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Atkin, James Richard, Baron Atkinlocked

(1867–1944)
  • Geoffrey Lewis

James Richard Atkin, Baron Atkin (1867–1944)

by Sir Oswald Birley, 1933

Estate of the Artist / by permission of the Masters of the Bench of the Honourable Society of Gray's Inn. Photograph: Photographic Survey, Courtauld Institute of Art, London

Atkin, James Richard, Baron Atkin (1867–1944), judge, was born at 6 Tank Street, North Quay, Brisbane, Queensland, Australia, on 28 November 1867, the eldest son of Robert Travers Atkin (1841–1872) of Fernhill, Kilgariff, co. Cork, and his wife, Mary Elizabeth (b. 1842). Atkin's mother was the daughter of Laurence Ruck of Newington, Kent, and his wife, Mary Anne, whose family home was in Merioneth.

Family and education

Atkin's parents were married in 1864 and within months they sailed for Australia to make their life on a sheep-farming station in Queensland. But Atkin's father damaged his chest in a fall from a horse and after about eighteen months in the country they moved to Brisbane where he became a newspaper editor and a member of the Queensland legislative assembly. After much bad health Atkin's father died at the age of thirty in 1872. The Hibernian Society of Queensland erected a monument to his memory and untimely death at Sandgate, near Brisbane.

A year before her husband's death, Atkin's mother had brought her three sons back to her own family home in Merioneth. Mother and sons made their own home in Wales and Atkin grew up from the age of three and a half in Pantlludw, his grandparents' much loved house above the Dovey River. He always thought of himself as a Welshman. The influence of his grandmother was perhaps the most important and durable of Atkin's early life. In a short memoir which he wrote he described her powerful yet sympathetic personality, her gracious presence, and her detestation of all pretence in rank or religion. Atkin inherited her pet aversion, the sanctimonious Calvinist, and he described her as the greatest woman he ever met.

In 1876 at the age of nine Atkin went away to a preparatory school in Bangor and then to Christ College, Brecon. From there he won a classical demyship to Magdalen College, Oxford, where he went at the age of seventeen to read classical moderations and literae humaniores; he was placed in the second class in each. As well as narrowly missing a double first he also just failed to get a blue for tennis, a game which he continued to enjoy until well into his sixties.

Practice at the bar and marriage

Atkin had largely supported himself through his education, winning scholarships to Brecon and to Magdalen, and finally the Arden scholarship to Gray's Inn. He chose the bar as his profession because a cousin of his grandfather, Edwyn Jones, had a substantial practice as a barrister. Jones helped the young Atkin in his earliest days at the bar and, because he was a bencher at Gray's Inn, it was to that inn that Atkin was admitted in 1887. At that time the inn was at a low ebb and its subsequent revival in fortune and prestige owed more to Atkin and his contemporary F. E. Smith than to anyone else. Atkin loved the institutions of which he had been a member, but none as much as Gray's Inn. He was treasurer three times and had the pleasure of calling his own daughter Rosaline to the bar there.

Atkin was called in 1891, and set about choosing chambers for his pupillage by walking round the courts to listen to the advocates. One afternoon he came across a tall bearded junior waving his arms at a judge who was sitting listening benevolently, unperturbed by the display. It was clear that the junior had complete mastery of the matter in hand. This was Thomas Scrutton whose pupil he became and who later was his lifelong friend and colleague on the bench. Conditions in chambers were austere and the pupils, among them as Atkin's contemporaries the future Lord Wright and the future Lord Justice Mackinnon, toiled at a table which had come out of one of Scrutton's father's ships.

As was then usual at the bar, Atkin's early years of practice were difficult and work was hard to come by. His luck turned when he was introduced by William Hemmant, a friend of his father's Queensland days, to the official assignee of the stock exchange. The last decade of the nineteenth century was one of feverish speculation on the exchange and there was much complicated work for the official assignee in unravelling the affairs of failed brokerage firms. Atkin was briefed in a series of actions arising out of these difficulties. His reputation was then becoming established and his practice broadened into every sort of commercial dispute as well as some of what were then described as ‘fashionable’ cases. He took silk in 1906 at the young age of thirty-nine. In an age of celebrated and histrionic jury advocates, Atkin's style was one of more gentle but resourceful persuasion, the angler, rather than the tragedian, who could cast flies over the judges.

Atkin had become a frequent visitor to Hemmant's house in Sevenoaks and there met his daughter Lucy Elizabeth. The couple were quickly engaged but because of Atkin's modest means they were not able to marry until 1893, five years after their engagement. Lizzie Atkin was born in Brisbane in 1867 within twelve days and 100 yards of her future husband. It was a happy marriage. Lizzie was a splendid hostess and good amateur pianist and, like Atkin's mother and grandmother, a strong character of decided views and some presence. There were eight children of the marriage, six girls and two boys. The elder boy, Dickie, was killed in France in 1917 after a school career at Winchester College full of promise. Lizzie Atkin died in 1939.

