Lord Denning - A Phenomenon

To generations who have passed their lives in the law his is truly clarum et venerabile nomen. Lord Denning was a colossus who strode the judicial landscape in the second half of the last century shedding lambent light on ticklish legal corners and illuminating the legal and judicial landscape with his effulgence. He was unique. His tenure as a judge expanded the universe of judicial discourse. This year 2024 marks his 125^th birth anniversary (January 23) and today, March 5 is his 25^th death anniversary. It is appropriate that we remember him, draw inspiration from his life and work and salute his memory.

Prof. R.F.V. Heuston, the legal biographer says that in the nine hundred years of the common law Lord Denning is a phenomenon. A phenomenon is a highly unusual fact or occurrence: it is distinct from a noumenon, which is a purely intellectual construction. It may be said that circumstances and natural abilities: great powers of memory and comprehension and formidable legal learning combined to that end. He was not only a great judge but one held in high esteem by his colleagues on the Bench, the Bar and the general public.

Alfred Thompson Denning was born on January 23, 1899 as the fifth child and fourth son of Charles Denning and Clara Thompson. They were a family of normal means but steeped in values. He was educated at Andover Grammar School and Magdalene College, Oxford. A brilliant student, he was placed in the 1^st class in both the Mathematical Final School at Magdalene and later the Final School of Jurisprudence. He won the Eldon Law Scholarship and the President of Magdalene College, Sir Herbert Warren sent him a note: “You are a marked man. Perhaps you will be a Lord of Appeal some day.” It turned out to be so. He was called to the Bar from Lincoln's Inn and started his career as a barrister in September, 1922. As a young practitioner Denning assisted in bringing out a new edition of the well known book, Smith's 'Leading Cases in the Common Law'. He contributed articles to the Law Quarterly Review. All this brought him into the limelight. His practice steadily picked up. In 1938 he took silk.

In the 100^th issue of the Law Quarterly Review in January, 1985, its then editor, P.V. Baker referred to Denning's article in the LQR when he was just called to the Bar and another 3 or 4 contributions in about 60 years thereafter. He remarked that more important was the abundant raw material for the LQR in the form of Lord Denning's many, many judgments for about 38 years. That really contributed to the growth of the law. The repose of the common law in the earlier part of the 20^th century ended and there began a period of vigorous activity.

Denning was appointed a judge of the High Court in 1944 and promoted to the Court of Appeal (Lord Justice of Appeal) in 1948. In 1949 Denning delivered the first of the now widely acclaimed Hamlyn Lectures –'Freedom under the law'. In 1957 he went to the House of Lords- Lord Denning, Baron of Whitchurch, a Lord of Appeal in Ordinary. He sat on the Appellate Committee of the House of Lords for five years. He was not quite happy and satisfied with the work in the House of Lords; as a junior Law Lord his influence on the law was not much. The Court of Appeal provided greater opportunities for innovation, for moulding the law and meting out justice. He returned to the Court of Appeal as Master of the Rolls in 1962, a position he adorned with great distinction for the next twenty years. These are the bare factual details of a many splendoured life and career; they do not reveal his massive intellect, vast learning, deep knowledge, thorough exposition of the law and above all a penchant for doing justice.

A judge's job is to do justice according to law for which he must keep his eye on the justice of the case and also on the text of the law. It can never be assumed that the law always and in all circumstances does complete justice. But Denning had legal genius and a laudable mission to make the law accord with justice. That he endeavoured to do, and very often, successfully.

Lord Devlin famously said, “When Tom and I were young the law was stagnant.” Tom did a lot to make the law move. Beginning with famous High Trees case in 1947 which launched the modern development of the equitable doctrine of promissory estoppel, Denning “preferred to cut a new channel from the main stream.” That was his uniqueness and greatness, it was also the cause of his being criticized in a hierarchical system. This is just one illustration. It was not unoften that he was overruled by the House of Lords. That, however, did not deter him. He was not a timorous soul. Indeed, Lord Hailsham made a charitable comment when he wrote in 1980 that until judges became, like Lord Denning, a national institution, they could not answer back. Parliament often legislated in the way that Denning had marked out. Though Parliament might not have approved of his activism, it endorsed his views and policy. And the House of Lords, composed differently, sometimes came round to his way of thinking.

Lord Mansfield, in the 18^th century, had accelerated the process of tempering the common law with principles of equity. This ultimately led to the fusion of law and equity in the latter part of the 19^th century by the Judicature Act which provided that in case of conflict between equity and the common law equity should prevail. It has been rightly said that Denning's greatest claim to fame is that he put this principle into effect. He was a great common law judge who demonstrated how it could be done.

A judge, said Cardozo, J., must think of himself as an artist, who although he must know the handbooks should never trust to them for his guidance. In the end he must rely upon his almost instinctive sense of where the line lay between the word and the purpose that lay behind it, he must somehow manage to be true to both. This ability, it is said, is born out of wisdom, the gift of God. Denning had it in abundance. His judgments bear the impress of that quality.

As William Brennan, J said, sensitivity to one's intuitive and passionate responses and awareness of the range of human experience is, therefore, not only an inevitable, but a desirable part of the judicial process, an aspect more to be nurtured than to be feared. To Denning law was essentially a science of principles to be applied in the light of man's social evolution. He believed that judges owed great responsibility to the society to give expression to its aspirations and values. While he was aware of the significance of the past, he was conscious of the fact that law was made for man and not man for law. Law must be stable, yet it cannot stand still. Like all great men he was ahead of his times in his juristic conceptions and regarding problems facing society to meet the demands of a changing world with its shifting emphasis and differing needs.

