Richard Henn Collins's legal background in local government and railways litigation made him a slightly unlikely Commercial Court Judge. And, in the event, he was not called upon to make much contribution before he passed onwards and upwards to the Court of Appeal. But, although his time in the Court was brief, it enabled him to later claim two milestones, as first Commercial Judge to become Master of the Rolls, and then as first to become a Lord of Appeal in Ordinary. In both respects, he forged a path which other Commercial Judges would follow after him.
In keeping with the precedent for Irish-born Commercial Judges set by J.C. Mathew and C. A. Russell, Collins was a Dubliner. His father, Stephen, was a successful QC at the Irish Bar who died when Richard was only a year old. (Stephen’s pupils included James Shaw Willes, the great commercial and common law Judge of the mid-19th Century. Willes was in turn J.C. Mathew’s pupil-master.) Collins was academically gifted. He studied classics and moral sciences at Trinity College, Dublin, where Russell and Mathew had also been students. He did well in his exams, winning a scholarship. But, like Russell, he left Trinity without completing his degree. Instead, he transferred to Downing College, Cambridge, where he again studied classics. By the time he graduated from Downing in 1865, he had already decided on a career at the English Bar, and had joined Middle Temple in 1862. He was called in 1867, and enlisted in the Northern Circuit to practice in the Courts in and around Liverpool and Manchester.
For all of his intellectual gifts, Collins made a slow start. After appearing as junior counsel in an election dispute case in 1869, he did not trouble the law reporters again until the mid-1870's. Although he was intelligent and hard-working, and had a thorough knowledge of the law, Collins was not a demonstrative advocate, and his style did not make much of an impression in the jury trials which were still normal even in civil cases: one commentator characterised his manner as "quiet, and even depressing".
But his reputation was boosted in 1876, when he became co-editor of 'Smith's Leading Cases'. This book, which expounded major principles of the law by way of notes and commentary on key cases, was one of the best-known and most widely-read law texts of the 19th Century. James Shaw Willes had been one of the previous editors, while Collins's successors included a young A.T. Denning. Being invited to edit the work was something of an honour, and it showed the regard in which Collins was held as a black-letter lawyer, if not yet as a trial advocate. From around the time that he took on the editorship, Collins began to make recurrent, although still infrequent, appearances in reported cases in a variety of fields, including sale of goods, bills of exchange, commercial agency, landlord and tenant, licensing, nuisance, and the jurisdiction of inferior courts. He once defended a demurrage claim in the Common Pleas (Marshall v Bolckow (1881) 6 QBD 231). But he lost that case, and he never became a shipping lawyer, and never became a regular shipping lawyer, although his last reported case as junior counsel turned on when a vessel became an arrived ship under a voyage charter: Allen v Coltart (1883) 11 QBD 782. By 1880, Collins was arguing a case on his own in the Court of Appeal against another future Commercial Judge, John Bigham (Royle v Busby (1880) 6 QBD 171, on the costs of executing a writ for the recovery of a judgment debt). Indeed, it was said that he first achieved real success in the Court of Appeal. In a Court where there was no jury, his lack of forensic display was less of a handicap, while the clarity and thoroughness with which he prepared and presented his arguments was a positive benefit.
Collins became a QC in 1883, at the same time as Bigham. Today, the ceremonials for the appointment of new Queen's Counsel last a day, with the public presentation of letters patent by the Lord Chancellor in Westminster Hall and ritual appearances before the Lord Chief Justice and other Judges in the Law Courts. The Victorians did things differently. Collins and Bigham were sworn in by the Lord Chancellor, Lord Loreburn, at his London home.
As a QC, Collins continued to have a relatively varied practice, but he concentrated increasingly on what eventually became his principal specialities: business litigation involving local authorities, and cases concerning the still relatively-new railways. (Collins was also instructed in litigation about the even more novel telephone network.) These fields straddled jurisdictions, and it was said that Collins was one of very few common law barristers who was comfortable appearing in the Chancery, although virtually all of his reported cases at first instance were in the Queen's Bench. From the mid-1880's, he appeared in a steady stream of reported cases, including half a dozen in the House of Lords and over fifty in the Court of Appeal. Most of them turned upon statutes and business transactions which were specific to their time, and left no lasting mark on the common law. But Hammond v Bussey (1887) 20 QBD 79 remains important in sale of goods law for establishing that a buyer of defective goods can recover from the seller costs reasonably incurred in defending a claim by a sub-buyer; and Salford v Lever [1891] 1 QB 168 was a key case in the development of the common law of bribery. (Collins lost Hammond but won Salford, although the scope of the Court of Appeal’s decision in the latter case was cut back a century later by the Privy Council in Mahesan v Malaysia Housing [1979] AC 374.)
