Lord Denning: An Affectionate Remembrance

M. J. O'Grady, Q. C.,( O'Grady & Associate Ottawa, Ontario)

The man who has been labelled "perhaps the best-known English judge of the 20th Century", and certainly its "most colourful", died on Friday, March 5, 1999.

He had celebrated his 100th birthday six weeks earlier, on January 23. On that occasion, the Chairman of the Bar Council, Dan Brennan, Q.C., said that Lord Denning's unique gift to English law had been his ability to see the law as "a means to an end". He added that Lord Denning had "never unnecessarily allowed precedent or legal technicality to obscure what he believed to be the "interests of justice". He concluded that the profession had "lost a giant of British law making", and that "his like will not be seen again".

This brief remembrance is given to commemorate Lord Denning's lengthy and prolific contributions to the English and Commonwealth legal systems, from which we as Canadian lawyers draw so much of our intellectual nourishment. In addition, the organizers of this conference, recalling Lord Denning's keen and very British wit, have asked me to collect a number of well-known Denningisms, and to reproduce them in my paper and in this talk as a means of remembering the man himself, and his impact upon the language and reasoning of the law in our times.

First, a biographical note.

He was born Alfred Thompson Denning at Whitchurch, Hampshire, on January 23, 1899, the fourth of five sons of Charles Denning and his wife Clara. His father was a draper. His mother had been a school teacher. Through the Poyntz family, he was descended from Sir Sydenham Poyntz, who commanded the parliamentary forces at the Battle of Rowton Heath in the Civil War and who later became Governor of Antigua. About 1720, Sir Sydenham's granddaughter eloped with a Richard Denning, and in 1806 the Poyntz-Dennings had their coat of arms registered at the College of Arms. "But next year" (according to Lord Denning's obituary in the Daily Telegraph for March 6, 1999) "the family estates disappeared into the Court of Chancery, never to re-emerge".
I was intrigued by this reference to the 17th century Court of Chancery in Denning's family background. It brought to mind the gloomy portrait of that court, presumably as it existed in the 18th century, painted by Charles Dickens (another master of the colourful opening paragraph) in his novel Bleak House:

"London. Michaelmas Term over, and the Lord Chancellor sitting in Lincoln's Inn Hall. Implacable November weather. As much mud in the streets, as if the waters had been newly retired from the face of the earth...Smoke lowering down from chimney-pots, making a soft black drizzle...Fog everywhere...and hard by temple bar, in Lincoln's Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery...with the foggy glory around his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice, and an interminable brief, and outwardly directly his contemplation to the lantern in the roof, where he can see nothing but fog...mistily engaged in one of the 10,000 stages of an endless cause, tripping one another up on slippery precedents, groping knee deep in technicalities, running their goat hair and horsehair warded heads against walls of words, and making a pretence of equity with serious faces, as players might...This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to monied might the means abundantly of wearying out the right; which so exhaust finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give - who does not often give - the warning, 'suffer any wrong that can be done you rather than come here!' "

As will become clear, Lord Denning's approach to the law was the very antithesis of Dickens' High Court of Chancery, as though his life and work had been intended by a higher power to redress the judicial wrongs done his ancestors.

In any event, he was raised by his father Charles Denning, described as "a humourous, easy-going man, with a penchant for poetry"; and by his mother, the former Clara Thompson, described as a "keen businesswoman with a backbone of steel, who intended her sons to be successes".

All the Denning boys took part in the First World War. His oldest brother Jack was killed in 1916. The third boy, Gordon, died of tuberculosis contracted during naval service at Jutland. The second son, Reg, became a Lieutenant-General. The youngest boy, Norman, became a Vice-Admiral, and eventually Chief of Naval Intelligence. "Tom" Denning, as he was known, was considered by his mother to be the physically weakest of her five sons. He did not see action until the spring of 1918, when he joined the 151st Field Company of the Royal Engineers, building bridges across the River Ancre under heavy fire. He escaped the war uninjured, and always said of his dead brothers that "they were the best of us".

