Henry Vivian Brandon secured for himself a minor piece of English history as the first - and, to date, only - Commercial Judge who was not a member of the Queen's (or King's) Bench Division.
Born in Sussex in 1920, Brandon was the younger son of Captain Vivian and Mrs Joan Brandon. The Captain had been imprisoned for two years in Colditz Castle before the First World War, after being detained by the German authorities on (very probably justified) suspicion of spying. Brandon went to school at Winchester College, where he performed well both academically and in various forms of football. He arrived at King's College Cambridge to study classics in the autumn of 1939, but his studies were interrupted by the outbreak of the Second World War. Brandon was commissioned into the Royal Artillery. In May 1942, equipped with a motorbike and a radio, he penetrated behind the lines to direct his battery's fire onto enemy positions, for which he was awarded the Military Cross.
The circumstances were made slightly unusual by the fact that the enemy in question was French, the incident occurring during the British invasion of Vichy-held Madagascar. More conventionally, Brandon also saw action against the Japanese. He concluded during the Burma campaign that being a barrister would be preferable to manoeuvring artillery and munitions through the jungle. After he was demobilised, he returned to Cambridge, dropped classics for law, and graduated with first class honours. He also added an enthusiasm for cricket to his existing enjoyment of rugby fives and soccer.
Brandon was called to the Bar by Middle Temple in 1946, and became a tenant at 7 King's Bench Walk. Members of he chambers practised in the Probate, Divorce & Admiralty Division, the arm of the High Court which had inherited the Roman-law based family and Admiralty jurisdiction from the pre-Judicature Act "civilian" courts. The Oxford Dictionary of National Biography claims that Brandon began his career working in all of the Division's varied fields. But, if that is accurate, the diversity of his practice did not last for very long. Although he cropped up as counsel in the occasional reported divorce case as late as the mid-fifties, his focus, from his earliest reported cases, was on the Admiralty side.
From his first appearance in a collision action in early 1948, Brandon's name came up regularly in Lloyd's Reports in cases involving collisions at sea, maritime salvage, tug and tow, pilotage, and other "wet shipping" disputes for which the PDA was responsible. He was slightly incongruous as an Admiralty practitioner. There was something of a sense in the post-War period that Admiralty litigation was primarily about practical matters of seamanship and navigation, not abstract principles of law and other intellectual matters. Clever lawyers, such as Brandon, who had an interest in shipping were expected to argue complex points about the construction of charterparties and bills of lading in the Commercial Court, not bandy blame before the Admiralty Judge and his Nautical Assessors about whose ship had been on the wrong course at the moment of collision. But, with a clear-thinking mind and incisive advocacy, Brandon was a tremendous success. He quickly established himself as one of the busiest juniors at the Admiralty Bar.
The separation between "wet" Admiralty work and the "dry" shipping litigation of the Commercial Court had never been absolute. Charterparty and bill of lading cases sometimes found their way into the PDA, and commercial practitioners would venture into the Division to argue them. In the other direction, there had always been Admiralty practitioners who used their knowledge of the shipping trade to establish a sideline in Commercial Court litigation, and Brandon appeared in the Court in a number of carriage of goods by sea and other shipping-centred cases. He was led on several occasions by Eustace Roskill, including in The 'Tropaioforos' [1960] 2 Lloyd's Rep 470, a mammoth marine insurance "scuttling" action lasting over two months before Colin Pearson. Roskill, Brandon, and Christopher Staughton, for the defendant insurers, convinced Pearson that the ship had not been lost through an unexpected and mysterious inrush of water, but had been deliberately sunk by the plaintiff shipowners (represented by future Commercial Judges Alan Mocatta, Michael Kerr, and Michael Mustill) in order to make a bogus claim on the insurance policy. This was the case in which Eutstace Roskill was said to have begun his cross-examination of the Master by asking how it was that, when he had been rudely awakened in the middle of the night to find his ship sinking (as he claimed), he had found time to wash, shave, dress, and pack his suitcase before taking to the lifeboats. In Universal Cargo Carriers v Citati [1957] 2 QB 401, Brandon was led by Roskill's elder brother, Ashton, in a charterparty repudiation case before Patrick Devlin. Devlin's judgment remains a leading statement of the principles of anticipatory breach of contract in English law.
