John Charles Bigham was one of the Commercial Court's dominant figures in its first decade and a half, initially as a prominent practitioner, then as an energetic Judge in the J.C. Mathew mould. After Bigham's judicial career fizzled out in anti-climax, he found gainful and well-publicised employment in retirement as head of inquiries into the most famous of all shipwrecks and other major maritime disasters.
Bigham was born into a Liverpool merchant family in 1840. He went to school in Liverpool, and then studied in London (where he joined the University, but left without completing a degree), Paris, and Berlin. His father apparently planned for Bigham to follow him into business, but Bigham showed his strong-mindedness by choosing his own course. He was called to the Bar by Middle Temple in 1870, was a pupil of Charles Arthur Russell, and joined the Northern Circuit to launch his legal career in his home city. Although, at thirty, he was a relatively late entrant to the Bar, Bigham was an instant success. As one of the nation's biggest and busiest ports, Liverpool generated a large volume of commercial litigation, particularly in shipping and marine insurance, and a fair quantity of it was tried locally, particularly in the Court of Passage, an ancient borough Court with an extensive jurisdiction. Business was good when Bigham was starting out, and his useful family connections to the local commercial world gave him a head-start. These factors, combined with hard-work and a confidence in his own abilities, rapidly brought in work. Bigham's first appearance in the law reports came within months of the start of his career (as junior counsel in a dispute about bank shares), and others followed in quick succession. Bigham soon established a busy practice, and began appearing in cases in London as well in Liverpool.
His first reported cases suggest an early emphasis on banking, finance, and insolvency disputes. But by the mid-1870's, he was already acting in shipping and sale of goods cases. His first reported appearance in the House of Lords came as early as 1874 (Hollins v Fowler (1874-75) LR 7 HL 757). He was junior counsel in that case, without a speaking role. But, by the next year, he was arguing cases alone in the Court of Common Pleas (Williams v Bolland (1876) 1 CPD 227, a dispute about jurisdiction: Bigham lost). As his career went from strength to strength, Bigham made occasional ventures into other areas of law, in particular libel and slander and electoral disputes. But he was essentially a commercial specialist. In particular, he does not appear to have had any sort of criminal practice. In 1880, he was back in the House of Lords as junior counsel in Postlethwaite v Freeland (1880) 5 App Cas 599, a leading authority on a voyage charterer's obligations in relation to discharge of cargo. He followed that with a string of cases as sole counsel in the Court of Appeal.
Bigham was appointed Queen's Counsel in 1883, after barely a decade in practice. He was sworn in (at Lord Chancellor Selborne's London home, in Portland Place) at the same time as Richard Henn Collins. (Collins was two years younger than Bigham but, having got off to a quicker start at the Bar, had been in practice for three years longer.) Bigham maintained his successful trajectory as a QC. He appeared in more than a dozen reported cases in his first year as a leader. These included appearances in the House of Lords and the Privy Council, most prominently Mersey Steel v Naylor, Benzon & Co (1894) 9 App Cas 4, an important early decision on when conduct amounts to a repudiation. Oddly, they also included a divorce case. (Bigham had not appeared in any reported divorce cases before, and did only one more after 1884.)
Less surprisingly, given the substantial shipping side to his practice, Bigham began to make more frequent appearances in Admiralty cases after 1883. His enormous success was eloquent testament to his skill as an advocate. Short, stout, and softly spoken, with a manner of delivery described as “a loud whisper”, he had little physical presence, though he could unsettle a witness with a piercing gaze. But he was crystal-clear and concise in his speeches, and knew how to construct a profitable cross-examination. He also knew how to pace his delivery to match his audience. He slowed his speech down in jury trials (which were still common in civil cases at the time) to make sure that the jury was following his line of questioning or argument. He acquired a reputation for being equally effective whether presenting cases before juries or arguing points of law before Judges.
