Book review: The Life of Thomas E. Scrutton

The Life of Thomas E. Scrutton

Author: David Foxton

Publisher: Cambridge University Press

September 2013

Hardback £65

ISBN: 9781107032583

Thomas E. Scrutton (1856 – 1934) was one of the great English commercial judges of the last century. He practised at the Bar from 1883 until his appointment as a High Court Judge in 1910. He was promoted to the Court of Appeal by the Lord Chancellor, Lord Buckmaster, in October 1916 and sat, from May 1919 until the end of 1927, on an almost continuous basis with Lords Justice Atkins and Eldon Bankes, making up the court that has been described by Lord Diplock as “the greatest Court of Appeal in commercial matters that this country has ever had”. His name is forever associated with his work on Charterparties (the 125th edition of which was published in 2011) and that is where this book begins. For the author became one of the editors of Scrutton on Charterparties and in this capacity he began his extensive biographical research of the judge who he describes as “Viking-like” in his appearance, a description prompted by his distinct beard and his imposing seventeen stone physical stature.

Perhaps the “Viking” description could be extended beyond his appearance: he could be combative and he was known for his short temper. Scrutton warned counsel in a marine insurance case that his temper after lunch “is often a ‘constructive total loss’”. But his temper was not reserved for counsel alone. The book records the clashes between him and Lord Hewart, the Lord Chief Justice, and Sir Henry McCardie, a first-instance commercial judge. Matters were so bad that McCardie asked the Master of Rolls that Scrutton be excluded from hearing appeals from his judgments. His temper was his undoing. Thus, notwithstanding his substantial ability, he was overlooked for promotion to the House of Lords, his former pupil Atkin being preferred in February 1928. Perhaps he should have been more active in the world of politics (although he did contest – unsuccessfully – the Limehouse Division of Middlesex for the Liberal Party in 1886 in support of Home Rule). It is remarkable now to think how much politics mattered in the law at the time: not only in the appointment of Law Lords – Lords Cave, Carson, Thankerton, and Macmillan were appointed by the Prime Minister of the day by way of political reward – but also the Bar, where in the late Victorian era, one-fifth of MPs were barristers, most in active practice at the Bar while pursuing political careers, and consequently, with enhanced prospects of taking Silk and of obtaining a judicial appointment at the end of their Parliamentary careers.

The book contains many pages of Scrutton’s cases, each clearly retold. Their topic is not exclusively commercial law: as a High Court Judge, Scrutton presided over a number of criminal trials, of which the best known is the 1915 case of the Brides in the Bath. There are also a number of cases that Scrutton presided over that gave rise to legal questions arising out of or during the First World War such as the effect of the war on commercial contracts, and also on the liberty of the individual. The war left its mark directly and indelibly on Scrutton and his family: all three of Scrutton’s sons joined the war effort and his younger son was killed in the Salonika campaign. This news devastated Scrutton who, every year until Scrutton’s wife’s death, placed In Memoriam notices in the Times newspaper in loving memory of his son.

This remarkable book must be the most detailed and informative account of the life of Scrutton and the author has taken great care in his research of the available sources. As well as the law reports, there are references to various publications of the Mill Hill School Magazine – to chart Scrutton’s progress there; the University College London Calendar – where he took his first degree; the minute book of the Cambridge Union Society – where he was President; the London Bicycle Club Gazette and Climbers’ Club Journal – cycling and climbing were his major hobbies; and to a history of the Bar Golfing Society 1903-2002 – he was an enthusiastic if not very skilful golfer, playing at the Royal Ashdown Forest Golf Club. The bibliography, in particular the books and journals that have been travelled through in order to produce the book, is testament to the efforts and lengths the author has gone to bring to our attention the life and work of one of England’s great legal minds. It is perhaps worth restating the author’s concluding words which remind us that in 2012, in the High Court now situated in the Rolls Building on Fetter Lane, Scrutton’s letters patent as King’s Counsel and Judge were put on display and “there could be few better reminders of the qualities to which those working in that building should aspire.”

Contributor: Nikki Singla, Wilberforce Chambers

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