Famously described by the legal colossus Karl N. Llewellyn as “the greatest English-speaking commercial judge of a century” and, even more gratifyingly, as “a greater commercial judge than Mansfield”, the absence of any full-length biography of Thomas E. Scrutton (1856–1934) is possibly surprising. David Foxton has repaired the omission with a comprehensive account of Scrutton's life and cases.

Lord Denning once averred that he “always liked to find, if I can, authority from Scrutton, L.J., who was one of the greatest judges of my time” (Kemshead v British Transport Commission [1958] 1 W.L.R. 173, 174 (Note)). As an undergraduate in the 1960s, I can clearly recall the awe in which any decision from a Court of Appeal composed of the triumvirate of Bankes, Atkin and Scrutton was invariably held by the more discerning lecturers. Not so long ago Mummery L.J. described this formidable trio as “the greatest constitution of the Court of Appeal in the 20th century” (Imageview Management Ltd. v Jack [2009] 1 Lloyd's Rep. 436 at [64]). Today, Scrutton's reputation is rather on the wane. Lawyers will be aware of Scrutton on Charterparties, of which David Foxton is one of the current editors. They may recall that Scrutton was just about the last judge to wear a full beard, and that his jagged character – The Times described him as a “none-too-genial judge” upon his elevation to the Court of Appeal – drew him into highly publicised spats with Lord Hewart and, more sensationally, with that secretive ladies’ man and imprudent investor, McCardie J. But apart from commercial and maritime lawyers, who will still relish Scrutton's forthright, incisive statements of legal principle and tireless invocation of the necessity for the law to mirror commercial realities, most lawyers’ familiarity with Scrutton is in likelihood confined to a dim memory that he succumbed to Tom Denning's stonyhearted wrangling in L'Estrange v F. Graucob Ltd. [1934] 2 K.B. 394, that he delivered an important judgment on foreign confiscatory legislation in Luther v Sagor [1921] 3 K.B. 532, and that he was the first-instance judge in such noteworthy cases as Lloyd v Grace Smith [1912] A.C. 716 and Tolley v Fry [1931] A.C. 333. Students of statutory interpretation will still savour Scrutton's bewailing that he could not impose a costs order on the draughtsmen of the Rent Restriction Acts, and the members of the legislature who had passed them, whom he blamed for the obscurity of the legislation (Roe v Russell [1928] 2 K.B. 117, 130). The more elderly students of criminal evidence will recall that Scrutton presided over the trial of George Joseph Smith (of ‘Brides in the Bath’ infamy), a cause célèbre in which he both delivered the most devastating summing-up and, according to his daughter, adamantly refused to distribute tickets to permit representatives of the beau monde to sit on the bench alongside him during this sensational trial, as had not infrequently been past judicial custom (Trial of George Joseph Smith, Eric R. Watson (ed.) (William Hodge & Co. 1922)). He also tried the first criminal case to proceed on appeal to the House of Lords (R v Ball (1920) 5 Cr. App. R. 238, [1911] A.C. 47). Indeed, thanks to Foxton's researches, the reader is reminded that, as a first-instance judge, between 1910 and 1916, Scrutton tried – and, evidently, enjoyed trying – a good number of criminal cases, developing along the way an irrefragable belief in the salutary, deterrent properties of the cat o’ nine tails.

Scrutton was born into a shipping milieu but chose the Bar in preference to the family firm. He studied first at UCL and later at Cambridge where, in addition to bicycling and debating, in 1878 he was a founding member of the Moral Sciences Club, a high-minded philosophical society which flourishes to this day, even to the extent of hosting the first meeting of the Club in his rooms in Trinity. (In fact, the Club was probably first founded in 1874, but lapsed and was soon afterwards revived by Alfred Caldecott and seven friends, including Scrutton.) He had the dubious distinction of almost persuading the Cambridge University Union Society library not to carry the brazen works of Walt Whitman but, on firmer ground, of correctly describing vermouth as “beastly stuff”. He also found time to teach international law to undergraduates reading for the History tripos at Newnham College. Although he was the winner of no fewer than four Yorke Prizes, composing essays on copyright, the influence of Roman law on the law of England, the laws relating to commons and enclosures, and restraints on the alienation and settlement of land, Scrutton's contemporary, the physicist and second wrangler Sir Joseph John Thompson, was claimed to have explained why Scrutton never won a Trinity prize fellowship – assuming, most improbably, that he had ever coveted one: “a clever man, and of immense industry, but – no originality”. How often has one heard that? Original or no, Scrutton was to leave his mark on the law as a compelling advocate in commercial causes, as an exacting, if not forbidding and asperous judge, and as a prolific author of legal treatises, one of which remains in print to this day. And unlike J.J. Thompson, the accredited discoverer of the electron, underlining his role as a personality of the day, Scrutton's caricature, done to a tee by Ape, appeared in Vanity Fair under the title ‘Copyright’ in 1911.