After the war he took a First in mathematics at Magdalen College, Oxford, and for a while thereafter taught at Winchester where, according to legend, he had difficulty in keeping order among his students. He wrote to his future wife "I feel that I don't want to settle down here doing the same thing day after day, a very mediocre schoolmaster with no ambition or hope". Thereupon, he returned to Magdalen, and obtained a First in law in 1922. His transcript included a "C" in jurisprudence, which he said was "too abstract a subject for my liking". In June of 1923 he was called to the bar by Lincoln's Inn, and set about practising, believing that the essential qualities for success at the bar were good sense and a pleasing manner. His practice is said to have been broad and to have grown steadily. His obituary says that in 1938, when he was earning about £3,000 per year, "he felt secure enough to take Silk"; and that "though his salary did not actually decrease with his elevation, as often happens, he never commanded colossal fees".

In March, 1944 he was appointed a Judge of the High Court in the Probate, Divorce and Admiralty Division, at the age of 45. Eighteen months later he was transferred to the Kings Bench Division. In October 1948, after only 4 ½ years as a trial judge, he was elevated to the Court of Appeal. In 1957, he moved again, this time to the House of Lords as a Lord of Appeal in Ordinary, with the usual life peerage attached to that office. After five years in that refined atmosphere, however, he opted to accept re-appointment to the Court of Appeal, as Master of the Rolls. He had not enjoyed his time in the House of Lords, and is quoted as having said "To most lawyers on the bench, the House of Lords is like heaven. You want to get there someday - but not while there is any life in you".

His ambivalent relationship with the House of Lords was nicely summed up in a Private Eye cartoon which appeared following Denning's retirement as Master of the Rolls in 1982. In the cartoon, two barristers are shown reading a newspaper heading: "Denning to retire". One observes to the other: "I expect the House of Lords will overrule his decision".

The office of Master of the Rolls retains vestiges of the officeholder's ancient function as Keeper of the Rolls, in that this official is head of the Public Records Office, and Chairman of both the Advisory Committee on Public Records and the Royal Commission on Historical Manuscripts. His biographer says: "Denning, who was deeply interested in the history of the English law, took these duties extremely seriously".

Denning published at least ten books, and received at least eighteen honorary doctoral degrees, including degrees from the Universities of Ottawa (1955), McGill (1967), Dalhousie (1970), Western Ontario (1979), and British Columbia (1979). In November, 1997, the Queen conferred upon him the Order of Merit, a special mark of honour reserved for individuals of exceptional distinction in the arts, learning, sciences, and other areas, with the number of members of the Order at any time being restricted to twenty-four.

His career on the bench ended, as some will know, in some improbable controversy. This arose from comments which he made, in an after-dinner speech, on the trial of 12 persons charged in the Bristol riots. Although he was widely regarded as a man with friends of all races and colours, who had done much to promote legal education throughout all the countries of the Commonwealth, he was nevertheless criticized near the end of his career for excessive nationalistic zealotry, and for what appeared to some to be a tendency to racial prejudice, combined with a failure to understand the workings of racial discrimination. It was not the first occasion on which his fierce patriotism, rather brutal candour, and sometimes-breathtaking aplomb had brought him into conflict with received opinion.

For that matter, Denning's substantive work in the law is also not without its critics. One of these is Professor Reuben Hasson, who in a 1986 book review (The Limits of High Trees, a review of Jowell and McAuslan, eds. Lord Denning: The Judge and the Law (1984), Vol. 24 No. 2, Osgoode Hall Law Journal 437) concluded:
"The attempts made over the years to thrust greatness on Lord Denning fail. From 1970 until his retirement in 1982, I do not think he deserved even to be called a good judge. On Denning's own admission, his strength lay in the field of contract and tort; but even in these areas his main function was to show that policy choices had to be made. Even High Trees (Hasson says in a footnote: 'Everyone seems to applaud this decision; the only difficulty is that nearly everyone places a different interpretation on it') will not come to be regarded as a major breakthrough. In my view, the confusion created by that case will ultimately have to be cleared up by legislation. But common-law litigation constitutes a minute fraction of the modern judge's work. In the fields of administrative law, labour law, social security, and civil liberties, his record can only be termed - at best - indifferent.
Unlike decisions in cases such as High Trees, the decisions in these areas of the law affect millions of people. I think that it is in these fields that Denning's quality as a judge has to be decided. In my view, he fell considerably short of the stature of a great judge (or jurist)".

