One of the most outstanding of all jurists of English law, Robert Lionel Archibald Goff possessed an intellectual brilliance on a scale with James Charles Mathew's practical genius, and was Mathew's only serious rival as the pre-eminent Judge of the Commercial Court's first century. Yet if his father had had his way, Goff would have become a 20th Century Von Clausewitz, instead of a modern Mansfield.
Like several other exceptional commercial Judges of England & Wales, Goff was born beyond the borders. James Shaw Willes and James Charles Mathew were both Irish (although Mathew's actual birthplace was Bordeaux). William Murray and Colin Blackburn were from Scotland, as was the Perthshire-born Goff. He was the second and last child of Lieutenant-Colonel Lionel Trevor Goff and his wife, Isobel. Lionel's ancestors had been well-to-do Dubliners. There was a strong military tradition on his side of the family. His father had been a Lieutenant-Colonel too, and three of his cousins followed army careers, two of them with sufficient distinction to merit "Who's Who" entries. Lionel joined the Royal Artillery as a junior officer in the late 19th Century, and fought in the Boer War (he was at the relief of Ladysmith in 1900) and in the Great War. He was seriously wounded in both conflicts, and spent lengthy periods in hospital. Robert Goff's Scottish connections came from his mother's side. Isobel was the daughter of Thomas Denroche-Smith, a Perthshire man who had spent his career with the Imperial civil service in India. Lionel was Isobel's second husband. Her first, another artillery officer, had been killed in 1915, during the Gallipoli campaign. Lionel and Isobel were married in 1923, when Lionel was forty-seven. He was therefore a comparatively old father when Isobel, (who was a dozen years younger) gave birth to their daughter Josephine in 1925. Robert followed a year later.
The family lived mostly in Hampshire when Goff was growing up, but regularly holidayed in Scotland. Goff was always fond of his mother's ancestral homeland. Sadly, however, tales that he was addicted in his youth to the Highland Fling are apparently exaggerated, if not downright apocryphal. After preparatory school on the South Coast, Goff went to Eton College, which had been his father's school. He did well at Greek, Latin, and history, and acquired a taste for English literature, but he did not think much of science. He also learned to play the piano, a skill which he found profoundly life-enhancing and sustaining in his adult years. The mature Goff would often calm his mind for the day's work with an early morning rendition of a Mozart sonata. Although he was a good student, Goff was not a single-minded one, and he devoted much of his time to the social and sporting sides of Eton life. As well as musical events, he participated in athletics. He was fond of nature and the outdoors, and acquired an extensive collection of birds' eggs.
Although his own military experience had involved considerable pain and suffering, it was Lionel's great hope that his only son would choose an army career. But parent and child were not kindred spirits. Lionel did not empathise with Robert's love of music. Robert, meanwhile, found no pleasure in Lionel's preferred pastimes of horses, hunting, shooting, and fishing. He dutifully gave them all a fair trial when he was a boy, but turned his back on them when he came of age. Lionel could not help feeling a little disappointed, and Robert generally had a closer connection with his mother. Still, the Second World War saw to it that Lionel's hopes were fulfilled, though only for a short while. Robert joined the army when he left Eton in 1944, and was commissioned as a junior officer in the Scots Guards. There were Guards units fighting in Italy and Northwest Europe, but Goff was given the discouraging news that his battalion had been selected for Operation Downfall, the planned invasion of Japan. This must have seemed a near-suicidal prospect, given the "no surrender" resistance of Japanese forces in Burma, China, and the Pacific. When Downfall became redundant, Goff did a stint of guard duty at Windsor Castle, and was then assigned to the Allied occupation force in Italy as a communications officer. He made the most of his opportunities to view the fine art in the Royal collection at Windsor and in the galleries of Florence, Pisa and Perugia. History does not record what the men under his command made of being harried out of barracks to tour the Old Masters. But the fact that Goff took them along was perhaps an early sign of his educational instincts. Goff also went skiing in Italy, and took a trip through the Brenner Pass into Austria and on into Germany, where he was smitten by the beauty of the countryside.
Goff was demobilised in 1948. Possibly out of consideration for his father, he retained his rather Captain Mainwaring-esque military moustache. He ended up keeping it for the rest of his life, and, with his upright bearing and clear, authoritative diction, always carried the air of the career Guardsman which Lionel would have liked him to be. Taking advantage of special arrangements for former servicemen to complete an undergraduate degree in two years instead of the usual three, he became a law student at New College, Oxford. Goff quickly proved to be an outstanding legal thinker, and he obtained a brilliant first in the law finals of 1950. He left Oxford that summer intending to try his fortune at the Bar, but was summoned back from holiday in Perthshire by a mysterious phone call from Keith Murray, the Rector of Lincoln College, who invited him to drop in for a chat. Not knowing what it could be about, Goff did as he was asked, and was astounded when Murray offered him a post as Lincoln's new law fellow. After some initial hesitation, he accepted, on condition that he would complete the Bar examinations first. Goff was called to the Bar by the Inner Temple in 1951, then returned to Oxford to oversee the education of students who were barely younger than himself.
