2015 Selden Society lecture – the Hon Justice Peter Applegarth on Lord Atkin

Ladies and gentlemen, welcome to the fifth in the series of the Selden Society lectures. Justice Applegarth with characteristic modesty has suggested that I introduce him by mentioning that he’s a judge of the Supreme Court. Thank you. Justice Applegarth (APPLAUSE) Thank you for that very kind and concise introduction, Justice Fraser. President McMurdo, other Judicial colleagues and friends, distingushed guests, ladies and gentlemen. Any view of Lord Atkin is dominated by his
two towering judgments in Donoghue v Stevenson and Liversidge v Anderson. Yet
to focus upon the two judgments for which he is most famous risks overlooking some important contributions that he made to the law. Any speech to an Australian audience must begin with the fact that Lord Atkin was born in Brisbane. But as proud as we are
of Lord Atkin’s Australian origins, he didn’t regard himself as an Australian or a Queenslander.
He was a different kind of outsider in the colleges of Oxford and in the legal establishment
of London: a Welshman. There is, however, a good reason to treat
Lord Atkin as an honorary Australian. It has more to do with his work in the last few years
of his life than the accidental place of his birth. In 1943 and 1944 he represented
the Australian Government on the War Crimes Commission, a body that was established by the allies to investigate war crimes and to advise allies on how to try them. Lord Atkin
was uncompromising in his views that Nazi war criminals should be brought to justice,
if necessary before international tribunals. This stand was consistent
with the ‘sympathetic and welcoming’ attitude he displayed to refugees from Nazi Germany. According to his biographer, Geoffrey Lewis, Lord Atkin’s ‘humane and compassionate spirit was the most constant feature of his work for more
than thirty years on the English Bench’. Lord Denning described Lord Atkin as ‘a
progressive within the law’. These humane and compassionate instincts were not developed late in his life. They were inherited from a father who died tragically young after championing
progressive causes in Queensland politics. They’re also inculcated by powerful women,
who raised and educated James Richard Atkin. The first part of this talk concerns Lord
Atkin’s life and legal career. Naturally, I’m going to talk about Donoghue v Stevenson. At the
risk of being accused of elevating style over substance, I will concentrate on Lord Atkin’s
judicial method and style in that seminal judgment, and other judgments. It’s not just what he said, it’s the way
that he said it. It’s not just what he ruled, it’s the way that he wrote it. Lord Wright described
Atkin’s style as ‘chaste, composed, easy, accurate… But he could on occasion illuminate
a whole topic by a felicitous phrase.’ Now, I’m getting ahead of myself, Lord Atkin hasn’t even been born yet So let me retreat. He was born on the 28 November,
1867 at Ellandale Cottage in Tank Street. Less than 100 metres from where we gather tonight. His father, Robert Travers Atkin,
was an Irishman from County Cork. His mother, came from Wales. They were married in 1864 and four months after they married, they, departed for Australia. Professor Carney who graces us with this presence and who researched Lord Aktin’s life with great distincition suggests that the
Atkins’ reasons for travelling to Australia, were ‘probably curative and financial’. Members of the Atkin family had died from consumption and the remaining members sought a warmer climate. Robert Atkin who wasn’t wealthy also sought
his fortune. After a short stay in Brisbane the Atkins moved to a selection about 100 kilometres from Rockhampton, but the conditions were harsh and the colony was recovering from the depression. Robert Atkin was seriously injured when he fell off a horse. Mary Atkin’s health was poor as well. He was induced fraudulently it seems to invest in a stock and station agents’ business, that didn’t prosper. So the Atkins
decided to move to Brisbane and for Robert to become a barrister. He registered as a
student of law, but because of his work as a journalist and his involvement in politics he never finished his legal studies. Instead he was a journalist and a newspaper editor. His journalistic
coverage of Queensland politics led to a short parliamentary career. He was first elected in 1868 as the member for Clermont. He
was a leader of the liberal cause, which supported land reform, opposed the power of the squatters.