Despite criticisms of this kind, the verdict of most, at the end of his career, was favourable. At Denning's 100th birthday party (which he was unable to attend), Law Society President Michael Matthews said simply, "He was a towering figure in the law who made an enormous contribution to the law of this century, probably the major contribution". Following Denning's death, a former Lord Chancellor, Lord Hailsham, said that Denning would go down in history as "one of the great and controversial judges of the 20th century". Roger Gray, Q.C. wrote: "I certainly regard him as the most outstanding legal figure of this century. He was not only pre-eminent as a judge but was also a great man". And Sir John Smith, Emeritus Professor of Law at Nottingham University, correctly expressed a widely-held sentiment when he said that Lord Denning's judgments "continually made one think about the law by challenging accepted concepts". Something exciting was always emerging, he said, when Lord Denning was at the Court of Appeal.

THE DENNING STYLE Commentators on Denning's career on the bench always draw attention to his unusual style of writing. It was characterized by short and succinct sentences, a staccato cadence, lively and entertaining content, and a directness of thought which resulted in "crystal clarity" (Professor Smith's phrase). Lord Irvine said his judgments were "models of simple English which ordinary people understood". They were influenced by his instinctive championing of "the little man", and of course by his innate patriotism and his fondness and respect for the traditional English way of doing things. His biographer Edmund Heward (Lord Denning, a Biography (1990)) said of Denning that "although he had a powerful intellect he was not an intellectual...Denning understood the limits of reason and was not afraid to contravene them...he gave his judgments in the pungent style he had made his own".

That style has also been described as taut, concrete, vigorous, and clear. "There is a pleasing sound to his words. Clichés are avoided. He has a horror of an unbroken page of print. The central principle of his style is that, when you write or speak, you should always be thinking of the reader or the hearer", says Denning's biographer. He reports that Professor Cameron Harvey read through all Denning's reported judgments to discover the best writing. Harvey concluded: "He is an inveterate storyteller. It was his distinctive style to recount the facts in the form of a story". And, as Mr. Heward points out, a storyteller always tries to capture the attention of his hearers immediately.

To illustrate the point, here are some opening lines, or opening paragraphs, from five of Denning's judgments:
1. Try this for use of alliteration: "This is a case of a barmaid who was badly bitten by a big dog": Cummings v. Granger (1977) 1 All E.R. 104, 106;

2. "It happened on April 19, 1964. It was bluebell time in Kent": Hinz v. Berry (1970) 2 Q.B. 40, 42;

3. "Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them": Beswick v. Beswick (1966) Ch. 538;

4. "To some this may appear to be a small matter, but to Mr. Harry Hook, it is very important. He is a street trader in the Barnsley Market. He has been trading there for some six years without any complaint being made against him; but, nevertheless, he has now been banned from trading in the market for life. All because of a trifling incident. On Wednesday, October 16, 1974, the market was closed at 5:30. So were all the lavatories, or 'toilets' as they are now called. They were locked up. Three quarters of an hour later, at 6:20, Harry Hook had an urgent call of nature. He wanted to relieve himself. He went into a side street near the market and there made water, or 'urinated' as it is now said. No one was about except one or two employees of the council, who were cleaning up. They rebuked him. He said: 'I can do it here if I like'. They reported him to a security officer who came up. The security officer reprimanded Harry Hook. We are not told the words used by the security officer. I expect they were in language which street traders understand. Harry Hook made an appropriate reply. Again, we are not told the actual words, but it is not difficult to guess. I expect it was an emphatic version of 'You be off'. At any rate, the security officer described them as words of abuse. Touchstone would say that the security officer gave the 'reproof valiant' and Harry Hook gave the 'counter-check quarrelsome'; As You Like It, Act V, Scene IV. On Thursday morning the security officer reported the incident. The market manager thought it was a serious matter. So he saw Mr. Hook the next day, Friday, October 18. Mr. Hook admitted it and said he was sorry for what had happened. The market manager was not satisfied to leave it there. He reported the incident to the chairman of the amenity services committee of the Council. He says that the chairman agreed that 'staff should be protected from such abuse'. That very day the market manager wrote a letter to Mr. Hook, banning him from trading in the market": Ex Parte Hook (1976) 1 W.L.R. 1052, 1055;

