Samuel Lowry Porter, "Sam" to friends and colleagues, made up for a late start in the law with astonishingly rapid promotion on the Bench, becoming the second Commercial Judge after Robert Wright to bypass the Court of Appeal with promotion straight to the House of Lords. But Porter, less manifestly talented than Wright, had less professional claim to such accelerated career progression, and he appears to have owed his rapid rise to non-judicial considerations.

Porter was born in 1877 in Leeds, although the Porter family's origins were in Northern Ireland. He went to both school and university in Cambridge, where he was a student at Emmanuel College. For some reason (quite possibly ill health: Porter suffered from a frail constitution), he began his undergraduate career late, when he was already in his twenties. He got off to a false start by studying classics, before switching to law in his second year, just as Frederick Tucker was to do at Oxford a few years later. The move appears to have been well-advised in Porter's case, for he managed only a third in his classics exams, but graduated with a second in law. After another unexplained gap following graduation, he was called to the Bar by Inner Temple in 1905, so that he was approaching thirty by the time he started practice.

Porter joined future Commercial Judges TE Scrutton KC and Frank MacKinnon as a member of their Chambers at 2 Temple Gardens. The set was a powerhouse of commercial litigation, but the early years of Porter's own practice were by no means centred on the Commercial Court. He joined the Oxford Circuit, and built a career in the local county courts and in King's Bench cases which were tried on the Circuit. It was general common law work, and his reported cases down to 1916 involved subjects as diverse as employment, enforcement of judgments, landlord and tenant, maintenance and separation agreements, tort, and criminal appeals. Porter's career was then interrupted by war service, during which he reached the rank of captain and was awarded the MBE. This civilian award indicates that he held an appointment away from the front line, which is hardly surprising, given Porter's age, poor eyesight, and delicate physique.

 

Samuel Porter in 1935, the year after he became a King’s Bench Judge.

When Porter's name began to appear in the law reports again during the 1920's, there was a new emphasis on commercial work. He acted in cases involving bills of lading and charterparties, marine insurance, sale of goods, and even salvage. Porter appears to have taken advantage of the post-war surge in commercial litigation to develop a specialist Commercial Court practice, although he continued to take on some more general work, including consumer insurance and insolvency.

Perhaps Porter’s most prominent case at the Bar was In Re Polemis and Furness & Withy [1921] 3 KB 560. Ostensibly a dispute under a time charter, this turned into the leading case on remoteness of damage in negligence. Porter and his leader, R. A. Wright KC, failed to persuade the Court of Appeal that foreseeability of damage formed part of the test of remoteness, although their arguments were vindicated in the 1960's and now represent the law. Porter maintained his emphasis on commercial cases after he was appointed King's Counsel in 1925, though he also added company law and insolvency to his repertoire. He made more than a hundred appearances in Lloyd’s Law Reports in nine years as a KC, though none of his cases had a particularly profound impact on the development of English commercial law. Porter was not a dynamic advocate, though his 'Telegraph' obituarist implied that he was a rather long-winded one. Pale, stooped and slightly built, and fairly short, he had no great physical presence, and he adopted a style which was affable but very quiet. The Times reported that, when he was a Judge, it was often difficult to hear what he was saying in Court. But he was tenacious, could put a question or an argument forcefully when the ocassion demanded, and had a physical robustness which belied his delicate frame and enabled him to meet the demands of the long working hours of a busy and successful KC.

Porter reinforced his reputation as a commercial specialist by becoming senior editor of 'Scrutton On Charterparties' when T.E. Scrutton abandoned his own work after the Hague Rules, to which he indignantly objected, were made part of English law. Porter also strengthened his professional credentials by serving as a Recorder in Newcastle-under-Lyme and then Walsall. Part-time judicial office as a Recorder was often a springboard to a career on the permanent Bench. Porter's opportunity came in 1934, when Adair Roche's promotion to the Court of Appeal and Edward Acton's retirement created two King's Bench vacancies. Roche and Acton, both Commercial Judges, were replaced on the same day by two new Judges who would also sit in that Court, Porter and John Edward Singleton. Porter’s appointment did not create any great surprise, although it did not generate much enthusiasm either. The Law Times was prepared to go no further than to say that it was "generally acceptable".