As was customary, Goff sometimes sent his charges to tutors in other colleges who were specialists in particular subjects. But he assumed personal responsibility for tutorials in a wide range of topics. Since his own abbreviated law course had covered only a part of the syllabus, some of the subjects which he undertook to teach were entirely new to him. As a result, he was sometimes only just ahead of his students going into a tutorial, and he had to work tremendously hard. It was at Lincoln that he acquired the habit, which would prove useful in his later life at the Bar and on the Bench, of starting his day at 05.00 am.
Tobermory Goff, using a young Robert Goff as a look-out post. Tobermory’s mother lived with Ronald Maudsley, the Warwickshire cricketer who doubled as an Oxford law don during the off-season, and who was Goff’s first collaborator on the law of restitution.
But Goff had plenty of energy, and he enjoyed expanding his legal horizons. He also proved to be a very good law teacher. His insight and enthusiasm were inspiring, and he had a relaxed manner and sense of fun which put students at ease. After a while, Lincoln's authorities agreed that he could recruit a clever young barrister to take some of the load by giving weekend tutorials. The job went to Patrick Neill, younger brother of Goff's future Commercial Court colleague, Brian Neill.
In addition to his teaching responsibilities within Lincoln, Goff was expected to offer lectures which all Oxford law students could attend. He spoke on defamation, but thought that it would be stimulating to focus on some novel topic. Around the same time, Ronald Maudsley, law fellow at Brasenose College, was having the same idea. (A former captain of Warwickshire County Cricket Club, Maudsley had skippered Warwickshire against the 1948 Australian "Invincibles". The Bears lost by 9 wickets.) Goff and Maudsley conceived a series of seminars on what US lawyers were increasingly calling "restitution". This disorganised field covered a ragbag of cases in which the law granted a monetary remedy, but which did not fit easily within recognised legal categories of claim. English lawyers generally called it "quasi-contract", if they referred to it at all. The name reflected one popular theory, that liability was based on an implied contract. That was a credible explanation for a few of the reported cases. But in most, it was plain that the liability was not inherent within any pre-existing relationship, and was not a remedy for any breach of duty. It was imposed from the outside, as a legal response to a perceived hardship. Goff and Maudsley favoured a non-contractual explanation, that what the common law sought to do in these cases was to reverse an unjustified enrichment which the defendant had acquired at the plaintiff's expense. They suggested that this should be recognised as the organising principle for a third limb of the common law of obligations, additional to contract and tort. The series did not attract a large student audience, probably because the topic was not a syllabus subject in its own right. At best, quasi-contract occasionally cropped up on the peripheries of the contract course. But the seminars generated interest from other Oxford law academics, and Goff and Maudsley resolved to expand their ideas into a textbook. Goff made a start, but Maudsley drifted away from the project before long. (Maudsley was primarily an equity lawyer. He subsequently published textbooks on land law and trusts.)
At Oxford, Goff studied at New College (above), and taught at Lincoln (below). The young law fellow lived in an attic flat overlooking the High Street, rather than an ivy-clad quadrangle surrounding a manicured lawn.
In 1952, Goff went to a party in Hampshire, where he met Sarah Cousins, daughter of a Royal Navy Captain. Since Sarah was a historian at St Anne's College, he could have saved considerable time and effort by just cycling up the Woodstock Road, but such are the vagaries of romance. They were married in 1953, and honeymooned among some of the European landscapes which had bewitched Goff in his army days. The change in personal circumstances set Goff thinking about the future. An academic's pay was no financial basis for a comfortable family life (the Goffs began married life in a rented attic flat on Oxford's busy High Street). And Goff increasingly felt that academics were never at the cutting-edge of the development of English law. In most European countries, the law was codified, and legal issues invariably turned on the interpretation of the codes. In such a system, academic commentaries were crucially important, and leading legal scholars had tremendous influence. But the common law had never been written down in a fixed form at a single moment of time. It had developed incrementally over centuries, evolving through judicial decisions in individual cases. The common law represented the collective practical wisdom of generations of Judges, not the abstract theories of university professors. Judges and practitioners in England & Wales instinctively looked first to previous authority for guidance, not to academic books and articles. Goff concluded that Judges and barristers had better opportunities than Oxford dons to fashion significant legal change.
And so in 1955, he revived his original professional plans, and left Oxford for London and the Bar. He was recruited by the chambers of Ashton Roskill QC, elder brother of future Commercial Judge and Law Lord Eustace Roskill. While Eustace had always been a commercial specialist, Ashton's practice had been varied before the Second World War. But he had concentrated more on commercial litigation since 1945, and other members of his set had followed his example. Basil Eckersley, for example, had appeared as junior counsel in a decent (for the times) number of reported shipping cases. Goff became Eckersley's pupil, and was then taken on as a tenant. But he had made his switch to the Bar in challenging times. Commercial litigation in particular was stuck in a sustained slump. The Commercial Court's quietest years were in the 1950's, and London arbitration was scarcely more active. A newcomer's best prospect of getting on was to have a pupil master who was busy (preferably on the verge of becoming a QC) and who regularly needed juniors. But little work trickled down to Goff from Eckersley, who was himself the junior counsel in most of his cases. (Eckersely never became a QC, and was ultimately better known as a well-regarded shipping arbitrator than for his work at the Bar.) Like Patrick Neill before him, Goff supplemented his income with weekend teaching at Lincoln.
