Donald Nicholls, Baron Nicholls of Birkenhead

The Rt.Hon the Lord Nicholls of Birkenhead PC

Donald James Nicholls, Baron Nicholls of Birkenhead (1933-2019)[i], made his first contact with Merseyside when he was born on the 25th January 1933. He was born at 5 Tilstock Avenue, Bebington, on the Wirral. His father was William Greenhow Nicholls (1902-1993) who was a clerk in Lloyds Bank. Nicholls’ mother was Eleanor Jane, nee Looney (1895-1939). She was a teacher who tragically died of bronchial pneumonia at an early age. Nicholls was just six years old when his mother died. Along with his elder brother (Clifford Nicholls (1931-2011) he had a step-mother, Winifred Agnes Blackwood (1909-2007). William and Winifred had two daughters together, who were Donald and Clifford’s half-sisters.

Nicholls was successful in gaining a scholarship and was educated at Birkenhead School. Following completion of his tertiary education at Birkenhead School, Nicholls went straight into the world of work. Nicholls’ parents, at this stage, did not agree with University education. Nicholls obtained employment as a junior clerk in the Registrar’s department at Levers Brothers, Port Sunlight. This is an area familiar to all residents of Merseyside and beyond as the model village and factory created by the Lord Leverhulme. Despite his father’s position, Nicholls had been unsuccessful in obtaining employment at Lloyds Bank.

Military service then intervened. Nicholls was conscripted between 1951 and 1953 to do his national service in the Royal Army Pay Corps, the same corps of the British Army in which his father had served.

Nicholls was inspired to read law after doing examinations for the Chartered Institute of Secretaries. Part of this course involved contract law. One biographer notes that Nicholls was smitten and quenched his interest in the common law by reading copies of the law reports that were located in his supervisor’s study at Port Sunlight. Nicholls read for an intermediate LL.B. degree at the University of Liverpool between 1953 and 1956. Nicholls was the first person in his family to attend university. At this time, law was taught in Abercromby Square. Nicholls discusses his time at Liverpool in his memoirs. There were roughly ninety students reading law across the three years. The student ‘Legal Society’ met on Friday afternoons. There were lectures but no timetabled tutorials as standard, although Professor Joe Turner held ‘invaluable’ Sunday morning sessions in his Sefton Park mansion.  These were very popular with the undergraduates. Nicholls attended University every day of the week from 9.00am until 5.00pm (at his mother’s insistence) and spent much time in the Cohen Library “getting to grips with the law.”[ii] He lived off his Army savings. He excelled, and his tutor, Professor Seaborne Davies, then Queen Victoria Professor of Law at Liverpool, encouraged Nicholls to undertake further study.

Nicholls acted on this support and went on to read law at Trinity Hall, Cambridge.  Nicholls won a state scholarship to undertake this further study. He obtained a starred first in 1957 in part two of the law tripos. He obtained another starred first in 1958 with his LL.B. (Cambridge’s then designation for their LL.M. degree.) His tutors included Trevor Thomas, who went on to become a Vice-Chancellor of the University of Liverpool, Dr. T Ellis Lewis and Cecil Turner.  Nicholls declined Trinity Hall’s offer of a fellowship and instead commenced his career at the bar.

Nicholls became a member of Middle Temple, having won a Blackstone Entrance Scholarship in 1955. In time, he also won a Harmsworth scholarship and was called to the bar by Middle Temple in November 1958. He then entered chambers at Harold Christie’s 13 Old Square (what is now Maitland Chambers) where his pupil master was fellow Trinity Hall alumnus and future Law Lord, Lord Oliver of Aylmerton. Nicholls would remain at the set for 25 years. At the bar, Nicholls specialised in conveyancing, wardship and landlord and tenant. Whilst junior counsel Nicholls obtained the gift of a red bag (in which he carried his wig and gown) for meritorious work in a case involving Scotch whiskey to replace his wife’s  blue bag, which he had been using in lieu of his own. The red bag was bestowed by future Law Lord, Lord Brightman.

Nicholls married the barrister and Girton College, Cambridge graduate Jennifer Mary Thomas on the 27th August 1960. The couple met at Middle Temple whilst consuming their qualifying dinners. They had three children together. John Nicholls, who became a barrister and later a Queen’s Counsel (who inherited his father’s law reports). Gillian Nicholls, who became a solicitor, and Jonathan Nicholls who became a chartered accountant. Of the two main teams in Liverpool, Nicholls was a supporter of Tranmere Rovers.

Nicholls took silk at Easter in 1974 as one of Her Majesty’s Counsel learned in the law. He was sworn in by the Lord Chancellor, Lord Elwyn-Jones. Shortly afterwards, he was elected a member of the Athenaeum (London not Liverpool) in 1977. Nicholls became a Bencher of the Inn in 1981. He was Treasurer of the Inn in 1997. He noted ruefully that his greatest achievement as Treasurer was opening up Middle Temple’s gardens to members of the public in the summer months. After taking silk and moving to the front row Nicholls’ areas of practice broadened to include commercial, tax, sports law, and intellectual property.

