2015 Selden Society lecture – the Hon Justice James Douglas on Lord Denning

Good evening ladies gentlemen. Welcome to
the sixth in this year’s series of Selden Society lectures. Tonight’s subject is Lord
Denning. I look around the room and see many who I suspect have the same fondness for Lord
Denning that I did when I was at law school. He was one of the most famous judges of the
20th century. He was a favourite I think not so much for his learning when we were students
but for those most famous opening paragraphs. I’m sure you’ll hear a little more of
that from our speaker tonight. Justice James Douglas was admitted to the bar in 1973 but
delayed commencing practice, while he undertook studies at Cambridge from which he graduated
Bachelor of Laws and with a diploma of Legal Studies. He has been a judge of this court since 2003.
Justice Douglas. (APPLAUSE) I thank Justice Martin for his omissions.
Especially having regards to his threats. Whitchurch is a tranquil village in Hampshire. Old Tom
Denning died there on the fifth of March 1999. He had been born in his parents’ house in the
same village more than 100 years before, on the 23 January 1899. In March 1974, he was
eight years from the end of his long judicial career. He was still a dominant figure in
the common law world. I mention March 1974 because that was the one occasion when I saw
him in action as a judge. I was a 24 year old recent law graduate, then
working as Sir Harry Gibbs’ associate. I had the great good luck to have accompanied
Sir Harry to London where he was to sit for some months on the Judicial Committee of the
Privy Council. We landed in London early on a weekday morning and checked into Brown’s
Hotel just off Piccadilly. It was a club-like hotel – suitable for judges and bishops, as
a cynical English acquaintance remarked to me at the time.
It was my first trip to London and, energised by the surroundings and the brisk wintry weather,
I set out immediately to see the sights. I knew where I wanted to go – down Piccadilly,
through Piccadilly Circus, along to Trafalgar Square and up the Strand to the Royal Courts
of Justice. It was shortly before lunch. I headed to the Court of Appeal, went in, sat
down and had the good luck to catch Lord Denning, Master of the Rolls, presiding – courteous,
avuncular, with that distinctive Hampshire burr to his voice.
He was the star in the judicial firmament for many law students of my age and that was
the best thing I could then think to do to introduce myself to the sights of London.
Now you might think that was pretty odd. I am almost 42 years older now and, perhaps,
more world-weary. I’m also very much less likely to want to go straight to the Royal
Courts of Justice when I land in London. By the same token, with all respect to my judicial
colleagues in Britain now, there is no-one there at present with the star quality that
then attached to Lord Denning, at least in law students’ eyes.
That quality derived partly from his willingness to try to modernise the law while teasing
his more cautious colleagues. Students also loved his limpid prose. He used a faux-Hemingway
style to tell the story behind the case while laying out his sympathies for all to see.
We all have our own favourite examples. One of mine is Hinz v Berry dealing with the quantum
of an award of damages for nervous shock: “It happened on April 19, 1964. It was bluebell
time in Kent. Mr and Mrs Hinz had been married some 10 years, and they had four children,
all aged nine and under. The youngest was one. Mrs Hinz was a remarkable woman. In addition
to her own four, she was foster-mother to four other children. To add to it, she was
two months pregnant with her fifth child. On this day they drove out in a Bedford Dormobile
van from Tonbridge to Canvey Island. They took all eight children with them. As they
were coming back they turned into a lay-by at Thurnham to have a picnic tea. … There
came along a Jaguar car driven by Mr Berry, out of control. A tyre had burst. The Jaguar
rushed into this lay-by and crashed into Mr Hinz and the children. Mr Hinz was frightfully
injured and died a little later. Nearly all the children were hurt. Blood was streaming
from their heads. Mrs Hinz, hearing the crash, turned round and saw this disaster.”
Another is Lloyds Bank v Bundy: “Broadchalke is one of the most pleasing villages in England.
Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went
back for 300 years. His family had been there for generations. It was his only asset. But
he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt. Not to
borrow money for himself, but for the sake of his son. Now the bank have come down on
him. They have foreclosed. They want to get him out of Yew Tree Farm and to sell it. They
have brought this action against him for possession. Going out means ruin for him. He was granted
legal aid. His lawyers put in a defence. They said that, when he executed the charge to
the bank he did not know what he was doing: or at any rate that the circumstances were
such that he ought not to be bound by it. At the trial his plight was plain. The judge
was sorry for him. He said he was a ‘poor old gentleman’. He was so obviously incapacitated
that the judge admitted his proof in evidence. He had a heart attack in the witness-box.
Yet the judge felt he could do nothing for him. There is nothing, he said, ‘which takes
this out of the vast range of commercial transactions’. He ordered Herbert Bundy to give up possession
of Yew Tree Farm to the bank. Now there is an appeal to this court. The ground is that
the circumstances were so exceptional that Herbert Bundy should not be held bound.”