He did not appear in a reported case until 1960. Cunningham v Codan [1961] 2 Lloyd's 204 was a small-scale dispute about pilferage from a cargo of potatoes. It was tried before a Circuit Judge in the Mayor's & City of London Court, the City branch of the County Court. County cases were not reported often, but Lloyd's editors apparently thought that Cunningham was worth a place because it involved a bill of lading. (In those days, when genuine commercial cases were scarce, Lloyd's struggled to fill its pages. Volumes were routinely padded out with personal injuries actions about accidents to sailors and stevedores.) Goff, representing one of several defendants, persuaded the Judge that his clients were not liable because they had acted solely as agents. He ran a similar argument in his first reported High Court case Freimuller v Ocean Carriers [1961] 2 Lloyd's Rep 309, where his clients had ordered ships' supplies but were reluctant to pay for them. This time, Goff lost. The Judge told him that, if his clients expected people to realise that they were merely managers and not shipowners, they should not go around calling themselves "Ocean Carriers".
The upside of not being very busy at the Bar during the late 'fifties was that Goff had plenty of time to work on his book. Once Maudsley lost interest, the first English textbook on the subject might simply have been "Goff On The Law Of Restitution". But, as his career began to pick up, Goff realised that he would never complete the work alone. Around 1960, he met Gareth Jones, future Downing Professor of the Laws of England at the University of Cambridge, who was then a junior academic at King's College, London. Jones expressed an interest in Goff's project, the two got on well together, and the book became "Goff and Jones". Harried by impatient publishers, the duo handed over a manuscript in 1964, but carried on writing, and significantly revised the text after the first proofs had been run off. The exasperated publishers made them pay the wasted costs, which took care of most of their royalties (legal writing not being a high-profit venture at the best of times). "Goff and Jones" was published in 1966. Goff reckoned that, although he had made the early running with the writing, Jones had caught up by the end, and that their final contributions were roughly equal.
When Ronald Maudsley lost interest in the idea of a book on the law of restitution, Gareth Jones became Goff’s co-author. They wrote three editions together.
Scholarly and immensely detailed, but written in an accessible style, "The Law of Restitution" was an intellectual triumph. Goff and Jones convincingly demonstrated that what looked like a messy, mixed-up mass of cases was capable of principled explanation (at least in most instances). The book was universally praised, with even reviewers who were sceptical about the "unjust enrichment" thesis recognising the academic calibre of the research. It had a significant influence on legal teaching at United Kingdom universities. By 1970, Oxford offered a "restitution" option on its BCL graduate law course. Other institutions followed, and, within a decade or so, restitution was one of the most vibrant legal research topics, attracting the attention of such leading thinkers as Peter Birks and future Commercial Judge Jack Beatson. This academic acceptance that restitution was a distinct element of the English law of obligations was almost entirely attributable to "Goff and Jones". Few textbooks can claim to have effectively generated a new field of study, and there is a good case for "The Law of Restitution" being the most significant English law book since Pollock and Maitland's "History of English Law" in 1895. Goff and Jones were both awarded Doctorates of Law for the book (Goff by Oxford, Jones by Cambridge), and it was instrumental in their subsequent elections as Fellows of the British Academy.
Meanwhile, the Goff family had been expanding, with the arrival of two sons and two daughters. Devastatingly, the eldest son contracted meningitis at seven months old, and died at two. Goff and Sarah were a devoted couple, and they got one another through their shared pain. The children were all closer to their parents than Goff had been to his own father, and the family was a tremendously happy and supportive one. Goff passed his passion for music onto the children, arranging chamber pieces for the family to play together. They bought a stone-built barn on the Land's End Peninsula in the mid-1960's, and turned it into a holiday home. Intellectually brilliant though he was, Goff was also sufficiently silly to go swimming in the freezing Atlantic waters.
Goff's practice began to gain momentum in the early 1960's, as commercial litigation in London slowly emerged from its long dark age. He established a following among some of the major shipping solicitors, and appeared in around twenty cases reported in Lloyd's between 1960 and 1966. Most were fairly short hearings in the Commercial Court in shipping disputes. They often involved points of law arising out of arbitration awards, and Goff must have had a significant arbitration practice alongside his appearances in the Commercial Court. He argued a couple of cases in the Court of Appeal, and, in Termar v Tradax [1966] 1 Lloyd's Rep 566, one in the House of Lords. In a single judgment which was remarkable for its brevity (under two pages: J.C. Mathew would have been thrilled), the Lords accepted Goff's argument that a ship was not "shifting" while it was waiting for high tide. Goff's defeated opponent was Michael Mustill. Nearly thirty years later, the two would sit together as Law Lords.