One area of the law which Collins appears to have almost completely avoided was crime. He did not become a Recorder (a part-time judicial position, primarily and sometimes exclusively in crime), and so did not acquire any judicial experience while at the Bar. Nonetheless, his conspicuous success made elevation to the High Court a likely next step. He was duly appointed to the Queen's Bench in 1891, replacing Sir James Fitzjames Stephen, who had been in poor health for years, and had effectively been forced to resign by Lord Chancellor Halsbury. (Stephen's extensive extra-judicial writings were more distinguished than his performance on the Bench. His theories about the connection between law and morality foreshadowed the ideas of mid-20th Century Commercial Judge Patrick Devlin.) The legal press warmly endorsed the appointment. The 'Law Times' thought that no common law barrister had been more in demand in recent years, and that Collins had been "born with a judicial mind". Vigorous and hard-working, he quickly established himself as a clever and conscientious Judge, capable of dealing with all areas of the Division's work, including crime. In an early indication of his versatility, he was sent to the Probate, Divorce & Admiralty Division in mid-1891, only months into his judicial carereer, as cover for the Division's President, Sir Charles Butt, who was ill. Collins dealt well with the challenge, although he had no experience of either Admiralty or divorce litigation. By 1895, he had tried cases involving fisheries, gambling, landlord and tenant, licensing, nuisance, and tax, in addition to the local government and railways work with which he was most familiar. His reported judgments included a handful of sale of goods cases and The ‘Bessie Morris’ [1892] 1 QB 571, in which Collins held that a shipowner could not abandon the voyage after the vessel was damaged unless the damage was so serious as (in effect) to frustrate the contract. His decision was upheld in the Court of Appeal, and ‘Scrutton On Charterparties’ still cites the case as a leading authority.
This portrait was published to mark Collins’s appointment as Master of the Rolls in 1901, although actually taken some time before then.
Still, for all of his legal ability and judicial versatility, Collins was not an obvious choice as a Judge of the new Commercial Court. The shipping and marine insurance cases which made up the bulk of the Court's work had barely registered on Collins's professional experience up to 1895. On paper, former commercial and Admiralty practitioner William Kennedy was much more suited for the work. Indeed, Kennedy took a turn hearing commercial summonses in 1896, and was later added to the rota of nominated Judges, alongside Mathew, Russell, and Collins. But the cautious and ponderous Kennedy was not considered a great success during his first brief stint as stand-in for the energetic Mathew. He eventually became a Commercial Court regular from late 1897, sharing the work with Mathew and Bigham. But, while recognised as a clever commercial lawyer, he was regarded as hesitant and slow on the Bench, hampered by a painstaking approach which was at odds with the core philosophy that the Court should resolve commercial cases quickly and economically. He could never have handled the whole business of the Court alone for extended periods, in the way that Mathew did.
Collins did not even try to do that during his terms as Commercial Judge in 1896 and 1897. Instead, like Russell, he merely held the fort for brief periods, while Mathew went on Circuit for some light relief. The brevity of his stays gave Collins limited opportunity to make an impact in the Court. But Ruys v Royal Exchange [1897] 2 QB 135 (constructive total loss) still merits a footnote in marine insurance textbooks, while Universo v Merchants Marine [1897] 1 QB 205 was significant in confirming and extending the principle that a marine insurance broker is responsible for premium.
In October 1897, Collins was transferred to the Court of Appeal, as part of a judicial re-shuffle following the retirement of Lord Esher, the long-serving Master of the Rolls. The approval with which the legal profession and press responded to his promotion contrasted starkly with their condemnation of the selection of Charles Darling as his replacement on the Queen's Bench.