You might not be surprised to learn that Mrs Hinz held on to her generous award of damages
for nervous shock and that Lloyds Bank were given the silver medal on Mr Bundy’s appeal.
His eloquent defence of village cricket, in dissent in Miller v Jackson; is so inimitably
English but I shall not pause to read it to you. Nor shall I read the introduction to
Broome v Cassell & Co, even though it is as riveting an account of war time naval action
as one would find in the novels of Patrick O’Brian or C S Forester. His skill as a
writer was evident and one assumes that his eloquence and presence made him a powerful
advocate but it is his judicial work that made his name.
I propose to provide some details of his upbringing and early career, to speak about his judicial
philosophy and how that played out in some areas of the law in particular and to conclude
with some observations about his Achilles’ heel as a judge, too great a readiness to
confuse personal prejudice with his notions of justice.
The literature on Lord Denning is immense, with many contributions from the man himself
in book, articles and speeches. Apart from the books and articles about him, there is
even a Denning Law Journal devoted to the examination of the legal issues dear to his
heart. I have to thank my associate Jarrod Jolly for filtering through the mass of material
to allow me to focus particularly on Lord Denning’s judicial philosophy. But first
to his family background and early career. Lord Denning was very conscious of the Saxon,
Viking and Norman ancestry of the English and believed that the word “Denning” suggested
Danish descent while his Christian name, Alfred, betokened the Anglo-Saxon King and lawgiver,
Alfred the Great. The thousandth anniversary of King Alfred’s death occurred in his birth
year and led his parents to choose that name for him. He was known, generally, however,
as “Tom” after his second name, Thompson. Some of his ancestors had been prominent during
the English Civil War on both sides of the conflict. But his more recent ancestors had
lapsed into poverty and obscurity. He and his siblings did much to reverse that situation.
There was one daughter and four boys. He was the fourth boy. They had a poor but happy
childhood. He was a brilliant student at Andover Grammar School, which he attended on a scholarship.
Of it he said: “… an Elizabethan grammar school. What could you have better?”
He received a scholarship to attend Magdalen College, Oxford where he began to study mathematics
in October 1916 before his conscription in the summer of 1917. He was keen to join the
Army and served on the western front with two of his brothers. Jack who was killed at
the battle of the Somme and Reg who was wounded there. Another brother, Gordon, fought at
Jutland and died of tuberculosis in 1918 derived from his war service. Tom Denning himself
fought at the Somme in April 1918 in decisive fighting which resulted in the collapse of
the Ludendorff offensive and laid the basis for the allied victory in September to November
1918. He described his two brothers who died as
“the best of us”. That was a significant claim. Lord Denning’s own talent was obvious
but of his two surviving brothers, Reg later became a lieutenant-general and Norman a vice-admiral. Tom returned to Oxford and completed his education in mathematics after the end of the war. His
university career was brilliant. In spite of the quality of the education available
at some of the English grammar schools, such as Manchester Grammar, it seems clear that
the inhabitants of the upper echelons of the English class system did not rate them highly.
Denning himself felt ashamed at having been at a grammar school, but, as he later wrote,
he “need not have worried. Everyone was very understanding. And when I took a First
Class in 1920, they were as proud of my achievement as I of theirs.”
He then taught for a year at Winchester College but, with encouragement from the president
of Magdalen, returned to Oxford to read law. He received a scholarship founded in memory
of Lord Eldon to be awarded to “a Protestant of the Church of England” who had obtained
a first class honours degree as an undergraduate. He was devoted to the Church of England and
had a first class degree. Magdalen’s academic reputation in the early
1920s was not stellar parcet some of the inhabitants in this room that have studied
there. It had a reputation for the social position of its students rather than their
scholarly talents. Denning described his law tutor there as knowing no law except on the
Statute of Frauds. The tutor was an unsuccessful barrister who had once had a case on that
subject. Nonetheless, Denning received first class honours in the law school with very
good marks for most subjects, except jurisprudence for which he received a gamma minus. He reflected
that: “Jurisprudence was too abstract a subject for my liking. All about ideologies,
legal norms and basic norms, ‘ought’ and ‘is’, realism and behaviourism, and goodness
knows what else.” That did not deter Lord Denning from developing
his own philosophical approach to the law, particularly during the period when he sat
on the Court of Appeal during the 1950s. The depth of that approach is another issue. He did not succeed in the testing competition to become a member of All Souls College at
Oxford, an academic research institution with no undergraduate students. Undeterred, he
pressed on with his ambition to become a barrister. He had the assistance of a prize studentship
of £100 per annum which helped him survive until his practice grew. He commenced at the
Bar in 1923 and by about 1930 was making £1,000 per annum. He also wrote articles for the
Law Quarterly Review and helped bring out a new edition of Smith’s Leading Cases in
the Common Law. He also co-edited the 9th edition of Bullen & Leake’s Precedents of
Pleadings published in 1935. The work on Smith’s Leading Cases, he said, taught him most of
the law he ever knew. It was an immense task involving much research and, in particular,
assisted him to resolve the issues raised in the High Trees case in 1946, a decision
to which I shall return. In 1932, he married Mary Harvey, the daughter
of the vicar of his home town in Hampshire, Whitchurch. His religious instincts were deep
and significantly influenced his philosophical approach to the law. They had one child, but
Mary died tragically in 1941. Their son later became an academic and a fellow of Magdalen
College. Tom Denning remarried Joan Stuart in 1945. They remained happily married until
her death in 1992. He had been granted silk in 1938 and was made
a judge in the Probate, Divorce and Admiralty Division in 1944. He had never done any divorce
work as a barrister, nor did he like it, but the offer of a position on the High Court
was not one he felt he should refuse. He was then only 45 years old and young for such
an appointment. Judges appointed then were not obliged to retire at any particular age.