Goff argued Termar alone, as he did in most of his other cases as a junior. By way of exception, he was led for four days in the Lords in Schtraks v Government of Israel [1964] AC 556. Mystifyingly, given Goff's usual practice, this was a habeas corpus action, in which the question of law was whether Jerusalem was part of the "territory" of Israel for the purposes of extradition legislation (the Lords held that it was).
Notwithstanding his improved professional profile, Goff remained rather insecure about his practice. He was convinced that he did not have sufficient work to keep pupils busy, and so did not take any until the very end of his career as a junior. Given his skill as an educator, this was a pity, but it gave future Commercial Judge and Lord Justice of Appeal Andrew Longmore the distinction of being the sole pupil of one of the greatest of all commercial lawyers.
In 1965, Ashton Roskill left private practice to become Chair of the Panel On Takeovers & Mergers. This was a severe loss for his colleagues, because Roskill's busy practice had generated regular work for several of the set's juniors (though seldom for Goff) and made a major contribution to chambers' finances. Not long afterwards, the nearby chambers at 7 King's Bench Walk sustained a similar setback when Henry Brandon went on the Bench. The two bereft sets decided to merge, creating the modern commercial chambers at 7 King's Bench Walk. In 1967, Goff became one of the new set's QCs. He had been in practice for barely a decade, but he acknowledged that his rapid rise had more to do with his academic reputation and the success of the book than with his performance at the Bar. Indeed, The 'Times' later claimed that Goff only had a modest reputation as an advocate. But, if accurate at all, that can only have been true of his junior career. As a QC, Goff was a great success, highly regarded by Judges and fellow professionals. Between 1967 and 1975, he appeared in around sixty reported cases, as well as in numerous commercial arbitrations. The reported cases included five in the House of Lords and Privy Council, and over twenty in the Court of Appeal. Among his Lords cases was The 'Atlantic Star' [1974] AC 436, in which he persuaded the Law Lords to overrule both Henry Brandon and Lord Denning's Court of Appeal and stay an English action so that the dispute to be litigated abroad. Goff argued that the test for whether English proceedings should be stayed on forum non conveniens grounds should simply be whether, weighing the positions of the parties and the circumstances of the case, it was in the interests of justice for the matter to be tried elsewhere. Although he won the case, the Lords did not fully adopt his submissions, and acceptance of the "interests of justice" test had to wait until Goff sat in the Lords himself, a decade later.
Goff’s head of chambers, Ashton Roskill, was the elder brother of one Law Lord, Eustace Roskill, and the father-in-law of another, John Hobhouse. The portrait was taken not long after he plunged his set into crisis by leaving the Bar to run the Takeover Panel.
In Gilchrist v York [1970] 1 WLR 126, a Privy Council appeal from Australia, he debated the obligations and rights of non-contractual bailees and sub-bailees. This was another subject to which he would return in his own judgments as a Law Lord. Of Goff's Court of Appeal cases, The 'Mihalis Angelos' [1971] 1 QB 164 was a landmark decision on the assessment of damages, the source of the modern "net loss" principle; while The 'Brimnes' [1975] 1 QB 929 was a leading case on withdrawal of a time chartered ship for non-payment of hire. Goff's most eye-catching first-instance case was The 'Gold Sky' [1972] 2 Lloyd's Rep 187, in which he acted for owners whose ship had sunk in calm waters after its engine room flooded. The ship's suspicious insurers were inclined to disbelieve the claims of Mr Komiseris, the engineering officer of the watch, that the hull had suddenly sprung a mysterious leak. They pleaded that the crew had deliberately sunk the ship on the owners' instructions, so that the owners could make a fraudulent claim. Goff had a significant, but hollow, win when he convinced the Court of Appeal that an insurer who alleges scuttling should provide proper particulars [1972] 2 QB 611: significant, because this overturned decades of Commercial Court practice; hollow, because the Court said that, although Goff was right in principle, his application was too late. The trial ended in failure too. Although Alan Mocatta was not convinced that Mr Komiseris had sunk the ship, he dismissed the claim on the basis that the owners could not prove that the loss was accidental. The 'Gold Sky' had a remarkable sequel a few years later, when Mr Komiseris sank another ship, leading to the litigation in The 'Michael' [1979] 2 Lloyd's Rep 1.
Most of Goff's cases as QC involved shipping, sale of goods, or marine insurance. But he stepped into a less familiar field in Westminster v Jarvis [1970] 1 WLR 126, which turned on the interpretation of a standard-form building contract in the context of the construction of a multi-storey car park. Goff's height (slightly off-set by a tendency to round his shoulders), good voice, and piercingly intelligent gaze lent a physical element to his advocacy. But his style of delivery was relaxed and thoughtful, and the overall effect was understated, rather than overbearing. Hard working, he put in the hours needed to get thoroughly on top of the documents in every case. As a result, he was an effective cross-examiner, though not a flamboyant one. His juniors included a roster of future Commercial Judges: John Hobhouse, Nicholas Phillips, Mark Saville, Bernard Rix, Jonathan Mance, and Andrew Longmore, his ex-pupil. He even led his own former pupil master, Basil Eckersley, several times.