In 1870 he was elected unopposed to the seat of East Moreton which was then represented by two
members. And significantly, his fellow member after 1871 was William Hemmant, of whom we will hear more. Robert Atkin joined an extra-parliamentary group, called the Queensland Defence League, to oppose Premier
Palmer’s electoral redistribution, which would have reduced the number of seats
in Brisbane and its suburbs. They opposed the squattocracy and a group of six members
of Parliament from Ipswich and West Moreton who were dubbed ‘the Ipswich Bunch’. By 1871 Robert Atkin’s health was in
decline. Two other sons had been born by this time and the third born son was of poor health and Mary Atkin decided to return to Wales with all of her sons. The sons were never to see their father again. During the final years of his life Robert
Atkin enjoyed what Lord Atkin later described as the ‘unremitting care’ of William Hemmant,
who was both a member of Parliment and a prosperous merchant. About twenty years
later in England, William Hemmant became a benefactor of the young barrister, Dick Atkin,
and in 1893 became his father-in-law. Robert Atkin resigned as a member of parliment
in March 1872 on the basis that Samuel Griffith could be persuaded to stand for his seat and Griffith did so and won an election, and as we know championed the real progressive politics for the next 18 years or so of his life before, of his political life before he made common cause with the conservatives. Robert Atkin died on 25 May 1872, aged only
30. His wife who had returned to Brisbane the previous month and her arrival without the sons was said to have been a great disappointment to him since he yearned obviously to see his sons. A few weeks after
his death, Mary Atkin wrote to her two eldest sons and explained their father’s passing, how he had gone to heaven and how he sent his love to them. And she wrote: ‘Perhaps some day when you are big men, we shall come out to
Brisbane, and you shall finish the work that Papa had only time to begin.’ Later in his life, Lord Atkin wrote, ‘My
father must have been a man of exceptional gifts’. One of the pieces of evidence was an inscription upon a public memorial that was set up in memory of his father. It
was erected by the Hibernian Society, and still stands, some what obscurely, in Sandgate. The broken column
on the monument is said to symbolise ‘the irreparable loss of a man who well represented
some of the finest characteristics of the Celtic race – its rich humour and subtle
wit, its fervid passion and genial warmth of heart.’ The inscription on the monument
describes how Robert Atkin had ‘large and elevated views, remarkable powers of organisation, and unswerving advocacy of the popular cause, and
his rare abilities were especially devoted to the promotion of quote ‘a patriotic union among
his countrymen, irrespective of class or creed, combined with a loyal allegiance to the land
of their adoption.’ On Richard Atkin’s fourth birthday in
1871, his dying father had written to him encouraging him to be ‘truthful and honourable’.
And in April 1872, the month before he died, Robert Atkin wrote another letter which conveyed the final wish that his sons would grow up to be ‘nice unaffected gentlemen’, without concern for status, honourable and upright. The ‘rare abilities’ which Robert Atkin
displayed, his commitment to the values of liberal democracy and his egalitarianism were passed to his son. Now epigeneticists and psychoanalysts might debate whether the transmission of these
qualities was some kind of genetic inheritance, or the response of a son to the unfinished work of his father. The letters which Dick Atkin’s father and mother
each wrote to him must have had a powerful influence on him. But instead of returning to Brisbane to take up the yet to be completed work of his father, Richard Atkin took up similar causes on the other side of the planet. And rather than following his father into liberal politics in Queensland or Samuel Griffith into law and politics Dick Atkin lived the life of a Welshman. His formative years were in the Welsh countryside, and he and his brothers spent several years living with their grandmother whom Dick Atkin later
described as ‘the greatest woman I ever met’. He wrote of her that, native wit,
large sympathy, great experience of life cultivated by association with all classes of people,
an active memory stocked with folk tales and countryside traditions made her conversations
inimitable. She had strong likes and dislikes. She detested pretence either in rank or religion:
and she was not sparing in her denunciation of her pet aversion, the sanctimonious Calvinist.
Her sympathies were with people: not so much politically as in their ordinary life. We
were never allowed to speak of the ‘common’ people. The young Atkin also enjoyed the love and devotion
of his mother who would walk up the hill to give her children lessons in English history. Dick Atkin excelled academically at schools in Wales and before his 17th birthday he was awarded a classical demyship at
Magdalen College, Oxford. However, his time at Magdalen was not a happy one. He later wrote that his
life, there was not happy, he was ‘too young, at any rate it was too young for me,’ he wrote. He was young and sensitive, he had a small allowance and he fraternised with other Welsh students. After graduating from Oxford and completing the Bar exams he went in search of a pupil master and went around the courts to see the greatest advocates of his time. He settled upon Thomas Scrutton who had a leading practice
at the commercial bar. Atkin described Scrutton as being the ‘complete master of the facts and
the law’. Atkin persuaded Scrutton to allow him to become his pupils. Scrutton’s pupils worked in what’s been described as unattractive chambers and temporal gardens under conditions of austerity. After completing his pupillage in 1891 Atkin
took chambers. But lacking connection with solicitors, the briefs were few and far between.