He transferred to the King’s Bench Division late in 1945.
The next year, he delivered judgment in Central London Property Trust Limited v High Trees
House Limited, the decision by him which has probably influenced the development of the
law more than any other. I say that advisedly because, rather surprisingly,
it is the only decision of Lord Denning included in the list of “15 top cases” compiled
recently by the English Incorporated Council of Law Reporting from the votes of its readers.
They were asked to select the cases they thought had made the greatest contribution to English
legal history during the last 150 years, the period covered by the authorised law reports.
When one includes the shortlist of 40 from which the 15 were chosen, the only other judgment
attributable to Lord Denning is his dissenting view in the Court of Appeal in Norwich Pharmacal
Co v Customs and Excise Commissioners. The majority in the Court of Appeal was upheld
in the House of Lords so Denning’s dissent was not influential. The only other decision
of some note to which I could make a link was Hedley Byrne & Co v Heller & Partners
dealing with negligent misstatement. I refer to it because, although Lord Denning
was not a party to the reasons, his dissenting views in Candler v Crane, Christmas & C were,
no doubt, influential in the adoption of the majority view in Hedley Byrne. Lord Denning
himself also believed that his judgment in Candler v Crane, Christmas was his most
important. The High Trees case is regarded as the source
of the doctrine of promissory or equitable estoppel, at least in English law. In reasons
brief by modern standards, Denning J decided that the representation by the landlord that
payment of rent at the full rate would not be enforced, although not a representation
of existing fact but one as to the future, was still enforceable as a promise intended
to be binding even if it lacked consideration. The prospect that a promise to accept a smaller
sum in discharge of a larger sum, if acted upon, would, therefore, be binding without
consideration pleased him as a result of the fusion of law and equity.
The High Court of Australia through Sir Owen Dixon had adopted a different approach leading
to a similar result in Grundt v Great Boulder Proprietary Gold Mines Ltd when Sir Owen said:
“The principle on which estoppel in pais is founded is that the law should not permit
an unjust departure by a party from an assumption of fact which he has caused another party
to adopt or accept for the purpose of their legal relations. … One condition appears
always to be indispensable. … It is often said simply that the party asserting the estoppel
must have been induced to act to his detriment.” In a later, 1975, decision, Moorgate Ltd v
Twitchings, Lord Denning referred to that approach and to some correspondence he had
with Sir Owen about the High Trees decision. In Moorgate he modified his view by describing
the issue as whether it would be unjust or inequitable to permit a party to withdraw
from the assumption. I have not been able to track down the correspondence
between the two but Sir Owen had, interestingly, delivered an illuminating talk on judicial
method at Yale in 1955. Without explicit reference to the High Trees decision, but referring
to a very similar factual situation, he discussed how a judge might approach the issue in the
following words: “What might a modern court of last resort say to the claim? What might
reforming zeal do if coupled with boldness of innovation? It could hardly go as far as
denying that consideration is necessary to the formation of every simple contract … .”
