The only Commercial Court Judge to have played international rugby, John Megaw acquired a forbidding professional reputation which was at odds with the kindlier nature which he exhibited in private.
Megaw was born in 1909 in Dublin, where his father Robert was a barrister. Robert and his wife Anne were Presbyterian Protestants whose outlook on life tended towards the austere: they expected their seven children to work hard and to succeed at everything which they did, and they do not appear to have placed much emphasis on having fun along the way. They were also ardent Unionists, who re-located to Belfast on the eve of the creation of the Free State. Robert re-established his practice there, and was the Chancery Judge of the High Court of Northern Ireland, from 1932 to 1943.
John Megaw QC in 1961, the year before he became a Judge.
Megaw did most of his schooling in Belfast, and won a scholarship to study classics at St John's College, Cambridge. He had shown his talent for rugby at school, but apparently did not play well enough to make the University team. However, if Megaw's sporting showing at Cambridge was disappointing, his scholastic performance was not. Academically gifted, he was awarded a first class in his first year examinations. He then switched subjects to law, and gathered further firsts in finals and the postgraduate LLB. He emulated John Morris by winning a prize scholarship to Harvard Law School, then gathered more accolades and awards at Gray's Inn and in the Bar examinations. Megaw was called to the Bar in 1933. The following year, he made the first of his two appearances for Ireland in Five Nations matches, against Wales at Swansea. The Welsh won by thirteen points, all of them scored within what The Times described as "a crushing four minutes" for Megaw's side. Megaw's second match was against England in Dublin, in 1938. Ireland lost that game 36-14 in "an orgy of goals and tries", punctuated by "a lot of wretchedly bad play by both sides".
Megaw was a pupil of Henry Willink, who would later become an MP, wartime Minister of Health, a baronet, and the Master of Magdalene College Cambridge, but who was in the 1930's a junior barrister at 3 Essex Court. Megaw made sufficient impression to be taken on as a tenant. 3 Essex Court had been a general common law chambers up to 1914, but had increasingly specialised in commercial litigation since the end of the Great War. Willink’s contemporary, and Megaw's future Commercial Court colleague, William McNair was the set’s other principal practitioner when Megaw arrived, while another future Commercial Judge, Alan Mocatta, was the existing junior tenant. A fourth Commercial Judge in the making, Eustace Roskill, joined shortly after Megaw. But this awesome breadth and depth of talent was not matched by a corresponding abundance of work. The mid-1930's were not boom years for commercial litigation, and there was often nothing at all for the more the junior tenants to do. But Megaw picked up some work for the India Office, and was just beginning to make the occasional appearance in reported commercial actions in Lloyd's Law Reports when his career was interrupted by the Second World War. Foreseeing dark days ahead at the time of the Munich Crisis, Megaw had joined the Territorial Army in 1938, the same year that he married Eleanor Chapman (he arrived for the ceremony with a black eye, sustained on the rugby field). He was called up for full-time service in the Royal Artillery in 1939, and ended the War as a Colonel in a staff post in Washington.
By the time Megaw was demobilised in 1945, he and Eleanor had two daughters and a son. Perhaps family commitments were a factor in his decision to reject overtures to stand as an Ulster Unionist candidate for Parliament and instead return to practice at 3 Essex Court. Effectively having to start out at the Bar all over again, Megaw appears to have found it slow going to begin with, and it was the end of the 1940's before he began appearing in the law reports again with any frequency. A big man, as befitted a rugby player, Megaw had the physical presence to make an impression in the courtroom. But in other ways, he was not a natural barrister. In particular, he was intensely withdrawn. Commercial Judge Michael Kerr, who was one of his pupils, thought that the problem was that Megaw was "agonisingly shy". Kerr was adamant that Megaw was fundamentally good-natured, recalling that he refused to accept a fee from pupils, although payment by pupils, rather than to them, was the settled norm at the time. But to those who did not know him as well as Kerr did, Megaw's taciturn demeanour could suggest hostility, and some solicitors, and perhaps some Judges, thought him ill-tempered. Moreover, The Times obituarist thought that "advocacy did not come easily to him", and that he was uncomfortable dealing with witnesses. Megaw clearly did have his admirers. The 'Telegraph' hailed him as "the ablest commercial barrister of his generation", ranking him above the merely “notable” Mocatta and Roskill. But that was not the view of the market, and Megaw never acquired a practice to rival Mocatta and Roskill, one or other of whom (and often both) was instructed in virtually every major commercial case in the decade and a half after the Second World War.
Sir Henry Willink QC, in 1953. Before he abandoned the law for academia after the Second World War, Willink was William McNair’s co-head of chambers at 3 Essex Court, and John Megaw’s pupil master.