Good fortune came in the form of William Hemmant who, after his career in Queensland politics,
had become resident partner of his firm in London. Hemmant gave most of his legal work
to a young solicitor named Norman Herbert Smith who had just started a firm in the City of London. Smith promised to give Atkin his first brief and
fulfilled the promise. Atkin recalled that it was one of the most difficult cases he had ever had to
advise upon in his whole career. And Atkin wrote to his mother in March 1891 ‘It was a very complicated case and I think I earned my guinea.’ Smith continued to brief Atkin during the whole of his career as a barrister, and of course Herbert Smith went on to build one of the most prestigious firms
in the City of London. Smith was about the only solicitor who briefed Atkin in his first year. But a little later Hemmant introduced Atkin to the Official
Assignee of the Stock Exchange and there generated a consistent flow of work. Atkin’s practice grew and
according to The Times, when he took silk in 1906 he was probably the busiest junior
at the Bar. With the appointment to the Bench of Hamilton in 1909 and Scrutton in 1910,
Atkin dominated the commercial Bar. In retrospect, Atkin’s success at the Bar
and on the Bench seems inevitable. However, he came close to leaving the Bar. Professor Gutteridge’s obituary reported that in Atkin’s early years at the Bar ‘briefs
were few and far between and the outlook was black.’ The professor recalled an occasion on when he and Atkin were walking down a street in London and Atkin pointed out a building and
said: ‘I can never see that without thinking how lucky I have been!’ Then Atkin recounted that the building contained the office of a scholastic academy, and he told Gutteridge that a few years earlier he had walked into that office with despair in his heart to inquire about obtaining a mastership at a public school. So it would be well-advised to note how close the law came to losing a junior barrister who was to become a great judge. And we should think about and think about what we can do to keep bright and industrious junior barristers where they belong: at the Bar. Dick Atkin and Lizzie Hemmant were born twelve days apart and as toddlers they must have been each other’s company, here at North Quay. 20 years later they met at the Hemmant estate in Kent. Atkin was still struggling to establish himself at the Bar, and so their engagement lasted for five years. And they married in 1893. They had eight children: six girls and two
boys. One of Atkin’s daughters went on the stage and he was very proud of her. Tragically, the Atkin’s eldest son was killed in battle in France in 1917 at the age of twenty. On a happier note Sir Samuel Griffith,
attended the wedding of one of the Atkins’ other daughters. Lord Atkin and Lady Atkin enjoyed a
happy marriage until her death in 1939. Before the First World War Lizzie Atkin bought a car, the same model as used by London taxi, and she used it to go shopping. Her son reported quote “In later years she patronised
the Army and Navy Stores into which she would enter majestically leading her bulldog and
smoking her cigarette knowing confidently that none of the staff would think of reminding her that both dogs and cigarettes were forbidden in the stores”. Lewis likens Lizzie Hemmant to Atkin’s mother
and grandmother. He describes Lizzie Hemmant as ‘a girl and woman of strong, vivid character,
great warmth and the habit of outspoken opinions.’ Well, the Atkin’s acquired a home in Wales. In terms of his personal family life his daughter reported that he had
‘low-brow’ tastes. He went to the musical the ‘Lambeth Walk’ twelve times. He was a devout Christian and attended
church with his family every Sunday. His Christian faith
was a ‘strong constant in his life’. A local clergyman later described Atkin as a ‘low Church-man with a great love of the Prayer Book’, and reported that many of the villagers went to him with their troubles; he always found time, even on vacation, to talk to them’. As appears from many of his judicial decisions,
he considered that principled decisions that courts make should rest upon the judicial officer having an understanding of the conditions of life of ordinary people. He initiated the appointment as a magistrate
of a sheep farmer who had given expert evidence in a sheep stealing case. Atkin had presided as a Magistrate had thought
the farmer had given clear and fearless evidence. And much like the friendship that developed between
the fictional characters Darryl Kerrigan and Lawrie Hammil QC in The Castle, a friendship
developed between Atkin and the sheep farmer. Atkin’s daughter, Elizabeth, recalled that he didn’t enjoy his work in the Court of Appeal he felt that he was merely the intermediary between one Court and another. And his usual answer when asked by his family during his nine year period on the Court of Appeal about whether he had heard any interesting cases that day was ‘No, very dull’. As a Lord of Appeal in Ordinary, he would
come home and say that he thought he had won his ‘brothers’
over to his side or ‘so-and-so is still not convinced but he may be tomorrow’. All of his letters and judgments were hand written, he didn’t have a secretary. He spent every Saturday morning at the House of Lords working on judgments and took judgments away on vacation to complete them. He and Lady Atkin never travelled abroad. Atkin was heavily involved in the affairs,
of the Medico-Legal Society. He chaired a committee on criminal
responsibility of the insane. He was committed to improving legal education. He championed the education of law in universities
and the improvement of practical legal orientation. He didn’t have any political affiliations, that may explain why he never occupied the Woolsack. He’s been described as a ‘political agnostic’. But when he spoke in debates in the House of Lords, he spoke from the Liberal Benches. The six years that he was a King’s
Bench judge was said to have been the happiest years of his professional career. And he was regarded as one of the greatest criminal judges of his generation, along with Scrutton. The motto ‘tough on crime; tough on the causes of the crime’ may have been coined for Lord Atkin. As I said in 1919, he was appointed to the Court of Appeal, he typically sat with his former pupil master, Lord Justice Scrutton and Lord Justice Bankes. Atkin had a life-long admiration for Scrutton but despite this, he disagreed with Scrutton about the disposition of a number of appeals. And Lord Denning said that Scrutton and Atkin ‘fought for
the body of Bankes’. As a judge he was said to have had a good temperament, courteous and incisive in his questioning. One barrister who appeared in front of him said: ‘He listened to argument with generous indulgence; his interjections were few and in tone almost apologetic; but his observations were as pointed
as a needle.’ Other reports suggest that if he’d
made up his mind, it was hard, if not impossible, to persuade him to change it, and as the intelligence from his daughter reported when he came home, he said that his task the next day was to persuade the other judges over to his point of view. Lord Denning recalled: ‘If
he was on your side, you had no need to worry – he would put the points in your favour.