By the 1890's, Bigham was doing less insolvency work and concentrating more on shipping cases. He led most of the outstanding junior commercial barristers of the time, including John Gorell Barnes, Thomas Carver, William Pickford, Hugh Boyd, David Leck, J.A. Hamilton (who was Bigham's most eminent pupil), and Hamilton's future rival, T.E. Scrutton. Prominent among half a dozen cases which Bigham argued in the House of Lords in his first decade as a QC were two important appeals on bill of lading exceptions clauses. In Hamilton v Pandorf (1887) 12 App Cas 518, he persuaded the Lords that an incursion of seawater after rats chewed through a pipe was a "peril of the sea" even though the rats themselves were not a uniquely maritime peril (because they might have done similar mischief on land). He fared less well in Glyn v Margetson [1893] AC 351, in which the Lords refused to construe a "liberty" clause literally, emphasing the importance ofa commercial contract's purpose and object as an aid to construction. But, although Bigham lost that appeal, he was at the height of his powers by the time the Commercial Court started hearing cases in 1895. It was therefore inevitable that he would immediately be instructed in a significant proportion of its cases.
Bigham on the Bench, in February 1898, shortly after his appointment. The ‘Spy’ caricature captures some of his brusque energy.
Bigham’s undemonstrative style and characteristic brevity were very much in keeping with the brisk and no-nonsense way in which J.C. Mathew ran the Court. In the first volume of The 'Reports of Commercial Cases', covering the period from March 1895 to August 1896, Bigham made no fewer than sixteen appearances. There was a clear gap to the next most prominent QC, who was instructed in only about ten cases. If Joseph Walton QC had never been born, Bigham would probably have been the Bar's standalone success of the Court's first years. As it was, Walton (formerly one of Bigham's regular juniors) made thirty-five appearances in that first volume, and maintained that lead into 1897. But if Bigham had to concede best to Walton in the Commercial Court, his position as one of the leading advocates of the day was assured. A certain sign of this is the way in which solicitors and clients sought him out for difficult or high-profile cases outside the bounds of his normal practice. In his final years at the Bar, Bigham was instructed in reported cases about horse racing and gambling, local government, patents, wrongful dismissal, and the registration of dentists, alongside his more usual sale, shipping, and marine insurance work. (Bigham's last reported case at the Bar was a marine insurance appeal to the House of Lords: The 'Peninsular' [1897] AC 609. Like the first case he hard argued alone, it was a losing cause: his opponent, Walton, was not even called upon to speak.) His dedication to his client's causes was widely acknowledged: he got going at 5.00am each day, and was known to turn cases down if other professional commitments left him with insufficient time to prepare them properly, a practice which was far from universal at the Bar. An indomitable advocate, Bigham was never ruffled by interventions either from the Bench or from opposing counsel: his ‘Telegraph’ obituarist thought that the “fearless little terrier” was one of very few barristers who was completely undaunted by appearing against the volatile and aggressive Charles Russell. Indeed, nothing at all seemed to upset Bigham's serene courtroom demeanour. Arriving one morning just in time for the opening of a sale of goods case, he produced the wrong set of papers from his bag and began to explain to the puzzled Judge the nature of his clients' claim in tort. When his horrified junior pointed out his mistake, Bigham simply borrowed the junior's papers and calmly carried on as though nothing untoward had happened. He won the case.
Like William Kennedy, Bigham had Liberal leanings and was anxious to become an MP. Unlike Kennedy, he succeeded (at his third attempt), winning Liverpool Exchange for the Liberal Unionists at the 1895 general election. It was a near thing: his majority was just 254. He made little impression in Commons debates, although he was a member of the Parliamentary Committee which investigated the 1895 Jameson Raid, launched from Britain's South African colony into the independent Transvaal with the aim of provoking a revolution. Bigham was not in Parliament for long. In October 1897, he was appointed a Queen's Bench Judge. His Liberal Unionists, who had split from the Gladstonian Liberals over Irish Home Rule, were in government in coalition with the Conservatives at the time. However, although Bigham lacked judicial experience (he had not been a Recorder), there does not appear to have been any serious suggestion that his appointment was political. (Kennedy's elevation to the Bench had generated a degree of suspicion because of his relative youth. But, at fifty-seven, Bigham was hardly a young Judge.) On the contrary, his selection was welcomed by the legal press, and he was greeted by a round of applause when he entered the Royal Courts of Justice for the first time in his new role.
Bigham around the time of his appointment as President of the Probate, Divorce & Admiralty Division. The photograph captures some of his disgust at his new role.
