profound jurist than Tucker, dissented.) Despite his earlier reservations about the government using Law Lords for inquiries, Tucker did a good deal of committee work during his time as a Law Lord, although it was generally of a more or less strictly legal character. He sat on panels which reported into liability for damage done by animals, the circumstances in which appellate courts should be empowered to order a retrial in criminal cases, and the reporting of criminal committal proceedings before magistrates.
Tucker retired in 1961. None of his obituarists later suggested that he had made any significant contribution to the development of English law during his judicial career, and a review of his body of work does not suggest that they had missed anything. He appears to have been happy to leave the Bench: he was only seventy-three, comparatively young for judicial retirement at the time (though Patrick Devlin was under sixty when he declared himself bored with the Lords a couple of years later), and he returned to sit as a "retread" on only a handful occasions, giving up altogether after 1963. Tucker's few cases in retirement included the important White v Carter Councils [1962] AC 413, which established the principle that a party which can perform its side of a contract without the co-operation of the other party is usually entitled to ignore the other party's repudiation, perform its own side, and claim any sum due in return for its performance as a debt. True to his form in prominent commercial appeals, Tucker delivered a concurring judgment.
Away from the courtroom, Tucker was a good golfer. He competed regularly in the the annual judicial contest for the Alverstone Trophy, beating Commercial Judge William McNair into second place in 1953. He also built up a "highly important" collection of silverware, which he sold through Sotheby's in the early 1970's. Tucker’s physical co-ordination appears to have deteriorated in old age: he injured himself ploughing into two others car at a junction in 1964 (Tucker admitted careless driving, and was fined). But he recovered to live for another decade, and the accident did not put him off motoring: he was up before the magistrates for careless driving again in 1973.
Tucker married Elisabeth Benedicta Berryman in 1918. She was a vicar's daughter, as Tucker's mother had been. The marriage was not troubled by children. The Tuckers lived out their retirement at Great Bookham, in Surrey. Like Frederick Greer, Tucker called his home "Fairfield", though Greer's house had been in Lancashire rather than the Home Counties. Elisabeth died in 1973. Frederick James Tucker died at home in November 1975.