5. "In summertime village cricket is a delight to everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in the County of Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good clubhouse for the players and seats for the onlookers. The village team plays there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings they practice while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket, but now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket field. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground": Miller v. Jackson (1977) Q.B. 966, 976.

Here is a further sampling of the Denning manner from a spectrum of cases. His biographer has said of Denning that "He was a legal poly-math. He had a profound knowledge of many diverse branches of the law with a mastery of case law and formidable legal learning". The following examples will perhaps illustrate the correctness of that observation:

On Witnesses. "I cannot agree with the decision of the Restrictive Practices Court. It may be that there is no authority to be found in the books, but if this is so, all I can say is that the sooner we make one the better. For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it". Attorney General v. Butterworth [1963] 1 Q.B. 696, 717.
On the Conduct of Judges. "It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better...The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that 'Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal'" Jones v. National Coal Board [ 1957] 2 Q.B. 55, 61.

On Deserted Wives. Beginning with H v H (1947) 63 TLR 645, in which he invoked the provisions of s. 17 of the Married Women's Property Act 1882, entitling a judge to make such order with respect to property in dispute between a husband and a wife as he thinks fit, Denning worked tirelessly to establish a common law right in a deserted wife to remain in the matrimonial home. In the dawning age of political correctness, some found his approach to the question to be chauvinist and patronizing, but it is more likely that it simply reflected his deeply-felt loyalty to traditional values and the sanctity of the family unit. In Guarasc v. Guarasc [1969] 3 All E.R. 822 (C.A.), he expressed himself this way:

"Some features of family life are elemental in our society. One is that it is the husband's duty to provide his wife with a roof over her head and the children too. So long as the wife behaves herself, she is entitled to remain in the matrimonial home...This is a personal right which belongs to her as a wife. It is not a proprietary right. So long as she had done nothing to forfeit that right the court will enforce it".

There were many critics of Denning's efforts on behalf of deserted wives. One correspondent wrote:

"Dear Sir:
You are a disgrace to all mankind to let these women break up homes and expect us chaps to keep them while they rob us of what we have worked for and put us out on the street. I only hope you have the same trouble as us. So do us all a favour and take a Rolls and run off Beachy Head and don't come back".

Denning's efforts were eventually defeated by the House of Lords in National Westminster Bank Ltd. v. Ainsworth (1962) AC 1175. The decision was unpopular, and there was pressure on Parliament to introduce legislation. Denning himself said that the House of Lords decision had "blown the deserted wife's equity to smithereens". Parliament eventually dealt with the problem by enacting the Matrimonial Homes Act 1967, under which wives were required to register their rights under the Land Charges Act 1925 as a Class F Land Charge.
On Resulting and Constructive Trusts in Matrimonial Cases. Denning also used the general language of the Married Women's Property Act 1882 to decide several cases in which the issue was whether a wife, who had contributed to the purchase of a house but did not have legal title, should be considered to have a beneficial interest in it, and in what proportion. In Pettitt v. Pettitt (1970) AC 904 the House of Lords defeated those efforts as well, holding that the language of the 1882 statute was procedural only, and did not permit questions of title to be decided except in accordance with the strict legal and equitable rights of husband and wife. As for Denning's early use of the expression "family assets" in the court below, the House of Lords said that the expression was devoid of legal meaning and that its use could define no legal rights or obligations. In subsequent cases, e.g. Heseltine v. Heseltine (1971) All E.R. 952, Denning found a new device to rationalize the outcome which he felt was fair, by adopting a principle first articulated by Lord Diplock: "The legal principles applicable to the claim are those of the English law of trusts and in particular, in the kind of dispute between spouses that come before the courts, the law relating to the creation and operation of resulting, implied, or constructive trusts".
On the Construction of Statutes and Documents. Denning played a major role in advancing a purposive approach to the construction of statutes, in contrast to the approach favoured by literal or "strict" constructionists. The latter perspective is seen in this passage from an Employment Appeal Tribunal ruling released as late as 1978:

"We are bound to apply the provisions of an Act of Parliament however absurd, out of date, and unfair they may appear to be. The duty of making or altering the law is the function of Parliament, and is not, as many mistaken persons seem to imagine, the privilege of judges or the judicial tribunals".

On the appeal from that decision, Denning said: "In all cases now in the interpretation of statutes, we adopt such a construction as will promote the general legislative purpose underlying the provision". He had been advocating an emphasis on "the reasonable intention of Parliament" from as early as 1949 when he said in Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481:

"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise and, even if it were, it is not possible to provide them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he should look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from considerations of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written words so as to give 'force and life' to the intention of the legislature...A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases".

He used a somewhat similar approach to the construction of wills, concentrating on the reasonable wishes of the testator, even to the exclusion of the statutory presumption that the younger survives the older in a common disaster (re Roland Decd (1963 Ch. 1 (in dissent)). In Sydall v. Castings Ltd. (1967) 1 Q.B. 302, he held that an illegitimate daughter was entitled to be considered a "descendant". This outcome reflected not only his basic philosophy, but the rather more ingenious point that the word "descendant" had not been construed in any leading authorities to make it a term of art, as in "blood relatives in the legitimate line", and that, used more generically, the word was broad enough to include an illegitimate child.

Predictably enough, these approaches to subjects on which many textbooks have been written aroused the ire of academic critics. One of them, John Morris of Magdalen College, Oxford, had an article published in the Law Quarterly Review (1966) 82 LQR 196 under the title "Palm Tree Justice in the Court of Appeal". He said that if Denning's tendencies were to prevail: "The textbooks themselves would have to be scrapped and construction reduced to the level of guesswork. It is submitted that the rules of law binding on the court cannot be evaded merely by calling them technical".

Notwithstanding, Denning's basic approach to these problems eventually enjoyed very considerable success. Although frequently accused of having substituted his own judgment for that of Parliament, Denning had his supporters even within the halls of Parliament. On one occasion, Lord Renton said:
"It is said that Lord Denning usurps the functions of the legislature. Well, I venture to say that I have been a democratically-elected legislator for almost as long as Denning has been a judicial one, and I don't mind a bit. He saves a lot of time in Parliament, where we always pass too many laws".

On The Use of Precedents. Denning's focus on function rather than form shaped his approach to judicial precedents, as it had his views on statutory and documentary construction. His beliefs emerge clearly from the following:

"If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. They will be lost in the 'codeless myriad of precedent. That wilderness of single instances'. The common law will cease to grow. Like a coral reef, it will become a structure of fossils." From Precedent to Precedent, p. 3.

