2015 Selden Society lecture – the Hon Justice Peter Applegarth on Lord Atkin

Ladies and gentlemen, welcome to the fifth in the series of the Selden Society lectures. Justice Applegarth with characteristic modesty has suggested that I introduce him by mentioning that he’s a judge of the Supreme Court. Thank you. Justice Applegarth (APPLAUSE) Thank you for that very kind and concise introduction, Justice Fraser. President McMurdo, other Judicial colleagues and friends, distingushed guests, ladies and gentlemen. Any view of Lord Atkin is dominated by his
two towering judgments in Donoghue v Stevenson and Liversidge v Anderson. Yet
to focus upon the two judgments for which he is most famous risks overlooking some important contributions that he made to the law. Any speech to an Australian audience must begin with the fact that Lord Atkin was born in Brisbane. But as proud as we are
of Lord Atkin’s Australian origins, he didn’t regard himself as an Australian or a Queenslander.
He was a different kind of outsider in the colleges of Oxford and in the legal establishment
of London: a Welshman. There is, however, a good reason to treat
Lord Atkin as an honorary Australian. It has more to do with his work in the last few years
of his life than the accidental place of his birth. In 1943 and 1944 he represented
the Australian Government on the War Crimes Commission, a body that was established by the allies to investigate war crimes and to advise allies on how to try them. Lord Atkin
was uncompromising in his views that Nazi war criminals should be brought to justice,
if necessary before international tribunals. This stand was consistent
with the ‘sympathetic and welcoming’ attitude he displayed to refugees from Nazi Germany. According to his biographer, Geoffrey Lewis, Lord Atkin’s ‘humane and compassionate spirit was the most constant feature of his work for more
than thirty years on the English Bench’. Lord Denning described Lord Atkin as ‘a
progressive within the law’. These humane and compassionate instincts were not developed late in his life. They were inherited from a father who died tragically young after championing
progressive causes in Queensland politics. They’re also inculcated by powerful women,
who raised and educated James Richard Atkin. The first part of this talk concerns Lord
Atkin’s life and legal career. Naturally, I’m going to talk about Donoghue v Stevenson. At the
risk of being accused of elevating style over substance, I will concentrate on Lord Atkin’s
judicial method and style in that seminal judgment, and other judgments. It’s not just what he said, it’s the way
that he said it. It’s not just what he ruled, it’s the way that he wrote it. Lord Wright described
Atkin’s style as ‘chaste, composed, easy, accurate… But he could on occasion illuminate
a whole topic by a felicitous phrase.’ Now, I’m getting ahead of myself, Lord Atkin hasn’t even been born yet So let me retreat. He was born on the 28 November,
1867 at Ellandale Cottage in Tank Street. Less than 100 metres from where we gather tonight. His father, Robert Travers Atkin,
was an Irishman from County Cork. His mother, came from Wales. They were married in 1864 and four months after they married, they, departed for Australia. Professor Carney who graces us with this presence and who researched Lord Aktin’s life with great distincition suggests that the
Atkins’ reasons for travelling to Australia, were ‘probably curative and financial’. Members of the Atkin family had died from consumption and the remaining members sought a warmer climate. Robert Atkin who wasn’t wealthy also sought
his fortune. After a short stay in Brisbane the Atkins moved to a selection about 100 kilometres from Rockhampton, but the conditions were harsh and the colony was recovering from the depression. Robert Atkin was seriously injured when he fell off a horse. Mary Atkin’s health was poor as well. He was induced fraudulently it seems to invest in a stock and station agents’ business, that didn’t prosper. So the Atkins
decided to move to Brisbane and for Robert to become a barrister. He registered as a
student of law, but because of his work as a journalist and his involvement in politics he never finished his legal studies. Instead he was a journalist and a newspaper editor. His journalistic
coverage of Queensland politics led to a short parliamentary career. He was first elected in 1868 as the member for Clermont. He
was a leader of the liberal cause, which supported land reform, opposed the power of the squatters.
