One of the more forbidding-looking Commercial Judges, Roger Parker could certainly assume a no-nonsense judicial attitude when he thought that circumstances warranted. But he was fundamentally warm-hearted, with a sense of fun. When Parker died, one of his former clerks wrote of his kindness and support towards chambers' staff during his days at the Bar. Fellow-Benchers of Lincoln's Inn recalled how, during his term as Treasurer in 1990-1991, Parker raised the necessary funds for work on the Great Hall "using an irresistible combination of charm and a refusal to take no for an answer."
Parker's mother, Marie, was a member of the Kleinwort banking dynasty. His father, Thomas, was a son of Robert Parker, the first Baron Parker of Waddington, an early 20th Century Chancery Judge and Lord of Appeal in Ordinary. Thomas's younger brother, Hubert, followed their father into the law, was made a Queen's Bench Judge, and became the second Baron Parker of Waddington when he was appointed Lord Chief Justice in 1958, as successor to former Commercial Judge Rayner Goddard.
Roger Parker’s paternal grandfather and uncle, the two Lords Parker of Waddington: Robert (top), and his son Hubert.
Thomas followed a different career to his father and brother, becoming a decorated Captain in the Royal Navy. Perhaps it was from him that Parker acquired a love of boating. He rowed at Eton College, and was a keen dinghy sailor. But his own wartime service was on land, as a junior officer in the Rifle Brigade from 1941 to 1946. He fought with the Brigade as it clawed its way up the length of Italy and into Austria, earning renown as a daring motorbike rider.
After he was demobilised, Parker studied law at King's College Cambridge, where he again rowed (he made the 2nd VIII in the Boat Race). He was called to the Bar by Lincoln's Inn in 1948, and joined chambers at 1 Hare Court. This was largely a common law set, with a commercial sideline. However, there was not much commercial work for junior barristers during the late 1940's and the 1950's. Parker did make an early venture into the Commercial Court in Colin & Shields v Weddel [1952] 1 Lloyd's Rep 390, a C&F sale case tried by Frederic Sellers. But that was a walk-on part, performing the new practitioner's traditional function of collecting a judgment for a more senior member of chambers who was busy elsewhere. Although Parker made the occasional appearance in the Court during the 1950's, he did not establish a significant profile there until he became Queen's Counsel.
But he quickly became a very busy and successful junior common law practitioner in other Courts. He had joined Hare Court at an opportune time. Since 1945, the Junior Counsel To The Treasury for common law cases had been none other than his own uncle Hubert. In 1950, Hubert became a Judge, the traditional reward for service as a "Treasury Devil". Hare Court's John Percy Ashworth was chosen to replace him, and became, in effect, standing junior counsel to the government for common law litigation. It was a demanding office, involving a large turnover of cases in a wide variety of fields. Busy Treasury Counsel generally needed support in and out of Court from dependable younger barristers. They also enjoyed some patronage in the allocation of instructions for smaller government cases which did not merit their personal involvement.
Ashworth apparently regarded Parker as a worthy candidate for both sorts of overspill work. Within a short time of Ashworth's appointment, Parker was appearing in reported cases as his junior, as well as in other government litigation. In 1951 alone, he appeared seven times, in cases with subject matters as diverse as elections, landlord and tenant, municipal gas supplies, and tax (Customs & Excise Commissioners v Keil [1951] 1 KB 469, in which the burning issue was whether parts for model aircraft kits were taxable appurtenances to "sports, games, or amusements": Croom-Johnson J concluded that model-making was not a sport, but that it was probably a game, and definitely an amusement). Parker was led in these cases. But, alongside his civil practice, he was appearing as an advocate in the criminal courts. By 1955, Parker had made half a dozen appearances in the House of Lords and Privy Council. Naturally enough, he was not trusted with the advocacy in these appeals (there were usually two other counsel ahead of him). But it was an enviable record nevertheless, for someone so junior.
Parker worked regularly with Ashworth, until Ashworth went on the Bench in 1954. His other leaders included Attorney-General Hartley Shawcross, future Law Lords Geoffrey Cross and Gerald Upjohn, future Chief Justice of Australia Garfield Barwick (in an Australian taxation appeal to the Privy Council), and future Commercial Judge Alan Mocatta (Pigott v Docks & Inland Waterways Executive [1953] 1 QB 338, a dispute about restrictive practices in Grimsby Docks). Ashworth's departure for the Bench did not slow Parker's career progress. Even deprived of his mentor, he continued to make regular reported appearances in both civil and criminal cases, and remained a junior counsel of choice for government work. Indeed, an attempt was made to persuade Parker to become Treasury Devil. But the traditional expectation was that Treasury Counsel would serve a few years then join the Bench, without becoming a QC. Parker, who was increasingly arguing cases on his own, had ambitions to act as a leader in larger litigation. He was duly appointed Queen's Counsel in 1961. He had only been in practice for about a dozen years, and was the youngest appointee that year. His record of government work must surely have played a part in this speedy promotion to the front row. But it had been a remarkably rapid rise for all that.