He was not a legal philosopher. But in his hands law became an instrument for doing justice. The liberalization of locus standi to enable people to move the court to enforce the duties and obligations of public authorities and hold them accountable was one of his major contributions. He widened the scope of 'person aggrieved' and 'sufficient interest'. It was in the area of contract law and tort law that his innovation and his contribution were most remarkable. To quote from one of his decisions which reveals his approach: “What is the argument of the other side? Only this that no case has been found in which it has been done before…. If we never do anything which has not been done before, we shall never get anywhere…” As Burke said of Mansfield, so it may be said of Denning too that he ameliorated the law by making its liberality keep pace with justice and the actual concerns of the world. He was conscious of the limits of logic and reason and was not afraid to contravene them when the occasion demanded because sometimes a rational judgment may be wrong.

Law is to some extent the result of the operation of sociological forces in any society. But social change may also be controlled and regulated by law and law is an efficient instrument for individual and social well-being. It is not uncommon that often a new rule of law enunciated in a judgment may give a new direction and impetus to social progress. Law stems from the springs of civilised life and also shapes and moulds life and society. It is interesting how the elasticity of the law has been maintained consistent with the principle of the binding nature of judicial precedents. As Sir Frederick Pollock observed, the common law was capable of growing to meet the demands of new times and circumstances and that its conclusions, in detail, were not dogmas but flexible applications of living and expanding principles. Law is a social science which is not and cannot be static; old principles have to be reformulated to suit the times and receive fresh vitality and strength. It is not given to any individual or generation to complete the task, but no one is free to desist from it. Denning's work and contribution as a judge bears witness to this.

Contempt of court, he observed, “should not be used as a means to uphold our own dignity. This must rest on surer foundations. ......We must rely on our conduct itself to be its own vindication.” When something was thrown at him in court, he did not take offence, leave alone action for contempt. He even remarked that that person might have had good reason to do that.

As a judge he was always patient, courteous and polite to counsel and witnesses and to litigants in person who regularly appeared before him and conducted their cases. Monday mornings were kept apart for that. He tried to help counsel and had the capacity to keep absolutely silent so that counsel could put forward their submissions in their own way. In his judgments he correctly noted all the arguments of counsel and they knew that he had fully understood the points made by them. He was a master of extempore judgments delivered in the pungent style that was characteristically his own.

His judgments were short, readable and understandable by the lay public. Lord Hailsham described Lord Denning's writing as 'his own distinctive staccato, but highly readable prose style.' What Lord Denning wrote in his Foreword to a biography of Lord Goddard equally applies to him: “Famous for the lucidity of his judgments. Forthright in speech. He was clear and forceful. Never long winded. No long and confused sentences. No parenthesis. No shilly-shallying. Simple sentences in words which everyone could understand- straight to the point.

When he retired in 1982, The Times observed, “There is much to be said for a period of quiet judicial activity now, and the predictability that is afforded by a stricter regard for precedent. Lord Denning's reign was glorious, often spectacular, occasionally wayward. English law has earned a few years rest.” That judgment, remarked scholars and critics, will not quickly be replaced. Denning lived for another 17 years and attained 100 years, keeping himself occupied with his varied interests and activities.

It may not be amiss to refer to Lord Diplock's speech in the House of Lords on June 30, 1983 delivering judgment in the last case that came up in appeal from Denning's judgment: “ ….but I cannot refrain from noting with regret, which is, I am sure, shared by all members of the Appellate Committee of this House, that Lord Denning M.R.'s judgment in the instant case, which was delivered on September 29, 1982 is probably the last in which your Lordships will have the opportunity of enjoying his eminently readable style of exposition and his stimulating and percipient approach to the continuing development of the common law to which he has himself in his judicial lifetime made so outstanding a contribution.”

On a personal note, I had the good fortune of interacting and corresponding with Lord Denning from 1984 till his passing. He was quite endearing, the acme of honour and the pink of courtesy. Lord Bingham wrote to me: “I am sure you enjoyed corresponding with Lord Denning who remained interested in what was going on until the very end.” Yes, he evinced keen interest in the legal developments here and in other matters including our arranged marriages. There might have been some flaws in his personality, but those small failings do not detract from his greatness otherwise both as a judge and a man.

Lord Denning completed a century on January 23, 1999, he passed away on March 5, 1999 bringing the curtain down on an unparalleled and illustrious life and career. Lord Devlin rightly said in an interview that Lord Denning was a specimen tree and you mustn't have a whole avenue of them. Others trying to emulate him in language and judging must necessarily fail. For, he was a genius and an artiste and art cannot be imitated. As Samuel Johnson observed, “Almost all absurdity of conduct arises from the imitation of those we cannot resemble.” The love and respect with which we light his memory is a measure of his greatness and his contribution to the development of law, endeavouring to accord the law with justice. The individual contribution of judges is absorbed in the anonymity of the coral reef by which the judicial process shapes the law. Their name and fame are writ in water. In the course of a century the acclaim of a bare handful survives. Lord Denning belongs to that select class.

Author is a Senior Advocate at Supreme Court of India.

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