Like T.E. Scrutton, an earlier star of the Commercial Court, John Stewart Hobhouse was the son of a shipowner and was a mountaineering enthusiast as a young man. Some barristers who appeared before Hobhouse may have wondered whether he also shared elements of Scrutton's prickly personality. But unlike Scrutton, who did not progress beyond the Court of Appeal, Hobhouse reached the judicial summit of the House of Lords.
Hobhouse was from Liverpool, where several of the earliest Commercial Judges had practised at the Bar, and where John Bigham, Joseph Walton, John Morris, and Frederic Sellers had all been born. But the Hobhouse family's roots were in Somerset. His grandfather, Henry, was a Liberal Unionist MP in the county for twenty years. Before that, he was a Parliamentary barrister. One of Henry's uncles, Arthur, practised at the Chancery Bar, became a QC, and did government legal work in India. He sat as a member of the Judicial Committee of the Privy Council for two decades, hearing appeals from across the British Empire. Arthur was eventually elevated to the peerage, but he was only invited to sit with the Law Lords on British appeals in a handful of cases. Other Hobhouses held prominent positions in the Church of England. But Henry's third son, John Richard, followed neither the law nor the cloth. After serving as a junior officer with the Royal Artillery in the Great War (he won the Military Cross), John became a partner in Alfred Holt & Co, a successful Liverpool shipping firm which operated the Ocean Steam Ship line. He remained with Holts for more than thirty years, eventually becoming chairman. He was an innovative shipowner, and oversaw significant developments in the carriage of bulk liquid cargoes. He was also an expert in the transportation of explosives, and was knighted for civilian services to the war effort in the Second World War. John Richard married Catherine Brown, daughter of a Liverpool merchant, in 1926. John Stewart was their second son.
Hobhouse went to school at Eton College, which sons of the family had attended for generations. He was excused National Service on medical grounds. Perhaps this was on account of bad eyesight, for although Hobhouse's slight build suggested a delicate constitution, he was in fact physically robust. During a gap year in New Zealand, he not only climbed in the Southern Alps (he was a gifted mountaineer, highly rated at by fellow members of the Alpine Club), but also worked on a sheep farm. After that, Hobhouse studied law at Christ Church College, Oxford. He was a good enough scholar to be accepted for the BCL, Oxford's demanding graduate law degree. Called to the Bar by Inner Temple in 1955, he was a pupil of Michael Kerr at 3 Essex Court. He then moved to Henry Brandon's Admiralty and shipping chambers at 7 King's Bench Walk, where he became a tenant. Incongruously, his first reported appearance, Commissioner of Stamp Duties v Permanent Trustee [1956] AC 512, was as junior counsel in a tax appeal in the Privy Council. But the following year, he landed a prestigious instruction in one of those big shipping trials in which Colin Pearson specialised during his time as a Commercial Judge.
In practising at the Bar and becoming a Baron, John Hobhouse emulated his great uncle Arthur (above). Arthur sat on around four hundred Privy Council appeals, but only three times in the House of Lords. Independent- minded like his great nephew, he dissented in two of those three cases.
Hobhouse’s shipowner father, John Richard.
The 'Atlantic Duchess' [1957] 2 Lloyd's Law Reports 55 was a tanker which exploded just after discharging a cargo of crude oil at Swansea. Seven people were killed, many others were injured, and property damage was widespread. The shipowners claimed that the charterers were to blame, because they had loaded a non-contractual cargo. Hobhouse was instructed for the charterers as the most junior counsel in a team which included Alan Mocatta and Michael Kerr. Against them were John Megaw, John Donaldson, and Christopher Staughton. At the end of the two month trial, Pearson exonerated Hobhouse's clients. In 1965, Hobhouse was instructed in the even more mammoth The 'Medina Princess' [1965] 1 Lloyd's Reports 362, an insurance claim for the total loss of a cargo ship which grounded off Djibouti after its engine failed. (The wreck is still visible, and attracts canoeists and roosting birds.) Hobhouse was junior counsel for the plaintiff shipowners. Henry Brandon, for the insurers, argued that the engine breakdown had been caused by wear and tear, which was not covered by the policy. The claim was so complicated that the Scott Schedule of loss and damage ran to twenty pages, and Eustace Roskill supplied a Table of Contents for his 140 page judgment. This time, the trial lasted four months. Hobhouse came out on the winning side again.
