Lord Walker of Gestingthorpe (1938–2023)

The former Supreme Court Justice Lord Walker has recently passed away.

Below are some interesting extracts from his obituary in the DT. 

A few years ago, I enjoyed watching his lecture on "Cause & Effect in Commercial Law" as the 25th lecture as part of the Sultan Azlan Shah Law Lectures.

For me, as a law student, some of his judgments which stand out are:

• Kernott v Jones [2011] - the beneficial entitlement of a 'family home' of an unmarried couple under constructive trust.
• Pitt v Holt [2013] - Mentioned below in the article. The issue was the jurisdiction of the court to set aside a voluntary disposition on the grounds of mistake. 
• Sempra Metals Ltd v HMRC [2007] - A v. important case in unjust enrichment. His Lordship preferred the approach (in my view, mistaken) to extend the court's equitable jurisdiction to awards of compound interest to achieve "complete restitution" thereby reversing the unjust enrichment for the principal and the interest. (Later, comprehensively overturned, by a differently constituted court in Prudential Assurance v HMRC [2018]).
• FII Group Litigation v HMRC [2012] - Among other things, whether a demand from the public authority could trigger an unjust enrichment claim under the Woolwich principle. His lordship's view was that it was about the perceived obligation to pay, rather than an implicit demand.
• BNY Corporate Trustees v Eurosail [2013] - Part of the Lehman Brothers fallout. This appeal concerned the correct test for "balance-sheet" insolvency in corporate insolvency.
• Pell Frischmann Engineering v Bow Valley Iran [2009] - Lord Walker (sitting on the Privy Council) laid down guidance on how Wrotham Park damages (or negotiated damages) should be assessed and awarded. It stands apart from later Supreme Court jurisprudence because His Lordship held that it was not a prerequisite to their being awarded for the claimant to have applied for an injunction (as per Lord Cairn's Act).
• Mobil Cerro v Petroleos [2008] - In this case, Robert Walker J waived the normal subject-matter jurisdiction (for international fraud) in the granting of freezing injunctions. It's a landmark case that expanded the jurisdiction of the court for this private international remedy.
• Highland Crusader v Deutsche Bank AG [2009] - Lord Walker (in the Court of Appeal) clarified important jurisprudence about the ambit of anti-suit injunctions following commencement of proceedings in violation of jurisdiction agreements.

The Daily Telegraph:

Lord Walker of Gestingthorpe, who has died aged 85, was an outstanding Law Lord and Justice of the Supreme Court, and previously the doyen of the Chancery Bar, second to none in the field of private client trusts and taxation work.

Called to the Bar by Lincoln’s Inn in 1960, he became a tenant at 17 Old Buildings, and soon became highly regarded as an equity barrister with a thriving estate duty practice, dealing with the implications of the Variation of Trusts Act (1958).

His advice and drafting stood out for clarity, precision and quiet persuasiveness. His advocacy displayed the same qualities, meaning that judges paid attention to his submissions in a way that they might not with more long-winded counsel. 

Walker became a Lord of Appeal in Ordinary (Law Lord) in 2002, and a Justice of the Supreme Court when it was established in 2009.

Among the appeal cases at which he presided during his final years as a judge was Pitt v Holt (2013), where his judgment restricting the scope of the ruling in the case of Hastings-Bass (which had allowed the court to set aside decisions made by trustees if the decisions had unintended consequences), so that it applied only if the trustees had committed a breach of fiduciary duty, was widely held to be a tour de force.

With his keen moral sense, astonishing mastery of detail and ability always to see the bigger picture, Walker was an exemplary judge, adept at identifying what should be the right result in each case and then finding ways of arriving at it without compromising legal principles.

He regularly surprised both judicial colleagues and counsel with his ability to master areas of the law distinct from his original field of expertise, and in numerous judgments he contributed greatly to the development of the law across all areas. Renowned for the kind welcome he gave to new members of the Supreme Court, he was also an exceptionally good advocacy teacher at Lincoln’s Inn, where he served as Treasurer in 2010.