While a QC, Goff acquired good experience of deciding commercial cases as an arbitrator. In 1974, he became a Recorder, trying criminal cases on a part time basis. The following year, he was made a Queen's Bench Judge. He was not quite forty-nine, fairly young, bearing in mind how delayed his start at the Bar had been. Since the High Court already had a Mr Justice Goff (the Chancery Division's Sir Reginald William Goff), he was styled "Mr Justice Robert Goff" for the avoidance of confusion. As it happened, Reginald was promoted to the Court of Appeal at around the same time that Robert arrived in the Queen's Bench, and Reginald died in 1980, so that the two did not overlap in the Court of Appeal. But "Robert Goff" stuck until Goff reached the Lords.
The mid 1970's also saw significant changes on the domestic front. The drawback of the cottage in Cornwall was that it was an eight hour journey from London. Goff and Sarah sold it, and their London home of twenty years, and moved to Chieveley House, a Grade II red-brick country home in a village south of Oxford. Chieveley, supposedly so-called because chives were grown there in ancient times, dates from before the Norman Conquest, and the House from at least the early 18th Century. Goff rented a flat in the Temple for evenings when he was too busy to get home. Tending the two acres of garden at Chieveley became one of his and Sarah's principal pastimes. Goff also learned a bit of DIY, to contribute to the upkeep of the building.
Goff began his judicial career with a term of service in the Criminal Division of the Court of Appeal (the criminal law reporters did not bother with the "Robert"). Like Michael Mustill, his contemporary at the Bar and on the Bench, Goff was interested in criminal jurisprudence to a degree which was unusual for a commercial lawyer. In time, he would lecture on "The Mental Element in the Crime of Murder", among a host of other topics. But Goff sat in fewer reported criminal cases than some other Commercial Judges. On the civil side, he heard a few administrative law cases, but mostly as a member of a Divisional Court, rather than as sole Judge. He also put his experience of car park construction projects to good use in a number of building cases.
But most of his reported first-instance judgments were commercial. They included The 'Elena d'Amico' [1980] 1 Lloyd's Rep 75, a definitive analysis of the role of the market in the assessment of damages in commercial cases, and The 'Angel Bell' [1981] QB 65, in which Goff articulated the essential principle that Mareva injunctions should not prevent the defendant from paying debts in the course of business. In The 'Raphael' [1981] 2 Lloyd's Rep 659, he resolved a dispute between Lamport & Holt, who had been the plaintiffs in the first ever Commercial Court summons, and T.E. Scrutton's family stevedoring firm. Goff held that Scruttons were entitled to rely on an exclusion clause to avoid liability for dozily dropping a crane onto the deck of one of Lamport's ships. The Court of Appeal agreed: [1982] 2 Lloyd's Rep 42. Goff sat in the Admiralty from time to time, most prominently in The 'I Congresso Del Partido' [1978] QB 500, which arose from the seizure of sugar cargoes by the Cuban government. The case turned upon whether the arrested ships were immune from actions in rem because they were owned by the Cuban state. The hearing in the Court of Appeal illustrated the danger of two-Judge Courts when Lord Denning and Lord Justice Waller (father of a future Commercial Judge) could not agree. Goff was overruled in the Lords ([1983] 1 AC 244), as he was in The 'Evia' (No 2) [1983] 1 AC 736, the leading case on charterparty safe port warranties. But his record in decisions which were appealed was good. Cases in which he was upheld included Trendtex v Credit Suisse [1982] AC 679, on assignment of causes of action and stays of proceedings, and Amalgamated Investment v Texas Commerce [1982] QB 84, the foundational modern case on estoppel by convention.
Of close to one hundred reported first-instance cases, the one which was closest to Goff's heart was surely BP v Hunt [1979] 1 WLR 783, the first decision on the Law Reform (Frustrated Contracts) Act 1943. In a judgment which read like a manifesto for the recognition of restitution as an independent subject, Goff announced that the fundamental principle underlying the Act was the prevention of unjust enrichment. Since this principle had barely been articulated in English law by 1943, there may have been an element of wishful thinking in Goff's analysis. But his scholarly exposition of restitutionary concepts was nevertheless compelling. His thinking was so sophisticated that he provided his own headnote for the law reports, to save the editors effort in following the lines of his reasoning.
Goff was a patient and considerate Judge, who always gave counsel a proper hearing. Because he took his business seriously, he could seem rather sombre, and his military demeanour sometimes reinforced an appearance of formality. But he was unfailingly polite to everyone in his Court, and he would soon warm up in the enthusiasm of forensic debate if a case involved an interesting point. He found time to continue work on "Goff and Jones". The 2nd edition, containing significant revisions which reflected evolution in the authors' thinking, was published in 1978.
