Broome v Cassell & Company Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER of THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE PHILLIMORE
Judgment Date04 March 1971
Judgment citation (vLex)[1971] EWCA Civ J0304-1
CourtCourt of Appeal (Civil Division)
Between:
John Egerton Broome
Plaintiff Respondent
and
Cassell & Company Limited and David
Defendants Appellants

[1971] EWCA Civ J0304-1

Before

The Master of the Rolls (Lord Denning)

Lord Justice Salmon and

Lord Justice Phillimore

In The Supreme Court of Judicature

Court of Appeal

Appeals of both defendants against verdict and judgment for the plaintiff before Mr. Justice Lawton and a jury on 17th February, 1970.

Mr. R. J. PARKER, Q. C and Mr. ROBERT S. ALEXANDER (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the First Defendant Appellant.

Mr. COLIN DUNCAN, Q. C and Mr. ANDREW (instructed by Messrs. Rubinstein Nash & Co.) appeared on behalf of the Second Defendant Appellant.

Mr. DAVID , Q. C., and Mr. ANDREW (instructed by Messrs. Theodore Goddard & Co.) appeared on behalf of the Respondent Plaintiff.

THE MASTER of THE ROLLS
1

The jury gave £40,000 damages. It is a large sum. How did they get to it? What were the facts known to them? These I will tell.

2

1. INTRODUCTION

3

Early in July 1942 a large convoy of thirty-five merchant ships - it had the code number P. Q.17 - was sailing in the Arctic Seas laden with materials of war for Russia. They were between North Cape and Spitsbergen, near the icefields. At that time of the year there was no nightfall. It was light all the time. The convoy was approaching the most dangerous part of the voyage. The German battle fleet had come up swiftly and secretly. It was lying in wait in Alten fiord, just by North Cape. It consisted of the most powerful warship afloat - the Tirpitz - with the cruisers Hipper and Scheer, and six destroyers. Nearby, at Band, was an airbase whence the German aircraft could make sortees of 400 miles to bomb the convoy. Under the sea there were German submarines watching through their periscopes for a chance to strike.

4

The convoy would seem an easy target. It could only make 8 knots. It had to steam at the pace of the slowest. But it was in good hands; it was guarded by the Royal Navy. The close escort was under the command of Commander Broome, R. N., in the destroyer Keppel. It consisted of six destroyers, which were very fast, and several converted merchantmen as naval escorts, which were much slower. In support was a cruiser covering force under Rear-Admiral Hamilton in The London. It consisted of four cruisers and three destroyers. Further behind, ready to do battle, was the Home Fleet under Admiral Tovey in the Duke of York.

5

The 4th July, 1942, saw the climax. Enemy air attack was imminent. Rear-Admiral Hamilton thought it best to play for safety. He "instructed" Commander Broome to route the convoy to the Northward so that it should be 400 miles from the enemy aerodrome. But Commander Broome was bolder. He did as Nelson did. After all, "instructions" were not orders. They were more in the nature of recommendations, as every navel officer knows. He kept an easterly course, even though it did bring him nearer the enemy. Commander Broome was right. He was the man on the spot. He had an independent command and was entitled to exercise his own judgment. He had to take advantage of low cloud when it gave cover. And he had been advised by the Admiralty that the convoy should be kept "moving to the eastward even though it was suffering damage". So Broome did not route it so much northward as Hamilton suggested. He kept it moving eastward as well. His decision was afterwards approved by Admiral Tovey.

6

Later that day the expected attack came. Suddenly at 8.22 p. m. 25 enemy aircraft appeared flying fast and low at the convoy. They were torpedo bombers and pressed home their attack with great determination. They sank two of the merchantmen. But the convoy and escort gave a good account of themselves. They shot down four of the attackers and went on in perfect formation. They were brave men. Commander Broome said to those nearby: "Provided the ammunition lasts, Convoy P. Q. 17 can get anywhere".

7

Soon after beating off this attack, there came a warning of fresh danger. This time it was the onset of enemy surface ships. The Admiralty sent out three signals which arrived one after the other on the bridge of the Keppel, and of the other ships. The signals were, of course, in cipher: "9.11p. m. Secret. MostImmediate. Cruiser force withdraw to westwards at high speed.

8

9.23p. m. Secret. Immediate. Owing to threat from surface ships convoy is to disperse and proceed to Russian ports.

9

9.36p. m. Secret, Most Immediate. My 9.23p. m. Convoy is to scatter".

10

The last message arrived so close on the heels of the one before that, when deciphered, the signalman handed them both together to the Captain. They spelt only one thing. The German battle fleet was about to attack. Everyone expected to see masts appearing on the horizon. The order to "disperse" meant that the convoy was to split up into smaller formations, which were still under escort able to defend them. The next order to "scatter" was more urgent still. It had never been given before, except once by the Captain "the Jervis Bay, and he gave it only when the enemy cruisers were opening fire. It meant that the ships of the convoy were to scatter fan-wise, each by himself, in every direction without escort. Leaving the escorting force to engage the enemy.