As Queen's Counsel, Parker continued to receive government instructions (the Commissioners of Customs & Excise were recurrent clients). But the balance of his instructions shifted more towards private work. As part of this change of emphasis, his practice acquired a commercial side. In Hardwick Game Farm v SAPPA [1969] 2 AC 31, he argued one of the major sale of goods cases of the late 20th Century, in a dispute arising from the CIF sale of toxic groundnuts, deadly when fed to valuable game birds. The hearing in the House of Lords lasted for fifteen days, an almost unimaginable duration by modern standards. Parker was back in the Lords arguing about commercial contracts in Prenn v Simmonds [1971] 1 WLR 138, a landmark decision on the importance of the "factual matrix" in the interpretation of contracts. He appeared twice in the Privy Council in a long-running Singaporean shipping case about misdelivery of cargo (Kum v Wah Tat Bank [1971] 1 Lloyd's Rep 439, in which he led future Commercial Court colleague Michael Mustill QC, and Wah Tat Bank v Kum [1975] AC 507). In Eagle Star v Spratt [1971] 2 Lloyd's Rep 116, he won a reinsurance action (a rare species of litigation at the time) on appeal. He was also instructed in a variety of banking cases.
But commercial litigation was just one facet of a practice which remained varied, and which also encompassed building contracts, company law, local government, trade secrets, and the occasional outing in the Restrictive Practices Court. Parker's most high-profile cases were far removed from the shipping, insurance, and sale of goods world of the Commercial Court. He was instructed by controversial Conservative MP Enoch Powell, and against controversial Labour MP Robert Maxwell. He endured the best part of six months in Court in The Estate of Fuld [1968] P 675, a bitter dispute about the assets of a wealthy German who had lived in various countries, and who appeared to have acquired wives or lovers (or both) in all of them. In McWhirter v Independent Broadcasting Authority [1973] QB 629, he successfully resisted an attempt to prevent the broadcast of an artsy and mildly salacious documentary about Andy Warhol. Of greater legal significance than these were Anisminic v Foreign Compensation Commission [1969] 2 AC 147, an important administrative law case in which the House of Lords accepted Parker's argument that a "finality" clause in the underlying legislation did not exclude judicial review; and Cassell v Broome [1972] AC 1027, in which the Lords rejected Parker's argument that his clients should not pay exemplary damages for publishing a libellous account of the destruction of Convoy PQ17.
Captain J. E. Broome, the America-born Royal Navy Captain who commanded the escort for the doomed Convoy PQ17. He donated the libel damages which he recovered in Cassell v Broome to charity.
A hard-working advocate (the appeals in Anisminic and Cassell both lasted thirteen days), Parker was also an effective one. He was regarded as particularly impressive in cross-examination, not always a strong-point for commercial practitioners. The range of Parker's experience may well have been to his advantage in the development of such forensic skills. Parker was also interested in the affairs of the Bar outside the courtroom. He became Head of Chambers at Hare Court, and was Chairman of the General Council of the Bar from 1972-1973.
One summer day in 1974, a chemical plant near Flixborough in Lincolnshire was consumed by a massive explosion. Twenty-eight people were killed, and dozens more were injured. Buildings as far as three miles away were damaged, and fires burned on the site for ten days. The government rapidly established a Court of Inquiry, and Parker was appointed to Chair it. He heard weeks of evidence, much of it highly technical, and delivered his report within a year of the explosion. Parker's focus on an improvised modification to the plant's pipework as a possible cause generated considerable debate. But there was no arguing with his wider criticisms of operating practices and managerial organisation at the plant.
The aftermath of the Flixborough explosion.
Parker had acquired judicial experience with part-time posts trying criminal cases in Hertfordshire and as an appeal Judge in the Channel Islands. He was made a Queen's Bench Judge in early 1977. His long record of involvement with government litigation must surely have aided his judicial ambitions, as must his Flixborough work. (Parker had not been on the Bench long before he was put in charge of another technical Inquiry, into whether a nuclear reprocessing plant should be built at Windscale. He recommended that it should be, and it was, although the site is today known as Sellafield.) On the other hand, at nearly fifty-four years old, and with almost thirty years' experience at the Bar, he had not been catapulted onto the Bench with unseemly haste. And no-one was likely to suggest that he was anything other than a good choice. In particular, the breadth of his practice had been excellent experience for the varied workload of the Queen's Bench. At first instance, Parker tried cases about agricultural subsidies, building contracts, employment, tort, and crime, and he took his turn in the Criminal Division of the Court of Appeal. But a majority of his reported cases were in the Commercial Court.