On the 30th September 1983, Nicholls was elevated to the High Court bench as a Chancery Division judge by the then Lord Chancellor, Lord Hailsham of St Marylebone. Nicholls received the customary Knighthood on the 22nd November 1983. By his own account, Nicholls found the transition to a judicial post lonely and he missed the camaraderie of the bar. The judicial clerks referred to him as ‘the Don’.

On the 10th February 1986, Nicholls was elevated to the Court of Appeal and sworn of the Privy Council on the 26th March 1986. At this time Nicholls was bestowed with a number of accolades, including an honorary degree from the University of Liverpool. On his Doctor of Laws (honoris causa) Nicholls noted, “I greatly appreciated each of these honours which cemented further my links with these excellent institutions.”[iii]

Nicholls was made Vice-Chancellor in October 1991, that is the de facto head judge of the Chancery Division.

Nicholls was made a Law Lord, a Lord of Appeal in Ordinary, 1994. He was introduced into the House of Lords on the 19th October 1994 as Baron Nicholls of Birkenhead. His supporters were Lord Woolf and Lord and Lord Chief Justice Taylor. Nicholls coat of arms bares the motto “Let Equity Prevail.” This imperative phrase reflects, inter alia, his areas of practice at the Bar and work as a judge in the Chancery Division. Nicholls also quipped that it also serves as a warning to common lawyers. The coat of arms itself carries a number of references points to Liverpool and Merseyside. These include two cormorants as a reference to the liver birds and birch leaves as a reference to Birkenhead.

On the 1st October 2002, Nicholls was appointed second senior lord of appeal. Nicholls held the post of full-time law lord until 2007, when he retired. Nicholls sat on 164 appeals in the House of Lords and Privy Council. Twenty were dissenting judgments.

As well as his responsibilities as a member of the judicial committee of the Privy Council, Nicholls also sat as a non-permanent judge of the Hong Kong Court of Final Appeal. In 1994, Nicholls was appointed patron of the Cayman Islands law school, succeeding Lord Templeman. As Nicholls notes in his memoirs, “This was particularly apt, as this law school was affiliated to Liverpool University and its degrees were the law degrees of that university.”[iv]

It is possible to watch Nicholls deliver his opinion to the chamber of the House of Lords[v] in the famous case of R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.1) (1998). Here the Law Lords had to consider whether Senator Augusto Pinochet, as a former head of state,  was immune from the criminal processes of the UK, including extradition. Spain wanted to extradite Pinochet for murder, torture and genocide. After three separate hearings, the House of Lords held that Pinochet was not immune and that he could be extradited to Spain. However, Jack Straw as Home Secretary declined to make the extradition order due to Pinochet’s ill health.

Beloff has cited a number of other cases as stand-out opinions that have come from the pen of Nicholls. These include Royal Brunei Airlines v. Tan (1995), Attorney-General v. Blake (2000), Reynolds v. Associated Newspapers (1999), White v. White (2000), Campbell v. Mirror Group Newspapers (2004), Ghaidan v. Godin Mendoza (2004) and Re Spectrum (2005).

Other cases of note include the disclaimer leasehold case of Hindcastle (1996). In this case, Nicholls considered the potential liability of a guarantor of a lease. In Hindcastle, the rent payable under a lease exceeded the rental value of the property in the open market which was in recession.  The House of Lords held that the guarantor was liable. In relation to disclaimer Nicholls stated in the context of disclaimer that, “…unprofitable contracts can be ended, and property burdened with onerous obligations disowned.” 

Nicholls died on the 25th September 2019 following a stroke.

As a Lord of Appeal in Ordinary, Nicholls remains the only University of Liverpool law graduate to have reached the highest rank of the UK judiciary. There have been a fair number of Lord Justices of Appeal and High Court judges, but Nicholls is the only Law Lord. Indeed, now that the judicial committee of the House of Lords has been abolished (much to Nicholl’s displeasure), no one else will be able to claim that accolade. Time will tell if the Judicial Committee’s replacement, the United Kingdom Supreme Court, will be staffed by a University of Liverpool law graduate.

References

[i] On whom see further: Nicholls, D. Let Equity Prevail: Recollections and Reflections. D & M Heritage Press, 2015 (Hereafter Memoirs). See also: Beloff, M.  (2023, April 13). Nicholls, Donald James, Baron Nicholls of Birkenhead (1933–2019), judge. Oxford Dictionary of National Biography, Oxford, 2023. See also: Sir John Sainty. The Judges of England 1272-1990. Selden Society, London, 1993, pp.176, 196. See also: Lord Nicholls of Birkenhead Obituary, The Times, Thursday October 24th 2019.

[ii] Memoirs, p.45.

[iii] Memoirs, p.96.

[iv] Memoirs, p.153.

[v]See: https://youtu.be/c8KroM_USvg

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