If he was against you, you could never get him around.’ In the area of commercial law Atkin understood the commercial community and he had a huge practice at the Commercial
Bar. And he understood the importance of certainty in contract law, and in the law generally. He was dismissive of legal fictions, and in United Australia v Barclays Bank said, when these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred. Throughout his judicial career, and not only
in the area of commercial law, Atkin sought to determine legal disputes in a manner which accorded with common sense, and he avoided complex refinements. His biographer refers to his ‘preoccupation with general
principles’. And he attempted to dispose of cases on the basis of an understanding of the life of ordinary people. In one case, Everett’s case the plaintiff launched civil action after being falsely and without adequate justification, certified as insane. Atkin held, in dissent, that the defendants owed a duty of care and his passion and empathy were obvious, as was his marvelous writing style, who’s dissenting judgment was referred to be Lord Haldane as a ‘powerful piece of reasoning displaying anxiety to ‘guard against a possible
miscarriage of justice.’ Atkin said that the poor and the weak should not quote ‘suffer the unspeakable torment of having their sanity
condemned and their liberty restricted’. The competing view, by Lord Scrutton, was as important as that was, it was also important that those who have to make these decisions aren’t deterred by the threat of legal action and be deterred from certify someone because of the threat of an action. And one hears here the echo of modern day debates about the cost and consequences of defensive
medicine. In a number of cases and I deal with them in the paper in Parliamentary debates Atkin displayed and understanding of ordinary people’s lives. In debates on the Marriage Bill, he supported the introduction of cruelty and desertion as a ground of divorce. He was appreciative of the tragedy of a Court of Appeal decision involving the poor laws and splitting up a family. And in workplace injury cases he helped erode the pernicious doctrine of common employment and in Caswell’s case he combined an understanding of the conditions of work in mines, with an ability to conceptualise the doctrine of contributory
negligence, he saw it tied to issues of causation which value judgments are to be made. Both Lord Atkin and
Lord Wright carefully analysed the evidence and concluded that contributory negligence, which then was complete defence wasn’t established. But Lord Atkin went further and provided an insightful analysis of contributory negligence and brought to bear his analytical skills, and principles
applied in other jurisdictions, including Admiralty. As a final note from my previous Galapagos Island area of practice, defamation law in Sim v Stretch he gave a statement of what it means to make a defamatory statement. And that definition has been often sighted since. Professor Brown, reports that the author of Gatley on Libel and Slander, Dr J C C Gatley, was found dead in his chambers in 1936. And open on the desk was The Times law page reporting Lord Atkin’s speech in Sim v Stretch. So, I’m not sure whether we can blame Lord Atkin for Dr Gatley’s death, but there is a circumstantial case there, I think. Turning to Donoghue v Stevenson, the case is familiar to many. Didn’t go to trial. It was a point of law about whether the facts alleged by Mrs Donoghue gave rise to a duty of care. Briefly, the background to this is that the tort of negligence had developed under the influence of Roman law and natural lawyers. The influence of natural lawyers was that there had to be an antecedent duty of care that was breached. In England there were separate functions for judge and jury and the question of whether a duty of care
existed was for the judge to decide. And so if lawyers could frame the issue of duty of care as a legal issue, it was for the judge to decide and that had the tendency to load contentious issues onto the judge to decide and for judges to control the scope of negligence. So there is an enormous body of precedent and the result was a fragmentation of the law of negligence where in Continental Europe there were general principles. At about the time that Atkin went up to Oxford, the first edition of Beven on Negligence appeared and it consisted of 700 pages. In 1889 another author had stated: ‘The Law in regard to Negligence is the most uncultivated part of the “wilderness of single instances” of which our law consists.’ And by the time Donoghue v Stevenson was argued, the fourth edition of Beven on Negligence, was 1570 pages with a table of cases consisting of 175 pages. In the area of product liability there were some exceptional cases in which it had been recognised that a manufacturer owed a duty of care to an ultimate consumer. However the 19th Century case law didn’t evidently recognise a duty of care in the circumstances that Mrs Donoghue alleged. Her case hardly be said to have had good prospects. A few weeks before the events that she alleged. The court in Scotland had rejected a similar claim. She succeeded first instance, failed on appeal, obtained leave to appeal and had the status of a pauper. The case was heard, it was reserved for quite a while and Mrs Donoghue’s appeal succeeded by three-to-two. Lords Atkin, Thankerton and Macmillan constituted the majority, Lord Buckmaster and Tomlin dissented, and Professor Heuston referred to Lord Atkin
as the leader of quote ‘the Celtic majority’ unquote something you’d expect an Irish Professor to say. Lord Thankerton, Lord Macmillian were Scotish and of course Lord Atkin’s father was Irish. The dissenting speech of Lord Buckmaster was delivered first in time. He was sarcastically dismissive of cases that didn’t support his conclusions and one commentator has said that he seems to be moved by some extra legal concern. In any event, turning to Lord Atkin’s speech after framing the issue he observed that it was ‘remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty.’ Instead, the court had engaged on an elaborate classification. And after referring to some of these, he said, ‘Yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found.’ So the search for principle preceded the analysis of precedent and at an early stage in the judgement he comments that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular
cases found in the books are but instances. And then he immediately formulates what has become known as the ‘neighbour principle’: which we see on the PowerPoint, I won’t read it. Lord Atkin wasn’t the first jurist to articulate the ‘neighbour principle’, In 1767 Lord Bathurst had stated that such a principle in his Introduction to the Law of Trials. But Lord Atkin’s grounding of the principle in the parable of the Good Samaritan was compelling. And as Profession Chamberlain has said, that literary and rhetorical features of the parable lend themselves to persuasive legal reasoning. Rather than looking for, authorities that supported the principle, Atkin said that he hadn’t found any that were against it. Having said that he then embarked upon a masterful analysis of the authorities. For example, he didn’t attempt to overrule Winterbottom v Wright. He chose the more subtle approach of agreeing with Lord Buckmaster that the case was correctly decided, but argued that the issue of law raised in Donoghue v Stevenson wasn’t raised in that case. After analysing the authorities, he turned and looked across the Atlantic and was comforted by the fact that Justice Cardozo in the ‘illuminating judgment’ in MacPherson v Buick Motor Company had reached the same conclusion. In his judgment Lord Atkin glides over the distinction between what the law is and what the law should be. He didn’t really explain why there must be such a general conception. And many would argue the common law doesn’t generate those governing principles. For example, Professor Brian Simpson has argued that: we must start by recognising what common sense suggests, which is that the common
law is more of a muddle than a system, and that it would be difficult to conceive of a
less systematic body of law. Despite this, Lord Atkin treated the categories of case on duty of care as reflective of some general principle. And he backed up that, conclusion by a beautiful hypothetical example concerning a product mixed with poison. And in a beautiful appeal to the province of law, he stated: I don’t think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong. Others have commented about the lack of logic in Lord Atkin’s conclusion, that there must be a duty of care. And Professor MacCormick said well why can’t duties of care as a matter of logic simply crop up whenever they arise. And Justice Michael McHugh in 1998 in an, important paper on judicial method and logic and judicial reasoning noted that logic only takes one so far in deciding novel cases. Justice McHugh explained that Lord Buckmaster’s dissent showed that the cases were ‘logically explicable’ without a general principle of negligence. Lord Atkin’s, decision wasn’t compelled by logic Justice McHugh stated that Lord Atkin’s decision was
based on what he thought justice required, not logical compulsion. It was his sense of
justice and not logic that gave rise to the general principle that has dominated the law of negligence since 1932. The contrast in styles
between Atkin and Buckmaster is noteworthy. Lord Denning unfairly described Buckmaster as timid and other people said that was quite wrong. Sir Frederick Pollock, said that Buckmaster and Lord Tomlin were the last people that you would accuse of being timid. But Sir Frederick Pollock insightfully said of the two dissenting judge part of their opinions read as if they had forgotten that they were judging in a Court of last resort. Clearly, both Lord Buckmaster and Lord Atkin had a commitment to the integrity of the law. Lord Buckmaster saw himself as being bound by precedent to reject Mrs Donoghue’s claim. Lord Atkin saw no
precedent that required him to do so and he was able to discern from categories of cases, a governing principle. For Atkin, principle first precedent second, for Buckmaster precedent first. One might say finally. So let me summarise Atkin’s achievement in Donoghue v Stevenson. The law of negligence had been fragmented. In the 20th century there was a movement back towards an unifying principle and Donoghue v Stevenson can be regarded as the turning point. Chief Justice Gleeson referred to Lord Atkin’s brilliant achievement. And as I’ve said, his judgment is a great work of legal prose. Well, a view 100 years after it was decided, Donoghue v Stevenson is obviously a landmark in the law. And a few years ago, in the special edition to mark 135 years of law reporting, The Law Reports, the Incorporated Council of Law Reporting produced their ‘Top 10′ and Donoghue v Stevenson was in it it was a chronological list, I don’t know whether it rated number one, many would. Of course the case attracted immediate attention in 1933 from legal commentators. However as powerful as Lord Atkin’s, judgment was at the time and as influential as his articulation of the neighbour principle has been over the last century, his speech was only one of three and contemporary commentators adopted the more minimalist approach of Lords Thankerton and Lord Macmillan. And it was Lord Macmillan’s approach that found favour with textbook writers, many
judges including the Privy Council in Grant’s case. Dr Grant’s appeal to the Privy Council
was upheld, but without reference to the neighbour prinicple. Lord Atkin’s biographer wrote of Donoghue v Stevenson quote, “It’s true nature was perhaps not fully understood even by the profession until Lord Devlin’s
speech in 1963 in the Hedley Byrne Case’. And Lord Atkin’s judgment received a very frosty reception from Lord Justice Scrutton in 1933. But Lord Aktin’s speech in Donoghue v Stevenson, more general was more warmly received in the Commonwealth. In March 1933 Justice Herbert Vere Evatt of the High Court wrote to Atkin saying ‘the Snail case’ had aroused great interest at the Bar and the university law schools. And Evatt wrote, on all sides there is profound satisfaction that, in substance, your judgment and the opinion of Justice Cardozo of the U.S.A. coincide, and that the common law is again
shown to be capable of meeting modern conditions of industrialisation, and of striking
