Studying The Common Law Of Lord Denning English Literature Essay

In the nine hundred years of the common law Lord Denning was a phenomenon. Great ‘powers of memory and comprehension, together with formidable legal learning, had been exercised over a period of thirty-eight years as a judge’. Not only he was a great judge but a judge who held in respect and affection by his fellow judges, the Bar and the public. In his career as a judge he was bold and innovative, wished to restate the law in accordance with established principles and hated the restrictions imposed by precedent. He was a state enough to circumvent awkward precedent so that justice could be done in the individual case before him, he did not wait for the Parliament to amend the law. His priority has been to do justice and he has been more clearly aware than others of the limits of logic.

One outstanding characteristic of Lord Denning’s career was speed. ‘In the Projumo Inquiry he took evidence from 160 witnesses over a period of 49 days and wrote a 70.000 word report during the two months of the Long Vacation.’ [3] He was very quick to take to take the point and dealt with litigants courteously but with exemplary speed. In Lord Denning’s many battles with the House of Lords as a judicial body he has frequently been defeated. Nevertheless, Parliament often legislated in the way that Denning had marked out and the House of Lords with its different composition sometimes came round to his way of thinking.

Denning was born on 23 January 1899, two months earlier than expected and nearly died. His baptismal name was Alfred Thompson Denning, but he was always known as Tom, shortened from his mother’s maiden name Thompson. His mother regarded him ‘as the weakest of her brood, needing special care. When off to school she insisted that he had cod-liver oil in a cup of milk. Denning wrote: “I was so tiny and puny that I could be put in a pint pot. They called me Tom Thumb”.’ [4] Denning’s father was a very well read man with extensive knowledge of English literature and a good verbal memory. He could quote poetry and prose extensively. Denning’s excellent memory came from his father. Denning had four brothers and a sister; he was the fifth child in the family.

At the outbreak of Wold War I Denning was aged fifteen and working hard for a University scholarship in mathematics. He did well and came top in English and mathematics. So the Headmaster, Sir Herbert Warren, advised him to try for Oxford or Cambridge. He sat for Oxford and Cambridge examination at the age of 16. And he was accepted in Magdalen College with a scholarship of £30 a year. He took a first class degree in the Mathematical Final School f 1920, but then the problem arose what to do for a living. The Headmaster offered him a job teaching mathematics and he accepted, but he was not happy, he did not enjoy teaching boys. He wrote to Mary (later to become his wife): ‘I feel that I do not want to settle down here doing the same thing day after day, a very mediocre schoolmaster with no ambition and no hope’. [5] In less than a year he sough the advice of Sir Herbert Warren on his future career. He was ambitious and wanted to get on in the world, he saw the law as ‘an avenue for advancement in life.’ [6] 

While at Winchester he visited the Assizes and felt that the law was a profession that would suite him very well. Sir Herbert Warren said that he would be willing to take him back at Magdalen to study the law. In October 1921 he returned to Magdalen to read for the Final Honours School of Jurisprudence. And in 1922 he again finished at the top of class and took his firs degree. At the age 23 Denning had two first class degrees: one in mathematics and one in law.

Having decided to make his career at the Bar Denning was admitted as a member of Lincoln’s Inn on December 1921. He ‘tried for Lincoln’s Inn in particular because the Under Treasurer at the time was a Magdalen man.’ [7] He studied in Lincoln’s Inn Library for his examinations while keeping up with his practical work in chambers. He kept six dinners in Hall each term. He came out top in the Bar examination and was placed in the first class.

Denning was called to the Bar by Lincoln’s Inn on 13 June 1923.

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Lord Ackner gave a speech when he unveiled a bust of Lord Denning presented to the Law Courts by the Society to mark Lord Denning’s 96th birthday. Lord Ackner and Lord Denning were fellow judges in the Court of Appeal. Here are his memories about Tom:

‘Whenever you appeared before Lord Denning – Tom as he was affectionately known – as an advocate, or sat with him as a judicial college – and I did both, he never made you feel inadequate. On the contrary, he created the impression, often with little foundation, that you had an important contribution to make. He brought out the best in you. He made you feel special.

