Roger Toulson 1946 – 2017

Mark Cannon pays tribute to Lord Toulson and his great contribution to the law

In Willers v Joyce [2016] UKSC 43 & 44 Lord (Roger) Toulson said: ‘The common law is prized for its combination of principle and pragmatism.’ 

The same could be said of him. During a career which spanned five decades his contribution to the law was immense.

For Roger the common law was often the primary source of authority. It was fashioned by judges, openly and subject to proper scrutiny by the public. When deciding in R (Guardian News and Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 that journalists should be able to see evidence which had been put before a court and referred to but not read out, he explained that open justice ‘lets the light in and allows the public to scrutinise the workings of the law’. He was ‘fortified by the common theme of the judgments in other common law countries’, deprecating citation of copious authority from Strasbourg to the exclusion of decisions from other common law jurisdictions. The common law ‘is in vigorous health and flourishing in many parts of the world which share a common legal tradition’.

In R (on the application of Ingenious Medial Holdings) v HMRC [2016] UKSC 54 Roger noted that the lower courts had focused upon the statutory provisions governing the use of confidential information by HMRC. Holding that HMRC had not been entitled to divulge confidential information in an ‘off the record’ briefing, he turned to the common law of confidentiality (on which, as co-author of Touslon & Phipps on Confidentiality, he was an expert), observing that the duty of confidentiality owed by HMRC had not sprung ‘fresh from the mind of the legislative drafter’ but was found in the common law, which ‘is multi-faceted and remains the bedrock of the English legal system’. Applying common law principles to disclosure of documents obtained during statutory inquiries in Kennedy v The Charity Commission, he explained that, compared with a statutory scheme, the common law produced ‘a more just result, because a court is able to exercise a broad judgment about where the public interest lies in infinitely variable circumstances’.

When deciding in Willers that the tort of malicious prosecution extended to civil proceedings, Roger drew on earlier case law, quoting Dean Roscoe Pound: under the common law ‘the limits of the principle are not fixed authoritatively once and for all but are discovered gradually by a process of inclusion and exclusion.’ That process could require judges to correct earlier errors, as he did in a joint judgment with Lord Hughes in R v Jogee [2016] UKSC 8.

Where things had gone wrong he was prepared to take the lead. At first instance he held that, contrary to what Lord Denning MR had said in Solle v Butcher, there was no equitable right to rescind for common mistake a contract which was valid in contract law. This ‘bold conclusion’ was upheld by the Court of Appeal (Great Peace Shipping v Tsavliris Salvage [2002] EWCA Civ 1407).

The decision in Jogee disapproved the concept of ‘parasitic accessory liability’. Having chaired the Law Commission between 2002 and 2006, Roger did not believe that the courts should leave it to Parliament to reform the common law. In Patel v Mizra [2016] UKSC 42, giving the leading judgment in favour of a flexible, fact-sensitive approach to the defence of illegality, he referred to the Law Commission’s work on the subject and quoted Kirby J in the High Court of Australia: waiting for a modern Parliament to grapple with issues of law reform is like ‘waiting for the Greek Kalends’.

Roger saw the Law Commission as a source of research and consultation which could form the basis of statutory reform and also guide judges when faced with questions of policy.

The decision in Patel was one of several in which Roger held that cases should be decided on their facts rather than ‘mechanistically’ by applying ‘over-complex rules’. This approach can be criticised as leaving too much to the individual judge. Roger’s answer was that there were principles and authorities to guide the judge. He also sought to make the law work in practice. Dissenting in PJS v News Group Newspapers [2016] UKSC 26, he would have refused an injunction restricting publication of information which was readily available. While press obituaries highlighted this judgment, they missed the sting in the tail: he suggested that an award of exemplary damages might be appropriate.

Roger gave judgments denying claimants damages or compensation which they would have suffered if there had been no breach of contract (Bunge v Nidera [2015] UKSC 43) or trust (AIB v Mark Sedler [2014] UKSC 58). An insured who dishonestly exaggerated his claim and so led a suspicious insurer to settle for more than it was worth got no sympathy (Hayward v Zurich Insurance [2016] UKSC 48). But he would not allow an insurance company to avoid liability for a valid claim because the insured told a lie which did not alter the validity or amount of his claim (Versloot Dredging v HDI Gerling [2016] UKSC 45). And he gave the leading judgment in an important restatement of the basis on which an employer can be vicariously liable for a rogue employee (Mohamud v WM Morrison [2016] UKSC 11).

Roger died just two months after giving his last judgment in the Supreme Court. He will be greatly missed.

Contributor Mark Cannon QC is Head of Chambers at 4 New Square

Category: 
Author details: 
Mark Cannon QC

Mark is head of chambers at 4 New Square. He is a commercial practitioner with particular emphasis on professional liability, insurance and construction. He is an editor of Jackson & Powell on Professional Liability and co-author of Professional Indemnity Insurance.