Brandon became a fairly young QC in 1961, after not much more than a decade in practice. It was a good year for future Commercial Judges: Desmond Ackner, John Donaldson, Michael Kerr, and Roger Parker were all part of the same batch. Admiralty remained the core of Brandon's practice as leading counsel, but his guest appearances in the Commercial Court became more frequent. In The 'Medina Princess' [1965] 1 Lloyd's Rep 361, he was again instructed by insurers in a huge case arising from the loss of a cargo ship. Surpassing The 'Tropaioforos', the trial lasted the best part of four months. Brandon's former leader Eustace Roskill was the Judge. But Brandon's most eyecatching appearance in a commercial case was The 'Suisse Atlantique' [1967] AC 1 361, where the issue was the quantification of damages for a charterers' breach of contract. The dispute turned on whether or not the charterparty demurrage clause applied, and before Alan Mocatta in the Commercial Court and in the Court of Appeal, the arguments turned on the linguistic scope of the clause. But on the second day of the appeal to the House of Lords, counsel for the shipowners asserted, apparently on the spur of the moment, that the charterer was not entitled to rely on the demurrage clause at all, because it had committed a "fundamental breach". The charterers protested that this was an entirely new case, the hearing was adjourned for two months, and, by the time it resumed, Brandon had been parachuted in to lead the argument for the shipowners. The case thus unexpectedly became a leading authority on whether or not a repudiatory breach deprives a defendant of the right to rely on exclusion clauses, limitation clauses, and similar provisions.
Brandon lost, to John Donaldson. It was one of the last major cases that either of them argued. Six months later, they were both appointed to the High Court, Brandon to the PDA, Donaldson to the Queen's Bench. Both were strikingly young, at forty-six, though in Brandon's case this was explicable on the basis that the PDA vacancy was for an Admiralty specialist, and Brandon was one of the most obvious candidates in a small pool. Brandon's departure from the Bar had significant implications for those he left behind. Deprived of his sustaining contribution to chambers' overheads, his former colleagues resolved to merge with their near-neighbours in Ashton Roskill's old set. The modern commercial set at 7 King's Bench Walk was the offspring of this marriage.
The sinkings of The ‘Tropaioforos’ (top) and The ‘Medina Princess’ (shown here under a previous name as The ‘Grandyke’) led to two of the biggest Commercial Court cases of the 1960’s. Brandon was instructed for the insurers in both of them.
Whereas new Queen's Bench Judges had usually held a part-time criminal judicial office while at the Bar, Brandon had no direct judicial experience. But he had served as a wreck commissioner, and had been much in demand as a salvage arbitrator, so he had plenty of practical history of managing hearings and resolving disputes. On the other hand, it was years since he been in contact with the PDA's family work. Although it was always clear that his primary judicial responsibility would be for Admiralty, there was often insufficient Admiralty business to keep even one Judge fully occupied, and Brandon was expected to do his bit on the family side. And so, within a few months of his appointment, he was deciding whether or not a husband should be excluded from the matrimonial home pending the finalisation of a divorce. Brandon reputedly had little appetite for this sort of work, while the oddity of divorce cases being handled by a Judge who had spent his career dealing with incidents on the high seas highlighted what a strange creature the PDA was. The Judicature Commissioners had come up with the idea of lumping Admiralty and family litigation into the same Division on the basis that both jurisdictions shared Roman law roots. But, even in the 1870's, that had been a matter of historical interest, rather than of practical significance. There was little common thread of principle connecting the law of divorce to the rules of liability for collisions at sea, and "wet" shipping had more in common with the Commercial Court's "dry" work than with family cases. Few PDA practitioners maintained careers which combined family and Admiralty litigation, and virtually all of the Division's Judges had been specialists on one side or the other. The Commercial Court Users Conference had recommended at the beginning of the 1960's that the Admiralty should be merged into the Commercial Court, and, the best part of a decade later, Parliament got round to acting on the suggestion.
Brandon in High Court Judge’s robes, wearing the MC which he won fighting against the French.
The Administration of Justice Act 1970 introduced a raft of wideranging reforms to make the allocation of High Court jurisdiction more coherent. Among them, the Admiralty was transferred wholesale to the Queen's Bench (though it retained an identity separate from the Commercial Court, so this was not the full merger which the Conference had proposed), and probate was partly moved into the Chancery. The PDA was renamed the Family Division, the better to reflect its residual business, and Brandon was told to prepare for re-assignment to the Queen's Bench. It all made perfect sense, and the only wrinkle was that Brandon refused to go. Accounts differ about the suggestion he had become rather fond of divorce cases and was reluctant to give them up. More certain is that he wanted nothing to do with the Circuit and criminal work in which all Queen's Bench Judges were obliged to participate. So Brandon stayed in the Family Division, and was officially let out on loan as an "acting additional Judge of the Queen's Bench Division" every time he heard one of the Admiralty cases which took up most of his time.
By 1971, Brandon was also occasionally being lent to the Commercial Court, trying a reinsurance action (a rare sight in the Court at that time) in Eagle Star v Spratt [1971] 1 Lloyd's Rep 295. He was Judge in a handful of other reported commercial cases during the 'seventies, including Bunge v Toepfer [1978] 1 Lloyd's Rep 506, a significant case on contractual force majeure clauses. Meanwhile, in an early experiment with the system which operates today, a number of the Commercial Judges took the occasional turn hearing Admiralty business.
