Thomas Henry Bingham was the most prominent judicial figure in England & Wales in the last years of the 20th Century and the opening decade of the 21st. He was the first Judge to hold (in succession) the three major offices of Master of the Rolls, Lord Chief Justice, and Senior Law Lord. He would have been President of the Supreme Court of the United Kingdom too, if compulsory retirement had not ended his twenty-eight year judicial career twelve months before the Court heard its first case.
Like Lord Denning, a judicial giant from an earlier era, Bingham was always known as "Tom". He was born in a London nursing home, and brought up in Surrey, where both of his parents practised as doctors. His father, another Thomas Henry, was originally from Northern Ireland. His mother, Catherine, had been born in America. Her family had migrated to England via the Isle of Man. After attending a local preparatory school, Bingham won a scholarship to Sedbergh, in Cumbria. The school was situated in rugged country on the western fringes of the Yorkshire Dales, and placed great emphasis on physical resilience. Pupils were subjected to a programme of all-weather cross-country runs, rugby and other outdoor team games, and cold baths. Bingham generally tolerated rather than enjoyed this aspect of school life, although he did acquire a lifelong love of hill walking. By contrast, he excelled at the academic side, particularly in history. By the time he left, Bingham was being spoken of as the cleverest pupil Sedbergh had ever had. He won a scholarship to Balliol College, Oxford, where he planned to study philosophy, politics, and economics. First, however, he was obliged to perform two years of National Service. While waiting for orders, Bingham worked on a construction gang building Gatwick Airport's second runway.
Sedbergh School, viewed from the Cumbrian fells in which Bingham acquired his love of hill walking.
He was commissioned as a junior officer in the Royal Ulster Rifles, with postings in England and the Far East. Surprisingly for someone so intelligently independent-minded, Bingham enjoyed the disciplined routines and hierarchical organisation of army life. He considered becoming a professional soldier and, although he eventually abandoned that idea, he enlisted as volunteer in the Territorial Army at the end of his compulsory term.
At Balliol, Bingham soon discovered that PPE was less intellectually stimulating than he had hoped. He switched to history at the first opportunity, but was already thinking of a career at the Bar. He was an enthusiastic debater, and he had discovered a talent for forensic advocacy in the army when he had acted as defence officer at several courts martial. In 1957, the same year that he secured first class honours in the history finals and won the Gibbs Prize for modern history, Bingham was awarded Oxford's prestigious Eldon Law Scholarship, given to the most promising graduate planning to practise at the Bar. Three decades later, he chaired the Eldon selection committee. He was called to the Bar by Gray's Inn in 1959, picked up further awards, and came first in his year for the Bar Finals.
Bingham's pupil master was Owen Stable, a Welshman who had joined the army straight from school during the Second World War, had come close to dying of meningitis, and had recovered to establish a good career in common law litigation at 2 Crown Office Row. Stable, whose father had been a High Court Judge for thirty years, later became a Senior Circuit Judge, trying serious criminal cases at Snaresbrook Crown Court. But from 1959 to 1960, so he later liked to say, he devoted himself to teaching his pupil all that Bingham ever knew. Bingham made a sufficiently good impression that the head of chambers, future Law Lord Leslie Scarman, offered him a tenancy.
The chambers had a broad practice base, covering all forms of common law work from divorce to crime, with a significant commercial element. Bingham started out doing small-scale criminal and family work in the Crown and County Courts. He did not appear in a reported case until 1962, Trollope & Colls v Atomic Power Construction [1963] 1 WLR 333, as junior counsel in a dispute about whether or not a contract had been concluded for construction work on a nuclear power plant. Trial Judge John Megaw agreed with Bingham's side that it had. In the same year, Bingham made his first reported appearance in a distinctly commercial case, Poland v Kennedy [1963] 2 Lloyd's Rep 139, an appeal in an interlocutory skirmish in a long-running dispute between Lloyd's underwriters and their former Belgian agents. Bingham maintained a general practice during the 1960's. His reported cases involved adoption, divorce, criminal fraud, false trade descriptions, landlord and tenant, restrictive practices, and confidential information. This apparent lack of focus might appear to suggest someone scrabbling around for any work which he could get. In fact, the variety was testimony to Bingham's ability to turn his forensic talents to almost any type of case. He was much in demand, and, by the mid-1960's, he was sufficiently secure to marry Elizabeth Loxley, a diplomat's daughter, and to buy a cottage in South Wales (albeit a rudimentary one: for many years, the Binghams and their three children went without piped water and indoor toilets on family holidays).