After call, Scrutton did not have long to wait for his first brief: a mere nine days later he appeared alongside a star cast composed of Charles Russell (later, Lord Russell of Killowen) and Robert Finlay (later, Lord Finlay L.C.) in a defamation action on behalf of his father. Scrutton's early professional years, however, were mostly notable for the torrent of books that flowed from his pen, some that had begun life as prize essays – the book on charterparties and bills of exchange, a textbook of mercantile law, an influential work on copyright, a commentary on the Merchant Shipping Act and a consulting editorship of the multi-volume Commercial Laws of the World. Having served as a puisne judge from 1910 until 1916, Scrutton then spent 18 years sitting in the Court of Appeal. Not for the first time, Foxton speculates on the reason why Scrutton was passed over for the House of Lords. It was widely thought that the acerbic and overbearing manner with which he has frequently been credited had much to do with it. I can recall a volume of memoirs in which a barrister complained of appearing before Scrutton J., who, throughout the writer's arguments, could be heard muttering to himself, “Rubbish! Rubbish!”. Scrutton's petulance may not have been solely to blame, however, given the meagre number of appointments made during his period in the Court of Appeal. Nevertheless, memories of Scrutton's rough treatment of McCardie J. endure. In Liebigs Extract of Meat Co. Ltd. v Mersey Docks and Harbour Board [1918] 2 K.B. 381, 403, for example, he declared: “I have with regret come to the conclusion that this summing-up is so inaccurate in its statement of liability or duty, and so inadequate in its statement of the considerations by which it must be determined whether there has been a breach of duty …”. More brutally, in the so-called “Helen of Troy” case, Place v Searle, first tried in Cambridge, in an account which I prefer to that selected by the author, Scrutton said of McCardie J.'s first-instance judgment: “The learned judge tells us that he is a student of sociology. I do not know what that word means. It sounds nasty. In my view, the less a learned judge knows about sociology, the better.” Such discordant episodes, along with other like incidents, led to disapproving comment in the newspapers, to unavailing placatory interventions by the Master of the Rolls and by the Lord Chancellor, and to the matter even being raised before Parliament.

Foxton painstakingly chronicles Scrutton's legal career in all its various guises, thematically. He recounts Scrutton's participation in rather conformist Liberal politics, as well as incorporating occasional glimpses of the private man – a feeble limerick about a young lady of Pinner, the grief nobly borne of losing a son in the Great War, Scrutton's comment after studying Archbold for the first time preparatory to sitting in criminal cases that he “was disappointed with the love interest in it”, etc. – much of which emerges from the family papers to which the author has had access or from legal memoirs of the period. Overall, Scrutton comes across as a forceful personality of strong convictions, fearsome intellect, prodigious energy and total self-belief, even in an age when the judiciary was rarely overcome with unassuming timidity. As befitted a lifelong Victorian atheist, one of Scrutton's sons entered holy orders and, contrary to his express written instructions, Scrutton received the Christian rites of burial in Norwich.

The author himself acknowledges in his preface the problem in writing a biography of a judge, even a great judge, who died as long ago as 1934: “[t]he task of the legal biographer is generally a forlorn one. The lives of judges are not of great interest to non-lawyers …” (p. x). Whilst admirers of Scrutton, amongst whom this reviewer can be counted, have reason to be grateful to David Foxton for producing a close and rigorous assessment of Scrutton's life, one cannot but reflect that such an appreciation ought to have appeared more than half a century sooner. The legal battles in which Scrutton participated, some of them more than a century ago, scarcely stir the blood today, just as some of the judge's more deeply felt views – such as his implacable dislike for the Hague Rules, which is mentioned but for obvious reasons not given anything like the prominence it would have had in Scrutton's Weltanschauung – would have few, if any, contemporary resonances. However, if as Thomas Carlyle has it, “[t]he History of the world is but the Biography of great men” (On Heroes and Hero-Worship and the Heroic in History (1841) Lecture I), Scrutton's story merits the telling. The Life of Thomas E. Scrutton is well-written, thoroughly researched and, apart from a number of typographical blemishes – including the name of Temperley (p. 148), another maritime-law deity – can be most warmly commended.