through forms of legal separateness to reality. Lord Atkin’s speech wasn’t forgotten in Australia. It was influential in the 1962 decision of Voli v Inglewood Shire Council. And it’s perhaps fitting that his principle should find fertile ground in the land of his birth. Returning to his life, as I said, Lady Atkin died in 1939. He wrote to Evatt in 1940 about how he had a solitary life, but his daughters were caring for him. They discussed recent cases, it’s intriging that Final Court of Appeal judges talk about what they’re going to do to the Court of Appeal below them. And he wrote to Evatt, and proudly reported that, about a particular case, we’ve not given our reasons yet, but that decision is going to receive a good hard knock. He complimented Evatt on his literary efforts. And wrote, how little the public realise how dependent they are for their happiness on an impartial
administration of justice. I have often thought it is like oxygen in the air: they know and care nothing about it until it is withdrawn. The letter concluded: ‘We hear no war news that you do not get: and that seems to me precious little. However we are determined to put an end to the gangsters as you all are.’ In May 1940 Atkin spoke at Gray’s Inn at a reception for refugee lawyers, including Dr Ernst Wolff, who’d been President of the Berlin Bar and the General Council of the German Bar before
Hitler’s rise to power. He later became President of the Supreme Court for the British Zone in Germany. After the reception Dr Wolff wrote to Lord Atkin that his quote ‘kind words of sympathy for our situation went to our hearts’ unquote. Wolff wrote about Britain’s fight against the ‘conspiracy of piracy’ that the German lawyers had suffered, and hoped that after Nazi Germany was destroyed ‘law can prevail again’. I turn to Liversidge v Anderson which was a defining point in Atkin’s judicial career. It was delivered in November 1941, a few weeks before his 74th birthday. And it stands, as one of the most significant of all the
constitutional speeches from the House of Lords in hundred years. Briefly the British Parliament passed emergency legislation, a regulation was passed which permitted the Secretary of State to order the detention of an individual, quote, ‘If the Secretary of State has
reasonable grounds to believe’, and so the provision went. About 15,000 people were detained including Mr Jack Perlzweig who during his time in Brixton Prison changed his name to Robert Liversidge and he sued for false imprisonment. The case in first instance went on the issue of onus. And up to that time the government accepted that the words ‘reasonable cause’ imported an objective test. But when the parallel case called Greene went to the Court of Appeal, the government argued for the first time that, the Home Secretary only had to have, only had to subjectively believe that he had reasonable cause it wasn’t a objective test. Well, that argument was accepted by four of the five Law Lords for reasons I set out in the paper. Atkin was a sole dissentient and he pointed to ‘the
plain and natural meaning of the words’, and gave many examples of where the same or similar words had been held to import an objective test. As Lewis notes, ‘The weight of examples was
and was intended to be crushing.’ There was no ambiguity in the language of Regulation 18B. Atkin then proceeded to demolish the arguments of those who favoured a subjective interpretation. He said that such a matter could be determined by a judge and having demolished those arguments he continued with his famous dissent, I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. And then there was a beautiful passage, which we have in the PowerPoint. And famously he wrote, of the judges, their function is to give words their natural meaning, in this
country, amid the clash of arms, the laws are not silent. They may be changed, but they
speak the same language in war as in peace. And he went on to make a fundamental statement about the role of courts in protecting liberty. And he said I protest even if I do it alone against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. After recapitulating his arguments and referring to the non-natural construction favoured by his colleagues Lord Atkin stated, I know of only one authority which might justify the suggested method of construction. And he then quoted from Alice in Wonderland. Well, views differ about the inclusion of the paragraphs, which ridiculed his colleagues. Many years after the event, Professor
Heuston described them as ‘passionate, almost wild, rhetoric’. And he referred to ‘an
explosion’ in Lord Atkin’s mind. In his review of the style of judgments in the House of Lords between 1876 and 2009, Sir Louis Blom-Cooper writes that Atkin’s language in dissent, quote, ‘reflected a rare departure from the convention that disapproval among judicial colleagues should be couched in decorous language’. A few days before the speech was to be delivered, Lord Simon, who hadn’t sat on the appeal, but had access to the, copies of the speeches that were to be delivered, wrote to Atkin about his inclusion of the Alice in Wonderland reference. The unintended offence, as Simon saw it, was that the literary allusion ‘may be regarded as wounding’ to Atkin’s fellow judges who would take the view that he was satirising, and at worst ridiculing, their efforts. Lord Simon wrote,
that quote ‘neither the dignity of the House, nor the collaboration of colleagues, nor the force of your
reasoning, would suffer from the omission’ unquote. Atkin declined and wrote to Simon that he felt strongly about the matter, quote ‘I have not the slightest intent to ridicule them, nor I think does the passage you mention ridicule them. But I did mean to hit the proposed construction as hard as I could and to
ridicule the method by which it is reached. I consider that I have destroyed it on every
legal ground: and it seems to me fair to conclude with a dose of ridicule. Simon responded politely that he wished Atkin had seen his way to ‘omit the jibe’. Lord Maugham, the senior judge, on the appeal wasn’t present through an administrative problem when the speeches were delivered. And he was naturally stung by Atkin’s words and he took the extraordinary step of writing a letter to editor of The Times, which ostensibly to defend counsel, who had been accused by Atkin of advancing arguments that might have been addressed in the time of