Towards the end of the 1960's, Bingham was appointed standing counsel to the Department of Employment. This brought him a steady succession of instructions in strike and industrial relations disputes, as well as some health and safety at work litigation. He was also regularly retained by the Law Society, which regulated the solicitors profession, and the Medical Defence Union, which organised the defences of doctors sued for medical negligence. The most prominent case of the first decade of his career involved both lawyers and medics. In Allen v Sir Alfred McAlpine [1968] 2 QB 229, Lord Denning's Court of Appeal heard appeals in three cases which had been struck out for gross delay. In each case, the plaintiff's solicitors were to blame. Two of the three appeals were dismissed. Bingham had the misfortune to be losing counsel in the third, a personal injuries action by a nurse had injured her back at work and sued the hospital. Bingham was for the hospital. The Court of Appeal felt that the fact that the nurse's solicitor had been convicted of fraud, imprisoned, and struck off (all unknown to her, until she belatedly found out why he never answered the phone), combined with the manner in which Bingham's clients had repeatedly asked for extensions of time to serve their defence, took the case out of the ordinary. The action was reinstated. Allen remained the leading case on dismissal for want of prosecution until Birkett v James [1978] AC 297, in which Bingham, by then a QC, again argued that the claim should stay struck out. He lost that case too.
But if Allen did not end in triumph for Bingham, he at least made a good impression on Lord Denning. Bingham was no firebrand advocate. His courtroom persona was reserved, and his natural facial expression was mournful, as though he was troubled by his thoughts. (When he became a Judge, this could be unsettling for advocates, who sometimes worried that he was exhibiting disappointment at the quality of their performance.) But there was a certain charm to his understated style. He was an effective cross-examiner, notwithstanding that he extended to opposing witnesses the same courtesy which he invariably showed to Judges, fellow professionals, and his own clients.
Thomas Henry Bingham QC, around the time of his report for the British government into sanctions-busting oil sales to Rhodesia.
Bingham began to do a bit more commercial work in the early 1970's, with a handful of appearances in Lloyd's Law Reports. In Woodhouse v Nigerian Produce [1972] AC 741, he had an outing in the House of Lords, led by Michael Kerr, in a dispute about contracts for the international sale of cocoa. (The Lords used the appeal as an opportunity to reaffirm that the construction of documents is a question of law. Kerr and Bingham were so obviously in the right that they were not called upon to make any oral submissions.) He was also instructed in cases about wills, water subsidence, and legal aid, and continued to take on the occasional criminal or divorce matter. During the strike-ridden days of Edward Heath's government, he was kept busy in employment disputes, and made several appearances in John Donaldson's controversial National Industrial Relations Court. In Ladbrokes v Perrett [1971] 1 WLR 110, he was instructed for bookmakers appealing a decision that "spot-the-ball" competitions which they sponsored in newspapers constituted unlawful gambling (he lost).
With a track record of government cases (always useful for an ambitious practitioner) and the enthusiastic support of Lord Denning, Bingham was appointed Queen's Counsel in 1972. He was the most junior barrister in the list of new QC's, and had been in practice for scarcely more than a decade. His professional success contributed significantly to the expansion of his chambers. During the 1970's, it outgrew its accommodation in Crown Office Row and moved across the Temple to its present site at Fountain Court.
Becoming a QC did not radically change Bingham's practice profile. His most prominent cases in 1972 and 1973 involved strikes, including a vain attempt by dockworkers to stop the accelerating shift towards the containerisation of maritime cargoes (Heatons v TGWU [1973] AC 15: the appeal in the Lords on whether the Union was liable for the actions of individual shop stewards lasted four weeks). In 1974, the government appointed him as counsel to the Flixborough inquiry, investigating an explosion at a Lincolnshire chemical plant which killed twenty-eight people. Another future Commercial Judge, Roger Parker, chaired the investigation. He concluded that an impromptu repair job had been the direct cause of the accident, with a lack of engineering expertise among the plant management allowing serious technical defects to pass unnoticed.
