A precocious talent at school, Roger Grenfell Toulson went to university when he was only sixteen. While the rapid pace of his progress fell away a little after that, he maintained an upwards professional trajectory, ending his career as a Justice of the Supreme Court of the United Kingdom.
Toulson was born and raised in Surrey. At Mill Hill School, near London, he was not only an outstanding, scholar, but also broke the school record for the mile run. Outpacing his classmates in the schoolroom as well as on the athletics track, he took his exams three years early, and entered Jesus College, Cambridge, when most of his contemporaries were taking their O levels. Toulson had been a classics specialist at Mill Hill (his A level subjects were Greek, Latin, and Ancient History), but opted to study law at Jesus. After dallying with the idea of becoming a doctor (he decided that he lacked the practical dexterity to perform medical examinations, let alone complex surgery), he chose to make the law his career. It apparently took him some time to make up his mind, because he was twenty-three before he was called to the Bar by Inner Temple in 1969, losing the head start which he had enjoyed at university.
Toulson became a member of 4 New Square (and served a term as head of the chambers in the 1990's). The set's principal focus during his time was on negligence and liability actions against accountants, brokers, doctors, lawyers, surveyors, and other professionals. Professional negligence naturally came to form a significant part of Toulson's practice. As a QC (he became Queen's Counsel in 1996), he appeared twice in the House of Lords in cases which turned on the quantum of damages for negligent professional advice: Swingcastle v Gibson [1991] 2 AC 233, and the challenging and controversial South Australia Asset Management v York Montague [1997] AC 191, source of the "SAAMCO Cap" and of the principle that a professional is usually only liable for the consequences of the advice being wrong, not for the whole of the outcome of the transaction. But Toulson was not a narrow specialist, and there was always more to his career at the Bar than professional liability litigation. His first appearance in the law reports was in an appeal from an industrial tribunal in an unfair dismissal claim (Kapur v Shields [1976] 1 WLR 131: he won). He was subsequently instructed in cases involving subject-matters as diverse as alleged misfeasance in a public office by an Australian planning authority (Dunlop v Woollahra MC [1982] AC 158, a Privy Council Appeal); a water authority's right to levy charges on a shop which had no water supply (South West Water v Rumble's [1985] AC 609; and the licensing of seaside sex shops (Portsmouth City Council v Qiuetlynn [1988] QB 114). Toulson even ventured into the criminal courts: in R v Bow (1977) 64 Cr App Rep 54, a case of taking and driving away contrary to the Theft Act 1968. But that was rather a one-off, and Toulson did not establish a criminal profile. By contrast, housing litigation became a significant part of his practice.
All of this was far removed from the Commercial Court, and Toulson never became prominent in the commercial litigation staples of shipping and international sale of goods. But it was a common feature of professional negligence cases for the defence to be funded by liability insurers. Toulson built on this angle to establish a significant insurance aspect to his practice, which brought him into the Commercial Court from time to time during the 1990's. In Pryke v Gibbs Hartley Cooper [1991] 1 Lloyd's Rep 602, where the trial lasted the best part of three months, he won a substantial action for Lloyd's syndicates against brokers who had failed to report that an agent was issuing policies beyond the scope of its underwriting authority. He secured further Lloyd's work during the "LMX spiral" litigation of the 1990's, and acted for some of the defendants in Henderson v Merrett [1997] 2 Lloyd's Reinsurance LR 265. The Henderson trial lasted even longer than Pryke, and Cresswell J's judgment ran to 150 pages plus exhibits.
To stimulate his mind in his spare time, Toulson co-authored a textbook on yet another area of law. The first edition of 'Toulson & Phipps On Confidentiality' was published, and well-received, in 1996. It was a milestone year for Toulson, for he also became a Judge of the Queen's Bench Division.
Unsurprisingly, Toulson heard several professional negligence actions as a first-instance Judge. In Harris v Schofield [1999] PNLR 208, the defendant solicitors relied upon the settled rule that no action in negligence could be brought against an advocate for their performance in Court. Toulson adopted a narrow interpretation of the scope of the immunity. When the case reached the House of Lords, the Lords not only endorsed Toulson's scepticism about the immunity, they abolished it altogether. But professional negligence was not a major feature of the first part of Toulson's judicial career. He spent most of his time on the Queen's Bench in either the Administrative Court or the Commercial Court. Unsurprisingly, given the profile of his practice at the Bar, there was an insurance emphasis to his Commercial Court work. He was the trial Judge in The 'Aegeon' [2003] QB 564, a significant case on the scope of the rule that an insured whose claim is tainted by fraud may forfeit the whole claim. His decision was upheld in the Court of Appeal. A decade later, Toulson was a member of the panel of the Supreme Court which significantly reformulated the rules (more favourably to fraudulent insureds) in The 'DC Merwestone' [2017] AC 1. In Noel v Poland [2002] 1 Lloyd's IR Rep 30, he heard one of the last cases in the Lloyd's litigation, brought by a disgruntled name who complained that she had been misled into joining a syndicate. Toulson also broadened his commercial litigation repertoire by presiding over shipping, banking, and sale of goods cases. The 'Delphine' [2001] 2 Lloyd's Rep 542, for example, while nominally a marine insurance action, ultimately turned on highly technical surveying and marine engineering evidence as to whether a fire on board a yacht was an accident or had been started deliberately. In Damps 'Nordern' v Andrie & Cie [2003] 1 Lloyd's Rep 287, Toulson encountered the unfamiliar world of the forward freight swaps market. In Lukoil v Tata [1999] 1 Lloyd's 365, he ventured into the law of tug and tow.