Goff on the day that he became a Lord Justice of Appeal.
Goff became a Lord Justice of Appeal in 1982, after exactly seven years in the Queen's Bench. He spent less than half as long in the Court of Appeal, and had to deal with a much wider range of cases, from defamation to wills, and from charitable trusts to industrial injuries. As a result there were comparatively few notable commercial cases among his more than three hundred appeals. His comments in The 'Leonidas D' [1985] 1 WLR 925 on the equivocal nature of silence and inaction (in the context of contractual offer and acceptance and of estoppel) became well known, and are much cited in textbooks. In The 'Scaptrade' [1983] QB 529, he emphasised the critical importance of certainty in commercial transactions, and refused to extend the fuzzy equitable remedy of relief against forfeiture to time charter withdrawal clauses. That decision was upheld in the House of Lords ([1983] 2 AC 694), as was his conclusion in The 'Ocean Frost' [1985] 3 WLR 640; [1986] AC 717 that an employer was not vicariously liable for an employee's fraudulent statement made outside the scope of the employee's authority.
But the judgment which is perhaps Goff's best-known from the Court of Appeal fared less well in the Lords. The facts of the 'Aliakmon'[1985] QB 350 were complex and confusing. But the upshot was that goods which had been sold under a CIF contract were damaged at sea when they were at the buyer's risk (so the buyer had to pay the price) but title had not passed. This was a fairly common scenario, and, in most cases, the buyer would have been able to sue the shipowner under the bill of lading. But the buyer in The 'Aliakmon' never acquired title to sue under the bill. So it claimed in negligence instead. This ran up against the objection that the claim was for economic loss sustained in consequence of damage to someone else's property. The Court had consistently rejected such claims, including in Eustace Roskill's high-profile decision in The 'Wear Breeze' [1969] 1 QB 219. Goff's colleagues thought that this was sufficient to dispose of the case. But Goff, after a thorough study of the caselaw, would have been willing in principle to allow the claim on the basis of a principle of "transferred loss". The House of Lords, led by Henry Brandon, emphatically endorsed The 'Wear Breeze', and declared themselves too "faint-hearted" to support Goff's proposed principle: [1986] AC 785.
Three vacancies arose in the judicial House of Lords in early 1986. One went to Peter Oliver, a Chancery specialist. Desmond Ackner's breadth of experience and all-round strength secured his selection for one of the two common law openings. Michael Kerr hoped that he might get the third post, but recognised that Goff was his most dangerous rival. In the event, it was Goff who became a Lord of Appeal in Ordinary, in February 1986. The 3rd edition of "Goff and Jones" was published the same year. It was the last in which Goff was involved. As a Law Lord, he was regularly invited to present lectures and participate in professional conferences and educational events, both at home and overseas. He took this aspect of his post as seriously as his other judicial responsibilities, and reluctantly decided that he had too many demands on his time to continue with the book. But his contributions to the development of the law of restitution were very far from over.
Goff had excelled in the Queen's Bench and the Court of Appeal, but it was his dozen years in the Lords which established him as one of the all-time judicial greats. He sat on well in excess of four hundred House of Lords and Privy Council appeals involving a vast range of disputes, and delivered important judgments in most areas of the common law. Prominent among his commercial decisions were two important insurance cases. The 'Fanti' & The 'Padre Island' [1991] 2 AC 1 nominally involved a short question of construction of a P&I Club's rules, but Goff used it as the occasion for a masterly analysis of the nature of the obligation under an insurance policy and other contracts of indemnity. In The 'Good Luck' [1992] 1 AC 233, he explored the discharge of marine policies for breach of warranty, concluding that discharge was automatic, subject to waiver by the insurer or estoppel.
The role of waiver and estoppel in commercial contracts was a subject which he had analysed in The 'Leonidas D' [1985] 1 WLR 925 in the Court of Appeal. He returned to it in the Lords in The 'Kanchenjunga' [1990] 1 Lloyd's Rep 391, with a definitive account of the similarities and differences between estoppel by representation and waiver by election. Stocznia Gdanska v Latvian [1998] 1 WLR 574 raised important issues in relation to shipbuilding contracts. And in The 'Pioneer Container' [1994] 2 AC 324 and The 'Mahkutai' [1996] AC 650, a pair of Hong Kong appeals to the Privy Council, Goff recognised and then refined the concept of bailment on terms. This notion had been hinted at as long ago as the early 1920's, by T.E. Scrutton (in the Court of Appeal) and J.A. Hamilton (in the Lords) in The 'Grelwen' [1924] AC 522. But it had then fallen into obscurity until Lord Denning revived it in the 1960's, and its history since then had been chequered. Goff put it on a solid legal footing, and it became an established alternative to the "Himalaya Clause" as a means for giving exemption and exclusion clauses direct effect between a principal and a sub-contractor.