After that oblique and apparently intended barb at the original Denning approach, Sir
Owen went on to consider a number of possible answers to the problem, including the application
of theories from the law of contract. He also said that the doctrine of estoppel could cover
the issue raised by the High Trees case, whether an agreement to reduce rental payments, not
supported by consideration, could nonetheless be enforced, by saying: “It is by no means
fanciful to regard the fundamental principle of an estoppel which comes from dealings between
the parties to be simply that one of them is disentitled to depart from an assumption
in the assertion of rights against the other when it would be unjust and inadmissible for
him to do so. It is a necessary condition that the second should have acted or abstained
from acting, upon the footing of the state of affairs assumed, in such a way that he
would suffer a detriment if the first party were afterwards allowed to set up rights against
him inconsistent with the assumption. It is further necessary that it should be unjust
and inadmissible for the first party to depart from the assumption for the purpose of asserting
rights.” That focus on injustice or unconscionability
and detriment did not appear in the High Trees decision. In Australia, particularly since
the High Court’s decision in Waltons Stores v Maher, the focus is clearly on unconscionability
and detriment, not on whether the promise was intended to be binding even if it lacked
consideration. In 1948, two years after the High Trees decision,
Denning J was promoted to the Court of Appeal where he remained as a Lord Justice until
his appointment to the House of Lords in 1957. Professor R F V Heuston, whose insights into
Lord Denning’s work and life repay reading, said of that period in Denning’s life: “If
the reader of the law reports had not already realised it, there were now many signs of
a powerful new mind at work. In many ways the judgments of the Fifties are classic Denning;
there is still enough respect for precedent for the analysis of the cases to be full and
careful, and the style, clear and vivid, is not yet marred by the self-conscious tricks
of the Seventies.” It was during his first period in the Court
of Appeal, before he rejoined it as Master of the Rolls in 1962, that Lord Denning himself
said that he developed his judicial philosophy. His willingness to express a philosophy has
been described as unusual. As Professor A W B Simpson said, rather memorably: “Hardly
any of those many hundreds of forgotten and curiously anonymous men, and they were men
then, who have held high judicial office in the common law system have left us even the
briefest statements of their judicial philosophies. Indeed, so far as most of them are concerned,
there is no reason to suppose that they possessed one in any self-conscious or articulate sense.
Just as plumbers may plumb for a lifetime without perplexing themselves as to what it
is all about, so too may judges judge, and most do. But from time to time there have
been exceptions, and Lord Denning is one.” Lord Denning’s expression of his judicial
philosophy was typically brief and dogmatic and I quote: “(i) Let justice be done; (ii)
Freedom under the law; (iii) Put your trust in God.”
He took as his motto when made a law lord, “Fiat justitia”, discarding the conventional
additional words “ruat caelum” on the theory that, if justice is done, the heavens
should not fall; they should rejoice. The Denning Law Journal’s take on Lord Denning’s
values is more expansive and includes the importance of developing the common law; the
need for judicial and community recognition of the importance and urgency of reform and
modernisation of the law; the importance of preserving the traditions of judicial independence,
integrity and creativity; the importance of reflecting upon the interplay between law
and morality; and the essential role to be played by the law in the defence of the individual
in the modern state. Let me deal with Lord Denning’s own three-part
formulation though, and in reverse order, starting with “Put your trust in God”.
He was a devout Anglican all his life, loving that church’s worship, liturgy and language.
For many years he presided over the Lawyers’ Christian Fellowship. In one of his books,
The Changing Law, he wrote about the derivation of many of our fundamental legal principles
from Christianity. He began by discussing the obligation to tell the truth and keep
one’s promises. The latter he contrasted with what used to be called contracts of adhesion,
where the party with less economic strength has no ability to bargain about the terms
but must either accept them or go without the benefit of any contract at all. He drew
on the views of St Thomas Aquinas to excuse holding a party to the letter of such a contract
where unforeseen circumstances have arisen which make it unjust to enforce it against
him. He regarded that as an area where the law had overreached itself with contracts
as it had in respect of the interpretation of statutes. His view was that literal interpretations
of contracts or statutes could lead to departures from quote “real” unquote truth. He promoted
the purposive approach to the construction of statutes now adopted in Australia rather
than the existing common law rules requiring interpretation according to the grammatical
and ordinary sense of the words. He equated our conception of justice with
the Christian teaching of love for God and your neighbour which he illustrated by Lord
Atkins’ decision in Donoghue v Stevenson and the discussion there, derived from the
parable of the Good Samaritan, about who was the neighbour to whom a duty of care was owed.
He also discussed punishment for crime in the Christian context, treating the abolition
of capital punishment as a reflection of a more Christian outlook on the right way to
punish offenders, focussing on the reformation of the criminal. He drew attention to the
need to recognise that society itself is responsible for the conditions which make people criminals.
In that context, however, he also stressed individual responsibility, including repentance.
In discussing criminal responsibility, he focussed on the need to show that the offender
had a guilty mind, the rule of English law from the time of Henry I, equating crime with
sin. He justified the rules relating to criminal
insanity by reference to Christian principles so that if the offender was driven by some
blind impulse but which he knew, nevertheless, was wrong, he was not excused in law. Then,
in addressing the relations between man and the State, he drew on the primary principle
of Christian ethics in politics as respect for every person simply as a person. He illustrated
this with the words of the 13th century cleric and jurist Henry of Bracton that “the King
is under no man, save under God and the law”. Those were the words used by Lord Coke, in
response to Charles I’s views on the divine right of monarchs. In modern terms they mean
that the executive power is under the law. Lord Denning contrasted our system in that
context with modern totalitarian systems of government.
He used Christian principles to argue against the evils of excessive accumulation of wealth
and opportunity in the hands of a few. He referred to the creation of the welfare state
in Britain and the enforcement by the courts of obligations of employers, to provide safe
conditions of work to their workers and compensate them for injury. He also discussed however
the dangers posed by the welfare state in increasing governmental powers over the individual.
