John Sankey remains the only Commercial Court Judge to have become Lord Chancellor. With increased formal separation between politics and the judiciary since his time, his achievement is unlikely to be repeated. But it ultimately caused him more distress than satisfaction.
John Sankey as a King’s Bench Judge in 1918, a year before he was appointed to chair the Coal Industry Commission.
Sankey was born in 1866 into respectable, but relatively modest, circumstances. His father was a grocer in Moreton-in-Marsh, in the Cotswolds. The Sankeys also had roots in South Wales, and Sankey's mother moved there after her husband died when Sankey was young. Sankey began his edcuation in a local Church of England School, before a generous Anglican clergyman provided finanacial support which enabled him to attend Lancing College, on the Sussex coast. He won a scholarship to Jesus College, Oxford. He took degrees in history and law, but was not a distinguished student in either subject, and managed only a third in law.
Sankey was called to the Bar by Middle Temple in 1892, and served part of his pupillage in London with William Pickford, commercial and Admiralty specialist and future Commercial Court Judge and Master of the Rolls. He returned to South Wales to begin his own career. At first, he developed a general common law practice. The arrival on the statute book of the complex - and politically controversial - Workmen's Compensation Act 1897 was a turning point in his career at the Bar. With its many coal mines, where working conditions were often dangerous, South Wales produced a steady stream of compensation claims. This work quickly became the core of Sankey's practice. His focus shifted more towards London as a result, because appeals under the Act were from the County Court direct to the Court of Appeal.
When he was appointed King's Counsel in 1914, Sankey moved to London entirely. William Jowitt, who would follow Sankey as a Labour Lord Chancellor, remembered being led by Sankey, and being impressed by the economy with which he would tell the Court, in a few short but clear sentences, what were the essentials of each case. Sankey remained a compensation specialist as a KC. He took over part of James Richard Atkin's practice when Atkin became a Judge in 1913. This may have given Sankey some exposure to commercial litigation (although Atkin had always taken on personal injuries actions alongside his commercial cases) and explain why he later sat in the Commercial Court as a Judge. However, Sankey appears to have appeared in only a couple of commercial cases as KC (though he was involved in a succession of actions about seaman's wages and industrial accidents afloat). In Western Steamship v Amaral Sutherland [1913] 3 KB 366, he won a demurrage action before Reginald Bray on a preliminary issue of law, but did not appear on the appeal, when the Court of Appeal said that the case was not suitable for summary disposal at all, and that it should go to a full trial: [1914] 3 KB 55. Conversely, in Asiatic Petroleum v Lennard's [1914] 1 KB 419, he did not appear at the trial (again before Bray) but was brought in for the appeal to argue that a "fire" exception applied even where the fire was caused by the owners' failure to make the ship seaworthy. This was a fairly hopeless task, and Sankey duly lost.
Sankey was appointed to the King's Bench in 1914. The 'Solicitors' Journal', describing him as a "dark horse" candidate, expressed surprise. But it acknowledged his "great ability and striking personal dignity", and the legal press generally adjudged Sankey a sound choice. He was, with Monatague Shearman, who was elevated at the same time, the last Commercial Court Judge appointed before the Great War, although hostilities had already broken out before his first commercial case.
Sankey sat as a Commercial Judge recurrently throughout his time in the King's Bench. His most prominent commercial case was probably Polemis v Furness, Withy & Co (1921) 7 Lloyd’s Rep 196, in which a ship blew up after clumsy stevedores dropped planks into a hold full of cans of benzine, striking sparks which ignited flammable vapours. Notionally a dispute about the interpretation of the charterparty exceptions clauses, the case became the leading authority on the test for remoteness of damages in the tort of negligence. The Court of Appeal ([1921] 3 KB 560) endorsed Sankey’s decision that losses did not have to be foreseeable in order to be recoverable, a view which prevailed until disapproved by the Privy Council four decades later in another case involving an explosive cargo (The ‘Wagon Mound’ [1961] AC 388). The frequency with which Sankey sat in commercial cases dropped off after about 1923, a reflection of a decline in commercial litigation, and the overall profile of his reported cases suggests that he was regarded more as a criminal specialist than anything else.
The defining event of Sankey's career was his appointment to chair the investigation into the coal industry which was established under the Coal Industry Commission Act 1919. With his Welsh background and career in compensation work, Sankey knew about the realities of the mining industry. But his political leanings, to the extent that he really had any, were conservative (he had once run for election as a Conservative candidate for the London County Council). The government may have regarded him as an acceptable compromise between opposing interests, an equivalent to J.C. Mathew on the Evicted Tenants Commission in 1892. The Coal Industry Commission was not as poisonous as the Evicted Tenants Commission. But the representatives of the owners and of the miners took deeply entrenched opposing positions, and essentially pre-judged the issues. Sankey, applying himself conscientiously and with a more open-mind, surprised observers, and possibly himself, by concluding that the best move would be to nationalise the industry. With the owners and the miners at loggerheads, the coalition government took no action in response to the Commission's report. Sankey's support for nationalisation generated some resentment among Conservatives. But it attracted the favourable attention of Ramsay MacDonald, leader of a Labour party which was a growing force in British politics.