In between these two epic trials, both huge by the litigation standards of the day, Hobhouse appeared in nearly twenty other cases reported in Lloyd's Law Reports. He was led by Brandon in several of them, but also argued a healthy proportion on his own. It was a brilliant beginning to his career, bearing in mind that he had started out at the Bar during the dark days of the 1950's, when commercial litigation was in the doldrums.
One of Henry Brandon's professional neighbours in the Temple was Ashton Roskill QC, Eustace's eldest brother. In 1959, Hobhouse married Ashton's daughter, Susannah. They had two sons and a daughter. Roskill led his son-in-law in Cooper v Jeakins [1964] 1 Lloyd's Rep 300, in which they acted for road hauliers whose driver left had left his loaded lorry unlocked on an East End street while he refreshed himself at Silvertown's Cosy Café. When he returned, both lorry and load were gone. Not particularly surprisingly, Roskill and Hobhouse were unable to convince the Judge that their clients were not liable for the loss of the goods.
The wreck of The ‘Atlantic Duchess’ in Swansea Docks. The tanker’s explosion led to Hobhouse’s first major Commercial Court case.
Ashton Roskill had had a varied practice before the Second World War, but he concentrated on commercial work after 1945. As the volume of commercial litigation began to expand during the 'sixties, the rest of his chambers followed his lead, and by the middle of the decade, the set's work was largely commercial. In 1965, however, the chambers suffered a severe setback when Roskill, its most prestigious practitioner, left to become Chairman of the Monopolies & Mergers Commission. The following year, an even greater blow befell 7 King's Bench Walk when Henry Brandon was appointed Admiralty Judge. So significant was Brandon's contribution to chambers' finances that his departure was a major economic shock for his colleagues. In a mutual rescue operation, the two troubled sets merged to create the leading commercial set which still occupies 7 King's Bench Walk. As a result, Hobhouse and Robert Goff, formerly of Roskill's set, became chambers colleagues. Goff, a few years the older of the two, led Hobhouse in several cases. When Hobhouse became a Lord of Appeal in Ordinary thirty years later, he filled the vacancy created by Goff's retirement.
The upheaval of the merger did not disrupt the smooth progress of Hobhouse's career. He continued to make regular appearances in cases reported in Lloyd's, sometimes with leaders, more usually arguing the case by himself. His practice straddled both the Admiralty and the Commercial Court, and most of his instructions involved merchant ships. He branched out into luxury yachts in Docker v Hyams [1969] 1 Lloyd's Rep 487. Flamboyant industrialist Sir Bernard Docker and his wife Norah were famed (and, on the whole, ridiculed) for their ostentatious displays of wealth, which included amassing a collection of flash cars and similar playthings. When funds began to run short in the 1960's, Docker sold his yacht 'Shemara'. The deal fell through when the buyer complained that the vessel suffered from unremedied defects. Goff and Hobhouse persuaded the Court of Appeal that none of the faults were sufficiently serious to justify rejection. Less newsworthy for the general public, but more striking for shipping lawyers, was The 'Mandarin Star' [1969] 2 QB 469. While this vessel was beating its way across the Pacific, laden with a cargo of beans, its time charterer went bust. The shipowner had the clever idea of selling the cargo as a way of recovering unpaid hire. But the cargo did not belong to the charterer, and the rightful owner claimed under its insurance policy. Its case was that there had been a loss by "takings at sea". Generations of marine insurance lawyers had understood that this peril did not cover misappropriation by the carrier, but, in one of the great triumphs of his career, Hobhouse persuaded Lord Denning's Court of Appeal otherwise.