Finally, he referred to the institution of marriage and the availability of divorce since
the State abandoned the principle of indissolubility. In concluding his views on that he said: “People
have come to regard divorce as a matter which can be arranged between the parties. In so
doing, they only too often disregard the interests of their children and pursue their own selfish
ends. Every thinking person is profoundly disturbed by this state of affairs. It has
a grave effect on the family unity and on the national character …”
This is an example of something I mentioned earlier, the problems in the application of
the law caused by the confusion of personal prejudice with an ideal of justice. Another
example comes from his refusal to accept the decriminalisation of homosexual acts between
consenting adults. He was vociferous about that in later life.
This mixing of personal prejudice and an ideal of justice may be exemplified by his decision
in Ward v Bradford Corporation where he said this, in an apparently ex tempore decision
about a young woman who had been expelled as a trainee teacher: “If there were any
evidence that Miss Ward had been treated in any way unfairly or unjustly I would be in
favour of interfering. But I do not think she was treated unfairly or unjustly. She
had broken the rules most flagrantly. She had invited a man to her room and lived there
with him for weeks on end. I say nothing about her morals. She claims that they are her own
affair. So be it. If she wanted to live with this man, she could have gone into lodgings
in the town and no one would have worried, except perhaps her parents. Instead of going
into lodgings she had this man with her, night after night, in the hall of residence where
such a thing was absolutely forbidden. That is a fine example to set to others! And she
a girl training to be a teacher! I expect the governors and the staff all thought that
she was quite an unsuitable person for it. She would never make a teacher. No parent
would knowingly entrust their child to her care.”
No doubt the decision was legally justifiable as Ms Ward had broken the rules. But Lord
Denning’s statement that he was saying nothing about her morals was a trifle disingenuous! Lord Denning’s second philosophical plank was freedom under the law. From an early stage
he insisted that the common law needed to develop better remedies for judicial review
of administrative action. Those views were first expressed by him in the Hamlyn Lectures
he delivered in late 1949. He was remarkably prescient about the need to develop better
administrative remedies and eloquent in describing the forces demanding better redress in the
courts for the abuse of governmental power. He strongly endorsed Lord Atkins’ dissenting
speech in the wartime decision of Liversidge v Anderson. Contrary to the majority and using
vividly pointed language directed at his judicial colleagues, Lord Atkin said that the courts
could examine the reasonableness of a minister’s belief that a person was “of hostile associations”.
Lord Denning drew attention to the willingness of the then regime in the USSR to encroach
on the liberty of the subject. He also relied, despite his reputation for Anglo-centrism,
on French law to show how the control of the executive can be handled differently, not
only in respect of administrative law, but also in the regulation of abuses of power
by police. In concluding his discussion about remedies
for abuse of power, he recommended the replacement of the old prerogative writs, mandamus and
certiorari, and actions on the case by new and up to date machinery, by declarations,
injunctions and actions for negligence administered through the courts rather than in Parliament.
Those views have been adopted legislatively or by procedural changes in many jurisdictions
and show one aspect of his continuing relevance separate from the effect of his decisions.
These themes about the abuse of power remained important to him for the rest of his life
and figured prominently in later writing by him. In a controversial book published by
him just before he retired, ‘What Next in the Law’, he said: “…the most important function
of the law is to restrain the abuse of power by any of the holders of it – no matter
whether they be the Government, the newspapers, the television, the trade unions, the multi-national
companies, or anyone else.” And now to the first of Lord Denning’s philosophical
principles, “Let justice be done”. It gave rise to the most controversial aspects
of his career. To the outside observer, his view of doing justice according to law depended
very much on his subjective view of the merits of a case. As he said himself: “If there
is any rule of law which impairs the doing of justice, then it is the province of the
judge to do all he legitimately can to avoid that rule – or even to change it – so as to
do justice in the instant case before him. He need not wait for the legislature to intervene:
because that can never be of any help in the instant case. I would emphasise, however,
the word ‘legitimately’: the judge is himself subject to the law and must abide
by it.” It was not long after his elevation to the
Court of Appeal that his decisions began to draw pointed attention from the House of Lords.
In British Movietonews v London & District Cinemas, the Court of Appeal had suggested
that parties were no longer bound by a contract if there had been an unexpected turn of events
which might fall within the literal meaning of the words used but outside the true intention
of the parties. Viscount Simon said that Lord Justice Denning’s judgment included “phrases
… which give us some concern” and went on to say that the authorities relied on by
Denning LJ did not support the propositions he advanced.
Another criticism was made by Lord Simonds in Magor & St Mellons v Newport Corporation.
