Michael Payton speech 2018

 

I suspect we may not all know how the various bits of this evening fit together.  The common theme self-evidently is Michael Mustill.

First, St John's College.  Michael was a John's man.  The connection was probably his House Master at Oundle, himself a John's man, whose son Nigel (now Professor) Harris had asked Michael, then aged only 16, to be godfather to their baby son.  The Harris family were plainly endeared to Michael, as well they might be.  His House Master recounted investigating a light late at night and discovering Michael seated on the lavatory, immersed in a book of equations.  Michael won a Mathematics scholarship to Cambridge – as to which Michael with his customary self-deprecation said his prowess at maths was largely due to first rate teaching at Oundle, rather than any natural aptitude on his part for the subject.  So, he switched to law.  He found the law as taught in those days fairly boring, but he revelled in his years at Cambridge: his letters home are full of descriptions of the beauty of the place, the lectures he attended and, of course, conversations and parties (the two inextricably mixed as far as Michael was concerned).  It was a time when Michael for the first time experienced a freedom, both physical and mental as a war-time schoolboy entirely dependent on scholarships for his education. 

Next, the International Dispute Resolution Centre, who or what is that?  Well, 20 years or so ago it was a widely held view amongst commercial arbitration participants that there was a real need for proper premises, purpose built, in which to hold Arbitrations and, if London didn't have that, then it would lose out on international arbitration work, in particular to Paris.  So, in 2000, a number of commercial lawyers, plus the City of London Corporation being similarly minded, put up a fair sum of money to create the IDRC.  Our premises are in Fleet Street, close to both the Law Courts and the Temple.  The Chairman then was Bob Alexander, one of the greatest advocates of our day, and the CEO then and now is Damian Hickman, here tonight.  Bob was succeeded as Chairman by Bob Ayling, also here tonight, who amongst other things was Chairman of British Airways, and who was awarded a CBE in the recent Honour's List.  I succeeded him as Chairman.  Other Directors here this evening are Johnny Veeder, Bruce Harris and Adrian Winstanley.  The IDRC business has quadrupled during its life, and has been transformed thanks largely to the energy and vision of Damian.  So we are leaders in what we do.  And amongst other things this means we have the money to sponsor this prize.

So why are the IDRC doing that, what is its connection with Michael?  Well, after Michael retired from the Bench he took up commercial arbitration.  With his status and reputation Michael was much sought after.  He sat regularly in the IDRC.  Always very witty, very chatty, and ready to engage in animated conversation about whatever topic was on his mind (albeit never himself), his unmistakable Yorkshire accent lit up the coffee and lunch breaks at the IDRC.  Michael never failed to talk to the staff and take a genuine interest in them.  So, all in all, that's why the IDRC loved Michael. 

Although Michael was as brilliant an Arbitrator as he was a Judge, Mediation was I think not his natural vocation.  The discipline of not expressing his own view unless both parties agreed was altogether too much for him.  CEDR, who share our premises and are London's leading Mediation body refused to accredit me as a Mediator because I was too opinionated – Michael I think was wise enough not to apply!

The most recent link to be forged with Michael is our winner, Daniel Judd.  Michael was passionate about helping young people on their way, particularly in the law.  So when he was invited a few years ago to return to Cambridge as a Goodhart professor, it couldn't have come at a better time, coinciding as it did with his son Tom's first year here.  Michael had no less than 16 godchildren, who felt the strength of his interest in them, and the advice and support which Michael uniquely provided.  Michael, I have no doubt, would strongly approve of a "wealthy City institution" as he would see the IDRC, giving a large sum of money (as he would regard it) to Daniel, to help him on his way. 

So, a bit about Daniel:  Daniel is a star – already.  He starts his pupillage as a Barrister at South Square Chambers, in Gray's Inn, in October.  Daniel modestly – and Michael would approve of this – describes his CV as just a series of achievements.  But impressive they are.  During the Bar Professional Training Course he won the Holt Award, the Victoria League Residential Scholarship, and the City Law School Post Graduate Scholarship.  Prior to that, whilst at McGill University in Montreal he was also awarded a clutch of prizes.  In his BA Jurisprudence with Law Studies in Europe at Jesus College (Oxford!) he achieved a First Class degree, ranked equal third in the entire university.  Whilst there he won no less than 11 scholarships and prizes.  I like to think that Daniel is just the sort of person about whom Michael would exude enthusiasm, and genuinely so.