"It seems to me that when a particular precedent, even in Your Lordship's house, comes into conflict with a fundamental principle, also of Your Lordship's house, then the fundamental principle must prevail. This must at least be true when on the one hand, the particular precedent leads to absurdity or injustice, and on the other hand, the fundamental principle leads to consistency and fairness. It would, I think, be a great mistake to cling too closely to a particular precedent at the expense of fundamental principal". London Transport Executive v. Botts (1959) AC 213
"The Doctrine of Precedent does not compel Your Lordship to follow the wrong path until you fall over the edge of the cliff. As soon as you find that you are going in the wrong direction you must at least be permitted to strike off in the right direction, even if you are not allowed to retrace your steps". Ostine (Inspector of Taxes) v. Australian Mutual Provident Society (1960) AC 459

"Many a lawyer will dispute the analogy with science. 'I am only concerned', he will say, 'with the law as it is, not with what it ought to be'. For him the rule is the thing. Right or wrong does not matter. That approach is all very well for a working lawyer who applies the law as a working mason lays bricks, without any responsibility for the building which he is making. But it is not good enough for the lawyer who is concerned with his responsibility to the community at large. He should ever seek to do his part to see that the principles of law are consonant with justice. If he should fail to do this, he will forfeit the confidence of the people. The law will fall into disrepute; and if that happens, the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too". From Precedent to Precedent, p. 4.

"Even more so when we come to the meaning of words. Lawyers are here the most offending souls alive. They will so often stick to the letter and miss the substance. The reason is plain enough. Most of them spend their working lives drafting some kind of document or another - trying to see whether it covers this contingency or that. They dwell on words until they become mere precisians in the use of them. They would rather be accurate than clear. They would sooner be long than short. They seek to avoid two meanings, and end - on occasion - by having no meaning". Ibid, p. 15

"Let it not be thought from this discourse that I am against the Doctrine of Precedent. I am not. It is the foundation of our system of case law. This has evolved by broadening down from precedent to precedent. By standing by previous decisions, we have kept the common law on good course. All that I am against is its too strict application, a rigidity which insists that a bad precedent must necessarily be followed. I would treat it as you would a path through the woods. You must follow it certainly, so as to reach your end, but you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you will find yourself lost in the thickets and the brambles. My plea is simply to keep the path to justice clear of obstructions which impede it". The Discipline of Law, p. 314.

Denning's approach to this subject was considerably influenced, of course, by the 1944 Rule of Practice of the Court of Appeal, subsequently confirmed by the House of Lords, that the Court of Appeal was to consider itself strictly bound by its previous decisions in similar cases. A Practice Direction to the same effect in the House of Lords had been set aside on the initiative of the Lord Chancellor, Lord Gardiner, in 1966. At least to 1990, however, the Court of Appeal had retained its restrictive approach, despite Denning's best efforts to get it changed. In this he was supported by Professor Rupert Cross, who expressed the view that "there should be a simple rule that neither the House of Lords nor the Court of Appeal is absolutely bound by its own decisions".
Common Law. Of Denning's common law cases, Professor Atiyah wrote: "...What is most striking about his contribution to the common law is the number of times in which his views, while originally being received with doubt or rejection, have ultimately been vindicated". I mentioned the High Trees case earlier: Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 K.B. 130. Although it has been downplayed by some critics (see above) nevertheless the majority view is that it was an important innovation. After Denning's death, Professor Smith noted that he had been lectured when a student on Denning's controversial 1947 decision, and that in 1999 it was still being taught to students and relied upon in court, as a decision which had pushed the boundaries of contract law into the now-established area of promissory estoppel. The case was heard in July 1946, when Denning had been a judge of the King's Bench for only six months, and during that time had been out on circuit. The case came before him during his first sittings in London. A block of flats, let on 99-year leases at £2,500 per year, had been left largely empty during the war, because of the bombing. The landlord had agreed to reduce the rent to £1,250 per year. When the war ended and the tenants returned, the landlord sought to recover the full £2,500 a year for the wartime years, but Denning held that he could not recover the full rent for the time when the flats were empty. Relying in part on an 1877 decision of Lord Cairns, and an 1888 decision of Lord Justice Bowen, both of them Chancery judges applying equitable principles, Denning restated the principle for the 20th century:

"When a man, by his words or conduct, has led another to believe that he may safely act on the faith of them, and the other does act on them, he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so".

