James Richard ("Dick") Atkin is the most well-known today of the early Commercial Court Judges, widely credited as the main creator of the modern law of tort and as one of the great common law jurists of the 20th Century. He was born in Brisbane, the eldest of three sons of an Irish father and a Welsh mother. Robert and Mary Atkin had emigrated to Australia a few years before Atkin's birth, planning a sheep-farming life in the country. They moved to Brisbane after Robert suffered a serious work injury and was forced to switch to indoors employment. His health did not properly recover, and he died when Atkin was four. Mary and the children were in Wales at the time, and they settled there. Although Queensland lawyers sometimes claim Atkin as one of their own, he grew up regarding himself as Welsh. After school in Wales, he studied classics at Magdalen College, Oxford. Atkin was not an outstanding student, though he did well enough to win a scholarship, which provided him with welcome financial support.
Atkin joined Gray’s Inn in 1887. It was the least fashionable of the four Inns of Court at the time, but Atkin chose it because a relative was already a member, and Gray’s too gave Atkin a scholarship. He was called to the Bar in 1891, and became one of the two most successful pupils of Thomas Edward Scrutton. As Atkin later told the tale, he chose his pupil-master after being mesmerised by the bearded barrister's performance at a hearing, Scrutton waving his arms about as he made his submissions.
Pupillage with Scrutton was excellent training for a prospective commercial barrister. By the early 1890's, Scrutton was focusing increasingly on commercial litigation after an early dalliance with copyright, and he had plenty of work. Atkin could not say the same at the beginning of his own career. He endured a difficult decade before his luck changed. William Hemmant, who had known his father in Australia, provided an introduction to an official at the Stock Exchange. Speculation on the Exchange during the 1890's had resulted in the failure of several brokerage firms (the Commercial Court dealt with quite a number brokerage cases in its early years). As a result, the authorities at the Exchange needed frequent legal advice and occasional representation in Court, and this work came to Atkin. This transformed his career. The work gave him the opportunity to demonstrate his talents, enabling him to make a reputation for himself, which in turn attracted more instructions. Atkin broadened his base from Stock Exchange disputes into more general commercial litigation. From about 1900, Atkin began to appear regularly in the law reports, mostly in banking, sale of goods, and shipping cases.Among those whom he impressed were Herbert Asquith QC. When Atkin argued an arbitration in front of Asquith, the future Prime Minister formed such a favourable opinion that he later advised his budding barrister son to become Atkin's pupil.
Atkin was still only thirty-nine when he was appointed King's Counsel in 1906. His advocacy was thoughtful and persuasive, rather than demonstrative. There are no reports that he adopted the arm-waving style of his pupil-master, and The 'Times' described his style as "gentle to the point of diffidence". To an extent, however, style was unimportant, because it was difficult for KC's of any type to win much commercial work in 1906. Scrutton and his great rival John Andrew Hamilton utterly dominated the field. They appeared against one another in almost every major Commercial Court case, and other counsel had to be content with the work which they were too busy, or too grand, to take on. But Atkin was one of those who benefited most when Hamilton went on the Bench in 1909, followed by Scrutton the following year. He picked up a significant share of the practices which they left behind, and for a couple of years he was second only to Clement Bailhache as the busiest KC in the Commercial Court. When Bailhache became a Judge in November 1912, Atkin was left as the leader of the commercial Bar. He appeared in well over a hundred reported cases as a KC, including more than thirty in the House of Lords and Privy Council. Most were distinctly commercial, including the notoriously obscure Knutsford v Chicoutimi Pulp Co [1911] AC 301, in which Atkin persuaded the Privy Council to depart from the normal rule that damages in sale of goods cases are measured by reference to market values, and Clemens Horst v Biddell [1912] AC 18, which established that a CIF buyer is obliged to pay on presentation of documents. Atkin was also surprisingly prominent in health and safety and industrial accident appeals in the House of Lords, although, the fact that many of these involved injuries to seamen or dock workers helps explain how he acquired this particular sideline. More anomalously, Atkin once argued (and won) a Scottish income tax in the Lords. The fact that he was instructed in such unfamiliar territory is a clear indication of how highly his advocacy was regarded.