Returning to private practice after the inquiry, Bingham belatedly began appearing in shipping cases. They included The 'Philippine Admiral' [1977] AC 373, in which the Privy Council considered the extent of sovereign immunity as a defence to an Admiralty action in rem (Bingham briefly had a niche practice in sovereign immunity in the mid 'seventies), and The 'Oldenfeld' [1978] 2 Lloyd's 357, a month long trial before Michael Kerr about the termination of a time charter. He was also involved in the remarkable case of The 'Michael' [1979] 2 Lloyd's Rep 1. This was an insurance claim by the owners of a cargo ship which sank on a voyage from the USA to Venezuela after its engine room flooded. The engineer on watch at the time was a Mr Stylianos Komiseris. Mr Komiseris had a colourful past. During the 1960's, he had acquired a broad range of criminal convictions. He also had previous experience of being rescued from a sinking ship. In 1968, he had been duty engineer when The 'Gold Sky' sank off Gibraltar after its engine room flooded. At the trial of the subsequent insurance action trial Judge Alan Mocatta had almost, but not quite, concluded that Mr Komiseris had deliberately sunk The 'Gold Sky' by opening the sea valves: [1972] 2 Lloyd's Rep 187. Everyone agreed that Mr Komiseris had deliberately scuttled The 'Michael'. The question was whether or not he had been put up to it by the owners. If he had, then the loss was not covered by the insurance. But if he had acted on his own initiative, the owners had a good claim. After two months of evidence Michael Kerr concluded that Komiseris had acted alone, probably in the hope that the owners would be glad to get rid of the ship (it was insured for more than its market value) and would reward him. By the time the case reached the Court of Appeal, the owners' QC, Michael Mustill, had become a Queen's Bench Judge. Brought in as his replacement, Bingham succeeded in upholding Kerr's judgment on the appeal. (It was not his most taxing case: he was not called upon to say anything.)
These forays into mainstream commercial litigation were not an indication that Bingham was about to become a Commercial Court specialist. During the same period, he was also broadening out into intellectual property litigation, and arguing about letters rogatory in the Court of Appeal (RTZ v Westinghouse [1978] AC 547: he missed the appeal to the Lords) and comprehensive education in the House of Lords (Secretary of State v Tameside [1977] AC 1014), and even appearing in a libel case, alongside future Commercial Court colleague David Hirst (Rothermere v Times [1973] 1 WLR 448).
But Bingham's time at the Bar was drawing to an end. In 1977-1978, he took a year away from the Courts for another government inquiry, as chair of the catchily-titled "Investigation into the supply of petroleum and petroleum products to Rhodesia". In a report generally described as "hard-hitting", Bingham concluded that British civil servants had connived at oil sales which contravened economic sanctions. When he returned to his day job, he found that his enthusiasm was waning. The drawback of his tremendous success was that being almost constantly in Court on cases of all kinds was mentally and physically draining. And Bingham found that litigation about, say, European agricultural policy (Re Pig Production Subsidies [1977] 2 CMLR 359) or the permissible size of fishing nets (Re Fishing Net Mesh Sizes [1980] 1 CMLR 6) lacked the human interest of his early divorce and criminal cases. He had been a part time criminal Judge as a Recorder since 1975. In 1980, he accepted an offer of a full time post, and became a Queen's Bench Judge at the young age of forty-six.
Having made only fairly infrequent appearances in the Commercial Court at the Bar, Bingham spent more time there than anywhere else as a first-instance Judge. Setting aside stints in the Criminal Division of the Court of Appeal, virtually all of his reported cases during his time in the Queen's Bench were commercial. They included The 'Alaskan Trader' [1983] 1 Lloyd's Rep 315, in which he considered the circumstances in which one contracting party may be compelled to accept the other's repudiation; The 'Oltenia' [1982] 1 Lloyd's Rep 448, a significant decision on time bar clauses which require claims to be supported by "supporting documents"; and The 'Rhodian River' [1984] 1 Lloyd's Rep 373, a comparatively rare claim for rectification of a shipping contract.