In 1870 he was elected unopposed to the seat of East Moreton which was then represented by two
members. And significantly, his fellow member after 1871 was William Hemmant, of whom we will hear more. Robert Atkin joined an extra-parliamentary group, called the Queensland Defence League, to oppose Premier
Palmer’s electoral redistribution, which would have reduced the number of seats
in Brisbane and its suburbs. They opposed the squattocracy and a group of six members
of Parliament from Ipswich and West Moreton who were dubbed ‘the Ipswich Bunch’. By 1871 Robert Atkin’s health was in
decline. Two other sons had been born by this time and the third born son was of poor health and Mary Atkin decided to return to Wales with all of her sons. The sons were never to see their father again. During the final years of his life Robert
Atkin enjoyed what Lord Atkin later described as the ‘unremitting care’ of William Hemmant,
who was both a member of Parliment and a prosperous merchant. About twenty years
later in England, William Hemmant became a benefactor of the young barrister, Dick Atkin,
and in 1893 became his father-in-law. Robert Atkin resigned as a member of parliment
in March 1872 on the basis that Samuel Griffith could be persuaded to stand for his seat and Griffith did so and won an election, and as we know championed the real progressive politics for the next 18 years or so of his life before, of his political life before he made common cause with the conservatives. Robert Atkin died on 25 May 1872, aged only
30. His wife who had returned to Brisbane the previous month and her arrival without the sons was said to have been a great disappointment to him since he yearned obviously to see his sons. A few weeks after
his death, Mary Atkin wrote to her two eldest sons and explained their father’s passing, how he had gone to heaven and how he sent his love to them. And she wrote: ‘Perhaps some day when you are big men, we shall come out to
Brisbane, and you shall finish the work that Papa had only time to begin.’ Later in his life, Lord Atkin wrote, ‘My
father must have been a man of exceptional gifts’. One of the pieces of evidence was an inscription upon a public memorial that was set up in memory of his father. It
was erected by the Hibernian Society, and still stands, some what obscurely, in Sandgate. The broken column
on the monument is said to symbolise ‘the irreparable loss of a man who well represented
some of the finest characteristics of the Celtic race – its rich humour and subtle
wit, its fervid passion and genial warmth of heart.’ The inscription on the monument
describes how Robert Atkin had ‘large and elevated views, remarkable powers of organisation, and unswerving advocacy of the popular cause, and
his rare abilities were especially devoted to the promotion of quote ‘a patriotic union among
his countrymen, irrespective of class or creed, combined with a loyal allegiance to the land
of their adoption.’ On Richard Atkin’s fourth birthday in
1871, his dying father had written to him encouraging him to be ‘truthful and honourable’.
And in April 1872, the month before he died, Robert Atkin wrote another letter which conveyed the final wish that his sons would grow up to be ‘nice unaffected gentlemen’, without concern for status, honourable and upright. The ‘rare abilities’ which Robert Atkin
displayed, his commitment to the values of liberal democracy and his egalitarianism were passed to his son. Now epigeneticists and psychoanalysts might debate whether the transmission of these
qualities was some kind of genetic inheritance, or the response of a son to the unfinished work of his father. The letters which Dick Atkin’s father and mother
each wrote to him must have had a powerful influence on him. But instead of returning to Brisbane to take up the yet to be completed work of his father, Richard Atkin took up similar causes on the other side of the planet. And rather than following his father into liberal politics in Queensland or Samuel Griffith into law and politics Dick Atkin lived the life of a Welshman. His formative years were in the Welsh countryside, and he and his brothers spent several years living with their grandmother whom Dick Atkin later
described as ‘the greatest woman I ever met’. He wrote of her that, native wit,
large sympathy, great experience of life cultivated by association with all classes of people,
an active memory stocked with folk tales and countryside traditions made her conversations
inimitable. She had strong likes and dislikes. She detested pretence either in rank or religion:
and she was not sparing in her denunciation of her pet aversion, the sanctimonious Calvinist.