But whether Megaw was a gifted trial advocate or not, he was certainly strong-willed, and with his determination and intellectual powers, he steadily built up a solid practice as a commercial junior. By the beginning of the 1950's, he was regularly arguing reported shipping and sale of goods cases on his own. At a time when commercial litigation was relatively scarce, his cases were seldom on a grand scale, and he ventured beyond charterparties, bills of lading, and marine insurance to appear in a share of the seemingly endless run of shipboard and dockside personal injuries cases which were a prominent feature of Lloyd's Law Reports in the 'fifties. Megaw was also instructed in a miscellany of Privy Council appeals. In The 'Rose Mary' [1953] 1 WLR 246 he travelled to the Middle East to appear in the Supreme Corut of Aden (led by former Attorney-General Sir Hartley Shawcross), arguing that the Anglo-Indian Oil Company was entitled to delivery up of an oil cargo aboard a tanker docked in Aden Harbour, notwithstanding that the Persian government had purported to nationalise the company and all of its property (they won, on the grounds that the nationalisation was contrary to international law). Although his practice did not dazzle by comparison with those of Mocatta and Roskill, Megaw did well enough to be made Queen's Counsel in 1953 (the same year as Roskill), after less than a decade back at the Bar.
Megaw slightly broadened the scope of his practice as a QC. He was instructed in a handful of tax cases, and, rather more frequently, appeared in reported competition cases in the newly-created Restrictive Practices Court. But most of his reported cases were commercial. The most daunting was Atlantic Oil v BP [1957] 2 Lloyd's Rep 56, a massive claim arising out of the explosion of the oil tanker 'Atlantic Duchess' in Swansea Docks in 1951. The case was so extensive and technical that required a team of four counsel on each side and which lasted for thirty days before Colin Pearson in the Commercial Court. Cullinane v British Rema [1954] 1 QB 292 was an important (if puzzling) decision on "double counting" in the assessment of damages for breach of contract, while Pyrene v Scindia [1954] 2 QB 402 was a landmark decision on the Hague Rules, which determined both that the Rules could apply if no bill of lading was actually issued and that the shipowner could contract out of performance of loading and discharge operations. Megaw picked up some repeat work from his clients from The 'Rose Mary' in SA Maritime v Anglo-Iranian Oil [1954] 1 WLR 492, although he could not convince either Partick Devlin or the Court of Appeal that a contractual liberty to substitute the vessel under a charterparty could only be exercised once. Becoming a QC gave Megaw more opportunity to argue cases at appellate level, where there were no irksome witnesses and the argument often focussed on points of law, playing to his intellectual strengths. He argued and won Tsakiroglou v Noblee Thorl [1960] 2 QB 318, a prominent frustration case arising out of the 1956 closure of the Suez Canal, in the Court of Appeal.
Megaw also developed a practice as a commercial arbitrator. The questions of law which he stated for the consideration of the Court by an award in the form of a special case in The 'Saxon Star' [1959] AC 133 raised important points about the incorporation of the Hague Rules into charterparties, and reached the House of Lords. He was appointed Recorder of Middlesborough in 1957, and was made a Queen's Bench Judge in January 1961, replacing Pearson, who had been promoted to the Court of Appeal. (Megaw's elevation meant that he missed the Tsakiroglou appeal in the House of Lords later that year: Alan Mocatta replaced him.) The move from Bar to Bench was, he said, rather like being summoned out of the scrum, handed a whistle, and instructed to referee the match.
He began a judicial career of more than nine hundred reported decisions with a string of personal injuries cases, some planning disputes, and a stint in the Court of Criminal Appeal. But he was soon sitting in the Commercial Court. In October 1962, he issued a Practice Direction [1962] 1 WLR 1216 which was clearly intended to re-vitalise the Court after a lengthy period in the doldrums. Reminding Court users of J.C. Mathew's active and energetic case management, Megaw noted that parties now tended to treat the summons for the transfer of a case into the Court as a formality, rather than as an opportunity for working out a set of suitable directions for getting the action to trial. Urging a revival of the spirit of the Court's early years, he also deprecated a growing tendency towards excessive length in Commercial Court pleadings, apparently a perennial complaint of Commercial Judges. On a more positive note, he reminded litigants that the Court's range was much wider than just shipping cases, and promised that the Court was committed to resolving commercial disputes quickly and efficiently. Megaw’s call-to-arms coincided with the work of Pearson’s Commercial Court Users Conference, which was considering ways to increase the Court’s business.
In the event, Megaw himself spent rather less time as Commercial Judge than might have been expected. In 1962, he was made President of the Restrictive Practices Court. This was a logical appointment, since he had practised in the Court towards the end of his career at the Bar. But it took up a fair proportion of his time, leaving Mocatta and Roskill (who became Judges in late 1961 and early 1962 respectively) to share the bulk of the Commercial Court work with old 3 Essex Court colleague Willie McNair. Megaw also had to take his share of general Queen's Bench work, including more personal injuries cases, landlord and tenant, and employment, as well as further service in the Court of Criminal Appeal. He also tried criminal cases on circuit, although it was said that he found crime distasteful. He did, however, acquire the distinction of becoming the last Judge to pass the death sentence at the Old Bailey, when he condemned Ronald Cooper following his conviction for murder in December 1964. (The penalty was never carried out: hanging in England & Wales was suspended after August 1964, and was later abolished.) Perhaps his most prominent Commercial Court case was Anglo African v Bayley [1970] 1 QB 311, in which he castigated as "remarkable" and contrary to all principle a settled practice by which Lloyd's brokers - who were in law the insured's agents - organised the investigation of claims on behalf of underwriters, and concealed information about the investigation from their own clients.
