Tom Denning was unquestionably the greatest and most influential English judge of the second half of the 20th century. What accounts for his stature, admitted not only by his friends and supporters but also by his critics (cf. Jowell & McAuslan, Lord Denning: the Judge and the Law [1984])?
The impact of his legal decisions, to be sure. Lord Woolf put it thus in an interview following on Lord Denning’s demise: “Until his time, on the whole it was the great criminal cases that caught the public imagination. With him, for the first time, it was the civil cases, because he was projecting the little man against the big battalions.”
Perhaps the most significant of the decisions (Denning himself thought so) was the High Trees case which, together with many later Denning decisions, established the doctrine of “equitable estoppel”—that when a party reasonably relies upon the promise of another, the latter will be bound by that promise without more ([1947]) KB 130). Historically, the English common law (unlike virtually all other legal systems) has required “consideration”—a legal detriment of the part of the promisor—to make such promises enforceable. Denning successfully advocated what he called “the better precept”: “My word is my bond”, irrespective of whether there is consideration to support it (Denning, The Discipline of Law [1979], p. 223).
The literary style characteristic of Denning’s judgements and of his extensive extrajudicial writings goes far to explain their effectiveness. Not for him the convoluted, dry technical jargon typical of the legal professional. As Heward says in the second edition of his bibliography of Denning (1997), “the central principle of his style is that…you should always be thinking of the reader or the hearer. He is a good storyteller” (p. 189). Examples: “Old Peter Berwick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales and weights…” (Berwick v Berwick [1966] Ch. 538). “It happened on April 19, 1964. It was bluebell time in Kent ” (Hinz v Berry [1970] 2 QB 40,42). One is reminded of C.S. Lewis, who spoke and wrote theological apologetics not as technical theology, but in a style which would communicate with, and interest, the man on the Clapham omnibus.
Tom Denning was unafraid of controversy and insisted on speaking the truth even if it would be taken as sensationalistic or unpopular. His report on the Profumo affair became a national best-seller, vast numbers of ordinary people lining up to get a copy on the day of its publication. Denning’s voluntary resignation from the bench came when the media (falsely) suggested he was racist—simply because he had publicly remarked that it is difficult to find juries today with traditional English values and standards. (Can this be gainsaid as an objective fact, whatever evaluation we place on it?)
Denning was a broadly and deeply educated person, the very opposite of the dry-as-dust stereotype of the lawyer. He read mathematics at Oxford before turning to jurisprudence. In his Leaves from My Library, he describes the influence on him of such great literature as the New Testament, Chaucer, Shakespeare, Bunyan, Dickens, Macauley, Trollope, Hardy and Jane Austen. What a contrast with the minimalist three-year legal education obtained by most English students looking forward to law careers today!
Lord Denning’s battles, as Master of the Rolls, with the Judicial Committee of the House of Lords are legendary. The gravamen was his conviction that precedent is not the last word—that the good judge should first determine in his own mind and heart what would constitute justice in the individual case before him and then find justification in statute or part in past case decisions to support that view. To be sure, such an approach is dangerous if the judge lacks a proper value system. In the latter instance, precedent can restrain the bench from unfortunate and perhaps evil decisions perverting what Ronald Dworkin has called the ongoing “serial novel of the law”. But Denning himself did not have that problem.
Indeed, it was his personal value system which defined his entire life and accounts for his greatness in the areas already mentioned. Like the majority of great English legal luminaries throughout history (Hale, Blackstone, Atkin, Diplock, Hailsham), Denning was a serious and committed Christian believer. Until his death he served as patron of the Lawyers’ Christian Fellowship. A chapter in his 1953 book, The Changing Law, continues to be distributed as an evangelistic booklet by LCF, under the title, The Influence of Religion. That essay concludes with these lines: “If religion perishes in the land, truth and justice will also. We have already strayed too far from the path of our fathers. Let us return to it, for it is the only thing that can save us.”
In two passages of Denning’s final book, The Closing Chapter, he unconsciously accounted for his own greatness. In the Preface, he wrote: “As always, I have tried to make my meaning clear. That is necessary if you are to influence others. As St. Paul said: “For if the trumpet give an uncertain sound, who shall prepare himself for battle?’” And at the very end of the book, Denning declared his faith with the aid of Rudyard Kipling: “As a family we have done our part in our time to make the garden of England what it is—and to keep it what it is—the garden where liberty and justice have grown and flourished more than anywhere else…So I finish with Kipling:
‘Oh Adam was a gardener, and God who made him sees
That half a proper gardener’s work is done upon his knees,
So when your work is finished, you can wash your hands and pray
For the Glory of the Garden, that is may not pass away!
And the Glory of the Garden it shall never pass away!’”
Prof. Dr. John Warwick Montgomery
Barrister member of the Honourable Society of Lincoln’s Inn (Lord Denning’s Inn of Court) and Hon. Vice-President, Lawyer’s Christian Fellowship.
* Originally appeared in FAITH & THOUGHT: The Journal of the Victoria Institute or Philosophical Society of Great Britain, No. 26 (October 1999), pp. 3-5.