Next, the Judges who kindly read through all the papers, and chose Daniel as their winner:  One of the Panel is with us tonight: Sir Richard Aikens.  Our thanks go to him and to the other members of the panel being Nicholas Phillips (who naturally is walking in Bulgaria); Professor Zac Douglas; Lord Dyson; Sir Jack Beatson; Professor Gabrielle Kaufmann-Kohler; Professor Rusty Park; and Stewart Boyd QC.  These in turn were ably supported by the two Student Markers, Eamon Butler (here tonight) and Alice Nagel who did the heavy work in reading, shortlisting and summarising the entries.  They worked (and were chosen) under the supervision of the law dons at St John's College, especially Professor Christine Gray, together with Dr Albertina Albors-Lorens (both here tonight).  Many thanks to you also.  So, Daniel, that is just about as glittering an array of legal luminaries who awarded you this prize as you might wish to add to your already impressive CV. 

We must also thank St John's for so kindly providing their facilities and indeed for agreeing to what is effectively a long term joint venture between them and the IDRC.  Which brings me to the illustrious Master, Sir Christopher Dobson, who was awarded a Knights Bachelor also in the Queens' Birthday Honours List earlier this month.  The honour is in recognition of his ground breaking research into Alzheimer's Disease.  Sir Christopher is one of the world's leading scientists working at the interface of the physical and biological sciences.  In 2013 he co-founded the Cambridge Centre for Misfolding Diseases.  At the Centre they analyse the origins of neuro-degeneration conditions such as Alzheimer's and Parkinson's diseases which occur because of "misfolded" protein molecules.  The experimental work by Sir Christopher and his team has led to some remarkable breakthroughs in this field.  Breakthroughs, dare I say, from which some of us round this table may well ultimately benefit.  So, many congratulations Master on such a distinguished honour.  And thanks also to our co-host tonight, Dr Mary Dobson, she specialises in the history of medicine and has written books on infectious diseases and plagues.

 

Next, Michael Mustill himself.  How good that Caroline Mustill is with us this evening. 

As this is a legal prize, I start with Michael and the law.  Six years ago the London Shipping Law Centre (of which Michael had been President for 30 years) presented him with a leather bound selection, note the word selection, of his reported Judgments.  These numbered 204 House of Lords and Privy Council decisions; 158 Court of Appeal Judgments; and 66 First Instance Judgments – so many of them of seminal importance. 

So, under the cover of sheer weight of numbers, I hope I may be permitted to pick just two Judgments, ones which impacted the insurance practice of Clyde & Co (of which I am also Chairman).

The first, Charter Re v Fagan – House of Lords 1996 - because it is such a good illustration of Michael's approach to the law.  As Stewart Boyd said at the Lord Mustill Inaugural Lecture at the London Shipping Law Centre two weeks ago, Michael never assumed the answer to any particular problem lay in arguing from the propositions decided by the reported cases.  His instinct was to treat the immediate question as part of a wider set of questions to which an answer could only be found by resorting to norms other than those derived from legal precedents.  This would in turn lead to legal norms of more general application and consistency in deciding cases in different but related fields of law. 

In, Charter Re v Fagan, the issue seemed pretty straightforward.  The Reinsurers were only obliged to indemnify Charter Re for the sums actually paid by them in settlement of underlying losses or liabilities.  The problem was that although the Reassured was plainly liable to pay such losses, they had not done so, being insolvent.

Michael put it this way.  It was plain what ought to happen, that Charter Re should recover their money.  So how was the phrase "actually paid" to be circumnavigated?  Applying the approach summarised by Stewart Boyd, Michael was more than up to that.  He said, "I am now satisfied that the purpose of the "the sum actually paid" provision is not to impose an additional condition precedent in relation to the disbursement of funds, but to emphasise that it is the ultimate outcome of the net loss calculation which determines the final liability of the syndicates under the policy.  In this context, "actually" means "in the event when finally ascertained" and "paid" means "exposed to liability as a result of the loss insured".  As he fairly added, these are far from the ordinary meaning of the words.  The phrase "actually paid" he found to mean nothing of the kind.  One might say, here was Humpty Dumpty at work, with the words meaning just what Michael chose them to mean, neither more nor less – but, justice was done, what ought to happen did happen.  Charter got their money which in turn enabled them to pay the claims coming in to them or, at least, some of them.  And we practitioners had quickly to change our advice!

My other particular favourite – mainly because it was a fun case - is the "Salem" (1981) in which Clyde & Co, represented the marine Insurers.  We lost before Michael at first instance, but he was overturned in the Court of Appeal with whom the House of Lords agreed.  It was a scuttler: we used to have quite a few in those days although now, with modern surveillance techniques, they happen only infrequently - sadly.  Michael gave a wonderful summary of the facts, which I would commend.  The conspirators loaded 200,000 tonnes of crude oil in the Arabian Gulf, for carriage to Europe.  This was in 1979, when South Africa was subject to sanctions which meant it couldn't get the oil it wanted.  So the conspirators double sold the oil, one (illegal) purchaser being the South African Strategic Fuel Fund, the second (innocent) purchaser, Shell.  The vessel discharged her cargo in Durban and then on her way to Europe she sank in mysterious circumstances off the coast of Senegal.  The Master and crew were fine, of course.  They came ashore at Freetown, rather endearingly smartly dressed and clutching their bags of duty free.  In those days the London insurance market used a wonderful fraud investigator called Bob Bishop.  I remember the day he rang to say, we've cracked it: the Master booked himself a room in the best hotel in Freetown, before the ship sailed from the Gulf.  And we had – but Shell had paid, and only some of their money was recovered from the crooks.  The issue as between Shell and the Underwriters we represented was had there been a loss proximately caused by a taking at sea, an insured peril.  Michael found there was, but luckily for us, the senior Courts disagreed.  Who is to say who was right – anyway, it was a fascinating case and, even if found by the upper Courts to be wrong, a very readable Judgment at first instance from Michael.