Away from commercial law, Goff was particularly active in the development of conflicts of law, tort, and, unsurprisingly, restitution. In The 'Spiliada' [1987] AC 460, he persuaded his colleagues to adopt the "interests of justice" test for forum non conveniens which he had first proposed more than two decades before as counsel in The 'Atlantic Star' [1974] AC 436. Ironically, this belated triumph came just as the flexible, fact-sensitive approach which the test embodied was being displaced by brutally unsophisticated European jurisdiction rules. Still in the conflicts of law field, Goff considered the standard of proof to which jurisdiction must be established in Seaconsar v Bank Markazi [1984] 1 AC 439, and explored the increasingly important anti-suit injunction jurisdiction in SNIA v Lee Kui Jak [1987] AC 871 and Airbus v Patel [1999] 1 AC 119.
Goff leading the Law Lords at the Westminster Abbey service to mark the opening of the 1997-1998 legal year. Two other former Commercial Judges, Johan Steyn and Anthony Lloyd, follow at the left of the picture.
Goff's two most notable tort cases were argued back-to-back in March 1994. Merrett v Henderson [1995] 2 AC 145 arose from the Lloyd's litigation of the late 1980's and early 'nineties. The plaintiffs were Names who complained that the underwriters who had written business on their behalf had been negligent. Because of Lloyd's strange and arcane structural arrangements, some of the Names had a contract with the underwriters, but many did not. In a landmark judgment on "concurrent duties", Goff held that this made no difference: Names who could not claim in contract were nevertheless entitled to sue in negligence. In White v Jones [1995] 2 AC 207, Goff persuaded two of his colleagues (Michael Mustill was one of the dissenters) that solicitors who failed to execute a testator's instructions to amend his will were liable in negligence to the disappointed beneficiaries. His reasoning contained some echoes of the "transferred loss" theory which the Lords had dismissed in The 'Aliakmon'[1985] QB 350. Other notable tort cases were Smith v Stages [1989] AC 928, the case of the peripatetic pipelayers in which Goff considered the scope of vicarious liability, and Hunter v Canary Wharf [1997] AC 655, in which the Lords decided that building a skyscraper which blocked a neighbour's television signals was not an actionable nuisance.
In mid-1991, Goff delivered a judgment which represented the culmination of more than thirty years work on the law of restitution. Norman Cass was a partner in Lipkin Gorman, a firm of solicitors in London's West End. In his spare time, he liked to gamble at the Playboy Club on Park Lane, which was run by Karpnale Ltd. It was an expensive hobby, and Mr Cass sometimes funded it by helping himself to money from the firm account. When Lipkin Gorman discovered this, it sued Karpnale to get its money back. In the leading judgment, Goff held that Lipkin Gorman was entitled to recover on the basis that Karpnale had been unjustly enriched at its expense. In fact, Lipkin Gorman v Karpnale [1991] 2 Lloyd's Rep 568 did not fit within any of the principal categories of recovery proposed in "Goff and Jones", and some commentators question whether it was really an unjust enrichment case at all. But Goff's judgment was peppered with references to "the law of restitution", and the case constituted the first recognition by the Lords that such a thing actually existed. Goff considered restitution further in Westdeutsche Landesbank v Islington [1996] AC 669 and several other appeals involving invalid interest rate swaps. One of these, Kleinwort Benson v Glasgow [1999] 1 AC 153, turned on the classification of restitution claims for jurisdiction purposes, and so combined two of Goff's favourite fields, conflicts of law and restitution. In Kleinwort Benson v Birmingham [1999] 2 AC 349, Goff led a bare majority of Law Lords in holding that mistake of law could found a claim in restitution: until then, only mistake of fact had qualified. The 'Trident Beauty' [1994] 1 WLR 161 involved a restitution claim in the context of a time charter. It afforded Goff the opportunity to give judicial approval to one of the principal tenets of "Goff and Jones", that restitution should not trespass on situations in which contract provided a solution.
Designed by Bauhaus founder Walter Gropius, 45 Park Lane was once the site of London’s Playboy Club, the setting for the events which led to the litigation in Lipkin Gorman v Karpnale and resulted in judicial recognition of restitution as an independent component of the English law of obligations.
Whatever the subject-matter of the case, Goff's guiding philosophy was that answers to legal questions should be based on principle. Indeed, he titled one of his most famous lectures "The Search For Principle" (1985). One key aspect of this approach, naturally, was that legal decisions should be reached by a process of coherent reasoning with proper regard to existing law, not through a knee-jerk reaction to the apparent merits of the individual case. But Goff's way of thinking also distinguished flexible principles from dogmatic rules. Like Robert Wright half a century before, Goff believed that the highest Court should provide Judges with guidance as to the working of legal concepts, not lay down diktats so narrow that they would render the outcome in any case almost automatic. He was always anxious to make his own judgments (which invariably went through multiple drafts) sufficiently nuanced to leave room for development in future appeals. He believed that appeal Courts must also allow trial Judges space to fit the law to the divergent facts of different cases. Goff's dislike of judgments which were so tramlined that lower Courts approached them as though construing a statute was one reason why he favoured multiple judgments. Goff himself delivered a judgment in a high proportion of his appeals, even if it was only a short one. As Senior Law Lord from 1996 to 1998, he encouraged each of his colleagues to have their say, even when they all agreed about the result. In this, he was the antithesis of Kenneth Diplock, the last Commercial Judge to preside in the Lords before him. In his later years, Diplock thought that it was better if there was only a single judgment, and better still if he was the one to write it.