11

Commander Broome did as he was told. He took the Keppel into the middle of the convoy and told the Commodore that the convoy was to scatter. He knew that his destroyers could not tackle the enemy fleet by themselves. So he proposed to Rear Admiral Hamilton that they should join up with the cruiser force. Rear-Admiral Hamilton at once agreed. So Commander Broome with his escorting destroyers joined the cruisers and came under the direct command of Rear-Admiral Hamilton. The naval escorts (the converted merchantmen) were slow and could do little to protect the scattering convoy. So Commander Broome ordered them to proceedindependently to Archangel. He, with his destroyers, prepared to meet the enemy.

12

But the threatened attack never came. The enemy fleet never appeared over the horizon. The order from the Admiralty was a mistake. The First Sea lord, Admiral of the Fleet, Sir Dudley Pound, had convinced himself that the Tirpitz must have put to sea, whereas the intelligence reports indicated that she had not. But the order was given. The convoy scattered to the four winds. Without protection, they were attacked by the enemy from the air and from beneath the sea. Many were sunk. Out of the 35, only 11 reached Russian ports. 153 merchant sailors were lost and vast quantities of war material went to the bottom. It was a tragedy. A severe blow to the allied cause

13

The officers made their reports. Commander Broome was not blamed by those superior to him: Nor by his brother officers. Admiral Tovey reported:

"I do not consider that the Commanding Officer of the Keppel was in any way to blame for the subsequent heavy losses. From the signals he had received, he deduced, quite reasonably, that surface attack was imminent: and was correct in his decision to concentrate his destroyers and join the Rear Admiral commanding first cruiser squadron".

14

Proof positive of the confidence in Commander Broome was that he was kept in sea-going commands and finished the War in command of the battleship "Ramillies". Many persons afterwards wrote about the disaster. The official historian of the War wrote about it. He did not condemn Commander Broome. Nor did Mr. Winston Churchill. The condemnation was made twenty years later by an author who knew nothing about the War, because he was a small boy at the time. David Irving was determined to write "an authentic account". His regular publishers - William Kimberrefused to publish it. They thought it was too dangerous. So he got Cassell & Company Ltd. to publish it.

15

2. THE LIBELS

16

The book was called "The Destruction of Convoy P. Q.17". Cassells, the publishers, advertised it in words which defamed the Royal Navy. They described it as "the true story of the biggest-ever Russian convoy that the Royal Navy left to annihilation". They issued a dust-cover on which they said: "Many people were convinced" that the merchantmen "had been shamefully deserted by a Navy which lost only a fleet oiler in the convoy's passage". "The massacre of P. Q.17" was due, they said, to "blunders, miscalculations and misunderstandings" which many wanted to "remain hidden like so much dirty linen", and that "elaborate deceptions have been practised to ensure this". Then they went on to say that Mr. Irvings five years of intensive research "have provided the answers". Thus they underwrote all that he said.

17

Inside the book Commander Broome was singled out for attack as if he was the navel officer mainly responsible for this shameful conduct. I will not read all the passages. Suffice it to say they fell into two groups. The first group related to the "instructions" given by Rear-Admiral Hamilton. Commander Broome was accused of downright disobedience. In breach of orders, it was said, he had taken the convoy thirty miles closer to the German airbases in Norway and exposed it to the enemy air attack. These passages spoke of "Hamilton's dismay at Broome's disobedience" and of his "icy signal to Commander Broome", and of his "stern reminder" to him. It was all quite unfounded because Broome was entitled to exercise his own judgment, and did so. And Admiral Tovey approved.

18

In the second group Commander Broome was accused of cowardly deserting the convoy. He had taken his destroyers and the naval escorts away from protecting the convoy, thus leaving the merchantmen to their fate. It was suggsted that he had lost his head. It was said in terms that in his "agitation" he had not understood the Admiralty signals aright: that, when the order came for the convoy to scatter, he "needed no second bidding"; and that his "first reaction" was to tell his...

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2 books & journal articles
  • Wild Justice on the Compensation/Punishment Frontier: An Attempt to Make Some Sense of Aggravated and Punitive Damages after Whiten
    • Canada
    • Irwin Books Archive Special Lectures 2005. The Modern Law of Damages
    • 31 August 2006
    ...re-affirmed Rookes and rebuked Lord Denning M.R., who, in the Court of Appeal had warned that Rookes was "bound to lead to confusion": [1971] 2 Q.B. 354 (C.A.). 11 Whiten, supra note 2 at 617-18; Cassell & Co., ibid., Lord Wilberforce at 1114 (A.C.). 12 Whiten, ibid, at 619-22. 430 KIRK F. ......
  • Restitution as an Alternative to Damages in Contract and Tort
    • Canada
    • Irwin Books Archive Special Lectures 2005. The Modern Law of Damages
    • 31 August 2006
    ...such circumstances, punitive damages have been awarded to take the profit out of the tort. See for example Broome v. Cassel & Co. Ltd., [1971] 2 Q.B. 354 (C.A.), aff'd in part [1972] A.C. 1027 (H.L.). A waiver of tort claim would achieve the same objective in a more direct fashion. 57 268 F......

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