But Atkin's reign as an outstandingly successful KC was short. In May 1913, he was appointed a King's Bench Judge at the strikingly young age of forty-five. Atkin's appointment, like Bailhache's, was a direct consequence of the crisis which had paralysed the King's Bench in 1912, when the demands of the Division's Circuit responsibilities had left it with too few Judges to cope with a sudden increase in London work. Bailhache had been appointed as an immediate emergency response to ease the pressure. Once the dust had settled, the St Aldwyn's Commission recommended adding one more Judge to the strength of the King's Bench. This was the post which Atkin filled.
Lord Atkin painted by Sir Oswald Birley in 1933. The portrait is in Atkin’s Inn of Court, Gray’s Inn.
As a first-instance Judge, Atkin naturally took his turn in the Commercial Court. Among significant cases which he decided there were Tamplin v Anglo-Mexican [1915] 3 KB 688, which was for a time the leading authority on frustration. Atkin concluded that a time charter of a tanker which was due to end in late 1917 was not frustrated when Admiralty requisitioned the ship on the outbreak of the Great War and converted it into a troop carrier. This decision perhaps reflected the general national expectation about how soon the War would end, but Atkin was upheld in both the Court of Appeal and the House of Lords (though by a bare majority: by the time the case reached the Lords, the Battle of The Somme had begun, and early optimism about the duration of hostilities had receded). In Mitchell Cotts v Steel [1916] 2 KB 610, Atkin established the important principal that goods could be "legally dangerous" (so that their shipment would be a breach of charter) even if they did not cause any physical damage.
But Atkin did not make the Commercial Court the centre of his judicial world in the way that Bailhache did. Whereas Bailhache had little taste for anything other than commercial work, Atkin embraced a full range of King's Bench cases, including employment, public health, landlord and tenant, rating and local government, taxation, and even some family work. He was particularly prominent in crime, although he had done practically no criminal work at the Bar. A large proportion of Atkin's reported appearances during his King's Bench years were in the Court of Criminal Appeal, most eye-catchingly as one of a panel of five Commercial Judges, including Scrutton, in the Roger Casement treason case. Bailhache, by contrast, sat on only a handful of criminal appeals in twelve years, and it is plausible that his narrowness of range was one reason why he was never promoted.
Whatever subject matter he was dealing with, Atkin was considered a great success. His rapid ability to get on top of the law in unfamiliar areas demonstrated his strong intellectual powers. He was regarded as a pleasant tribunal, quick to pick up points but, unfailingly polite. Atkin's all-round skills were recognised by rapid promotion to the Court of Appeal, where a capacity for coping with a varied workload was essential. Atkin was still only fifty-one when he was made a Lord Justice of Appeal in 1919. By now, he was fast catching-up with Scrutton who was eleven years older, but had been in the Court of Appeal for less than three years when Atkin arrived. In time, Atkin would eclipse his former pupil-master
Scrutton and Atkin sat regularly together to hear common law appeals. John Eldon Bankes, who was descended from a Chief Justice on one side of the family and a Lord Chancellor on the other, was usually the third (and senior) member of their Court. If the tale that Papinian, Paul, and Ulpian heard cases together at York in the early third century is apocryphal, then Bankes, Scrutton and Atkin constituted the strongest three-Judge panel in English legal history. They heard over three hundred reported appeals together in eight years. The very first was a classic of commercial law. In Steven v Bromley [1919] 2 KB 722, a charterer contracted for the carriage of steel, but instead shipped a general cargo, which commanded a higher market freight rate. This was a breach of contract, but one which caused the owner no loss. Indignant at the charterer's arguments that it was entitled to get away with paying less than the proper rate for the carriage of the goods which it had actually shipped, Bankes, Scrutton and Atkin held that the owner had the option of waiving the breach and claiming a quantum meruit at the market rate. Today, the decision is recognised as an early authority on unjust enrichment. So too is Rowland v Divall [1923] 2 KB 200, in which the triumvirate held that the fact that the buyer of a stolen car had used it for several months did not prevent him from recovering the price on grounds of total failure of consideration when he discovered that the seller had no title. In the landmark shipping case of Brandt v Liverpool [1925] 1 KB 575, they found a way of plugging gaps in the sloppily-drafted Bills of Lading Act 1855 by holding that a contract on the terms of a bill of lading could be implied from presentation of the bill and delivery and acceptance of the goods. In time, their Court acquired its own legends. Lord Denning, who argued cases there, told of how Scrutton and Atkin constantly disagreed, and of how each fought to persuade Bankes to support his own view. His accounts were entertaining, but exaggerated. Scrutton and Atkin were not always at loggerheads, and Bankes, who was a magisterial judicial figure, did not need his junior colleagues to tell him what to think.
