In this blog I mourn the death of an old friend.  Tony Hidden died last week[1]. He was 4 months older than me. He came to the Bar in 1961 via Reigate Grammar School, Emmanuel College, Cambridge and National Service with the Royal Tank Regiment in the Far East. I first met him through the Inner Temple, during my early years at the Bar. He had a great gift for friendship, and we remained friends ever since.

I recall that when I was near the top of the Bar Council 30 years ago, Tony was the Leader of the South East Circuit[2], on whose behalf he promised me a free dinner when I became a judge – and I remember with pleasure the night he honoured that promise. I can’t remember if I ever appeared in court alongside (or against) Tony, although my early years in the courts of Sussex and Kent were very much on his home territory.

Tony was one of those whose career was cruelly abbreviated by illness. He became a High Court Judge very soon after I did, and he was a very safe and trusted pair of judicial hands, trying heavy criminal and civil cases all round the country, and particularly on his beloved South-East Circuit, the large circuit which enfolded London and stretched from East Anglia down to Kent and Sussex.[3]

Tragically, he suffered a stroke halfway through his summing up in a long murder trial at Maidstone in November 2000, and although he finished that trial and struggled on for a bit, he had to stand down from the Bench within a year or two.  After suffering another stroke, he spent the last ten years of his life in a nursing home.

I suppose the two high watermarks of Tony’s career were his conduct of an inquiry into the Clapham Junction Rail Disaster (in 1988, shortly before he became a judge), and the trial he conducted at first instance in Manchester in the early summer of 1990 of a number of the civil claims for post-traumatic stress disorder which followed the Hillsborough football stadium disaster.

The first of these tasks showed him at his best when having to handle all the emotions that are raised by a disaster of this kind and also some very technical evidence about railway signalling systems.

In the second he was being asked, within a year of his appointment as a judge, to try a case that raised completely novel questions of civil liability: should someone who suffers post-traumatic stress disorder as a result of watching a football disaster on television be entitled to recover damages, along with those who see a close relative in a distressful state in the immediate aftermath of an accident? Tony said “Yes”: two higher courts said “No”.

That case went up through the Court of Appeal to the House of Lords, who were unable to uphold Tony’s judgment in favour of claimants in the first of these categories. A glimpse of the issues that common law judges have to tackle in cases of this kind can be captured from this passage from Lord Oliver’s speech in the House of Lords:

“Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.

In my opinion, the necessary proximity cannot be said to exist where the elements of immediacy, closeness of time and space, and direct visual or aural perception are absent. I would agree with the view expressed by Nolan L.J. that there may well be circumstances where the element of visual perception may be provided by witnessing the actual injury to the primary victim on simultaneous television, but that is not the case in any of the instant appeals and I agree with my noble and learned friend, Lord Keith of Kinkel, that, for the reasons which he gives, the televised images seen by the various plaintiffs cannot be equiparated with ‘sight or hearing of the event.’

Nor did they provide the degree of immediacy required to sustain a claim for damages for nervous shock. That they were sufficient to give rise to worry and concern cannot be in doubt, but in each case other than those of Brian Harrison and Robert Alcock, who were present at the ground, the plaintiff learned of the death of the victim at secondhand and many hours later. As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously absorbed image.

To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability. Whilst, therefore, I cannot, for the reasons which I have sought to explain, accept Mr. Woodward’s submission that it is for your Lordships to lay down, on grounds of public policy, an arbitrary requirement of the existence of a particular blood or marital relationship as a pre-condition of liability, I equally believe that further pragmatic extensions of the accepted concepts of what constitutes proximity must be approached with the greatest caution.  McLoughlin v. O’Brian [1983] 1 A.C. 410 was a case which itself represented an extension not, as I think, wholly free from difficulty and any further widening of the area of potential liability to cater for the expanded and expanding range of the media of communication ought, in my view, to be undertaken rather by Parliament, with full opportunity for public debate and representation, than by the process of judicial extrapolation.”

Sadly, although the Law Commission (and, in a later case arising from the same disaster, the House of Lords themselves) urged Parliament to undertake this task, it has refused to do so, and the law is still left in a very illogical state.

Sir Edward Marshall Hall QC, the famous criminal advocate at the turn of the last century, had been a member of Tony’s old chambers, and in due course Tony became the owner of the desk at which the great man had worked.   Sir Edward was also a member of the Inner Temple, and Tony wanted the desk (which he kept when he became a judge) to find its final, and permanent home, in the Inn.  I know that the Inn was thrilled to receive it last year[4].

One of our contemporaries among the students of the Inner Temple was Bhaichand Patel, a lively Fijian bar student who later worked in India in the service of the United Nations. In a letter he wrote to me when I took silk Tony said he was sure our mutual Fijian friend would hear about it along one grapevine or another.  One of the last times I saw him was after he had told me that Bhai Patel was in London, and the three of us met for lunch and exchanged memories of the Inn (and other things) nearly 40 years on.[5] Happy days.

[1] His funeral service is to take place in Wimbledon next Wednesday.

[2] I have described some aspects of the circuit system in another blog.

[3] My blog on my early days of practice in criminal courts gives a fairly good picture of the environment in which Tony excelled. He knew his law and practice, and everyone trusted him. He was a Presiding Judge on that circuit for four years in the 1990s.

[4] The arrangement was brokered by Sir David Penry-Davey, who followed Tony as Leader and later as a Presiding Judge on the South-East Circuit.  His career, too, was prematurely interrupted by illness – in his case, Parkinson’s disease.  Sadly he, too, died last year, and I was among his many friends who celebrated his life at a Thanksgiving Service in Dulwich three months ago.

[5] I still treasure the copy of R.E.Megarry’s “Miscellany-at-Law” which Bhai and the nine other members of the first Inner Temple Students’ Committee (which I created and chaired in 1962-3) gave me as a present when I stood down from that office.  Another of the signatories is Param Cumaraswamy, who in due course became Chairman of the Malaysian Bar Council and then for nine years United Nations Special Rapporteur on the Independence of Lawyers and Judges.  I used to see him, too, from time to time.