Porter on his way to the Budget Inquiry hearings in May 1936.

The legal press commented at the time that Porter's Commercial Court profile meant that he was little known to the public. But that soon changed. In May 1936, a public and political row erupted when officials from Lloyd's of London reported that there had been suspicious patterns of insurance against "budget risks" in the period before that year's Budget. These were years of continuous economic crisis and financial austerity. The National Government (a coalition of Conservatives and a section of the Labour Party) was prone to announce dramatic increases in taxes and duties, and anyone making a successful "bet" on Budget measures, through insurance or share transactions, could make a lot of money. But some of the bets in 1936 suggested insider-information, rather than intelligent guesswork. In particular, a broker named Leslie Thomas had arranged Lloyd’s policies for the benefit of various friends of the family, insuring them against rises in specific excise duties. When these duties were indeed increased, the policy holders made a profit. The feature which caused questions to be asked in Parliament and by the press was that Leslie Thomas was the son of National Labour MP and Secretary of State for the Colonies James Henry Thomas, a Cabinet Minister with advance knowledge of Budget plans.

With accusations of suspicious share-trading also emerging, Parliament established an inquiry, and Porter was appointed to head it. Working quickly, the Budget Inquiry heard evidence in mid-May, sitting in the Royal Courts of Justice with Porter dressed in his judicial robes, and reported in early June. It concluded that J.H. Thomas had disclosed Budget details in advance to friends and associates, including fellow MP Sir Alfred Butt (a Conservative), who had used the information for financial gain. The disgraced Thomas grumbled about the inquiry's procedure, but resigned from the Commons. Butt denied wrongdoing, and initially seemed determined to brazen it out, but he ultimately followed Thomas's example. The inquiry cleared Leslie Thomas, concluding that he had known nothing about the leaks, but he still lost his job in the City. He later became a Conservative MP.

Nothing which Porter did in the King's Bench matched the public impact of the Budget Inquiry. Virtually all of his reported decisions were commercial, although he also sat in the Court of Criminal Appeal and went Circuit. Porter was of the school of thought that a first instance Judge's job was to decide each case on its facts. He exhibited little inclination to refine or restate the law, and he produced concise judgments which said no more than necessary. Indeed, The Times thought that some of his judgments were too short, and that they showed signs of being stitched together from his notes and extracts from key documents, rather than being carefully written from scratch. But this is a phenomenon familiar to modern Commercial Court practitioners, and it invariably reflects a commendable judicial concern to deliver a decision as quickly as possible: the more polished a judgment, the longer it takes to write, and the more the parties are kept waiting. The Law Times thought that Porter’s usual environment was partly to blame, commenting that “the Commercial Court, demanding a constant study of the correspondence and documents of businessmen, often loosely and obscurely worded, is not the best school of literary expression”. Even making all allowances, however, none of Porter's Commercial Court judgments were particularly memorable. His most striking decision was a refusal to follow a settled custom, which had been established by T.E. Scrutton in 1911, of transferring into the Commercial Court any action set for trial in London before a special jury. Scrutton had probably assumed that any London special jury case would be commercial, but this was not always so. When a slander action was set down for special jury trial in 1937, Porter flatly refused to let it into the Commercial Court, and the Court of Appeal upheld his decision.

Overall, there was little in Porter's performance at first-instance to suggest that he was an obvious candidate for early promotion. But when Lord Maugham left office as Lord of Appeal in Ordinary in 1938 to become a stopgap Lord Chancellor, Porter followed Robert Wright by leapfrogging the Court of Appeal to join the highest Court. In an acknowledgement of his Irish roots, he took the title Baron Porter of Longfield, a parish in County Tyrone. Porter's promotion was all the more remarkable for coming after less than four years on the Bench (Wright had waited seven years). The law journals were polite, but it is difficult to avoid the suspicion that Porter’s speedy ascent was a reward for his handling of the Budget Inquiry. The Law Times certainly implied as much, and it was noticed that the other members of the Inquiry both later became Judges: Gavin Simonds emulated Porter by going straight from the High Court (the Chancery, in his case) to the Lords and was Lord Chancellor in the early 1950's, while Roland Oliver sat in the King's Bench for nearly twenty years.