While a Lord Justice of Appeal, Collins acted as one of the British arbitrators on the panel which settled the border between British Guiana and Venezuela. In 1901, when Master of the Rolls Sir Archibald Levin Smith, was forced into retirement by ill health after less than a year in post (he died soon afterwards), Collins replaced him. Collins's five years as Master of the Rolls were the high-point of his judicial career. He sat on close to four hundred reported appeals, covering all areas of the law. Among commercial cases, The ‘Winkfield’ [1902] P 42 remains a leading authority on a bailee’s right to recover the full value of the bailed goods from a tortfeasor who damages them, while The 'Marpessa' [1906] P. 95 established principles for assessing compensation for damage to a chattel (in that case, a harbour board's dredger) which is used to perform a job of work but is not profit-generating in its own right.. Less successful was Collins’s judgment in Braithwaite v Foreign Hardwood [1905] 2 KB 543, which baffled generations of practitioners and law students by appearing to suggest that a defendant’s repudiation released the plaintiff from contractual performance even if the plaintiff did not accept the repudiation. Collins also had a running battle with the House of Lords about the construction and effect of the Workmen's Compensation Act 1897, which was intended to promote industrial health and safety by compelling employers to compensate injured employees and bear their medical costs. The statute was controversial, because there was no onus on plaintiff employee to show that the employer had been at fault, complex, and not as clearly drafted as it might have been, throwing up numerous points of interpretation. When cases reached the Court of Appeal, Collins invariably adopted a narrow construction, rooted in a close analysis of the words (The 'Guardian' suggested that this was the influence of his university training in the study of classical texts). By contrast, the judicial House of Lords, which at that time was packed with former politicians, tended to look to the social policy behind the statute, and overrruled Collins's conclusions almost as a matter of routine.
Overall, however, Collins was considered a tremendous success as head of the Civil Division of the Court of Appeal, hard-working, quick-minded, and courteous. But it was a demanding job. The Master of the Rolls at that time was not only the effective head of the Court of Appeal, but also in charge of the Public Record Office. And Collins took on extra work, chairing a commission to investigate the wrongful conviction (at two separate trials) of an unfortunate Swede named Adolf Beck. The commission delivered an important report, which was instrumental in persuading Parliament finally to create a Court of Criminal Appeal (an idea which had been discussed for decades). The heavy workload broke Collins's health, just as it had broken A.L. Smith. (The physical collapse of two successive Masters of the Rolls highlights the remarkably robust character of their predecessor, Esher, who held the post for fourteen years and retired in his eighties, after twenty-nine years as a Judge.)
By 1907, Collins was seriously ill. He was made a Lord of Appeal in Ordinary to get him away from the pressure of the Court of Appeal. But hopes that he would recover in a tribunal which heard fewer cases, and where the pace was more relaxed, were vain. In the Lords, Collins regularly said no more than that he agreed with his colleagues, and he sat very often in the Privy Council, where it was the custom to deliver only a single judgment, which he was usually content to leave to someone else. Few of the hundred or so reported appeals on which Collins sat are much cited today. (The Schwan [1909] AC 450 remains a useful illustration of the principle that a ship which is structurally sound and perfectly equipped can still be unseaworthy if the crew have not been properly trained in how to use the equipment; but Collins did not deliver a substantive judgment.) The best known of them is probably Addis v Gramophone [1909] AC 488, which established that damages for injury to feelings are not usually recoverable for breach of contract. Commercial lawyers also remember Wertheim v Chicoutimi [1911] AC 301, in which the Privy Council cast considerable confusion over when sub-sales should be taken into account in assessing damages in sale of goods cases, an issue which remains uncertain to this day. (In fairness to Collins, he was not responsible for the judgmemt in Wertheim.)
Collins retired after only three years in the Lords, and left no mark on the highest court. He died on 3rd January 1911. Remembered as a scholarly and intellectual Judge, Collins was perhaps rather too refined and subtle for the brisk and businesslike ways which J.C. Mathew had established in the Commercial Court.
Conspicuously more even-tempered than either of the other two of the inagural trio of Commercial Judges, Collins was quiet and unassuming, but known for a lively sense of humour, and he was a popular after-dinner speaker. While he retained his health, he was fond of outdoor pursuits: his hobbies included cycling, golf, shooting, and fishing. In more restful moments, he enjoyed literature. He retained an affection for the classics which he had studied in his youth, and was the first President of the Classical Association, in 1903. He married Jane Ogle, daughter of an Irish clergyman, in 1868, just as he was starting out at the Bar. They had three sons and two daughters. One son, Stephen, joined the Bar, was a pupil of T.E. Scrutton, changed his name to the hyphenated "Henn-Collins", and was a High Court Judge from 1937-1948. He emulated his father's versatility by sitting in both the Probate, Divorce & Admiralty and King's Bench Divisions, but did not follow him into the ranks of the higher judiciary.
Stephen Henn-Collins, Judge of two Divisions of the High Court and accomplished violin-maker, inherited his father’s long features, but did not copy his bushy sideburns.