The Late Lord Mustill, so The 'Times' informed its readers in June 2015, had been a Judge "who spoke up for the legality of sadomasochistic sex among consenting adults". It was an incongruous eulogy for one of the leading commercial lawyers of his time. Yet it had the merit of reflecting Mustill's strong interest in areas of law beyond the boundaries of his personal expertise.

Mustill won a scholarship to read mathematics at St John's College, Cambridge, but had to complete two years National Service first. He served his time as a junior officer in the Royal Artillery. By the time he left the army, he had decided that he was not a good enough mathematician to flourish in the subject. He switched to law instead, but did not much like the course, and managed only a second class degree. He enjoyed his university experience overall, however, and took the opportunity to attend lectures in a variety of subjects which stimulated his intellectual curiosity.

After Cambridge, Mustill spent some time working in one of the major firms of City solicitors, where he acquired some valuable professional contacts. But he chose to make his legal career at the Bar. He was called by Gray's Inn in 1955, became a pupil of Michael Kerr, and joined Kerr's chambers at 3 Essex Court. It was the leading commercial set of the time, numbering Alan Mocatta, Eustace Roskill, and John Donaldson among the other tenants. But the late 1950's were hard times for a new practitioner trying to build a career in commercial litigation. In his mature years, Mustill had a well-deserved reputation among junior barristers for generous encouragement and advice. But he also rather enjoyed frightening the young with chilling tales of his own early days: of periods when he went without work for months at a time, and of the emotional turmoil, a mix of feverish excitement and bitter envy, which gripped the most junior tenants on the rare occasions when one of them received a set of instructions. Mustill made only three reported Court appearances in the 'fifties, and most of his paying work was in the form of legal research or drafting for his former pupil master. But he showed precocious promise, when he got the chance. In Anglo v Titan [1959] 2 Lloyd's Rep 152, his first reported Commercial Court action, he argued the case on his own, albeit that he lost. (It was a Commercial Court first for trial Judge Sir Patrick Barry too. In Barry's case, it also proved to be his final appearance, although Barry, whose father had been the last Lord Chancellor of Ireland, established a solid body of work shipping-related work trying personal injuries claims by stevedores and dockworkers.)    

Mustill's professional outlook improved with the turning of the decade. He was instructed, as junior to Mocatta and Kerr, for the plaintiff shipowners in The 'Tropaioforos' [1960] 2 Lloyd's Rep 469, a three month marine insurance action. This proved to be another losing cause: Colin Pearson accepted the arguments of Roskill, Henry Brandon, and Christopher Staughton, for the hull underwriters, that the owners had sunk the ship themselves in order to make a bogus claim. But participation in the biggest and most prominent Commercial Court case since the Second World War provided a major boost for Mustill's profile, and, with the volume of commercial litigation beginning to pick up as the 1960's progressed, his practice expanded rapidly. Soon, he was consistently making half a dozen or more appearances per year in Lloyd's Law Reports, almost all in shipping or marine insurance cases. Kerr led him regularly, and Mustill followed Kerr to the new set at 4 Essex Court when the Lord Chancellor's Department forced 3 Essex to split in 1961.

Mustill was appointed Queen's Counsel in 1968. Given the scarcity of work at the start of his career, he had effectively been in practice for only a decade. The wave of success which had carried him to such early eminence did not abate. During his ten years as a QC, Mustill was one of the busiest leading counsel at the Commercial Bar. Leading cases which he argued in the House of Lords included The 'Albazero' [1977] AC 774, in which the Lords considered (and confined) the circumstances in which a plaintiff can recover damages in contract for losses suffered by third parties, and The 'Aries' [1977] 1 WLR 185, in which they confirmed the rule that cargo claims cannot be set off against freight. Mustill won the first of these cases, and lost the second. His opponent in each was John Hobhouse, who, like Mustill, would one day sit in the Lords (although their careers as full-time Lords of Appeal did not overlap). Mustill pulled off a narrow victory in The 'Eurymedon' [1975] AC 154, a New Zealand appeal in which he persuaded a bare majority of the Privy Council that a "Himalaya Clause" was effective extend the benefit of exemption clauses to sub-contractors. Although not technically binding in English Courts, the decision quickly became accepted common law orthodoxy. Away from the Lords, he persuaded the Court of Appeal in The 'Mihalis Angelos' [1971] 1 QB 164 that the fact that the defendant would have become entitled to terminate the contract if the plaintiff had not terminated it first must be taken into account in the assessment of the plaintiff's damages. The decision was foundational in the modern rule that contract damages should be assessed on a "net loss" basis.

Although Mustill maintained his commercial focus as a QC, he dabbled in other fields from time to time. He argued the occasional tax case, and in Chesterfield FC v Secretary of State for Social Services [1973] QB 583, he appeared for a football club in a dispute about national insurance contributions. Future Commercial Judge Robert Gatehouse was for the government. Mustill won.