Charles I. Of course Maugham was also defending himself. Atkin maintained a dignified silence, in the face of Maugham’s letter. Maugham himself came under attack in newspapers that actually supported the outcome, of the appeal. And there was a question on notice in the House of Lords about the proprietary of Maugham writing his letter to The Times. Atkin was cold shouldered by his judicial colleagues Lord Wright, who had been a pupil in Scrutton’s chambers along with Atkin and a family friend, cold shouldered Atkin and his daughter. Atkin was no doubt correct in his interpretation, his interpretation had been vindicated as early as 1951. The case was being distinguished by the House of Lords. In 1964 Lord Reid referred to the peculiar
decision and the majority view in Liversidge v Anderson was put to the sword by Lord Diplock in 1980. Who was joined by the other Law Lords in saying that Lord Atkin’s dissent was quite correct. Now, while Atkin’s interpretation is being vindicated, the Alice in Wonderland paragraph was really unnecessarily provocative, and destructive of the collegiality which is part of the proper functioning of appellate courts. Lord Bingham, writing extra judicially as Senior Law Lord, was critical of Lord Simon’s attempt to have Atkin remove the offensive passage. However, in my view Lord Simon was entitled, as a senior judicial colleague of Lord Atkin, to suggest that the offending and satirical passage was unnecessarily wounding to Atkin’s judicial colleagues, and that
the force of Atkin’s reasoning wouldn’t suffer from their omission. Suggestions from judicial
colleagues to revise draft judgments, especially from judges who did not sit on the case in question, should of course be exceptional, lest senior judges interfere with the essential independence of other judges. But the wounding words of Lord Atkin made Liversidge an exceptional case for a constructive
suggestion about a point of style, not of substance, by someone in Lord Simon’s position. Lord Simon
didn’t seek to alter the result of the case or even the substance of Lord Atkin’s proposed speech. He wrote a polite note to Atkin in the interests of judicial collaboration and collegiality. One of the targets of Atkin’s ridicule, Lord Wright in 1944, put the matter in context. He wrote that Lord Atkin’s dissent showed quote, ‘his habitual courage and independence’ unquote. Lord Wright
concluded the obituary as follows: ‘the value of his work will not be found to lie in particular judgments valuable and
important as they are but in the animating motive force which inspired them. His service to the future of English law will be large and lasting’ unquote. Lord Wright was correct. Lord Atkin’s statement of constitutional
principle, has influenced generations of judges and lawyers. His decision in Liversidge v Anderson now reached a general audience in the in the form of an acclaimed play, which was performed in England this year to critically acclaim, called No Free Man. And as we see from the photo above the play discloses some troubling trade secerts about what judges, some judges wear when they’re writing judgments. And it also discloses how kind the families of judges are and particularly daughters in testing, their parent’s feverish conditions when writing judgments. In any event, the dissent, has been regarded as ‘one of the greatest constitutional law judgments
ever delivered.’ And I won’t take the time to read, extraordinary tribute to it by, Lord Bingham. I won’t read it in full but, he said, we’re entitled to be proud that
even in that extreme national emergency there was one voice, eloquent and courageous, which asserted older, nobler, more enduring values: the right of the individual against
the state; the duty to govern in accordance with the law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by
law established, of individual freedom. And things were grim in late 1941 when Atkin delivered that dissent. The Balkans and Crete had been overrun. The British summer offensive in North Africa had been rebuffed. The Japanese menaced the Malayan Peninsular and Singapore. The attack on Pearl Harbour had yet to happen so the United State were not in the war. And so at such a time, Lord Atkin had the courage to be the sole dissentient and to resist arguments, which in times of emergency
would appeal naturally enough. And Justice Keane at the unveiling of the plaque to Lord Atkin in 2012, described Lord Atkin’s speech as quote ‘a ringing blow for liberty and equality under the rule of law. And perhaps most importantly for those
of us who speak the language of Shakespeare, for the integrity of the English language itself.’ Well, finally I want to turn to the honorary Australian. As I said, Atkin served as Australia’s representative on the War Crimes Commission. The Lord Chancellor at the time Lord Simon tried to talk him out of accepting that position. Saying, it was like, taking a 91-ton gun to a relatively small task. But Atkin undeterred participated and attended 12 meetings of the Commission, before his illness
made it impossible for him to continue. Some, like Professor Goodhart, publicly advocated two kinds of responses to war crimes. Those that constituted ordinary crimes would be punished under established criminal laws in individual
states. Others that were described as acts of policy, which were not governed by law, might be
punished by a political act, just as Napoleon Bonaparte had been punished by his victors by
imprisonment on St Helena. Atkin rejected that approach and in a strongly-worded letter to The Times in late 1943. He said punishment shouldn’t depend on the provisions of the penal laws of each invaded State, since they provided no remedy for crimes committed in the country of the enemy, which was possibly
lawful by the law of that country. And Atkin’s opinion, as we see part of it there, was that the crimes of which some of the barbarian enemy have been guilty transcend all domestic laws. They are offences against the conscience of civilized humanity. What is
desired is not revenge, but a vindication of civilization to be achieved by imposing retribution on the criminals so as to ensure so far as possible that in no war in the future