He was the trial Judge in four prominent commercial cases which went to the House of Lords: Bunge v Tradax [1981] 1 WLR 711, on the classification of contractual provisions as conditions or innominate terms; The 'Universe Sentinel' [1983] 1 AC 366, where a shipowner who had made a payment to the International Trade Federation under a threat of boycott sued to recover the money; Lonrho v Shell [1982] AC 173, on the scope of the tort of conspiracy; and George Finney v Mitchell [1983] 2 AC 803 (which, in the Court of Appeal, was Lord Denning's last case), on the construction of contractual exclusion clauses. The Lords disagreed with Parker in Bunge, but endorsed his conclusions in the other three cases (although for rather different reasons in George Finney). Parker's judgment in The 'Tropwave' [1981] 2 Lloyd's Rep 159 remains a leading authority in relation to the scope of cesser clauses in voyage charters. Parker also became something of an expert on set-off in shipping contracts, deciding a number of cases about when cross-claims could be deducted from payments under charterparties and bill of lading contracts. His decision in The 'Teno' [1977] 2 Lloyd's Rep 289 that equitable set-off was available against time-charter hire was endorsed by the Court of Appeal in The 'Nanfri' [1978] QB 927.
As an energetic Judge In Charge of the Commercial Court in 1981-1982, Parker sought to improve the efficiency not only of the Court itself, but also of its practitioners. He introduced measures designed to ensure that urgent matters were given an early hearing. But he also issued a brusque Practice Statement [1982] 1 Lloyd's Rep 534, warning that anyone who did not file their papers on time would see their application adjourned at their expense. He was also alert to ensure that only appropriate disputes made their way into his Court, advising lawyers that they should be prepared at the first hearing in a case to justify why the action should not be transferred out.
Parker was promoted to the Court of Appeal in 1983. Commercial cases accounted for a much lower proportion of his caseload as a Lord Justice than they had at first-instance. He gave one of the two principal judgments (the other was by Michael Kerr) in CTI v Oceanus [1984] 1 Lloyd's Rep 476, in which the appeal lasted a month. The case was the principal authority on avoidance of insurance contracts for non-disclosure and misrepresentation for a decade, before the House of Lords modified the rules in Pan Atlantic v Pine Top [1995] 1 AC 501. His judgment in the leading contract case The 'Simona' [1987] 2 Lloyd's Rep 236, on the legal consequences of an unaccepted repudiation, was endorsed by the House of Lords ([1989] AC 788). In Dobson v General Accident [1990] 1 QB 274, a case which, rather implausibly, combined insurance law with the interpretation of the Theft Acts, he gave a key judgment on the scope of appropriation as an ingredient of the crime of theft. Three years later, in R v Gomez [1993] AC 442, the House of Lords favoured his analysis over the views which another former Commercial Judge, Eustace Roskill, had expressed in an earlier Lords case. (Parker's fellow-Lord Justice in Dobson was Tom Bingham: the Theft Acts seemed to hold a strange allure for Commercial Judges in the 1980's and 1990's.)
Roger Parker in the Queen’s Bench Division….
… and the Court of Appeal.
As Chairman of the General Council of the Bar, Parker had been head of what was, in effect, the trade union for barristers. Later, he became known for sometimes adopting a shop steward's attitude on the Bench. It was even whispered that a reputation for complaining prevented him from becoming the third judicial Lord Parker, although his age and the strength of the competition must have been factors. (Anthony Lloyd and Michael Mustill, younger Commercial Judges both, made it to the Lords during Parker's time.) Parker sounded-off about perennial judicial bugbears such as inadequately-sized and badly-maintained Court buildings (by the 1990's, some Commercial Judges were sitting in courtrooms in the basement of the Royal Courts of Justice, while others were accommodated on a completely separate site, St Dunstan's House on Fetter Lane); pay (Parker was not the last Judge to warn that the gap between judicial salaries and earnings in private practice was an obstacle to recruitment); and under-staffing (the Court of Appeal in Parker's day regularly sat in panels of two Judges, rather than three, to get through its caseload). He also opposed the reduction of the judicial retirement age from seventy-five to seventy.
Although Parker could not prevent the Judicial Pensions & Retirement Act 1993 from becoming law, he was immune from what he considered its most objectionable provisions, by virtue of holding judicial office before it came into force. He nonetheless chose to retire in September 1992, a little before his seventieth birthday. Parker's departure coincided with Desmond Ackner's retirement from the House of Lords. Perhaps he went once he realised that he would not be selected as Ackner's replacement. If so, he apparently did not feel bitter about being overlooked, for he agreed to reinforce the Court of Appeal from time to time as an additional Lord Justice until late 1997, sitting on around fifty reported appeals as a judicial "retread".
Roger Parker married Anne White in 1948, at the very beginning of his career in the law. They had three daughters and a son, and cared for two nephews and a niece whose parents were killed in a plane crash in South America. It was by all accounts a happy family. As an adult, Parker maintained his youthful enthusiasm for sailing. He also became a good golfer, and enjoyed gardening. After a retirement of nearly twenty years, he died in November 2011.