Whatever the subject matter of the case, Mustill was not a flashy advocate. He favoured steady and logical exposition over flights of oratory, and he liked to make good use of the leeway which Judges generally afforded to counsel, in the days before fixed hearing durations and trial timetables, to take as much time as they wanted. But he had an engaging way of speaking, and if his development of the building blocks of his case was sometimes on the slow side, it was always clear and logical. And Mustill could pick up the pace when necessary, as he did when he appeared in the corridors of the busy Queen's Bench Masters: there, his habit was to state his case as briefly as he could, then stop.

Busy though his practice kept him, Mustill found the time to join William McNair and Alan Mocatta (who were both already on the Bench) on the editorial team for the 17th edition of 'Scrutton On Charterparties' in 1964. He contributed to the work for two decades. In 1982, he helped to revive the even more venerable 'Arnould On Marine Insurance' (the 16th edition), after a twenty year hiatus. But Mustill's principal authorial interests lay in a different direction. For centuries, private arbitration had operated in England & Wales alongside the Courts, sometimes in partnership (when Judges referred technical questions arising in a case to specialist arbitrators), sometimes in direct competition (when parties agreed to refer disputes direct to arbitration and bypass the Courts altogether). There had been periods when commercial litigants in particular had regarded arbitration with particular favour, believing that it was inherently quicker and cheaper than the Courts (which was doubtful in any but the simplest cases), and that arbitrators were more commercially aware than the average Judge (which was all too frequently true). The late 19th Century had been one such period, and the Commercial Court had been created in order to reverse, or at least arrest, the flow of commercial cases out of the Queen's Bench and into arbitration. The plan had succeeded, and commercial work had not died out in the Courts, although it came close to it during the post-War litigation slump of the 1950's. However, while the Commercial Court held on to a good share of commercial cases, London also remained a popular arbitration centre. Before and after the Second World War, the Arbitration Acts of 1934 and 1950, which reformed the relationship between arbitration and the Courts, and the New York Convention, which made arbitration awards readily enforceable worldwide, strengthened the position of arbitration in England & Wales. As commercial litigation expanded rapidly during the 1960's, so too did the number of London arbitrations, particularly in shipping and international sale of goods. Mustill took part in numerous arbitrations, as counsel and as arbitrator, and often argued arbitration appeals and applications in the Commercial Court. The more arbitration work that he did, the more he was struck by the absence of any decent English book on the subject. The existing texts were unsophisticated works. They generally did little more than summarise the effects of the cases and paraphrase the statutes, occasionally throwing in an anecdote from the author's personal experience. (Such works continue to proliferate today.) Recruiting 4 Essex Court's most junior tenant to help, Mustill determined to change all this.

Mustill had acquired judicial experience in a part-time post as a Recorder from 1972. He also chaired the Civil Service Appeal Tribunal in the early 1970's, overseeing civil service pay. His decision to award Post Office telephone engineers a thumping pay rise (backdated) caused considerable consternation in political circles. But apparently this was not held against him, and he was elevated to the Queen's Bench in June 1978. His great professional foe, Anthony Lloyd, beat him into post by five months. Not surprisingly, most of Mustill's reported first-instance judgments were in the Commercial Court. In an important early case (decided in 1979, but not reported until a decade later), he delivered a characteristically thorough and thoughtful analysis of the nature of a shipper's liability for dangerous cargo: The 'Athanasia Comninos' [1990] 1 Lloyd's Rep 277. His first judgment (of two) in The 'Niedersachsen' [1983] 2 Lloyd's Rep 600 highlighted the important principle that a Mareva or Freezing Injunction can only be granted in relation an accrued cause of action, not a prospective claim. In The 'Miramar' [1983] 2 Lloyd's Rep 319 and The 'Miss Jay Jay' [1985] 1 Lloyd's 264 respectively, he grappled with important questions concerning the interplay between causation and exclusion clauses in insurance contracts, and the incorporation of voyage charter clauses into bills of lading. He was upheld by the Court of Appeal in both cases, and, in The 'Miramar', by the House of Lords. Indeed, it was rare for Mustill to be overturned on appeal.

Although Mustill was primarily an outstanding Commercial Judge, he was anxious not to be pigeon-holed. In Mitchell v Vickers [1984] QB 405, he tried a month-long industrial accident claim by workers whose hearing had been damaged in noisy shipyards. (Mustill could be hard of hearing himself. In large, echoing Courts, he sometimes left the Bench to sit closer to counsel. One barrister who had not previously appeared before Mustill became impatient when the Judge failed to emerge to take his seat promptly at 10.30, "Where's the [       ] Judge?", he demanded of the untidily-dressed individual seated at the usher's desk. "I'm the [      ] Judge", Mustill replied.) Mustill was deeply interested in criminal law and practice, both as a trial Judge and in the Criminal Division of the Court of Appeal, in which he frequently sat. At one point, he took it in mind to write a textbook on criminal law, but there was never the time.

