DAWN - Cowasjee Corner; 04 April, 1999
Wise counsel
By Ardeshir Cowasjee
IT WAS in 1956, forty-three years ago, that I first met Henry Brandon, barrister, who had flown out from London to Karachi to represent us at a marine enquiry. Last week, on March 24, he died as Lord Brandon of Oakbrook, a great loss of a true friend.
Pakistan, in 1956, was endeavouring to become a maritime nation. Though we have a coastline extending over almost 1,000 kilometers and a land mass which has traditionally bred sea-going men in abundance, shipping was (and still is) largely neglected. In those days, shipping affairs were irreverently controlled by the ministry of commerce, by men who had no love for the sea, for ships or for the men who sail in them. The commerce secretary was the inflexible Aziz Ahmed.
Our junior counsel, Dorab Patel, who had recently returned from England having done his Bar, came to us just before the enquiry was to begin and announced in his inimitable relaxed drawl, "Aziz is stupid. He has appointed the Public Prosecutor to represent the Government at the enquiry, a man totally unfamiliar with shipping law, who is bound to conduct the enquiry as he conducts a prosecution. Strange people we deal with, most strange. It would be wise to send for a lawyer who practises at the Admiralty Bar in London." And so we found Henry Brandon.
He was here for three weeks, during which we practically lived together. We became fast friends, and I a staunch admirer of his outstanding legal and academic abilities. Henry had come to a strange country, to be confronted by strange hostile men with no idea of what was involved in a marine enquiry. Every ten minutes, Henry had to remind the enquiry panel that it was an 'enquiry' they were conducting, not a prosecution. The amazing thing is that the minute he arose, he was in complete command. He took to the strange situation as a duck to water. He did his best to inform the panel as to how marine enquiries are handled and after much effort succeeded to a large extent.
The ineptitude of the government side was illustrated by the performance of the man they had carefully kept under wraps, to be sprung at the right moment as their star witness. They proudly produced a certain Captain Simpson, a man who had written a letter to us demanding a payment of Rs.50,000 and the guarantee of a continued monthly payment of that amount. If we did not agree, he threatened to appear as a hostile witness, and he did.
Henry asked him whether he had indeed written such a letter. "Yes," he admitted boastfully. "Are you the same man who sailed in one of the Cowasjee ships, swallowed half a bottle of phenobarbitone, and for whom, to save your life, the ship had to be diverted to Vizagapatam so that you could be hospitalized?" "Wrong," shouted Simpson, announcing triumphantly, "I swallowed a full bottle." We kept in touch, not only as friends but professionally, as Henry thereafter handled many of our arbitration and salvage cases in Britain.
Henry Vivian Brandon, born in 1920 to Captain V. R. Brandon of the Royal Navy, was a scholar of Winchester and of King's College, Cambridge. He once told me how, when a boy leaves Winchester (founded in 1382 by Bishop William of Wykeham), he is instructed : "You are going out into the big cruel world, try and change it;" whereas a boy leaving Eton College (founded in 1440 by Henry VI of England) is advised : "You are going out into the big cruel world, live in it." Two rival philosophies. Eton has produced many British prime ministers, Winchester so far none - one Wykehamist who nearly made it was Hugh Gaitskell. Henry's youngest son, William, also a scholar at Winchester, has his father's sense of humour - from a letter written to me in 1997 : "Following your admonition to me (in 1992, I think) to get a proper job, I joined the Foreign Office in 1993. So I clearly disobeyed your orders . . . !"
Henry read classics at Cambridge, but was interrupted by World War II and commissioned in the Royal Artillery. Posted first to Madagascar, he was awarded an MC for directing his regiment's fire by radio from a motorcycle he rode deep behind Vichy French lines. He later served in India and Burma, ending the war as a major. He returned to Cambridge, switched to law, graduated with a first in 1946, and was called to the Bar by the Inner Temple. His practice in the main lay on the physical side of shipping - marine casualties such as collisions, wreck enquiries and salvage disputes, Lloyds salvage arbitrations being a sizable bread earner.
He took Silk in 1961, was knighted in 1966 and at the unprecedented early age of 46 (becoming the second youngest high court judge) was assigned to the Probate, Divorce and Admiralty Divisions. In 1978 he was sworn in to the Privy Council and promoted to the Court of Appeal, and in 1981 to the House of Lords, taking the title Lord Brandon of Oakbrook. He was known as one of the most industrious and respected of the nine members of the Judicial Committee, again and again giving the leading judgement in every field of law.
We saw a lot of each other when he was a high court judge, as during those years I spent much time in London. Henry used to take me to tea at a quaint little tea house, opposite the Law Courts, where he introduced me to Lapsang Souchong and to a whole range of exotic teas which I had never sampled. He could discourse at ease and with humour on any subject - brewing tea, an astronaut's agility on the moon, Latin poets, Greek playwrights and the idiosyncrasies, often sanctimonious, of the British. And he had tales to tell of some of the stranger divorce cases that came his way. A man may be a mouse in the witness box and a lion outside, he commented. He held that human beings are "frail things" who tend to act at odds with their scruples.
Only occasionally did he hit the headlines, as he did in 1987, when with two of his brother law lords he voted in favour of continuing the British government's controversial ban on newspapers printing extracts from 'Spycatcher,' the book written by former MI5 officer Peter Wright. At the same time, expressing his support for the principle of a free press, he accused the attorney general of trying "to impose the kind of censorship the Soviet government imposes." The damage already done to the British security service could not be undone, he contended, but perhaps the courts could still take useful steps to reduce the possibility of similar damage being done again in the future. This decision brought the press to boiling point. The 'Daily Mirror' printed upside-down pictures of the three law lords who had voted to continue the ban, with the caption "You fools."
Needless to say, the law lords ignored it all. They held, as had Lord Salmon (1980 3 WLR 109 at 119) : "I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge." This is more or less what our Supreme Court Justice, Nasir Aslam Zahid, held during the enquiry into the November 28, 1997, storming of his court when the attorney general objected to something that had been printed in this newspaper. "The days are gone," said Justice Zahid on April 2, 1998, "when judges are not supposed to read the papers. We all have biases and views, but the quality of a judge is that in court he must be without bias or prejudice."
In England, the law lords sit until they are 75 years of age. In 1980 Henry had an operation on his spine which did little to relieve a neurological condition from which he had long suffered and borne with great courage. Feeling that he could no longer do justice on the Bench, he retired at 71.
He was much admired as a judge, and for the quality of his judgments, but was never a popular judge; he seemed to go out of his way to avoid courting popularity. He had a reputation for 'never being wrong' and was seldom reversed on appeal. He was the first judge in 60 years to act as Wreck Commissioner for his government. A loyal friend, a great intellect with a great sense of humour, it was my good fortune to have known him. Even after he sat on the Bench, he would give his advice when sought. He believed that no law prevents a man from giving wise counsel at any time in any place.