Goff's enormous impact as a Law Lord might seem to vindicate his theory that Judges exerted more influence than academics in the common law system. But in fact, things had changed significantly since the 1950's. "Goff and Jones" had demonstrated that speculative academic writing could have a major impact on legal development. By the 1990's it was common for Judges to refer not just to long-established textbooks, but also to more recent publications and to articles from legal journals. Not surprisingly, Goff, himself a former academic, was at the forefront of this trend. Always keen to discover what inspiration might be found outside the decided cases, he looked to writers and commentators from the common law tradition and beyond. Reflecting his interest in comparative approaches, he served as Chair of the British Institute of International & Comparative Law for five years. He was also involved in several other legal associations and various educational organisations.
Goff retired in 1998. He was still three years short of the mandatory leaving age of seventy five, and sat on a few House of Lords and Privy Council appeals each year until he reached that milestone. The most newsworthy involved former Chilean dictator General Augusto Pinochet. Pinochet was arrested at the behest of the Spanish authorities while on a visit to London to see his doctor, and threatened with extradition to Spain. He took the obvious legal objection that his activities as head of state were subject to immunity. In Pinochet No 1 [2000] 1 AC 61, a bare majority of the Lords crafted a loophole so that Pinochet could be sent to face Spanish justice. In the embarrassing Pinochet 2 [2000] 1 AC 119, the Lords set No 1 aside because it turned out that one of the majority, Lord Hoffmann, had links to Amnesty International, which had been a party to No 1. In Pinochet No 3 [2000] 1 AC 147, the immunity from suit point was argued all over again, with the same result as in No 1. The whole saga was politically as well as judicially uncomfortable, and Pinochet was eventually packed off home to Chile on the grounds that he was too ill to face trial. Goff participated in both No 2 and No 3. With characteristic intellectual rigour, he dissented in No 3, refusing to accept that an obscure international convention had altered the established English common law of immunity by the backdoor.
It was not only cats who found the affable Goff comfortable to sit upon: Robert Goff and Bunbury, in 2006.
Goff was also a member of the panels in A-G v Blake [2001] 1 AC 268, a key decision on the circumstances in which an account of profits should be awarded as a remedy for breach of contract, and Johnson v Gore Wood [2002] 2 AC 1, on the principle of reflective loss. But, departing from his own preference for separate judgments, Goff merely agreed in Blake. Possibly he was beginning to feel the early effects of the vascular dementia which afflicted his final years. The effects of this insidious disease, which causes loss of mental ability through reduced blood flow to the brain, manifest themselves gradually, but Goff's health declined significantly after 2004, as his dazzling mind began to lose its powers of memory and reasoning. It was a horribly cruel illness for someone so brilliant, although, latterly, Goff's family and friends were perhaps more conscious of that than he was. Commercial Judge and fellow restitution expert Jack Beatson could barely bring himself to write of his friend and colleague’s condition in his heartfelt tribute to Goff for the British Academy.
In 2006, Robert and Sarah left Chieveley House and moved to Cambridge. They were less isolated there, and closer to support from members of the family. Goff’s personal warmth and kind-heartedness survived the ravages of his illness, and he always delighted in the company of family and friends. Music remained a constant support and comfort.
Gareth Jones, Robert Goff's academic collaborator for three decades and his friend for more than half a century, died on 2nd April 2016, aged eighty-five. Goff himself, four years older, died at home of pneumonia on 14th August 2016. He was buried in the churchyard at Chieveley.
Lipkin Gorman merged with another firm in 2010, and its name disappeared. At around the same time, 45 Park Lane, formerly the site of the Playboy Club where Mr Cass had gambled his way into legal history with the firm’s money, was redeveloped as a luxury hotel. It opened in 2011, the year in which "The Law of Restitution", under new editors, became "The Law of Unjust Enrichment". The change in title reflected the original authors' central thesis, and, in some ways, it was a fitting tribute. Yet in other ways, it was a little pointless, for all lawyers continue to call the book by its proper name: "Goff and Jones".
The roles of judge and jurist, though distinct, are complementary: they should be co-operative, not competitive. The search for principle is a task which judge and jurist share together; and since nothing is permanent, and everything is in a perpetual state of change, we must recognize that the road which we travel together stretches out in the distance to the horizon. We should welcome each other’s assistance in our work; and, while doubtless conscious of each other’s shortcomings, recognize and appreciate each other’s strength and the nature of our respective contributions in the unceasing restoration and embellishment of the mosaic which is the common law.
‘The Search For Principle’, 1983
Baron Goff of Chieveley, DCL, FBA, Senior Law Lord, 1997.