In Sheppard v Jerrom [1987] QB 301, Mustill explained that the rule against self-induced frustration meant only that the party which had caused the relevant event could not rely upon it, and did not prevent the other party from claiming that the contract had been frustrated. The result was that a worker who had contrived to get himself imprisoned was not allowed to pick up his contract of employment on his release. However, while Sheppard clarified the law, Mustill's efforts in Lombard v Butterworth [1987] 1 QB 527 to distinguish and explain an earlier decision of Lord Denning's Court of Appeal generated confusion rather than clarity (although the fault was more Denning's than Mustill's). In The 'Nogar Marin' [1988] 1 Lloyd's Rep 412, Mustill made an important contribution to the developing law of implied indemnities.

Mustill was made a Lord of Appeal in Ordinary in 1992. This put him ahead of Anthony Lloyd for the first time in their judicial careers (Lloyd was elevated to the Lords the following year). Pateley Bridge, the little town in the Yorkshire Dales from which Mustill took his title, had been the home of his mother's family for several generations, and Mustill had inherited a cottage there from his parents. In his first year in the Lords, Mustill was part of the panel which heard the distressing Airedale v Bland [1993] AC 789, where the question was whether doctors could lawfully withdraw treatment from a patient who was in a persistent vegetative state. "With profound misgivings about almost every aspect of the case", Mustill agreed with his colleagues that they could. But he was a dissenting voice in R v Brown [1994] 1 AC 212, the case which established his reputation as a champion of the freedoms of sadomasochistic thrillseekers. (The majority held that consent was not a defence to a charge of wounding. Tricky questions about why, on that basis, surgery and boxing are not criminal offences have yet to be authoritatively answered.) In commercial law, Mustill settled years of uncertainty about the legal test for avoidance of an insurance policy for non disclosure in Pan Atlantic v Pine Top [1995] 1 AC 501. Similarly definitive was his judgment in The 'Gregos' [1994] 1 WLR 146, which analysed the rights and obligations of the parties in relation to a "last voyage" at the end of a time charter. In Charter Re v Fagan [1997] AC 313, Mustill demonstrated the flexibility of modern principles of contractual construction by holding that the phrase "actually paid" in a commercial contract did not require an actual payment. His conclusion in Voest-Alpine v Ken-Ren [1995] 1 AC  38 that the English Court had jurisdiction to order security for costs in a commercial arbitration caused consternation in the arbitration community, but the effect of the decision was reversed by the Arbitration Act 1996. Mustill himself had chaired the Advisory Committee which had recommended that arbitration law should be put on a new statutory footing.

Mustill had a major bowel operation in the mid-1990's. "I've been made a semi-colon", he informed Robert Goff on his return to work. "Better than a comma", Goff comforted him. "I thought it was going to be a full stop", Mustill shot back. But, while the outcome of his illness might have been worse, Mustill never fully recovered. He retired prematurely in 1997, when not quite sixty-six. He sat on occasional Lords and Privy Council appeals for another five years. He also resumed part-time practice as an arbitrator, and wrote and lectured regularly on arbitration and other legal topics. He held several visiting academic posts, and served on the committees of a number of legal educational and professional bodies.

Mustill was twice married. His first wife, Beryl Davies, was a City solicitor. They were married in 1960, and separated after two decades. In 1984, Mustill married Caroline Phillips, the sister of one of his pupils, future Law Lord and Supreme Court Justice Nicholas Phillips. They had two sons, and Mustill became stepfather to Caroline's daughter.

Mustill had wide and varied interests away from the law. He was fond of music (he learned both piano and cello at Oundle), and of some of the more lighthearted European authors, including Kafka, Kierkegaard, and Proust. Although he loved the Moors around Pateley Bridge, he also liked foreign parts. He had a particular affection for Greece, not only because so many of his shipping clients were Greek, but also because he had gone there in the summer of 1953 to participate in humanitarian relief work following an earthquake. He developed a profound interest in, and knowledge of, the history behind the Privy Council case of Devi v Roy [1946] AC 508, which concerned the unexpected return to claim his rights of a Bengali princeling who had been believed dead for more than a decade. There were obvious parallels with the Tichborne saga, in which J.C. Mathew, the first Commercial Judge, had been involved as counsel half a century earlier. Mustill aspired to publish an account of the story, and he acquired an archive of material. But, as with his planned textbook on criminal law, time was against him. Michael Mustill died at Pateley Bridge in April 2015. 

Pateley Bridge and the surrounding Dales.