Denning LJ had said that the Court’s role was to find out the intention of Parliament
and of the Ministers and carry it out as part of the process of statutory construction and
that it could do that better by filling in the gaps and making sense of the enactment
than by opening it up to destructive analysis. Lord Simonds said that appeared to be a naked
usurpation of the legislative function under the thin guise of interpretation. There was
speculation in Australia, apparently, whether Denning LJ might be removed from office.
Nonetheless, when a vacancy occurred among the Law Lords in 1957, Denning was appointed
to the position. He stayed there until 1962 when he returned to the Court of Appeal as
Master of the Rolls. He did not enjoy his time in the House of Lords as much. There
appears to have been some personal tension between him and Lord Simonds, who continued
to criticise his views. In private correspondence with Sir Owen Dixon between 1955 and 1957,
Lord Simonds said, of Denning, that he was personally attractive and had great learning
but that he regarded him as a “judicial menace”. Other observations by Lord Simonds
were: “He is learned, very learned, in the sense that he knows as much law as the rest
of the Bench put together and has it at his finger tips. But if you add, that, if so,
much learning hath made him mad, I can only respectfully concur.”
And, seven months after Denning became a Law Lord in 1957, this again to Sir Owen Dixon:
“Denning himself is a thorn in the flesh – there is in him not only a passion for
display but a faultiness of judgment which may become dangerous.”
Sir Owen wrote back to Lord Simonds in 1956 that Denning baffled him: “He seems always
to be setting principle at defiance. I do not think wild horses would get a majority
of the High Court to follow some of his decisions.” Let me move on!
The House of Lords still regarded itself as bound by its own previous decisions until
1966, something that Lord Denning struggled to accommodate with his views about the need
to loosen the doctrine of precedent, particularly in the House of Lords.
The most severe criticism of him made in those House of Lords years was his joining in the
unanimous decision in DPP v Smith on the meaning of mens rea or criminal intent to establish
guilt for murder. That decision was trenchantly criticised by Sir Owen Dixon in Parker v The
Queen, the decision which ended the practice by which our High Court had previously followed
decisions of the House of Lords. Sir Owen thought that decision contained propositions
which he could never bring himself to accept and Sir Wilfred Fullagar characterised it
to Sir Owen by saying that they were “hanging men for manslaughter in England now”.
Lord Denning was later embarrassed by his agreement in DPP v Smith, saying that he would
have liked to have delivered a separate judgment but was discouraged from doing so. That encouragement
to agree with other decisions appears to have been one of the reasons he did not like the
work in the House of Lords so much. When asked later why he moved to the Court of Appeal
he replied that he was too often in a minority, saying that in the Lords it was no good to
dissent. On other occasions he said, rather more archly, that the odds of justice being done increased when he was one of three rather than one of five. After his return to the Court of Appeal in 1962, his prominence increased. He had been
in demand as a speaker particularly since the Hamlyn Lectures in 1949 and that demand
became international. He became a significant public figure in 1963 when appointed to conduct
the Profumo inquiry into alleged misconduct by a Cabinet minister. At the time he was
described in The Observer in these terms: “It has been left to Miss Mandy Rice-Davies,
one of the prostitutes at the centre of the business, to bring home to the public what
every barrister, who ever appeared before him knew already: that he is ‘quite the
nicest’ judge. Charming, infinitely courteous, always anxious to help: this is how Tom Denning
has always been known at the Bar. Tall and thin, neat and unobtrusive in his dress, sociable
enough but not in the dining-club, old-boy reunion, City banquet sense, he has always
been a bit of a lone wolf, incredibly hard-working, ruthlessly honest – the whitest lie pains
him – dissenting because it is in his nature and his upbringing to bear witness, to keep
faith, to do duty, a little proud in his independence.” He received many honorary doctorates from
universities throughout the world and published regularly towards the end of his judicial
career. By then, however, his popularity had begun to wane.
There was a suggestion that, as Master of the Rolls, he would pick the cases on which
he sat, particularly the ones where he believed the law needed to be changed.
To facilitate that he would chosen the judges to sit
with him from those who, he believed, favoured change in the law. On one such occasion, however,
the tactic did not work. The two judges sitting with him on a case in which the decision had
been reserved came to discuss it with him. The first judge to speak said he did not agree
with Lord Denning’s already circulated draft judgment in the matter and would write his
own reasons. Lord Denning told him: “That’s alright, you can dissent”. The other judge
then told him that he too disagreed with Lord Denning’s reasons to which, ever confident,
he replied: “Oh that’s fine. You can both dissent.” Never fond of the doctrine of precedent, he had embarked on a campaign to free the Court
of Appeal of its obligation to follow its own decisions. His theory was that the relaxation
of that rule in 1966 by the House of Lords also applied to the Court of Appeal. In Cassell
v Broome, he had invited the Court of Appeal and trial judges not to follow Rookes v Barnard,
a clear decision of the House of Lords on the proper scope of exemplary damages in defamation,
asserting that the decision had been given per incuriam, in ignorance of an earlier decision.