The great Court was broken up when Bankes retired in 1927. The following year, Atkin was made a Lord of Appeal in Ordinary. He had been showing signs of ambition to move onwards and upwards for some time. Poignantly, his elevation spelled the end of his former pupil-master's own ambitions: the promotion over his head of a much younger Judge must have signalled to Scrutton, now in his seventies, that his own time had passed. Three years later, the second of the two most successful of Scrutton’s pupils, Robert Alderson Wright, also leapfrogged Scrutton when he was appointed to the Lords direct from the King’s Bench.
Atkin and Wright were the dominant common law Judges in the Lords during the 1930's and early 1940's. It was sometimes remarked that they seemed to approach adjudication from very different temperamental and philosophical starting points. Atkin held deep Christian convictions which exerted a strong influence over his judicial work. He firmly believed that the law should have a solid moral base, and often sought to express legal conclusions as fixed ethical principles which were capable, in theory at least, of being applied to any factual situation. Wright, a more dour personality, did not share Atkin's optimism that the law could achieve moral perfection, and he doubted the practical wisdom of trying to apply identical rules to widely differing factual scenarios. He tended to state his conclusions as flexible propositions whose precise application to individual cases was sensitive to the particular facts. Such contrasting judicial philosophies have always existed, and it is perhaps Wright's approach which is the more fashionable today. But a key judicial quality which Atkin and Wright shared was decisiveness. The Law Lords customarily discussed each appeal after the hearing, to exchange ideas and opinions before they wrote their judgments. Atkin almost always made up his own mind during the course of the hearing, and was seldom influenced by what any of his colleagues had to say.
Atkin's reputation rests on his sixteen years as a Law Lord, and, in particular, on his judgments in two cases. Neither was received at the time with the acclaim which it has gathered since. In Donoghue v Stevenson, which has a good claim to be the most famous case in English legal history (although it was a Scottish appeal), he was among the majority which decided that a manufacturer who negligently placed contaminated drink on the market could be liable in tort to a consumer. The proposition seems unexceptional today, but there was heated debate at the time as to whether or not it undermined the cardinal principle of privity of contract.
The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called into question.
Stevenson’s ginger beer is no longer manufactured, and the Wellmeadow cafe was demolished in the 1950’s. But history’s most famous snail is still honoured in Paisley.
Atkin's reasoning, in which he proposed his famous "neighbour principle" as a touchstone for liability in negligence, illustrates his preference for resolving legal issues in terms of morally-based principles of general application. For generations of post-War law students, Donoghue was the case, and Atkin's the judgment, which created negligence as an independent head of liability and energised modern tort law. Atkin very probably had such broad ambitions in mind. But Lords Thankerton and MacMillan expressed their conclusions in more restricted terms. Contemporaries regarded Donoghue as deciding an important but specific point about consumer protection, rather than as expanding the law of tort at large. Only in later years did the neighbour principle acquire hallowed status, although after a highwater mark of expansionism in the 1970’s and 1980’s, the modern trend favours a more cautious and fact-sensitive “incremental” approach to the development of tort law, very much along the lines of Robert Wright’s way of thinking.
Atkin's vigorous dissenting judgment in Liversidge v Anderson has similarly been a subject of shifting perceptions. His insistence that the Court had the power to review and overturn government decisions to detain suspects under wartime emergency legislation is today often perceived as a clarion call for universal civil liberties. Legal press commentaries of the time indicate that contemporaries certainly regarded the case as important. But it appears largely to have been seen as raising a narrow point about the construction of the Defence Regulations, rather than fundamental constitutional principles. Moreover, the consensus at the time seems to have been that Atkin's view was wrong, or at best unworldly and impractical in the midst of an existential conflict. The forceful way in which he expressed himself was considered attention-seeking and offensive, particularly by his fellow Law Lords. It was not his only controversial judgment. In Attorney General for Canada v Attorney General for Ontario [1937] AC 326, the Privy Council held that Canadian employment legislation was beyond the powers which the Westminster Parliament had delegated to the Canadian Parliament. Atkin chaired the appeal panel and wrote the judgment. The decision caused resentment in Canada, and unease in other Dominions, where Atkin was suspected of consciously adopting a very narrow approach to the interpretation of devolved powers.
