Henry McCardie's enthusiasm for expressing his views on topical issues probably made him better known to the general public than any of his judicial contemporaries. But what newspaper editors welcomed as good copy struck many of McCardie's colleagues as distasteful attention seeking, and his outspokenness ultimately resulted in a very public and unseemly judicial row.
Henry McCardie, photographed during his judicial career appeared to revel in attention.
McCardie was born in Birmingham in 1869. His father died when he was young, leaving McCardie’s mother to bring up seven children, and McCardie left school at sixteen to go to work. After trying a number of jobs, including several years working for an auctioneer, he joined Middle Temple in 1891 and was called to the Bar in 1894. McCardie did pupillage in his native Birmingham, joined the Midland Circuit, and launched his career in the Courts in and around his home city. After a decade, he had become sufficiently successful to move his base to London, where most of the larger civil cases were tried. He established a wide-ranging and lucrative general common law practice which encompassed crime, defamation, employment disputes, family law, health and safety and personal injury, insolvency, landlord and tenant, and local government. Although McCardie was led on all seven of his cases which reached the House of Lords, he argued a substantial number of his reported cases on his own. In addition to trial work, he had a thriving practice arguing interlocutory applications before the King's Bench Masters, and had a profound knowledge of the Rules of the Supreme Court, which governed practice and procedure.
His most legally significant case at the Bar was Chaplin v Hicks [1911] 2 KB 786. In a publicity stunt which was tremendously successful in its day, though thoroughly sordid by modern standards, actor and theatre impressario Seymour Hicks announced that, if any "young ladies desirous of obtaining engagements as actresses" would send in their photographs, he would interview the fifty "most beautiful" - as chosen by the readers of regional papers, in which the photos would be published - and award contracts to a lucky twelve. RADA graduate Eva Chaplin came top of her region in the public vote but, owing to a mix-up over addresses, Hicks failed to provide the promised interview. McCardie, appearing for Hicks, argued that, since Chaplin had only ever had a one in four arithmetical chance of winning a contract in any event, she could not prove on the balance of probabilities that she had suffered any loss, and was only entitled to nominal damages. But the Court of Appeal held that a candidate who was wrongly excluded from a competition suffered a real loss and should recover substantial damages. Today, the case is recognised as the foundation of recovery for "loss of a chance". (For all of her contribution to the development of English contract law, Eva Chaplin does not appear ever to have fulfilled her ambition of achieving stage fame. Seymour Hicks recovered from near bankruptcy in the First World War to found the armed services entertainment establishment, ENSA, in the Second, and was knighted in the 1930's.) McCardie's reported cases also included some banking litigation and a handful of domestic sale pf goods cases. But he did not achieve a profile in the international sale, marine insurance, and shipping litigation which was the mainstay of the Commercial Court.
McCardie’s great success at the Bar was based on relentless hard work. He managed to get by with six hours sleep a night, and spent most of his waking time working on papers or preparing for trials and other hearings. He combined painstaking thoroughness with a relaxed style of advocacy. McCardie was not a dramatic courtroom presence, but he argued his cases clearly and with an engaging charm. He was helped by the fact that, like William Pickford, he had a tremendous memory. McCardie used this natural talent to acquire a deep and wide knowledge of caselaw (he could remember case citations to the exact page). By 1910, he was one of the busiest juniors at the Bar.
Becoming King's Counsel was the logical next step. McCardie duly applied, and waited for Lord Chancellor Loreburn's response. Then he waited some more. Loreburn had a reputation for dithering about KC applications, and the delay became so great that it damaged McCardie's practice. The difference in work undertaken by senior and junior counsel was much more pronounced then than now, and solicitors, confident that McCardie's application would (eventually) succeed, began to stop sending him junior work. McCardie thus found himself facing the threat of unemployment, increasingly overlooked as a junior, but not qualified as a KC. In the end, he resolved the crisis by withdrawing his application.
Comic actor and theatre manager Edward Seymour Hicks made a splash as Captain Hook in ‘Peter Pan’ and as the unsuccessful client in one of McCardie’s most prominent cases at the Bar.
He was therefore still a junior barrister when he was made a Judge of the King's Bench Division in October 1916. The Law Times, welcoming the appointment as "excellent in every way", noted that McCardie was the first junior barrister since J.C. Mathew to become a High Court Judge without having first served as Junior Counsel to the Treasury. Like Mathew, McCardie had never been an MP either, although he had had the chance. In 1904, the leading Liberal Unionist Joseph Chamberlain (and Birmingham political grandee) had invited him to stand at a bye-election for a safe Birmingham seat, but McCardie declined. Nonetheless, there was an element of political influence in his elevation to the Bench at the relatively young age of forty-seven. When T.E. Scrutton was promoted to the Court of Appeal after six not entirely successful years in the King's Bench, Lord Chancellor Buckmaster had a firm view about who should replace him, and McCardie was not his choice. But Prime Minister Herbert Asquith, who had himself been a barrister, intervened to press McCardie's case, and Buckmaster gave way (allegedly, to his subsequent regret).