He was not alone in his dislike for Rookes v Barnard, as our High Court refused to follow
it in Uren v John Fairfax & Sons. Denning was severely rebuked for his heresy by the
House of Lords, however, and also rebuked in Gouriet v Union of Post Office Workers
for suggesting that the courts could control the decision of the Attorney-General to lend
his name to relator proceedings. Lord Diplock observed, probably referring to Lord Denning’s
dissenting remarks, that the failure to recognise the distinction between private law and public
law below led to “some confusion and an unaccustomed degree of rhetoric”. Professor
Heuston certainly took the remark as a reference to Lord Denning and had this to say: “Denning’s
style had always been unusual: by the mid-seventies it was not quite so admired as it had been.
The structure of the judgment was as clear and sound as ever, and often praised by his
fellow judges, but a certain striving after effect had become noticeable in the style
rather than in the arrangement. There were few or no subordinate clauses, and sometimes
no verb in the sentences. So the style was lacking in cadences. Also the terse vivid
opening sentence, to which he himself attached so much importance for gripping the reader’s
attention, often seemed inappropriate, especially in cases of severe personal injuries. Parodies
began to appear – sometimes quite amusing.” The popular press had also sharpened its focus
on judges, even in the civil cases in which Lord Denning specialised. Rebukes of him by
the House of Lords received great publicity and sometimes provoked vigorous responses
from Lord Denning himself. A contributor to an academic journal in 1980
said: “We are witnessing the tragic drama of a great judge whose acute sense of rightness
has become a conviction of righteousness, whose consciousness of the need for justice
has led him to become a self-appointed arbiter in the politics of society and whose desire
to draw attention to defects in our law has more noticeably drawn attention to himself.
Aided and abetted by the media, whose motives are not coincident with the interests of justice,
of the legal system nor of the noble judge himself, the process has accelerated and the
Master of the Rolls now takes his daily place alongside the good and the bad in the nation’s
headlines.” By then the subject of his potential resignation
had become an issue. He was much more senior than the other judges and less likely to pay
much attention to what they said. Professor Heuston says that, by then, he seemed
to be in a state of some intellectual and social isolation, not having any younger judge
who could act as friend or adviser. Professor McAuslan made a perceptive comparison of Lord
Denning with Lord Mountbatten, saying: “What Lord Mountbatten was to the Royals, Lord Denning
is to the judiciary; unorthodox, larger than life, a great performer, eager to emphasise
his own considerable contributions to public life and present them in the best possible
light ….” Professor Heuston went on to say to that list of shared qualities might
be added a certain absence of humour about self. Lord Denning’s resignation came finally in 1982, in his 83rd year. It was precipitated
by the publication of his latest book, the fourth in three years, titled ‘What Next in
the Law’. It created a hullabaloo. He called into question the suitability of immigrants
and non-whites for jury duty. It incorporated remarks he had made a year before, that the
black defendants’ lawyers in cases arising out of the Bristol race riots had made their
jury selections and objections based on race. Those remarks had been shown to be false.
He went on to say that: “The English are no longer a homogenous race. They are white
and black, coloured and brown. They no longer share the same standards of conduct. Some
of them come from countries where bribery and graft are accepted as an integral part
of life: and where stealing is a virtue so long as you are not found out. They no longer
share the same code of morals. They no longer share the same religious beliefs. They no
longer share the same respect for the law.” Earlier in 1982, he had controversially refused
to find that Sikhs were protected as a “race” under the existing anti-discrimination law,
a decision overturned by the House of Lords. In 1980 he had ranted against the Birmingham
Six in the case of McIlkenny saying: “This case shows what a civilized country we are.
Here are six men who have been convicted of the most wicked murder of 21 innocent people.
They have no money. Yet the state lavished large sums on their defence. … In their
evidence they were guilty of gross perjury. Yet the state continued to lavish large sums
on them – in their actions against the police. It is high time that it stopped. It is really
an attempt to set aside the convictions by a side-wind. It is a scandal that should not
be allowed to continue.” It was later established that the Birmingham
Six had been set up by police, that their confessions had been coerced and that they
had no part in the bombings. All of these events attracted significant
publicity, the controversy over the contents of the book being the last straw. The published
version was withdrawn and replaced with the offending parts excised. Lord Denning released
a statement through the Clerk to the Master of the Rolls saying that he had intended for
some time to retire by 30 September 1982 because of his advanced age, but that in light of
the recent controversy which had arisen over his book it was decided to bring the announcement
forward. He continued sitting until the end of July 1982.
Rudy Narayan of the Society of Black Lawyers offered an elegant footnote to the controversy
created by Lord Denning about coloured jurors by saying: “Lord Denning remains one of
the greatest judicial minds of his century. A great judge has erred greatly in the intellectual
loneliness of advanced years; while his remarks should be rejected and rebutted he is yet,
in a personal way, entitled to draw on that reservoir of community regard which he has
in many quarters and to seek understanding, if not forgiveness.”