Perhaps Toulson's most significant first-instance commercial judgment was Great Peace v Tsavliris [2003] QB 679, in which the defendant salvors sought to cancel a charter on the grounds that, at the time of contracting, the vessel's actual position was four hundred miles away from where they thought it was. In holding the salvors to their contract, Toulson reviewed the whole of the law relating to mistake in contract formation. He boldly concluded that Lord Denning's claims in the 1950's that there was a broad discretionary jurisdiction in equity to set contracts aside for mistake were heterodox and wrong. The Court of Appeal agreed.
In 2002, Toulson was appointed Chairman of the Law Commission. It was a full-time post, and he barely sat judicially during his four year term. One of the Commission's main projects under his leadership was a proposal to overhaul the law of homicide, replacing the existing categories of murder and manslaughter with a threefold classification. By this time, Toulson had plenty of criminal law experience, both as a trial Judge and as a regular member of the Criminal Division of the Court of Appeal. But the Commission's plan did not gain support in government or Parliament.
A misunderstanding about the location of The ‘Great Peace’ lay behind one of Toulson’s most significant Commercial Court cases..
Toulson returned to the Commercial Court towards the end of 2006, but only briefly. In January 2007, he was promoted to the Court of Appeal. By a happy circumstance, practically his first reported case combined two of his favourite areas of the law, confidentiality and insurance (Thomas v Farr [2007] ICR 932, in which the former managing director of an insurance company was restrained from using confidential information which he had obtained while at the company). But by no means all of appeals the which came before him were so comfortably familiar. He was called upon to adjudicate on a far more wider range of disputes in the Court of Appeal than at first instance, and sat on appeals concerning companies, copyright, employment, family, land, partnership, and tax, among other topics. He was also frequently assigned to appeals from the Administrative Court, and the Criminal Division accounted for a very substantial share of his time. His diverse workload contained little space for commercial cases. Commercial Court appeals represented only a small proportion of Toulson's reported Court of Appeal cases (and, in a fair number of those on which he did sit, he merely concurred with a leading judgment delivered by another Judge). But he gave significant insurance judgments in Anders & Kern v CGU [2008] Lloyd's LR IR 460 (restricting the scope of an apparently general warranty, so that it only applied to part of the scope of cover) and Kidsons v Lloyd's Underwriters [2009] 1 Lloyd's LR 8 (on notification clauses in insurance policies). He reviewed the law relating illegality as a bar to the enforcement of contracts in ParkingEye v Somerfield [2013] QB 840 (and was able to endorse his own conclusions three years later when, as a member of the Supreme Court, he delivered the leading judgment in Patel v Mirza [2017] AC 467). Toulson also contributed to the jurisprudence about the remedies available to a party whose contractual counterparty wrongfully commences proceedings in the EU, in breach of an English jurisdiction or arbitration clause. In The 'Front Comor' [2012] 1 Lloyd's Rep 398, he held that an arbitration award ruling that the claimants were not liable under a charterparty for collision damage could be registered under the Arbitration Act 1996 when the defendants had brought proceedings in Italy, contrary to the arbitration clause. This won back some ground for victims of wrongful proceedings, after the ECJ had ruled that anti-suit injunctions were impermissible.
Toulson attracted more public attention than usual for his judgment in R (Nicklinson) v Ministry of Justice [2012] HRLR 32. In that case, he dropped down a rung of the judicial ladder to preside over a three-judge Administrative Court hearing claims by two physically impaired but mentally alert men for declarations that it would be lawful for doctors to help them commit suicide. Toulson concluded that such a development of the law was a matter for Parliament, not the Courts. By the time his judgment was endorsed by the Supreme Court in 2014 ([2015] AC 657), he was a Justice of that Court himself, following promotion in April 2013. He was a member of the panel which decided the confidentiality/privacy case of PJS v News Group [2016] AC 1081. Since the case involved the three-in-a-bed antics of an anonymous entertainment celebrity, it generated enormous public interest. And since Toulson (dissenting) would have set aside the injunction which prevented the media from naming the celebrity, he found himself hailed as a heroic champion of the free press.
Toulson's contributions to commercial law in the Supreme Court were less high-profile. His judgment in Patel v Mirza [2017] AC 467 provided a convincing account of why the common law sometimes treats a contract as unenforceable for illegality, without offering any very clear indication as to when it will do so. He gave more helpful guidance in AIG v Woodman [2017] Lloyd's LR IR 209 on the operation of aggregations of claims clauses in insurance policies, and, delivered the leading judgment on the double-insurance point in The 'Ocean Victory' [2017] 1 WLR 179. But Toulson's elevation to the Supreme Court came not long before his sixty-seventh birthday, and, with just over three years in post before he reached the compulsory retirement age, he had little chance to make a distinctive mark on English commercial law in the highest court.
Immediately upon his retirement, Toulson was appointed to the Supplementary Panel of Justices, who reinforce the Supreme Court when its permanent Judges are overstretched. This was a sure sign of the high regard in which he was held by colleagues and the legal profession. It was a part-time post, and Toulson could have expected to combine it with a busy private practice as an arbitrator. He must also have looked forward to devoting more time to his hobbies. Although Toulson’s mile days were behind him, he still favoured energetic outdoors pursuits, enjoying skiing, tennis, and gardening at the family home in Surrey. But he was advised to undergo a procedure for a heart complaint before he fully embarked on the post-judicial phase of his life. Roger Toulson died in the operating theatre in June 2017, aged seventy, survived by his wife of forty-seven years and their two daughters and two sons.