On the Bench, McCardie dealt with a range of common law cases every bit as broad as he had in practice at the Bar. Towards the end of the Great War, he followed Montague Shearman in going out on loan to the Probate, Divorce & Admiralty Division, helping to deal with family cases while the Division’s own judicial resources were being stretched by the Prize jurisdiction. Around the same time, McCardie's reported cases began to include an increasing number of international sales disputes. In the busy period immediately after the War, his range of commercial work expanded to include shipping. Judging from reported cases, McCardie sat in the Commercial Court fairly frequently for about five years, building a fairly substantial portfolio of cases deemed suitable for inclusion in Lloyd's Law Reportsswitching his focus back to more mainstream King's Bench work when the post-War mini-boom in commercial litigation died down. His most prominent commercial cases included British & Beningtons Ltd v North-West Cachar Tea Co (1921) 8 Lloyd's Rep 219, a leading case on repudiation of contracts, and Payzu v Saunders [1919] 2 KB 581, which established that the rules of mitigation of damages may require a plaintiff to accept a defendant’s offer of non-contractual performance.
Hubris: McCardie seemed to revel in press attention.
In Houlder v Manx Steamship Co [1923] 1 KB 110, in which an agent tried to circumvent contractual limitations on its right to commission by claiming a quantum meruit, McCardie gave an early statement of the now settled proposition that a claim restitution will not lie where the matter is covered by a contract (although, this being the 1920's, he expressed himself in terms of implied contract, rather than unjust enrichment). And his decision in Wye Shipping v Comagnie de Chemin [1922] 1 KB 617 that a time charterers failure to redeliver "in same good order as when delivered" is a breach sounding in damages but does not render the redelivery invalid is still cited in modern textbooks as authority for the proposition that the owner is not entitled to continue to recover hire until the ship is repaired.
McCardie's showing in the Commercial Court appears to have been solid, and the same seems to have been of the rest of his work. Although he was overruled by the Court of Appeal (with whom the House of Lords agreed) in British & Beningtons [1923] AC 48, his overall record of being upheld on appeal was good. In the well-known Lake v Simmons [1926] 1 KB 366, a case of obtaining by deception, where the legal issue was whether a bailor's consent was vitiated by the bailee's fraudulent impersonation of another person, McCardie's decision was overruled by the Court of Appeal but restored by the House of Lords.
McCardie himself sat regularly as an appellate Judge in the Court of Criminal Appeal, which was staffed by the King’s Bench Judges. But he did not win promotion to the civil Court of Appeal. This was a consequence of the fact that, over time, his judicial performance as a whole came to be defined by two unfortunate characteristics. They did not afflict every judgment, but were sufficiently frequent to mark him out from other King's Bench Judges.
The first was over-citation of authority, sometimes to a ridiculous extent. The judgment in Lake v Simmons was an avalanche of references to caselaw, textbooks, and statutes, which were padded out with quotations, but were often of no more than peripheral relevance. There were worse examples. In Cohen v Sellar [1926] 1 KB 536, where the simple issue was whether or not an engagement ring had to be returned if the engagement was broken off, McCardie indulged in an extended tour of English decisions from the 16th Century to the modern day, with diversions along the way into Roman and continental law. Faced with novel or difficult legal points, McCardie produced judgments which seemed to refer to every case or judicial or academic comment which had any bearing at all on the issue. For all of McCardie’s pretensions to scholarship, these tedious documents were mere collections of citations ("storehouses of legal information", as The 'Times' scathingly put it) when compared with the penetrating expositions of principle produced by such genuine judicial jurists of the time as Hamilton, Scrutton, Atkin, or Wright. They were off-putting to lawyers (or Court of Appeal Judges), let alone to dismayed litigants, who saw the real points of dispute in their cases obscured by a blizzard of authorities.
The second was controversial comment on issues of the day. Over his career, McCardie used his judgments to publicise his personal opinions about subjects as diverse as marriage, abortion, and divorce; the prison system; eugenics; borstal; the age of consent; and women's underwear. Not surprisingly, his pronouncements were often reported in the press, and not always to good effect. McCardie's meditations on the Amritsar Massacre, disclosed (quite unnecessarily) when he told the jury during his summing-up in a libel action that the killings had been entirely justified, provoked outrage in Parliament, with Labour MP George Lansbury going so far as to table a motion for McCardie's removal from office. Fortunately for McCardie, Prime Minister Ramsay MacDonald (also Labour, though heading a coalition National Government) blocked the move, on the basis that a Parliamentary debate would merely inflame the tensions which McCardie's comments had already generated in India.