Bingham's analysis in Pagnan v Feed Products [1987] 2 Lloyd's 601 of how the Court should proceed in determining whether (and when) a contract was concluded in correspondence quickly assumed classic status. In The 'Zenovia' [1984] 2 Lloyd's Rep 264, he returned to the scuttling territory of The 'Michael'. Insurers of a ship which was wrecked in the Persian Gulf claimed that the chief officer had deliberately run the ship ashore on the owners' instructions. After a three month trial, Bingham rejected the conspiracy theory. Shipping accounted for most of Bingham's reported Commercial Court work, but he also heard non-marine insurance and sale of goods cases, and a handful of carriage by air disputes. Always courteous, and generally patient (unless counsel were deaf to his hints that it was time to move on from a point), he was a popular Judge. His decisions usually emerged unscathed when he was appealed, although he came unstuck when he attempted to apply the methods of Sherlock Holmes to marine insurance claims in The 'Popi M' [1983] 2 Lloyd's Rep 235. Bingham regarded the shipowners' explanation for the loss of their vessel as inherently improbable. But he thought that the insurers' rival explanations were absolutely impossible, and concluded that, logically, he had to accept the shipowners' case. John Donaldson backed him up in the Court of Appeal. But in the House of Lords, Kenneth Diplock, Eustace Roskill, and Henry Brandon concluded that Bingham's reasoning contravened the principle that a plaintiff must prove its case on the balance of probabilities. They ruled that he should have dismissed the shipowners' case as not proven.
Bingham was promoted to Lord Justice of Appeal in 1986. He inevitably dealt with a much wider range of work as an appellate Judge than at first instance, and only a fairly small proportion of his cases (well in excess of one thousand overall) during fourteen years in the Court of Appeal were reported in Lloyd's. But he delivered a number of important commercial judgments. In Ashville v Elmer [1988] 2 Lloyd's Rep 73, he emphasised the practical importance of construing jurisdiction clauses generously, to avoid the inconvenience of parties having to litigate related disputes in different fora. It was an early exposition of the now orthodox principle of "one stop adjudication". He decided important questions about the ambit of the Hague/Hague Visby Rules in The 'Komninos S' [1991] 1 Lloyd's Rep 370 (where the issue was what sort of bills of lading were covered by the Rules), and The 'Captain Gregos' [1990] 1 Lloyd's Rep 310 (where he held that the time bar applies even if the carrier has stolen the cargo). In The 'Captain Gregos' (No 2) [1990] 2 Lloyd's 395, he considered the "Brandt v Liverpool" contract (an implied contract arising from a receiver's presentation of a bill of lading and the carrier's delivery of the cargo) and defined the requirements so restrictively as to all but kill the concept off. And in The 'Peonia' [1991] 1 Lloyd's Rep 101, he resolved a previously uncertain point about final voyages under time charters, holding that a charterer who redelivers the ship late commits a breach, even if it had been reasonable to expect that the final voyage would be completed before the end of the charter period.
In 1991, Bingham was pulled out of the Court of Appeal for his third and final public inquiry. The Bank of Credit and Commerce International had started business in a small way in Pakistan and the United Arab Emirates in the early 1970's, but rapidly expanded worldwide. Its formal European base was in Luxembourg. But it ran significant operations out of London, under the regulatory auspices of the Bank of England. During the late 1980's, evidence mounted indicated that BCCI's flexible notions of personal banking services extended to advancing billions of dollars to its own shareholders and largescale money laundering for international criminal organisations and prominent dictators. In the summer of 1991, it collapsed with enormous debts. Bingham was asked to find out how such a massive fraud could have been perpetrated under the nose of the Bank of England. His report, published in 1992, was scathing of the Bank's lack of curiosity about BCCI, and its failure to respond to escalating warning signs. As a result, UK banking regulation was overhauled. Bingham had recommended this. He may not have foreseen was that his report would also unleash biggest case in Commercial Court history. BCCI customers whose money had disappeared were understandably aggrieved that the Bank of England had missed opportunities to stop the fraud, and felt morally entitled to compensation. Bingham's conclusions suggested a credible factual basis for a negligence claim, but the Bank enjoyed statutory immunity. The customers therefore put their case on the basis of misfeasance in a public office. In effect, they claimed that the Bank had knowingly turned a blind eye to BCCI's misdeeds for devious reasons of its own. This case faced formidable obstacles. Aside from the tricky question of motive, Bingham's conclusions suggested that the Bank was a dysfunctional regulator which would struggle to organise a round of drinks in a bar, let alone orchestrate a fiendish cover up. In 1997, Anthony Clarke struck the case out on the basis that it was doomed to fail. A Court of Appeal headed by David Hirst agreed. So did John Hobhouse in the House of Lords: [2003] 2 AC 1. But a bare majority of the Lords decided that the case should be allowed to proceed. The gargantuan case lumbered into Court in early 2004 before Stephen Tomlinson, who listened to a record-breaking opening speech for the claimants, followed by an even longer one for the Bank. On Day 256, part-way through witness evidence, the customers abandoned the claim.