These idiosyncrasies of Lord Denning’s later years illustrate the fundamental issue raised
by the first principle of his judicial philosophy, “Let justice be done”. What is justice
if it is avowedly idiosyncratic to the extent that it could be with Lord Denning? When those
idiosyncracies include apparently serious prejudices the danger to the rule of law becomes
significant. Sir Owen Dixon’s discussion of judicial
method back in 1955 in the context of the High Trees decision concluded with what can
only be regarded as pointed remarks. It is an error, he wrote: “If it is believed that
the technique of the common law cannot meet the demands which changing conceptions of
justice and convenience make. The demands made in the name of justice must not be arbitrary
or fanciful. They must proceed, not from political or sociological propensities, but from deeper,
more ordered, more philosophical and perhaps more enduring conceptions of justice. Impatience
at the pace with which legal developments proceed must be restrained because of graver
issues. For if the alternative to the judicial administration of the law according to a received
technique and by the use of the logical faculties is the abrupt change of conceptions according
to personal standards or theories of justice and convenience which the judge sets up, then
the Anglo-American system would seem to be placed at risk. The better judges would be
set adrift with neither moorings nor chart. The courts would come to exercise an unregulated
authority over the fate of men and their affairs which would leave our system undistinguishable
from the systems which we least admire.” Sir Owen later wrote to the leading American
Supreme Court judge, Felix Frankfurter, telling him that, to a certain extent, he was aiming
at Denning LJ in his remarks. However, rather to his consternation, he had received a letter
from Denning shortly after the talk saying he completely agreed with everything Dixon
had written in the address! Let me conclude. In retirement Lord Denning
continued to give interviews, including a notorious one in 1990 with A N Wilson from
the Spectator. He also continued to attract attention, sometimes for all the wrong reasons.
One of the saddest episodes of his later life was his participation in a television show
hosted by the since disgraced paedophile, Jimmy Savile. The subject was the trial of
Enid Blyton’s character “Noddy” where Lord Denning presided in his dotage and in
full judicial regalia. I only watched a little of it. I just thought it was so sad. His latter years
show the virtue of the statutory retirement age.
Lord Denning in his prime was a man of great warmth, courtesy and charm, much loved by
those who knew him well. He was a great judge in so many respects, particularly in his recognition
of the need for change and development in the legal system. His best judgments reflect
a high degree of scholarship and a talent for expressing the law clearly and simply.
Many of his decisions, even if not ultimately persuasive as precedents, have provided inspiration
for legislative change. So have his other writings. I have mentioned the modern development
of better legal remedies for judicial review of administrative action as one example. Another
example that springs to mind is the legislation that has entrenched the rights of spouses
to share in matrimonial property held in separate names. Early in his career in the Court of
Appeal he had argued that a deserted wife had an equity in the matrimonial home, a stance
he maintained “despite some legislative setbacks and regular rebuttal by the House
of Lords” and which eventually attracted statutory intervention.
His decisions may have been affected by hidden or old-fashioned prejudice, particularly because
of his confidence in his own judgment of what was just, the strength of his self-belief.
Any judge, however, needs to faithfully re-examine his or her assumptions about life and society
in the light of new knowledge to avoid making decisions inconsistent both with justice and
the law. To adopt the words of the monk and writer, Thomas Merton: “One must face the
fact that ‘good intentions’ are only good as long as they are faithfully re-examined
in the light of new knowledge, and in the light of their fruits. … The ethic of subjective
‘good intentions’ has been judged and found wanting. We must refocus on the objective
results of our decisions!” Lord Denning’s subjective good intentions
needed a healthier dose of legal objectivity to secure his place in the legal pantheon.
Thank you. (APPLAUSE) Justice Douglas has recalled for us why so
many of us regard Lord Denning as a hero. He has tempered that with his review of those
less attractive aspects on his character. Which became so evident later in his life.
Lord Denning’s turn of phrase was not confined to his judgments. In an interview he gave
to the Daily Mail he was asked his opinion of the workings of parliament. He said, “the
House of Commons start it’s proceedings with a prayer. The Chaplin looks at the assembled
member with their varied intelligence and then prays for the country”. The influence
of Lord Alfred Denning will be with us for a long time. Justice Douglas’s iridation
tonight, he eloquently reminded us why that is so. As a token of our thanks. Sorry, it’s
domestic (laughs). Would you please join me in expressing our appreciation, [Justice Douglas
– It’s French]. He got the wrong one (laugher (APPLAUSE). The final in this excellent
lectures will be presented by Justice Edelman when he speaks about one of England’s greatest
judges Lord Bingham. It will take place here on Tuesday the third of December. I invite
you to join us then. I invite you to join us now for refreshments in the gallery. Good

Author: Kennedi Daugherty

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