Law lord

Atkin was appointed to the High Court bench in 1913. In 1919 he was promoted to the Court of Appeal, and in 1928 he was appointed to the final Court of Appeal as a lord of appeal-in-ordinary, with the customary life peerage. All accounts agree that Atkin was an instant success as a judge. Courteous and quick, he said little during the hearing, but when he did speak his interventions were penetrating and sometimes devastating. He enjoyed his time as a judge of first instance best. There he was in charge of his own court and did not have colleagues to contend with who might have different views. But it is surprising that he liked the Court of Appeal least. He regarded the mainly commercial business as dull. This is hard to credit. For he was the junior member of what was perhaps the best-equipped division of the Court of Appeal of any age: lords justices Bankes, Scrutton, and Atkin. This awesome trio cut through their business with great rapidity, and delivered judgments of precision and brevity which have stood the test of time. Scrutton and Atkin constantly disagreed. The arbiter was Bankes who presided with the air of a country gentleman. As Lord Denning put it, 'they fought for the body of Bankes' (Lewis, 93).

The long struggle for mastery in the Court of Appeal never diminished Atkin's respect and affection for Sir Thomas Scrutton. He knew the passion for justice which was well concealed beneath that rugged exterior and irascible manner. But it was perhaps the nine-year experience with Scrutton which left Atkin with the name for being unpersuadable behind the scenes in the House of Lords, in the gap between the hearing and judgment, when the judges are comparing their views and attempting to align them.

Atkin is best remembered as an appellate judge for his speech in Donoghue <i>v.</i> Stevenson (1932) and for his lone dissent in Liversidge <i>v.</i> Anderson (1941). In Donoghue <i>v.</i> Stevenson (1931) a young woman claimed compensation from the manufacturer of a bottle of ginger beer which she said she had drunk while visiting a café, and then discovered contained the decomposing remains of a snail. A direct claim by the consumer against the manufacturer had never before succeeded. By a majority consisting of Atkin and two Scots, lords Thankerton and Macmillan, the appellate committee of the House of Lords decided that the claim could be maintained. Atkin considered that no more important problem had ever occupied the house; and he chose the case to express a conception of civil liability which related the parable of the good Samaritan to the law. Atkin's question, 'who in law is my neighbour?' ([1932] AC 580), has become one of the most celebrated judicial expressions ever formulated. For some time before this landmark judgment he had been developing in his mind the idea that British law had always necessarily ingrained in it a moral teaching, and he said as much in a lecture which he gave six months before the decision in the case.

The idea of law is that the obligations of a man are to keep his word. If he swears to his neighbour, he is not to disappoint him. In other words, he is to keep his contracts … He is not to injure his neighbour by acts of negligence; and that certainly covers a very large field of law. I doubt whether the whole of the law of tort could not be comprised in the golden maxim to do unto your neighbour as you would that he should do unto you.

Journal of the Society of Public Teachers of Law, 1932, 30

Liversidge <i>v.</i> Anderson was a very different case. Liversidge had been detained under defence regulation 18B during the Second World War. The regulation provided for detention without trial and the home secretary declined to give reasons. The sole question was whether he had to do so. Atkin dissented alone in his view that the wording of the regulation required reasons to be given—a view which has since been vindicated. He did not disagree that in the extremities of war the government might take power to lock up people without trial. But the case was not about the propriety of the regulations. It was about the meaning of words, and his argument was that they should bear their normal meaning in time of war as well as in peace. 'In this country, amid the clash of arms', he said, 'the laws are not silent' ([1942] AC 244). The speech employed language which was strong and emotive, and included a quotation from Through the Looking Glass designed to pour scorn on the opposing view. It gave offence in some quarters. Among the offended were Lord Simon, the lord chancellor, and Lord Maugham who had presided at the hearing. Maugham was foolish enough to write to The Times. But Atkin declined to have anything to do with the brouhaha, saying simply that he did not intend to discuss publicly any judgment once it had been delivered.

Atkin's determination not to involve himself in public controversy in Liversidge <i>v.</i> Anderson was characteristic. There was a complete absence of show in his make-up and he believed that a judge's public life should be confined to the courtroom. Although his memory is celebrated for these two decisions, his reputation deserves to be more broadly based. There was a humane spirit which ran through his work and which was founded on his lifelong Christian beliefs, nowhere more evident than in an important line of cases on the Workmen's Compensation Acts for which he justly earned the name of being an employee's judge. Atkin was a strong judge. He decided cases early—too early for some tastes. He wrote a terse and forceful prose occasionally lit by a vivid aphorism. He believed not only that the law should be morally based but also that it should be a sensible thing; and he was always testing his views against the expectations of the plain man. He had a clear idea of where the law should be going, but he had an unvarying respect for the development of judge-made law through precedent. He took no liberties with the decisions of earlier generations of judges. In Lord Denning's phrase he was 'a progressive within the law'.

Atkin was elected to an honorary fellowship at his own college, Magdalen, in 1924, and FBA in 1938. He received honorary degrees from the universities of Oxford in 1931, Cambridge in 1936, Reading in 1938, and London in 1939. He died of bronchitis on 25 June 1944 at Craig-y-don, Aberdyfi, and was buried in Aberdyfi.

Sources

  • private information (2004) [family]
  • private information (2004) [Lord Denning]
  • Gray's Inn, London, Atkin MSS
  • G. Lewis, Lord Atkin (1983)

Archives

  • Gray's Inn, London, MSS
  • Parl. Arch., MSS
  • priv. coll., MSS

Likenesses

  • O. Birley, oils, 1933, Gray's Inn, London [see illus.]
  • pencil drawing, priv. coll.

Wealth at Death

£9113 0s. 6d.: probate, 14 Sept 1944, CGPLA Eng. & Wales

, 63 vols. (1885–1900), suppl., 3 vols. (1901); repr. in 22 vols. (1908–9); 10 further suppls. (1912–96); (1993)
(1920–)