Hobhouse was appointed Queen's Counsel in 1973. He had been in practice for eighteen years, and it was hardly a meteoric career progression, given his remarkable success as junior counsel. Perhaps he simply saw no reason to take risks with his career by applying sooner: busy juniors did not always make a success of the transition to leading counsel status. But any concerns which Hobhouse may have harboured on that account were groundless. In nine years as a QC, he made well over fifty appearances in Lloyd's Law Reports, and argued ten cases in the House of Lords and the Privy Council. His appearances in the highest Court included some of the most significant shipping cases of the 1970's: The 'Diana Prosperity [1976] 1 WLR 989 (a landmark in the development of the principles of contractual construction); The 'Albazero' [1977] AC 774 (on the scope of a shipper's right to recover damages for losses sustained by the consignee); The 'Aries' [1977] 1 WLR 185 (in which the Lords affirmed the rule that cargo claims cannot be set off against freight); and The 'Laconia' [1977] AC 850 (on the limits of an owner's right to withdraw a time chartered ship for late payment of hire). Implausibly, they also included Union of India v Narang [1978] AC 247, in which the question was whether it would be "unjust or oppressive" to extradite the defendants to India to face charges relating to the theft of ancient temple artefacts. The Court of Appeal had held that it would be, but Hobhouse, who was brought in to argue the case for the Indian government in the Lords, won the appeal. Perhaps the explanation for his instruction in this criminal matter was that false bills of lading were said to have been used as part of an attempt smuggle the artefacts out of India.
Hobhouse had some physical characteristics which were useful for a barrister. He was over six feet tall, his gaze was penetrating (if withering), and his high voice, while sometimes a little shrill, was arresting. But he owed his success primarily to his mental strengths. Fearsomely intelligent and also clear headed, Hobhouse combined great powers of legal analysis with a sound practical sense of what points were likely to appeal to his audience. He also had a great capacity for relentless brain work. However, his skills set did not always extend to charm. A naturally private person, Hobhouse could be withdrawn outside the company of people he knew well. This sometimes resulted in an element of awkwardness in his professional interactions. For example, Hobhouse apparently lacked any instinct to cushion the blow of bad news. He could be brutally direct in assessing the merits of a case, and blunt in pointing out his instructing solicitors' failings. Hobhouse’s appalled juniors sometimes left conferences convinced that he would be sacked for causing gross offence. But solicitors and clients seldom seemed to resent his apparent tactlessness, so highly did they value his opinions. They could comfort themselves that they were not the only victims of Hobhouse's plain speaking. One Lord Justice of Appeal who proved stubbornly resistant to Hobhouse's arguments was told that his attitude demonstrated a lack of intellectual curiosity. When a non-commercial Law Lord participating in a shipping appeal tried to summarise Hobhouse's submissions by reference to a homely analogy, Hobhouse retorted that this was layman's thinking.
This sort of thing sometimes backfired. Arguing The 'New York Star' [1981] 1 WLR 138 in the Privy Council, Hobhouse castigated the shoddy drafting of the typical 'Himalaya Clause', lecturing Eustace Roskill and the other members of the panel that the wording was far too sloppy to confer effective protection on sub-contractors. Their Lordships were not persuaded, and Hobhouse lost the case. Perhaps he should have borne in mind that Roskill was credited with being the draftsman of the original 'Himalaya Clause',
Hobhouse's last great flourish at the Bar was The 'Salem' [1982] 2 QB 946. In a scheme to circumvent international sanctions against apartheid South Africa, a group of conspirators bought a used super-tanker and offered it to the oil market for charter. They contracted to carry 200,000mt of crude from the Gulf to Italy, but instead diverted into Durban, where they discharged the cargo and sold it. The owners of the cargo claimed under their insurance policy. It was a return to the territory of The 'Mandarin Star', in which Hobhouse had convinced Lord Denning that misappropriation by the carrier was a "taking at sea". But Hobhouse had been instructed by the cargo owners then. In The 'Salem', he was instructed by the insurer. Appearing in front of Denning once again in the Court of Appeal, he had to argue that the earlier decision was distinguishable. He did such a good job that Denning announced that his decision in The 'Mandarin Star' had simply been wrong. When The 'Salem' reached the House of Lords ([1983] 2 AC 375), the Lords agreed. But Hobhouse had left both the case and the Bar by then: he was made a Queen's Bench Judge in May 1982.