Perhaps both of these traits were the product of exhibitionism. There was certainly an element of showing off in the way in which McCardie over-loaded his judgments with references to obscure legal sources. But it was the headline-chasing which got him into most trouble. It irritated his more media-shy colleagues. When McCardie let loose about the position of women in modern society in 'The Helen of Troy Case', officially named Place v Serle, a squalid dispute about an extra-marital affair between a doctor and a grocer's wife in Cambridge, T.E. Scrutton decided to put him in his place. Scrutton had been enthusiastic about McCardie's appointment in 1916. By 1932, however, he had changed his mind, and he criticised McCardie in terms which were so stinging that the official law report of Place v Searle [1932] 2 KB 497 contained a censored his judgment. But readers of the digest of the case in The 'Times' were treated to Scrutton's reaction to the unmarried McCardie's musings on wedlock and "reference to Judges with sociological knowledge. I think that the less sociological knowledge that is brought into the discussions of these legal questions the better. If there is to be a discussion of the relations of husbands and wives, it would come better from Judges who have more than theoretical knowledge of husbands and wives. I am surprised that a gentleman who has never been married should, as he has done in another case, proceed to explain the proper underwear that ladies should wear. Those things are better left out of the discussion of legal questions.” (The three Lords Justices who heard the appeal in Place v Searle went out of their way to make clear that they did not share McCardie's enthusiasm for the press. Scrutton and former Commercial Judge Frederick Greer said in the course of the oral argument that they usually found that newspaper reports about matters of which they had some knowledge were just wrong; Henry Slesser claimed not to read the papers at all, notwithstanding that he had been an MP for six years.)
McCardie retaliated by making a statement in open Court which he described as “a rebuke” to Scrutton. He also announced that, if Scrutton ever again sat on an appeal from one of his judgments, he would refuse to make his notes of the trial available to the Court of Appeal, contrary to established judicial protocol.
Nemesis: T.E. Scrutton (top) came to despise his junior colleague. Master of the Rolls Lord Hanworth sided with Scrutton during the public falling-out.
For good measure, McCardie also complained to Scrutton's immediate superior, Master of the Rolls Lord Hanworth, declaring that "the time has come when [Scrutton's] influence and malice should cease... He is, in my view, unfit to be a member of a judicial tribunal". But if McCardie expected Hanworth to back him up in his feud with Scrutton, he had badly misjudged the mood among the senior judiciary. The Master of the Rolls emphatically shared Scrutton's view that Judges should stick to deciding cases, and ought to avoid having their personal opinions plastered all over the newspapers. Moreover, McCardie had badly antagonised his superiors when, at the time of the National Economy Act 1931, he had joined Sidney Rowlatt in reacting militantly to the government's proposal to cut judicial pay, nearly derailing Hanworth's attempts to negotiate a settlement by firing off aggressive memoranda and threatening to resign. Hanworth made clear that McCardie must withdraw his "public rebuke". McCardie was forced to back down, while the national press and its readers enjoyed the fun (The 'Times' published a sententious editorial demanding some "dignity on the Bench").
Away from Court, McCardie read widely (he was President of the Horatian Society, dedicated to the works of the Roman poet Horace), and was an enthusiast for antique china and watercolours: his flat, overlooking St James’s Park in central London, was filled with paintings. But his interests were not purely intellectual, and he liked to get out of London at weekends and during legal vacations to fish, shoot, and play golf. The man the newspapers called ‘The Bachelor Judge’ never married. There were thoroughly pragmatic reasons for this. McCardie had long-term and overlapping relationships with two women, with one of whom he had a son, and marrying either would surely have provoked the other’s displeasure.
The complications of McCardie's private life were compounded by his other major pastime, which was gambling. McCardie threw away money on horses and dogs. He also lost heavily on the stock market. In time, his personal and financial troubles affected his mental health. Physical illness dragged McCardie down further. In early 1933, he contracted a stubborn influenza virus which he could not shake off. Still a dedicated worker, McCardie was determined to fulfill his duties, and struggled out on Circuit in February and March. But by late April, he was too ill to sit in Court, unable to sleep because of persistent fever, exhausted, depressed, and withdrawn. On 26th April 1933, sitting in an armchair in his flat, Henry McCardie shot himself dead with one of his hunting guns. The following day, the Judges who were in London at the time, twenty-seven of them in all, including McCardie's nemesis, T.E. Scrutton, packed into Lord Chief Justice Hewart's Court to hear Hewart pay tribute to "a man not only of the highest ability and integrity, and of quite phenomenal industry, but also a warm-hearted, trustworthy friend". (In private, Hewart thought that McCardie had been "obsessed with sex and dark thoughts of death".) Scrutton, who despised Hewart every bit as as much as he did McCardie, must have listened with gritted teeth. In death as in life, McCardie attracted extensive media attention, as the national press published detailed reports from the coroner’s inquest, which was held with commendable promptness a mere two days after his demise. Future Commercial Judge Wilfrid Lewis represented McCardie's brothers and sisters at the hearing. The verdict was that McCardie had committed suicide "while of unsound mind". McCardie was buried, in a private ceremony, in Birmingham.
For some reason, very few Commercial Judges have attracted the attention of biographers. The colourful McCardie achieved the distinction, in death, of becoming the subject of two full accounts of his life, the first published in the 1930’s, and the second, hailing him as a “Rebel, Reformer, and Rogue Judge”, in 2016.