The countryside near Cornhill, from which Bingham took his title when he was appointed Lord Chief Justice, and where the family holidayed in the cottage which he bought in the 1960’s. The Black Mountains, in which Bingham loved to walk, are shrouded in mist in the background.
In 1992, Bingham became Master of the Rolls in 1992, in succession to John Donaldson. As head of the Civil Division of the Court of Appeal, he presided over most of the appeals from the Commercial Court in the Lloyd's litigation of the 1980's and early 'nineties. Bingham was a natural candidate for Master of the Rolls, even if his work on the BCCI report may have been a factor in his appointment. Rather less obvious was his selection as new Lord Chief Justice in 1996. His nomination met with resistance from within the judiciary, on the grounds that he was not a criminal specialist. But the notion that the Lord Chief's job began and ended in the criminal courts was in fact a comparatively new one. Lord Chancellor MacKay overrode the opposition, and Bingham became the first Commercial Judge since Rayner Goddard to hold the office. The Cornhill from which he took his title was not the ancient London road running past the Bank of England, as many probably supposed, but the location of the family cottage in Wales, across the River Wye from the Black Mountains. Bingham was a conspicuous success as Chief Justice. He managed to sit on the occasional commercial appeal, such as The 'Tara' [1998] 2 Lloyd's Rep 341, concerning delivery notices under a shipsale contract.
In 2010, Lord Browne-Wilkinson, the Senior Law Lord, responsible for oversight of the administration of the judicial House of Lords, including deciding who should hear which appeals and harrying colleagues to complete outstanding judgments retired. For many years, the post had devolved on the longest-serving Law Lord. But, after Browne-Wilkinson, that was Lord Slynn, whose health was poor. Lord Chancellor Irvine decided that this was a good opportunity to shake up the leadership of the Lords, and proposed Bingham as Browne-Wilkinson's successor.
In eight years in the Lords and Privy Council, Bingham presided over more than four hundred appeals, and delivered important judgments in cases ranging from crime (in R v G [2004] 1 AC 1034, he overruled Kenneth Diplock's infamous definition of criminal recklessness in R v Caldwell [1982] AC 341) to transfer of undertakings (NWT v Astley [2006] 1 WLR 242). He attracted media and public attention with some high profile decisions against the government, particularly A v Home Secretary [2005] 2 AC 68, the 'Belmarsh Case', in which the Lords held that regulations permitting detention without trial were unlawful. Excited liberals who read that Bingham read The 'Guardian' and had started out at 2 Crown Office Row declared him the spiritual successor to Leslie Scarman. This sort of thing annoyed Bingham, who regarded Scarman as a prig. And, as shown by some equally newsworthy decisions in favour of the state (such as R v SFC [2009] 1 AC 756, one of his last cases, in which he held that the authorities were legally entitled to abandon an investigation into arms sales), Bingham followed no agenda: he simply sought to do his job, applying the law as best as he understood it. He demonstrated his mastery of commercial law in The 'Hill Harmony' [2001] 1 AC 638 (scope of a time charterers' right to give orders); HIH v Chase Manhattan [2003] 2 Lloyd's Rep 61 (modification of an insured's duty of disclosure by contract; The 'Starsin' [2005] 1 WLR 215 (how to identify the contracting carrier); and The 'Rafaella S' [2005] 2 AC 423 (the status of "straight bills" under the Hague/Hague Visby Rules). The collapse of BCCI, which Bingham had investigated a decade before, provided the context for a significant judgment on contractual interpretation in BCCI v Ali [2002] 1 AC 251. In The 'Golden Victory' [2007] 2 AC 353, he advanced an unorthodox theory that a time charter was a fungible assert with a readily realisable market value. But that was a rare lapse. Overall, Bingham's tenure as Senior Law Lord cemented his reputation as a judicial great.
