ARTICLE TEXT

Ask a law student anywhere in the Commonwealth to name an English judge and the answer, more often than not, is Denning. Alfred Thompson Denning, Baron Denning, sat as a judge for thirty-eight years, twenty of them as Master of the Rolls, the head of the civil division of the Court of Appeal. He wrote judgments that read like stories, invented doctrines that the House of Lords repeatedly disowned and later adopted, and became, in Lord Bingham’s words, the best-known and best-loved judge in English history. He was also, at the end, a cautionary tale.

From Whitchurch to the Bench

Denning was born on 23 January 1899 in Whitchurch, Hampshire, the son of a draper. He won a scholarship to Magdalen College, Oxford, served briefly in the Royal Engineers at the end of the First World War, and returned to take a First in mathematics in 1920. He then switched to law and took a second First in jurisprudence in 1922. He was called to the Bar by Lincoln’s Inn in 1923, took silk in 1938, and was appointed a High Court judge in 1944, at forty-five.

His rise was rapid. He was promoted to the Court of Appeal in 1948 and to the House of Lords as a Lord of Appeal in Ordinary in 1957. Unusually, he then stepped down to become Master of the Rolls in 1962, preferring the Court of Appeal, where he could sit on more cases and shape the law more directly. He stayed for twenty years.

The Cases

The case that made his name came early. In Central London Property Trust v High Trees House, decided in 1947 while he was still a High Court judge, he held that a landlord who had promised to accept reduced rent during the war could not go back on the promise for that period, even though the tenant had given nothing in return. The doctrine of promissory estoppel, which had lain dormant since the nineteenth century, was revived in a few paragraphs.

In Candler v Crane, Christmas and Co in 1951, he dissented, arguing that accountants owed a duty of care to those who relied on their accounts. The House of Lords vindicated him twelve years later in Hedley Byrne v Heller. In Lloyds Bank v Bundy in 1975, he proposed a general principle of inequality of bargaining power to protect the weak from unfair contracts. In the same year, he approved the freezing order that became known as the Mareva injunction, now used in courts around the world. In administrative law, he pushed relentlessly to expand judicial review of ministers and public bodies.

Not all of it lasted. The House of Lords rejected the inequality of bargaining power doctrine, restricted his attempts to escape precedent, and in Davis v Johnson in 1978 rebuked the Court of Appeal for refusing to follow its own decisions. Denning was unrepentant. His view, set out in The Discipline of Law and his other books, was that the judge’s task was to do justice, and that precedent was a servant, not a master.

Public Life

In 1963 Denning conducted the inquiry into the Profumo affair, the scandal involving the Secretary of State for War and a model with links to a Soviet naval attaché. His report became a bestseller. He was the only person ever elected a Bencher or Honorary Bencher of all four Inns of Court, and in 1997 he was appointed to the Order of Merit.

The Controversial End

Denning’s career ended badly. In 1982, at eighty-three, he published What Next in the Law, which contained passages suggesting that some immigrants were unsuitable to serve on juries. The publisher withdrew the book, the Society of Black Lawyers called for his resignation, and he retired in September 1982. Critics also noted his remarks in the Birmingham Six case in 1980, where he had said that allowing the men’s civil claim to proceed would open an appalling vista if the police were found to have lied; the men’s convictions were quashed in 1991.

Legacy

Denning died on 5 March 1999, six weeks after his hundredth birthday. His legacy is contested. To admirers he was the judge who kept the common law alive by refusing to let it ossify, and whose judgments taught generations of students that law could be written in plain English. To critics he was a judge who preferred his own sense of fairness to the certainty that litigants and businesses need, and whose instincts, unchecked, led him astray.

Both are right. For students in Bangladesh, where his judgments on estoppel, negligence and judicial review are cited daily, the lesson is to read him with admiration and with care. He showed what a judge can do. He also showed why judges are subject to appeal.

Sources

1. Wikipedia, Alfred Denning, Baron Denning: https://en.wikipedia.org/wiki/Alfred_Denning,_Baron_Denning
2. com, Alfred Thompson Denning: https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/alfred-thompson-denning
3. Wikipedia, Lloyds Bank Ltd v Bundy: https://en.wikipedia.org/wiki/Lloyds_Bank_Limited_v_Bundy
4. Wildy & Sons, The Discipline of Law (Butterworths 1979): https://www.wildy.com/isbn/9780406176042/the-discipline-of-law-hardback-butterworth-co