Denning's biographer concedes that the idea was not a new one. "In the 18th century, Lord Mansfield had tried to introduce the idea of moral obligation and the power of the Court to enforce such an obligation, but he was unsuccessful. Many academics have accepted the principle but would have preferred to have rested it on the idea that a person who has let another act to his prejudice on a promise or other conduct should not be able to go back on his word or conduct".

Denning's particular genius was his ability to locate ideas of this kind in the decided cases, and then to restate them and reinvigorate them for the modern era.

Other common law causes which Denning espoused, not always successfully, included:

(a) his long fight against the small print of exemption clauses: Olley v. Marlborough Court Ltd. (1948) 1 K.B. 532; Adler v. Dickson (1955) 1 K.B. 532; and Mitchell v. Finny Seeds Ltd. (1982) 3 W.L.R. 1036. His essential idea was there had to be proof that the injured party had assented expressly or by necessary implication to the exemption. By the Unfair Contract Terms Act 1977, Parliament eventually legislated in the area.

(b) inequality of bargaining power: Lloyds Bank Ltd. v. Bundy (1975) Q.B. 326, where Denning wrote: "Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on 'inequality of bargaining power'. By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infancy, coupled with undue influence or pressures brought to bear on him by or for the benefit of others".

In later cases, the House of Lords preferred to confine the principle within the bounds of undue influence, although it was conceded that in some cases of undue influence an unequal bargain could be a relevant factor. In National Westminster Bank Ltd. v. Morgan (1985) 1 WLR. 589, Lord Scarman said: "I question whether there is any need in the modern law to erect a principle of relief against inequality of bargaining power".

(c) "presumed intention" in the construction of contracts: Staffordshire Area Health Authority v. South Staffordshire Water Co. (1978) 1 WLR 1387; British Movietonews v. London District Cinemas (1951) 1 K.B. 190. In these cases, where there had been an unforeseen turn of events affecting long-term contracts, Denning thought the Court was justified in asking itself: "What is the fair and just solution of the problem?"

(d) negligent misstatement: Candler v. Crane, Christmas & Co. (1951) 2 K.B. 164 (dissenting). Denning's dissent was essentially adopted twelve years later by the House of Lords in Hedley Byrne & Co. v. Hellar & Partners Ltd. (1964) AC 465.

(e) liability of public authorities: Dutton v. Bognor Regis UDC (1972) 1 Q.B. 373. The case was novel in that a Council had not previously been sued on the grounds of negligence by its surveyor. Denning agreed that both the builders and the surveyor were in part responsible. He also felt, however, that the Council, having received public funds, and having failed in its task, should bear part of the loss. Similarly, in the Dorset Yacht case (1970) AC 1004, he felt that the officers of a juvenile detention facility should be liable for damages caused by three boys who had escaped from a working party, and had caused considerable damage to yachts moored in the vicinity.
Denning's biographer sums up his career this way.

"Denning was a bold judge and exercised the powers of his office as a judge to the full while other judges were more careful not to overstep the mark. One of his former pupils wondered how such a diffident man could have become such a bold judge. He did not have the duplicity of his great predecessor, Lord Mansfield. That judges change the law was obvious and he said so. He attacked head-on what he thought to be wrong when a smoother approach might have been as successful".

Denning himself felt that judges could be divided into two categories. In 1951 he defined those categories as: "timorous souls who are fearful of allowing a new cause of action...and bold spirits who are ready to allow it if justice so required". No doubt Denning's approach to his work, and his frequent and well-known clashes with the House of Lords, were byproducts of the conservatism and relative class-consciousness of the society in which he moved. His essential legacy extends, however, beyond England to our more free-wheeling society. In the course of an address in 1954, he said: "I can't say that I know much about the law, having been more interested in justice". The first part of that statement will be accepted by some, but not by most. The second part of the statement is his great legacy, and is the reason why we join with lawyers throughout the Anglo-American world in remembering him today with enormous respect and affection.

Reproduced with the permission by lawsnet.com, All Rights Reserved. March 12, 2001