People who knew Brandon socially claimed that he had a human side, even something approximating to a sense of humour. But such characteristics were not apparent to those who appeared before him. Brandon's judicial manner was coldly clinical, and his Court was not a welcoming place. The 'Times' tactfully concluded that "he was never a popular judge", and that his "inflexible approach to his cases" did not endear him to the legal profession. He also developed a wearisome habit of insisting that counsel produce authority for familiar propositions of law. Brandon's obnoxious professional persona may have contributed to his relatively slow progress towards the Court of Appeal, although his obstructive response to the 1970 reforms is probably sufficient in itself to explain why, for all of his obvious cleverness, he did not win early promotion. He eventually made it to the Court of Appeal in 1978. Some judicial colleagues thought that he enjoyed the collegiate atmosphere of two- and three-Judge Courts and was more relaxed than at first instance, though counsel and solicitors generally did not notice any thawing of his icy demeanour. As a Lord Justice, Brandon heard a fair number of commercial appeals including The 'El Amria' [1981] 2 Lloyd's Rep 119, an important early decision on the interplay between forum non conveniens and jurisdiction clauses, and Amalgamated Investments v Texas Commerce [1982] 2 QB 84, the modern source for the principles of estoppel by convention. He was naturally prominent in family cases, and sat on rather more appeals about divorce and childcare than about shipping and sale of goods. But the Court of Appeal also gave him the opportunity to display his powers of legal analysis in areas with which he had previously had no contact at all, and he dealt confidently and with apparent ease with appeals involving company law, consumer lending, employment, intellectual property, landlord and tenant, libel, local government, negligence, nuisance, personal injury, planning, sale of land, and tax. (Criminal cases were largely off-limits: Brandon sat on the occasional procedural appeal, but substantive criminal law and sentencing appeals were reserved for those with criminal experience.) Brandon's all-round performance and intellectual prowess were so impressive that, after waiting a dozen years to get to the Court of Appeal, he stayed there for under three, moving up to the House of Lords in 1981.
In the Lords, Brandon joined Eustace Roskill, who had been appointed the previous year. Because he was the best part of a decade younger than Roskill, giving him a longer career in the Lords, and because he did not allow himself to be distracted by inquiry work, Brandon made much more impact as a Law Lord than his old leader did. He sat on the best part of four hundred reported House of Lords and Privy Council appeals. He was a co-author of Roskill's definitive judgment on safe ports in The 'Evia' (No 2) [1983] 1 AC 736, and delivered important commercial judgments in his own right, including The 'Popi M' [1985] 1 WLR 948 (on the operation of the burden of proof in insurance claims); 'De Zeven Provinzien' [1987] AC 24 (judicial regulation of concurrent proceedings in different jurisdiction); The 'Aliakmon' [1986] AC 785 (title to sue for damage to goods carried by sea); and The 'Kyzikos' [1989] AC 1264 (on the running of time in berth charterparties). In The 'La Pintada' [1985] AC 104 and The 'Lips' [1988] AC 395, he analysed when interest was (and, more importantly, was not) recoverable as damages, a point which could be important in commercial cases, given the limits on the Court's statutory powers to award interest.
The Lords heard fairly few Admiralty appeals, but in The 'Goring' [1988] AC 831, Brandon decided the important point that salvage is not recoverable for assistance on non-tidal waters. (This meant that members of a boat club who retrieved a pleasure-cruiser which was drifting down-river after breaking its moorings were not entitled to any reward.) He also delivered a number of significant family judgments, most prominently in Gillick v West Norfolk [1986] AC 112, where he dissented from the majority decision that it could be lawful for a doctor to provide contraceptive advice to minors without parental consent. In an equally high-profile case, he was one of the majority in Spycatcher [1987] 1 WLR 124 which upheld an injunction restraining publication of an MI5 officer's memoirs, which had been written in breach of contract and of confidence. Brandon responded to press outrage at this by writing a newspaper piece in which he sought to explain that Judges did not conjure decisions from thin air according to their personal preferences, but tried to apply the law as they understood it. If this unusual judicial initiative hinted at a new element of approachability in Brandon's character, this was not something which was apparent during hearings. However, relieved counsel found that Brandon's irritability was now often deflected towards his judicial colleague Lord Sidney “Hissing Sid” Templeman, with whom he engaged in a continuous feud. (If either Brandon or Templeman made an observation which seemed to favour one side of the argument, the other invariably responded with an intervention going the other way. Even if they agreed with one another, as they did in Gillick, they insisted on delivering separate judgments.)
Brandon retired in 1991, after a decade which had seen his best judicial work, and with a reputation as one of the most impressive post-War Lords of Appeal. He returned to sit on the occasional appeal for a couple of years, but his health was declining (a spinal operation had not fully cured a painful neurological condition from which he had suffered throughout his time in the Lords), and he was not professionally active in judicial retirement. He developed Parkinson's disease in his last years.
Aside from his favourite sports, Brandon’s professed interests were bridge and travel. But it was said that the real focus of his life was always his family, to which he was devoted, which perhaps explains why he had little warmth to spare for users of his Court. Henry Brandon died in Cornwall in 1999, survived by Jeanette, his wife of four and a half decades (and winner of a 1953 competition to identify "Britain's perfect secretary"), their three sons and one daughter, and their grandchildren.