Whether because it was thought to offer a relatively easy start to judicial life, or because more senior colleagues were relieved to offload the task on to someone else, new Queen's Bench Judges were often sent on Circuit immediately after appointment. But Bigham began sitting in the Commercial Court almost at once. This may have been a relief, since his experience of the criminal litigation which dominated Circuit work was next to non-existent. Bigham's arrival on the Bench appears to have been taken as the opportunity for a perceptible change in the Court's organisation. Since March 1895, Mathew had dealt with the Court's business virtually single-handed, with only occasional short breaks in which Russell or Collins took over. This left Mathew with an enormous workload, and one which was not sustainable in the long-term for a man approaching his seventies. After late 1897, there was a more equal distribution of work between Mathew, Kennedy, and Bigham (usually sitting in rotation as Commercial Judge), with Bigham hearing the largest number of reported cases for the next few years. Bigham also did his bit in other areas, including local government, landlord and tenant, personal injury, tax, and even some crime. He also heard many insolvency cases, which took him back to his early practice at the Bar. He was the designated Bankruptcy Judge from 1904-1910, and Judge of the Railway and Canal Commission for roughly the same period. Versatile and willing, he even served a spell in the Chancery Division around the turn of the Century, to help deal with a backlog of cases, and was sufficiently highly regarded to be asked to help out when the Court of Appeal was over-stretched in 1908, sitting on more than a dozen civil appeals. (Bigham was also a recurrent member of the Court of Criminal Appeal: but virtually all King's Bench Judges took a turn there.) But a high proportion of his roughly one hundred and fifty reported cases at first-instance were commercial.
Bigham's judicial style leaned more towards Mathew's rapid and robust common sense than Kennedy's searching but slow analysis. Bigham admired Mathew (he had claimed in 1895, though perhaps not entirely seriously, that the skill with which Mathew disposed of cases in the Commercial Court would make commercial arbitration redundant). Indeed, of all of Mathew's successors, Bigham perhaps came closest to him in approach. But there is a line between being brisk and being hasty, and Bigham had a tendency to cross it. To avoid coming unstuck, a judge who is fired with an urge to press the pace of a case needs a good instinct for identifying the real points and the best arguments, and Bigham's instincts were not as sound as Mathew's. While Kennedy was criticised for getting bogged down in the detail and taking too long to reach decisions, Bigham was accused of sometimes taking short-cuts which ignored important points, and of making up his mind without fully listening to the argument. This sort of thing is irritating for counsel, and it can leave clients wondering whether they have had a fair hearing. Some of Bigham's criminal cases in particular got him into trouble. In 1902, he was publicly criticised for imposing only a fine in a child cruelty case. At the other extreme, he was accused in 1904 of effectively acting as counsel for the prosecution in a fraud case. And, with him, briskness could turn into brusqueness. He was prone to the undiplomatic remark. Comments which he made on the perceived shortcomings of solicitors in 1901 and again in 1909 caused considerable resentment. The 'Solicitors Journal' accused him of "impulsive high-handedness" and of lacking the "quiet dignity and patience" properly becoming of a Judge. (To do him justice, Bigham was conscious of his sins, and sought to atone for them: in his retirement address in 1910, he proclaimed that there was "no finer body of men in the world" - and they were all men at the time - than solicitors and their managing clerks.)
In all, Bigham fell some way short of becoming a Judge of the first rank. There was some contemporary perception that, at bottom, he was temperamentally unsuited to the role, that his personality was a natural fit for the the cut and thrust and confrontation of forensic advocacy, and that he found it difficult to adapt to a more passive role in which his function was to decide points, not to argue them. If that is right, Bigham was not the first enormously successful advocate who struggled to make the transition to the different disciplines of the Bench, and he would not be the last. As with Mathew, Bigham’s tendency to deliver short and to-the-point judgments which dealt only with the immediate issues in the case meant that he left little impression on the development of the law. Few of his judgments are well known today, although Sleigh v Tyser [1900] 2 QB 333 (warranties in marine insurance) and Vigors v Sanderson [1901] 1 QB 608 (rejection of off-specification goods) are sometimes cited.