Hobhouse delivered important Commercial Court judgments on the burden of proof in cargo claims (The 'Torenia' [1983] 1 Lloyd's 416) and the operation of the Inter Club Agreement, which allocated third party liabilities as between owners and time charterers (The 'Holstencruiser' [1982] 2 Lloyd's Rep 378). He considered the inter-action between shipping law and restitution in The 'Batis' [1990] 1 Lloyd's Rep 345, and between contractual force majeure clauses and the common law doctrine of frustration in The 'Super Servant Two' [1989] 1 Lloyd's 148. He broke new legal ground in The 'Jordan Nicolov' [1990] 2 Lloyd's Rep 11, in which he analysed the circumstances in which an assignee can take the assignor's place in an existing arbitration. And he was the trial Judge in two significant insurance cases which went to the House of Lords. In The 'Good Luck' [1992] 1 AC 233, his decision on the effect of a breach of warranty in a marine policy was overturned by the Court of Appeal, but the Lords endorsed his view that the policy was automatically discharged. Vesta v Butcher [1989] AC 852 involved issues about the extent to which reinsurance treaty should be construed in the same way as the underlying insurance, and also raised novel questions about contributory negligence in contract. This time, Hobhouse was upheld both in the Court of Appeal and in the Lords. Away from the Commercial Court, he heard cases about European agricultural law, legal aid, professional negligence, and tax. He was well regarded as a criminal trial Judge, and served his time in the Criminal Division of the Court of Appeal. Hobhouse also developed a niche speciality in interest rate swaps, presiding over several cases in which local authorities had entered into hedging transactions which exceeded their legal authority.
The theft of the cargo of 200,000mt of crude oil laden on board The ‘Salem’ (formerly The ‘Sea Sovereign’) was the largest maritime fraud in history at the time. Hobhouse persuaded the Court of Appeal that his insurer clients were not liable to pick up the bill for the loss.
The 'Times' thought that Hobhouse at first-instance was "hard working, meticulous, courteous, and fair, with a good instinct for achieving a just result". He was well-liked by many, although some professionals probably regarded him more with respect than affection. The reason was that he sometimes showed on the Bench the unvarnished demeanour which had characterised his advocacy. If he thought that a point was bad, he would dismantle it mercilessly through tough questioning. If he thought that a point was really bad, he would adopt the even more crushing tactic of saying nothing at all, allowing counsel to ramble on to the end before dismissively announcing that he did not need to hear from the other side. And he had unsettling foibles. At the summons for directions, he was known to strike out parts of pleadings on his own initiative if he considered them sub-standard, or to require the parties to show cause why the case should stay in the Commercial Court. J.C. Mathew, the first and greatest Commercial Judge, whose mantra was that commercial litigation must be brisk and bussinesslike (and whose own Court was not always a welcoming place) would have approved. But Hobhouse's approach to case management could be traumatic for practitioners of the 1980's, who were not generally accustomed to such a level of judicial activism.
Hobhouse’s future wife, Susannah Roskill, in the arms of her mother Violet in March 1938, on the day of Susannah’s christening in Temple Church.
But there was no doubt that he was a tremendous judicial success. He was overruled so infrequently that, when it did happen, the legal profession reacted with shock. His lengthy wait for promotion (Hobhouse remained in the Queen's Bench for longer than Michael Mustill, Thomas Bingham, and Christopher Staughton, who had been his contemporaries at the Bar) certainly cannot have reflected any doubts about his ability. More plausible is that there were reservations about how well such a strong individualist would work in the collegiate environment of the Court of Appeal. Hobhouse had to wait until 1993 before he was made a Lord Justice.
He sat on nearly 350 reported Court of Appeal cases. A significant proportion involved crime, reflecting the reputation which he had established in this field. On the civil side, he dealt with a variety of unfamiliar areas, including conveyancing, family law, housing, immigration and asylum, insolvency, libel, patents, planning and VAT.
Comparatively few of Hobhouse's cases as Lord Justice were clearly commercial (not many of them made it into Lloyd's). Even fewer involved the shipping and marine insurance in which he had specialised at the Bar. But The 'Jay Bola' [1997] 2 Lloyd's Rep 279 was one of the earliest cases on whether a stranger to an insurance who claims to have a direct right of action against the insurer is bound by an arbitration clause in the policy (a question to which the Court returned in a number of subsequent cases); and in The 'Nukila' [1997] 2 Lloyd's Rep 146 he ruled on the dividing line between latent defect and damage in a marine policy, and on the operation of the common "Inchmaree Clause". Hobhouse also sat on several appeals arising out of the Lloyd's litigation of the 1990's.