Bingham in his room at the House of Lords.
A thoughtful character, Bingham was much given to contemplation on the nature and practice of his job. He wrote and lectured widely on the role of the judiciary and the business of judging. He also reflected deeply on the condition of the legal system in England & Wales, and sometimes found it wanting. He was virtually alone among Judges in supporting Lord Chancellor Mackay's initiative to broaden rights of audience in the higher courts. Less marginal were his calls for the European Convention on Human Rights to be incorporated into English law. He firmly believed in total separation between the legislature and the judiciary, and thought that it was wrong that the Law Lords had the right to speak in Parliament. This made him a natural supporter of the creation of a new Supreme Court of the United Kingdom to replace of the judicial House of Lords as the highest court. Bingham was involved in the transitional arrangements. All other things being equal, he would have been the standalone candidate to be first President of the Supreme Court. But time ran out: Bingham reached the compulsory judicial retirement age in 2008, almost exactly a year before the Court heard its first case. His judicial career had outlasted that of any Commercial Judge since Kenneth Diplock.
If missing out on the Presidency must have been a disappointment, Bingham could at least expect to have more time for his leisure activities. He still enjoyed long walks in the Welsh hills, using the cottage at Cornhill as a base. Convivial in the company of people he knew well, and particularly with his family, he enjoyed good food and drink, and would sometimes demonstrate his singing skills on social occasions (he liked musicals). He was rather fond of modern art, with which he filled his judicial rooms. His Christian faith was important to him. He kept the King James Bible at his bedside, and aspired to live his life in accordance with the philosophy of the New Testament. Throughout his life, he maintained the enthusiasm for history which had been nurtured at Sedbergh. He was particularly fond of the 17th Century and, like one of his Commercial Court predecessors, Frank MacKinnon, was an aficionado of Dr Johnson's elegant windbaggery. Bingham was involved in several societies which promoted historical studies. He also chaired the Hay Festival.
So eminent was Bingham's status in his last years on the Bench that academic institutions queued up to confer honours upon him. Among them was his own university, which made him an honorary Doctor of Laws in 1994. Bingham retained a lasting affection for Oxford, although it was the scene for a personal setback. Standing for election as Chancellor in 2003, Bingham found that the rival candidates included another eminent lawyer, Lord Neill of Bladen QC, younger brother of retired Commercial Judge Patrick Neill. With the law vote fatally split, former Cabinet Minister Chris Patten won the ballot. Becoming an honorary Fellow of the British Academy in the same year may have consoled Bingham.
Bingham planned to do some writing in retirement. After that, he could have anticipated gainful and remunerative employment as commercial arbitrator, if he chose. But in 2009, he was diagnosed with lung cancer. He managed to complete his book on 'The Rule of Law' before he died in September 2010, at the cottage in Wales, aged seventy-six. He was buried in the quiet surroundings of the local churchyard. His memorial service was on an altogether grander scale. Since it was obvious that the customary Temple Church was too small to accommodate all who would attend, it was held in Westminster Abbey, to the sounds of William Byrd, military bag- pipes, and a brass band, and with most of the judiciary in attendance. His Honour Judge Owen Stable QC, who liked to say that training Bingham was the finest thing that he had done at the Bar, outlived his pupil by nearly a decade, and died in November 2019 at the age of ninety-six.
Martin Jennings’ sculpture portrays Bingham in 2008, the year of his retirement after nearly three decades as a Judge.
That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of god.
That in the execution of justice, I carefully lay aside my own passions, and not give way to them, however provoked.
That popular or court applause or distaste, have no influence into any thing I do in point of distribution of justice.
Three of the “Resolutions” by which Sir Mathew Hale (1609-1676), one of Bingham’s predecessors as Chief Justice, expressed his judicial creed. Bingham quoted Hale in ‘The Rule of Law’, and Lord Chancellor Irvine read the full text at the memorial service in Westminster Abbey.