His most high-profile civil case arose from fraudulent activities on the Lloyd's insurance market, which caught the attention of the press. Lloyd's underwriter Percy George Calvert Burnand induced several wealthy friends and relations to join his syndicate as "Names", on the basis that he would do all of the work, including choosing which risks to write, in return for a share of the profit. This was a perfectly normal arrangement at Lloyd's, but open to abuse. Calvert signed his Names up to guarantee insurance policies which secured repayment of loans taken out by a travel agency in which he had a financial interest. When the agency failed and claims were made on the polciies, the Names disclaimed liability on the basis that Burnand had exceeded his authority. Sympathetic to the plight of these exploited gentlemen, Bigham accepted the argument and dismissed the claim: [1903] 2 KB 399. A Court of Appeal including two former Commercial Judges (Collins and Mathew) heartily disagreed, with Mathew observing that "it would be fatal for the transactions of mercantile business" if insurers could avoid their obligations so easily: [1904] 2 KB 10.
Bigham in retirement, on his way to the ‘Titanic’ inquiry, with his eldest son, Charles, the future 2nd Viscount Mersey. The photograph captures none of the alleged ill-health which had been the public reason for Bigham’s abrupt departure from the Bench two years previously.
In February 1909, John Gorell Barnes, whose health had been delicate since he had broken down from overwork in the early 1890's, retired as President of the Probate, Divorce & Admiralty Division. Bigham was named as his surprise replacement. (Bigham was replaced on the King's Bench by his own former pupil, J.A. Hamilton, whose judicial reputation would ultimately far eclipse Bigham's.) The move was a promotion (the President was an ex officio member of the Court of Appeal, although, in the event, Bigham hardly sat there during his short tenure)), and no-one could question Bigham's fitness for the Admiralty side of the Division's work. But the President had to shoulder a good share of the divorce business too. Bigham knew nothing at all about divorce law, and the notion that he would be keen to learn in his late sixties seemed implausible. Bigham's surprise appointment was followed, a little over a year later, by his surprise resignation, ostensibly on health grounds. He was elevated to the peerage as Lord Mersey, and replaced by Solicitor General, Sir Samuel Evans. (Some wit who considered Bigham big-headed affected surprise that the new Lord had not taken the whole of the Atlantic as his title. Bigham joked back that he had left that for F E Smith, QC, MP, and fellow-Liverpudlian. Smith actually chose to become Lord Birkenhead when he was appointed Lord Chancellor in 1919.) Although Bigham claimed in his farewell address that he was tired out after forty years in the law, the legal press did not detect any signs of infirmity, and was deeply suspicious about the whole episode. Unsurprisingly, given Bigham's poor relations with the solicitors profession, The 'Solicitors' Journal' led the conspiracy theorists. The general belief was that Bigham was repelled by divorce work, but rather attracted by the idea of a peerage; that Prime Minister Asquith wanted a new Solicitor General; that Evans wanted to be a Judge; and that an accommodation mutually acceptable to all three parties had been arrived at. According to this theory, Bigham's alleged illness was merely a pretext for awarding him a full pension on compassionate grounds of “permanent infirmity” (he had not served the statutory fifteen year term which automatically triggered full pension rights).
Bigham finally slowed down in his eighties: a trip to the park in the 1920’s.
Whether or not this is correct, it is undoubtedly true that Bigham in retirement was remarkably busy for someone who was supposed to be too exhausted and ill to work. In 1912, he shot to public prominence as Chair of the inquiry into the loss of the 'Titanic', making some important recommendations about safety at sea. (Bigham’s proposal that ships should carry lifeboats sufficient for everyone on board may seem obvious enough today, but was regarded as revolutionary by the early 20th Century merchant marine. There was a prevailing theory that modern passenger steamers did not sink, and that the main function of lifeboats was to transfer passengers to another vessel in the event of mechanical breakdown.)
On the back of this experience, he presided over an international maritime safety conference in 1913 and chaired several other major wreck inquiries, including that into the sinking of the 'Lusitania' during the Great War. Also during the War, he was recalled to judicial duties to sit on Privy Council appeals in prize cases from 1914-1916. And Bigham's work was still not done: he was back on the Bench after the War, helping the Courts to clear a backlog of litigation (he even agreed to hear some divorce cases). Increasingly affected by deafness, he finally entered proper retirement some time around 1921.
Bigham's pastimes were primarily social, and he dined in Middle Temple until near the end of his life. He was also a theatre buff, and, in retirement, he became a devotee of the works of Stendahl.
Bigham's wife, Georgina, died in 1925. They had been married for more than fifty years, and had two sons. Viscount Mersey himself, as he had become in 1916, died on 3rd September 1929.