Having spent over eleven years in the Queen's Bench, Hobhouse completed his Court of Appeal career in less half the time. After exactly five years in post, he became a Lord of Appeal in Ordinary in succession to Robert Goff. Goff had been fifty-nine when he reached the Lords. Hobhouse was sixty-six, and his tenure was destined to be relatively short. But he sat on well over two hundred House of Lords and Privy Council appeals, and packed an impressive portfolio of significant judgments into his time. In shipping law alone, he gave the principal judgments in The 'Hill Harmony' [2001] 1AC 638, the leading case on the ambit of a time charterers' right to give orders as to the "employment" of the ship, and The 'Berge Sisar' [2002] 2 AC 205 on the transfer of bill of lading rights and obligations under The Carriage of Goods by Sea Act 1992. He also gave a substantive judgment in The 'Starsin' [2004] 1 AC 715, in which the Lords settled the vexed question of how to determine whether the shipowner or the time charterer is the contracting carrier where the bill of lading is ambiguous. His judgment in The 'Star Sea' [2003] 1 AC 469 was doubly important: not only did he clarify the test for when a corporate insured is "privy" to matters which are known to individuals within the organisation, but he also analysed the extent to which an insured's duty of good faith continues once the policy has been concluded. Hobhouse also delivered the leading judgment in Turner v Grovit [2002] 1 WLR 107, in which the Lords referred to the European Court the question of whether an English Court was entitled to issue an anti-suit injunction against a party which commenced proceedings abroad in defiance of an English jurisdiction clause. In a thorough analysis, Hobhouse explained the principles upon which the English Courts granted injunctions, and the reasons why professed concerns that anti-suit injunctions infringed the dignity and sovereignty of the foreign court were completely bogus. But it all proved too subtle for the ECJ, which ruled that anti-suit injunctions were inconsistent with the blunt instrument of EU jurisdictional rules.
Hobhouse as a Lord Justice of Appeal.
Although he could still bring counsel's submissions to a jarring halt with a fiendish question, Hobhouse appeared more relaxed in the Lords than earlier in his judicial career. He was given to smiling benignly during hearings, and was sometimes seen to joke with his colleagues. But he was unafraid to strike out on his own if he thought that the majority had gone wrong. He dissented in Hall v Simons [2002] 1 AC 615, in which the Lords breezily overturned the long-settled principle that advocates could not be sued in negligence for their conduct of proceedings in Court. (Judges, needless to say, remain immune from suit, no matter how risible their performance.) And in Three Rivers v Bank of England [2003] 2 AC 1, he endorsed the decision of Commercial Judge Anthony Clarke to strike out as hopeless a claim that the Bank of England had allowed the Bank of Credit & Commerce to operate in England knowing full well that it was on the verge of collapse. The less courageous majority resolved that the case must be allowed to proceed to trial, thereby inflicting upon the Commercial Court one of the greatest debacles in its history. (After opening speeches alone had consumed months of Court time, the claimants abandoned their claim part way through the witness evidence.)
Hobhouse's rather austere appearance and public persona probably suggested to most people that he was conservative by nature. There was truth in that, particularly when it came to fundamental reform of the legal system. Hobhouse did not like the idea of a Supreme Court, and used his position as a member of the House of Lords to speak out against it and other constitutional proposals. Yet he was capable of embracing, and even initiating, change. A fundamentally humane man, he believed that Judges and barristers should not be compelled to wear fancy dress at work, and was one of the moving forces behind the modern rule that wigs and gowns are not generally worn in the Commercial Court. (Hobhouse may have had a very personal interest in this: horsehair wigs are a particular burden for the follicly-challenged, as he himself was.)
A very private person to the end, Hobhouse did not offer much insight into his life away from the Bench in "Who's Who". Indeed, for many years, he declined to submit an entry at all, before he was eventually persuaded that, as a Judge and holder of an important public office, he ought to disclose at least a bare minimum of information about himself. His leisure pursuits generally reflected his personality, civilized and refined, but not particularly sociable. His youthful love of climbing gave way to a passion for brisk country walks as he grew older. He was fond of music, although he did not share Susannah's singing talents. He kept bees, and cultivated wild flowers from which they could gather nectar.
Hobhouse's health declined as he entered his seventies. In late 2003, he delivered another important judgment in Shogun Finance v Hudson [2004] 1 AC 919, holding that, if one signatory to a written contract assumes a false identity, the transaction is entirely void. Nothing in his analysis of the legal position suggested failing powers. But Hobhouse was troubled that illness was preventing him from pulling his weight in the Lords. He retired prematurely in January 2004, and died in hospital two months later.
John Hobhouse during his time in the House of Lords, in mellow mood among congenial garden surroundings.