Porter took with him to the Lords and the Privy Council his first-instance instinct to limit his horizons to the particular case before him. He acquired a reputation for avoiding statements of general principle, and for saying no more about the law than was necessary for the decision of each case. As a result, while his speeches were praised for clarity and conscientiousness, they were seldom a spur to the development of the law.

 

Samuel Porter as Lord of Appeal in Ordinary in 1952, two years before he retired for health reasons.

Porter sometimes exhibited an independent streak in the Lords. For example in Joyce v DPP [1946] AC 347, he, alone of the Law Lords, he held that Lord Haw-Haw's conviction for high treason was unsafe because the prosecution had not discharged the burden of proof. In the more familiar field of commercial law, Porter gave leading judgments in Smith, Hogg v Black Sea & Baltic [1940] AC 997, in which the Lords held that a shipowner was fully liable for loss caused by unseaworthiness notwithstanding that an excepted peril was a concurrent cause; Yorkshire Dale v Minister of War Transport [1942] AC 691, a landmark case on the test for causation in insurance claims (and more generally); and Tankexpress v Compagnie Fianciere Belge [1949] AC 76, which established that even an innocent delay in payment could trigger an owner's right to terminate a time charter under a withdrawal clause. Porter was also on the panels which decided Joseph Constantine v Imperial Smelting [1942] AC 154, which resolved who bears the burden of proof on self-induced frustration, and the puzzling The 'Greystoke Castle' [1947] AC 265, which appeared to imply that a plaintiff could recover pure economic loss if the defendant's negligence had created a risk of damage to the plaintiff's property, even if no actual damage had occurred.

Unmarried, Porter moved into his old Cambridge College when he was bombed out of his flat during the Second World War. He had planned this as a temporary arrangement, but he felt so at home that he settled down for the duration of hostilities, catching the morning train to London for appeal hearings. While back at Emmanuel, Porter nurtured the College's Law Society and gave generously of his time to advise students about a career at the Bar. Porter was often unwell in his later years in the Lords. He retired for health reasons in 1954, although he was well enough to retain his position as the judicial member of a panel for the conciliation of coal industry disputes, and to sit on about a dozen House of Lords appeals in retirement. His last judgment was handed down only a week before his death in a London nursing home in February 1956, although Porter was by then too unwell to deliver his decision in the Chamber of the House in the customary fashion. Showing that he retained his independent-mindedness, Porter decided that the plaintiff ought to have looked where he was going, and dissented from the majority view that the shipowners should have erected a safety barrier. Porter's retirement co-incided with a shake-up of the government, and he was replaced as Law Lord by Lord Simonds, who returned for a second stint as a Lord of Appeal after a three-year sabbatical in Winston Churchill's Cabinet as Lord Chancellor. Like Porter, Simonds had been promoted direct from the High Court when he first went to the Lords. As Gavin Simonds KC, he had been a member of Porter's Budget Inquiry in 1936.

Porter had been a good tennis player when he was young, playing for his university. In later life, his main interest away from the courtroom appears to have lain in the International Law Association. He was President in 1946, when the Association held its first meeting since before the War: to Porter’s delight, it was held in Cambridge. He was also sociable (he was a member of three London clubs), and was fond of his Inn, as well as of his old College. He had been due to serve as Treasurer of the Inner Temple in 1957. Porter may not have been an outstanding Judge, but he was clearly enormously endearing, and he was much liked. The day after his death was announced, tributes were paid at the start of judicial business in the House of Lords, the Privy Council, and in the Commercial Court, where Frederic Sellers was sitting. Sellers reminisced about Porter’s good humour when he had been at the Bar, while future Commercial Judge Eustace Roskill KC, who, as a young barrister, had shadowed Porter when he was a new Judge, spoke of his kindness. Lord Simonds conceded that the King's Bench and the Lords had seen cleverer men and better lawyers, but insisted that "there never was a Judge of whose absolute fairness and determination to do justice according to law counsel or litigant could be less in doubt". The funeral service was held in the chapel of Emmanuel College.