As to Michael the man – well, he was exceptional in every way.  Stories about him are legion and set end to end would occupy almost as much space as his selected Judgments.  Many tales were told at the Mustill Inaugural Lecture at The London Shipping Law Centre, two weeks ago.  But what I have chosen is a story about Michael by Michael, under the enigmatic heading, "what happened to the banana".  It's about a visit to the Sudan, 50 years ago, to handle an Arbitration.  This is how Michael filled in time.

The photograph of Geoffrey Lewis, Osman Khalid, and me is forty years old, yet it seems like only yesterday that we went to Omdurman market to choose the Arab gear. The mind still retains, from all those years ago, hundreds of bright images of our fascinating visit to Sudan; but the brightest of all are the recollections of a trip to Dinder National Park, held together by Geoffrey, as always the cement in any mixed group. We were pretty mixed, actually, including an admirer of Arab culture (myself), and Michael Kerr, who had all the Berliner's drive, liveliness of spirit and impatience with the unsatisfactory, which from his viewpoint meant the Arab world in all its aspects. This quite soon manifested itself during our railway journey to Dinder, along the White Nile. The railway itself was a wonder of the world, totally unchanged since the British started to run the Sudan. ln the mahogany dining car, rattling along at L1 m.p.h , the menu had been taught to the great-grandfather of the chef, perhaps by Lord Kitchener's cook: omelette, followed by cold roast lamb and boiled potatoes, and then chocolate pudding. The timetable was worth a visit to Sudan in itself. Not just the (target) times for trains, but the anatomy of the trains themselves. Each item of rolling stock was allotted a "value", and when the trains were assembled the values of all its components were totted-up, to make sure that they did not exceed the "value" of the locomotive. Also, the timetable was most insistent that every locomotive should have a stated rest-period every day. lt conjured up a charming image of the engine, lying under a palm tree for a snooze, with its wheels in the air.

 

Dinder Junction itself was a caravanserai, with thronging crowds which awaited patiently the trains as they arrived, seemingly at random, and left equally at random, with their headlamps probing the desert night. This was too tame for Geoffrey Lewis and Michael Kerr who went off to Do Something, leaving me to Do Nothing Much, as I often did, and instead go to sleep on the concrete platform. Theirs was the spirit, and mine was not the spirit, which made the Empire what it was. And it was the same spirit which enabled them, with me bleating in the background, when we discovered strangers in our (supposedly) reserved sleeping compartment, simply to eject them from the train, luggage and all.

 

But the rail journey was only a prelude to the most memorable day of my life. Dressed for a safari we piled into a jeep and drove to the plains where the animals were to be found. Not upper-class animals, like lions and tigers, but warthogs, trotting along like Piglet, with their bottle-brush tails in the air; and the ruder sort of primates; and especially the giraffes, with their strange gait, exquisitely mild and peaceful. And above all the deer and other horned animals, thousands upon thousands of them, making their way gently across the savannah, behind them the blue of the hills and closer at hand the patches of scarlet flame where the brush had intermittently caught fire. There were only half-a-dozen visitors in an area the size of Yorkshire. lt was like the dawn of Creation.

 

But what about the banana? On one of the legs of our journeys we had stopped at a Government rest house. Though simple, it provided everything which we needed---except food. The larder contained nothing, except for one banana. I was recovering from some ailment, and craved rest. Geoffrey Lewis and Michael Kerr did not crave rest, and went off together to Do Something energetic, as was their practice, which on this occasion was to set up our onward transportation. On their return, flourishing documents which later proved to have been issued by a False Stationmaster, who was not whom he pretended to be, entitling our party to travel on a train which did not exist, they found me asleep, but did not find the banana. Their comments were uncompromising; but were they fair?  What had actually happened to the banana?  I shall never know.

 

This I think captures the essence of Michael.

Michael would not want it said that his death marks the passing of an era: rather, as I am sure Michael would say, youth, as exemplified this evening by Daniel Judd, marks the continuation into the next era. 

So, may I ask each of you to stand and raise your glass to Michael, and to wish our prize winner, Daniel Judd, well on his journey through life – Michael and Daniel.