Sankey was a solid and reliable Judge rather than an outstanding one, and it was fourteen years before he was promoted. Controversy about the Coal Commission does not appear to have held him back, since it was under a Conservative government that he eventually rose to the Court of Appeal.
Ramsay MacDonald (seated centre) with his 1931 National Government Cabinet, including Lord Chancellor John Sankey (seated right).
Sankey heard rather more shipping and marine insurance case as a Lord Justice than he had at first instance. Notable among them was Foster v Driscoll [1929] 1 KB 470. A significant authority on illegality and public policy, the case concerned an enterprising scheme by a knighted Member of Parliament, an Edinburgh distiller, two London shipbrokers, and a retired school teacher from Worthing, to ship a boatload of whisky into the Prohibition-era United States. Sankey and Lord Justice P. O. Lawrence, anxious, in the interests of international comity, to afford respect to the laws of other nations, no matter how ridiculous they might be, condemned the arrangement as an unenforceable conspiracy to defy the laws of a sovereign state. The third Lord Justice, the more hard-headed T. E. Scrutton, thought that the scheme was perfectly good both as a piece of business and as a matter of English common law.
After the long wait for promotion, Sankey’s time in the Court of Appeal was short: within a year, he became head of the judiciary (and a member of the Cabinet) as Lord Chancellor. There had been speculation that Sankey would be made Chancellor when the first Labour government took office in 1924. Aside from the fact that MacDonald, who became Prime Minister, was a supporter, Labour, which was still relatively new as a major party, was not well-stocked with suitable candidates for the Chancellorship. In the event, however, the job had gone to Lord Haldane, who had been Liberal Chancellor from 1912-1915, but had deserted the imploding Liberals for Labour. But by the time MacDonald formed his second government in 1929, Haldane had ruled himself out of a second term in office by dying. So, in June 1929, Sankey was appointed Lord Chancellor.
Much of his tenure was spent working on revised constitutional arrangements for the relationship between Britain and the Dominions. The Statute of Westminster 1931 was passed during his time, and Sankey was heavily involved in the project. In his role as head of the judiciary, Sankey helped broker a settlement when Sidney Rowlatt threatened to lead the Judges in rebellion if the government extended pay cuts under the National Economy Act 1931 to the judiciary. Sankey also found time to perform the Lord Chancellor's function as a member of the judicial House of Lords, sitting on around forty reported Lords and Privy Council appeals. His lengthy judicial experience made him more fitted for this than most Lord Chancellors, and his judgments were much admired at the time for clarity and elegance. But they tend to look a little laboured to modern eyes, and Sankey in the Lords made no significant contribution to the development of commercial law.
The 1930's were turbulent political times. In 1931, the Labour party split when Ramsay MacDonald formed a National Government with the Conservatives. Sankey retained his office in the new government, becoming one of relatively few prominent Labour figures who sided with MacDonald, amid accusations of sell-out and class betrayal.
Lord Chancellor Sankey in 1935, not long before he was sacked.
Since Sankey was in fact a largely non-political figure, he managed to avoid most of the abuse. But he came to believe that his loyalty to the national interest was ill-rewarded. In 1935, Stanley Baldwin replaced MacDonald as Prime Minister. The government remained National, but Baldwin was a Conservative, and he re-shuffled the Cabinet. Sankey was among those to lose their post. He never recovered. A career politician might have accepted his fate as a vicissitude of political life, or at least have consoled himself by plotting revenge. But Sankey was overwhelmed by a sense of injustice. In his resentment, he withdrew almost entirely from not only public but also legal life. Former Lords Chancellor commonly sat on House of Lords and Privy Council appeals, but Sankey made only a handful of appearances after 1935. Moreover, he almost never delivered a judgment of his own, generally merely concurring with another Lord. His most significant case as a Lord was Regal Hastings v Gulliver in 1942, which concerned the fallout from an ambitious plan to corner the cinema market in seaside Hastings (an unlikely background to major litigation, but one which had already produced another Lords appeal in Luxor v Cooper [1941] AC 108). With the passage of years, Regal Hastings came to be regarded as a leading authority on breach of fiduciary duty, although apparently it was not seen that way at the time: the case was not fully reported until nearly twenty years after Sankey’s death ([1967] 2 AC 134).
Aside from his very occasional judicial appearances, Sankey sat in retirement on various low-profile committees. Most of these were linked to education, although he was Chair of the Council of the Magistrates' Association during the Second World War. Sankey’s last prominent contribution to public life was as chair of a 1940 committee which drafted a Declaration of the Rights of Man. The "Sankey Declaration" (although in fact largely the work of H.G. Wells) was thought to have influenced the United Nations' Universal Declaration of Human Rights.
Outside law and politics, John Sankey was active in Church of England affairs. He was very close to his family: he adopted a sort of perpetual mourning after his mother died, and lived with his sister, Edith, in London. He died in February 1948. The relative brevity of his obituaries in the broadsheet press was poignant testimony to the extent to which he had been forgotten during the long years of self-imposed obscurity after 1935.