Megaw in his seventies: he did even more judicial work in retirement than Walter Phillimore.
Megaw maintained on the Bench the severe courtroom persona which he had presented while at the Bar, and he appears to have been a respected Judge rather than a popular one. But his ability was not in doubt: he was hardworking, adaptable and able to cope with a wide range of areas of law, and was seldom overruled. He was promoted to the Court of Appeal in 1969, after just over eight years at first-instance. Released from the burden of criminal trial work (and from having to deal with witnesses in general), Megaw was more in his element as an appellate Judge. Significant among commercial appeals in which he sat were Aluminium Industry v Romalpa [1976] 1 WLR 676 on retention of title clauses in sale contracts and The 'Brimnes' [1975] QB 929, a prominent decision on withdrawal of a chartered ship for non-payment of hire. The 'Mihalis Angelos' [1971] 1 QB 164 established that a contractual cancellation clause cannot be exercised until the specified time has expired and a purported "anticipatory" exercise is a repudiation, but also that the damages for the repudiation should be discounted to reflect the fact that the right to cancel would have arisen and been exercised in due course. This "net loss principle" is now orthodoxy in the assessment of damages for breach of contract. Away from mainstream commercial cases, Thornton v Shoe Lane [1971] 2 QB 163 emphasised that service providers needed to draw clear attention to exclusion clauses in consumer contracts (a message in small print on the back of a ticket was insufficient), while a mix up by an American actor's agent, who booked clashing commitments in his diary, led to the development of the law on damages for wasted expenditure in Anglia v Reed [1972] 1 QB 60.
Megaw retained in the Court of Appel a reputation as a forbidding judicial presence, prone to fits of temper (which sometimes extended to throwing his writing instruments about) if he thought that counsel was persisting in a bad point or not getting on with the appeal. It was sometimes thought that he also tended to be too conscientious for his own good, with an urge to produce finely-crafted judgments which was not compatible with the fast pace of appellate work.
By the end of the 1970’s, Megaw was the senior Lord Justice of Appeal. This meant that he invariably sat as presiding Lord Justice, heading the panel and taking charge of maintaining the pace of the hearing to ensure that the Court got through its list every day, and deciding who should give the lead judgment in each case. It was an additional responsibility, and one which sometimes goaded Megaw’s temper when he thought that counsel was not sticking to the point. When a place among the Lords of Appeal in Ordinary fell vacant in early 1980, some thought that Megaw might get the job. But it went to Eustace Roskill. Megaw stood down from the Bench that year, shortly after his seventieth birthday. There was no compulsory judicial retirement age at the time, and some attributed what appeared to be a premature departure to a personality clash with Master of the Rolls (and head of the Civil Division of the Court of Appeal) Lord Denning. With a rigorously analytical mind, Megaw's general approach was to apply the black letter of the law in every appeal, regardless of how hard that might seem on the facts. This was the antithesis of Denning's determination to do individual justice in each case. And Megaw was said to complain that Denning (who allocated the work of the Lords Justices) reserved all of the most interesting cases for himself, leaving Megaw to preside over a "dustbin" Court, dealing with dull appeals. If there was Denning factor in Megaw's decision to go then, as it happened, the problem would have resolved itself if he had held on for a little longer. Denning himself retired in 1982 (aged eighty-three), and was replaced by John Donaldson, who had been Megaw's pupil.
But Megaw did not really retire in 1980 in any event. The Court of Appeal was overworked and under-resourced (there were about twenty Lords Justices in 1980, around half of the number today). It depended upon support from retired Judges sitting part-time to get throught its workload, and Megaw volunteered for service. In this new judicial role, he did not have to bear the administrative burden of presiding, and he could choose to sit when he wanted. This proved to be more or less all of the time: still inspired by the strong work-ethic which his parents had instilled in him, Megaw was the ultimate "retread", sitting on around reported 300 appeals, nearly two-thirds of the number which he had heard as a full-time Lord Justice. Among them was Zang Tumb v Johnson [1993] EMLR 61 in which, in a late return the days of his competition practice, Megaw ruled that the terms of the publishing agreement between popular music phenomenon Frankie Goes To Hollywood and the band's record company were in restraint of trade and unenforceable. Megaw also participated in around twenty reported Privy Council appeals, and heard his final case in early 1995, when he was in his mid-eighties. When he could spare the time (which cannot have been often), he returned to sitting as an arbitrator. He also chaired an investigation into civil service pay in 1981, and remained active in Gray's Inn, where he displayed the more amiable side of his nature to barristers and students.
Megaw’s scientist sister, Helen.
John Megaw died in December 1997, at the age of eighty-eight. The Megaw siblings were impressively long-lived: all survived into at least their eighties, and his sisters Helen (who pioneered the use of X-rays to analyse the structure of ice and other crystals) and Margaret reached ninety-four and ninety-five respectively. The Megaw Reading Room at Queen's University Belfast was founded by the family. Eleanor Megaw survived her husband of nearly sixty years, as did their three children.