But if Atkin was not always sure-footed when he ventured beyond traditional common law subjects, he was acknowledged as masterly in common law cases. His reputation as one of the greatest of the Law Lords is assured. His significant commercial cases in the Lords included Bell v Lever Brothers [1932] AC 161, which highlighted that, outside particular areas such as insurance, contracting parties do not generally owe each other duties of disclosure; Arcos v Ronaasen [1933] AC 470, which emphasised the strictness of the rules which require goods to comply with their contractual description; and Canadian Transport v Court Line [1940] AC 934, on the interplay between a charterers' responsibility for loading cargo and the Master's right and responsibility to ensure the stability of the ship. Hain v Tate & Lyle (1936) 55 Lloyd's Rep 159 remains authority for the proposition that an unauthorised deviation automatically discharges a contract of affreightmet, although it does not fit easily with modern conceptions of fundamental breach.
Lord Atkin of Aberdovey around 1935, on the seafront of the Welsh harbour resort from which he took his title.
In United Australia v Barclays Bank [1941] AC 1, Atkin returned to the topic of "waiver" of wrongs which he, Bankes, and Scrutton had considered in Steven v Bromley, and held that the victim of a tort may also claim unjust enrichment as an alternative to damages in an appropriate case. The great case of Fibrosa v Fairbairn [1943] AC 42 brought together in a single dispute the law of frustration, with which Atkin had grappled as a first-instance Judge in Tamplin v Anglo-Mexican, and total failure of consideration, which he, Bankes, and Scrutton had analysed in Rowland v Divall. The Lords held that there was no principle of law that losses lay where they fell when a contract was frustrated, and ruled that money paid under a frustrated contract was recoverable if there was a total failure of consideration.
Outside judicial work, Atkin exercised his right to speak in House of Lords debates, usually in order to comment on how the wording of draft Bills might be improved. He was active in educational affairs, sitting on the governing bodies of the Council of Legal Education and the University College of Wales. He also served as President of the Medico-Legal Society, and was three times Treasurer of Gray’s Inn. It is difficult to imagine that he had much spare time, but he enjoyed tennis, golf, and bridge when he had the chance.
In 1893, Atkin married Lucy Elizabeth Hemmant. It was her father, William, who had been responsible for that crucial introduction to the Stock Exchange which transformed Atkin's prospects. "Lizzie" had been born just down the road from Atkin in Brisbane, and at around the same time, but had moved with her family to Kent as a child. The Atkins had six daughters and two sons. The eldest son, Richard, was killed in the Great War. Lizzie died in 1929. One daughter, Rosaline, qualified as a barrister, although she does not appear to have practised. Her father, who was Treasurer at the time, called her to the Bar in Gray's Inn in 1937.
Like his old pupil-master, T.E. Scrutton, Atkin remained in post to the end. By now the most senior Law Lord, he was still hearing appeals in the summer of 1944. James Richard Atkin died on 25th June that year. Due to the depredations of the Luftwaffe, which had bombed Gray's Inn Chapel flat in 1941, his memorial service had to be held in Lincoln's Inn rather than his beloved Gray's. Atkin was buried at Aberdovey (more commonly rendered as Aberdyfi today), the Welsh harbour town where he had bought a house in 1912, and where the family had spent their summers. Rayner Goddard, another former Commercial Judge, was made Lord of Appeal in Ordinary in his place.
Since the contemporary news was understandably dominated by the progress of the War, Atkin received rather less recognition at the time of his death than his judicial eminence warranted. But that was compensated for later. Atkin is one of the few Commercial Judge to have been the subject of a full biography, and the only one to have had a commemorative exhibtion devoted to his life and work. His grandson, Thomas Richard Atkin Morison, joined his grandfather's Inn in the 1960's, practised as a commercial junior and QC, was elevated to the High Court in 1993, and was a Commercial Judge from 1996 to 2007.