shall like horrors be perpetrated. And Atkin said if possible punish those crimes by the law of the land on which they were committed but that the allies should retain the power to decide, that these, crimes against humanity would be tried in ad hoc international tribunals. And in the paper I’ve given other references to Atkin’s argument that one just shouldn’t be concerned about crimes against British and American nationals and he thought that the public supported his view that the barbarians should be punished for crimes against, for example, the Jews in Europe. Lord Atkin died in June 1944, aged seventy-six. Few English judges, or indeed
any judges, enjoy such an enduring reputation. One hundred and fifty years after his birth,
plaques are unveiled in his honour. Jurists including great Australian jurists like Sir Gerry Brennan make pilgrimages to a town named Paisley where Mrs Donoghue may or may not have swallowed a decomposed snail. In 2015 plays are performed to critically acclaim about one of his finest judgments. One might say that we’ll not see the likes of Lord Atkin in our lifetime. But that wouldn’t be right. We have. Even in the lifetime of the youngest law student in this audience we’ve seen great jurists in this country and in others display the qualities which Lord Atkin exhibited. I need not mention any Australian judges. we know their names. Since this is a lecture
about English judges, I’ll mention just a few great modern English judges. Lord Bingham
displayed the masterful grasp of principle, knowledge of legal history and sense of justice to match that of Lord Atkin. He also shared Lord Atkin’s ability to write beautiful prose. Lord Hoffmann exerted
a similar intellectual force to that which Lord Atkin exerted during a long career in the English
judiciary. Lord Bingham and Lord Hoffmann, in separate commanding judgments in the Bellmarsh
cases, adhered to important constitution principles about the rule of law in times of war and crisis. And Lord Steyn, in
his 2003 F A Mann lecture, about Guantanamo Bay the legal black hole articulated the need for the rule of law to apply to detainees. In arguing
that alleged war criminals should be brought to justice rather than be exiled on remote islands, Lord Steyn displayed same internationalist sentiments which Lord Atkin did in 1944. So it is not as if Lord Atkin does not have his modern-day counterparts. The point surely is that
modern-day counterparts like Lord Bingham, Lord Hoffmann and Lord Steyn had Lord Atkin
as an example to follow. The early demise of Robert Atkin was a tragedy. However, his demise meant that Lord Atkin was to grow
up in the United Kingdom and became a great English judge, rather than a great Australian. Dick Atkin honoured the dying wishes of his father to be ‘truthful and honourable’, and to grow up a nice, unaffected gentleman without concern for status. He benefitted from the love and
nurturing of powerful women: his mother, his grandmother, his wife. By industry and
intelligence, he made good on the opportunities that were presented to him. And he was fortunate to enjoy the friendship and support of William Hemmant. Today, as we pay tribute to Lord Atkin, there are disadvantaged infants and young people in our communities with the
same potential for greatness as Dick Atkin, but who probably will not have the good fortune to have a modern-day William Hemmant to smooth their path to greatness. We describe Lord Atkin as a great English judge, although he described himself as a
Welshman. Humanity and compassion, coupled with an uncompromising spirit characterised his
life and are his legacy. He searched for principles that he expected to be embodied in the law. His view was that the law should reflect many, but not all, public sentiments about what is moral in our
dealings with others. In declaring and in developing the law, he was motivated by a desire to achieve justice. He showed an understanding of the circumstances of ordinary citizens, and the conditions in which they lived and
worked. in developing the law, he was a progressive in the sense that he believed in the potential of
law to improve society. Atkin toiled for decades as a master craftsman of law and language. In failing health, he stood alone in Liversidge v Anderson in defence of liberty and the
rule of law. And as his final days as Australia’s representative, he argued that war criminals should be brought to justice. The victims of crimes against humanity were owed nothing less. The parable of the Good Samaritan was not simply a clever literary device that Atkin deployed to
establish a point of law. It was a principle by which he lived his life. It was a principle that informed value judgments that he was required to make in administering justice
according to law. It was a principle which in 1940 prompted him to welcome victims of tyranny to London. In extending the hand of friendship to refugees of a different ethnicity and religion to his own, Dick Atkin was not writing about being a good samaritan. He was being a good samaritan. (APPLAUSE) Thank you. Justice Applegarth has prepared a written paper which will be published and I’ve seen it, at least, I’ve seen how thick it is. Tonight he has really just cherry picked from the paper but he’s done so in a way which has woven the strands of Justice Aktin’s personal life with the strands of his jurisprudence. Illuminating and eloquent if I may say so to the Judge. That causes me to do two things. One is to look for the customary parcel. (APPLAUSE) And the second you have anticipated, which is to formally thank the judge We have been really fortunate by the speakers in this series of lectures. This is as I said the fifth lecture. All of the speakers have put in an enormous intellectual effort and great labour in presenting the lectures and tonight again maintained the standard. The sixth lecture will be on Thursday 19 November, Justice Douglas on Lord Denning. The seventh lecture will be on Thursday 3 December, Justice Edelman on Lord Bingham. Can I just once more ask you to thank Justice Applegarth tonight in the usual way. (APPLAUSE) After I hand over to the Judge for one minute can I say that after he finishes having the final word, you will all be invited to refreshments outside. I won’t keep you from the drinks, my final word is I neglected to thank my associate Ms Rebekah Oldfield who has not only been powering the PowerPoints tonight but has helped me with proof reading a judgment across time zones. I am deeply grateful to her conscientiousness work and she will continue to proof read the judgment in the days ahead. Thank you very much Rebekah. (APPLAUSE)