On that very first occasion in 1948, when I was waiting to come on in the Court of Appeal, there was in front of me an appeal against an order that the plaintiff give security for the costs of an impending appeal because it was considered that if he failed in the appeal he might well be unable to meet the costs. The appeal was being presented by a black advocate, unusual in those days. He was very young and very inexperienced. The President of the Court, a testy member of the judiciary, was giving him a very hard time, demanding to know upon which rule of the Annual Practice he was relying. Sadly, he had not a clue. Tom was not prepared to tolerate his humiliation and with a characteristic charming smile he intervened to say: “I think you will find that it is Order 23. The relevant rule is set out in full on page 423 of the White Book.” This was my first of many experiences of the courtesy and kindness, indeed the helpfulness, which one could always expect when appearing before him.

Tom had a passion for justice and sought to decide a case according to its merits rather than by applying the strict letter of the law. This was, of course, well known to all those who appeared before him. I once had a case for a firm of moneylenders, who had behaved perfectly properly, but it was alleged that they had made a slight miscalculation of the interest – indeed to the advantage of the borrower. I opened the merits of my case sky-high and, as I had expected, it wasn’t long before Lord Justice Diplock, a member of the court, tapped the desk and said – “Mr Ackner, I don’t know why you are telling us all this. We are not a jury.” Addressing Tom with a look of veiled sadness, I said: “I do apologise my Lord, but I thought that in this court the merits were always considered important.” “Quite right”, said Tom, “You tell us a bit more about them.” I succeeded in my appeal, although there was a dissenting judgment by Lord Justice Diplock.

The tables, however, were turned upon me in an entirely different case – Nagle v the Jockey Club. Mrs Nagle, an elderly and very fierce lady, owned a large number of race horses and she wanted to have a licence from the Jockey Club to train them. The Jockey Club would not give women licences to train horses. One had only to look at Mrs Nagle to realise that was not a proposition which one could persuasively put forward. Tom totally ignored a previous precedent of his own making some eleven years earlier and refused to strike out the claim brought against the Jockey Club, saying that everyone was entitled to the right to work – whatever that might mean.

Tom’s attitude to precedent was, I believe, much influenced by Lord Atkin who in the case of United Australia Ltd v Barclays Bank in 1944 said: “When these ghosts from the past stand in the path of justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred.”

I can recall a letter in The Times a few years ago from a law student, pleading that Lord Denning and his court should reserve all future judgments for the next two or three months so that he could get on with his preparation for the forthcoming exams, confident that the precedents, which he had been or would be studying, would remain inviolate.

I remember touring with my wife in Scotland some 20 or so years ago when we heard on the car radio an interview by Sir Robin Day of Lord Devlin, another outstanding judicial figure, who had just written a book called The Judges. The interview went somewhat as follows:

“Lord Devlin, you are of the opinion that legislation is a matter for Parliament and not for the judges?” (which Lord Devlin in his impressively deep voice answered in the affirmative).

“Lord Denning takes the opposite view.” Day continued. (To which Lord Devlin answered shortly): “So I understand.”

“But this is a matter of some considerable importance. You must have more to say upon the subject.”

After a short pause, Lord Devlin answered: “Lord Denning is a very great judge.” “Yes we all know that”, answered Day. “But surely you must have more to say than that.”

“Lord Denning is a specimen tree”, Lord Devlin replied. “You must not have a whole avenue of them.”

I spent three of my six years in the Court of Appeal sitting with Tom. It was a tremendous privilege. The court had a unique atmosphere, which I have never experienced before or since. “It was an exhilarating experience because of the marvellous speed with which you assimilated facts and the equal speed with which you grasped the relevant points of law and all their implications” is how Lord Salmond described it, recalling the eight happy years that he was lucky enough to sit with Tom in the Court of Appeal.

Simplicity was the essence of the style which Tom adopted in his judgments. Here is but a brief example taken from the case of Lloyd’s Bank v Bunday in 1975: “Broadchalke is one of the most pleasing villages in England. Old Herbert Bunday, 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 … not to borrow money for himself but for the sake of his son. Now the Bank have come down on him … they want to get him out.”

Tom’s skill with litigants in person has known no equal. They almost queued up to have the opportunity of appearing before him, and those who did it on more than one occasion, he would recognise with a cheerful “Ah Mrs Brown! We haven’t seen you for some time. What do you think we can do for you today?” The majority of the applications were hopeless, but those who failed went away entirely content that Tom had done the best he could for them. How different was the position after he left.

But all that said, Lord Denning was undoubtedly, in the words of Lord Scarman: “One of the few geniuses of the English Common Law.” His is a name to conjure with, for it is he who has been the greatest liberating influence in the law of our time.’ [8] 

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