Her sympathies were with people: not so much politically as in their ordinary life. We
were never allowed to speak of the ‘common’ people. The young Atkin also enjoyed the love and devotion
of his mother who would walk up the hill to give her children lessons in English history. Dick Atkin excelled academically at schools in Wales and before his 17th birthday he was awarded a classical demyship at
Magdalen College, Oxford. However, his time at Magdalen was not a happy one. He later wrote that his
life, there was not happy, he was ‘too young, at any rate it was too young for me,’ he wrote. He was young and sensitive, he had a small allowance and he fraternised with other Welsh students. After graduating from Oxford and completing the Bar exams he went in search of a pupil master and went around the courts to see the greatest advocates of his time. He settled upon Thomas Scrutton who had a leading practice
at the commercial bar. Atkin described Scrutton as being the ‘complete master of the facts and
the law’. Atkin persuaded Scrutton to allow him to become his pupils. Scrutton’s pupils worked in what’s been described as unattractive chambers and temporal gardens under conditions of austerity. After completing his pupillage in 1891 Atkin
took chambers. But lacking connection with solicitors, the briefs were few and far between.
Good fortune came in the form of William Hemmant who, after his career in Queensland politics,
had become resident partner of his firm in London. Hemmant gave most of his legal work
to a young solicitor named Norman Herbert Smith who had just started a firm in the City of London. Smith promised to give Atkin his first brief and
fulfilled the promise. Atkin recalled that it was one of the most difficult cases he had ever had to
advise upon in his whole career. And Atkin wrote to his mother in March 1891 ‘It was a very complicated case and I think I earned my guinea.’ Smith continued to brief Atkin during the whole of his career as a barrister, and of course Herbert Smith went on to build one of the most prestigious firms
in the City of London. Smith was about the only solicitor who briefed Atkin in his first year. But a little later Hemmant introduced Atkin to the Official
Assignee of the Stock Exchange and there generated a consistent flow of work. Atkin’s practice grew and
according to The Times, when he took silk in 1906 he was probably the busiest junior
at the Bar. With the appointment to the Bench of Hamilton in 1909 and Scrutton in 1910,
Atkin dominated the commercial Bar. In retrospect, Atkin’s success at the Bar
and on the Bench seems inevitable. However, he came close to leaving the Bar. Professor Gutteridge’s obituary reported that in Atkin’s early years at the Bar ‘briefs
were few and far between and the outlook was black.’ The professor recalled an occasion on when he and Atkin were walking down a street in London and Atkin pointed out a building and
said: ‘I can never see that without thinking how lucky I have been!’ Then Atkin recounted that the building contained the office of a scholastic academy, and he told Gutteridge that a few years earlier he had walked into that office with despair in his heart to inquire about obtaining a mastership at a public school. So it would be well-advised to note how close the law came to losing a junior barrister who was to become a great judge. And we should think about and think about what we can do to keep bright and industrious junior barristers where they belong: at the Bar. Dick Atkin and Lizzie Hemmant were born twelve days apart and as toddlers they must have been each other’s company, here at North Quay. 20 years later they met at the Hemmant estate in Kent. Atkin was still struggling to establish himself at the Bar, and so their engagement lasted for five years. And they married in 1893. They had eight children: six girls and two
boys. One of Atkin’s daughters went on the stage and he was very proud of her. Tragically, the Atkin’s eldest son was killed in battle in France in 1917 at the age of twenty. On a happier note Sir Samuel Griffith,
attended the wedding of one of the Atkins’ other daughters. Lord Atkin and Lady Atkin enjoyed a
happy marriage until her death in 1939. Before the First World War Lizzie Atkin bought a car, the same model as used by London taxi, and she used it to go shopping. Her son reported quote “In later years she patronised
the Army and Navy Stores into which she would enter majestically leading her bulldog and
smoking her cigarette knowing confidently that none of the staff would think of reminding her that both dogs and cigarettes were forbidden in the stores”. Lewis likens Lizzie Hemmant to Atkin’s mother
and grandmother. He describes Lizzie Hemmant as ‘a girl and woman of strong, vivid character,
great warmth and the habit of outspoken opinions.’ Well, the Atkin’s acquired a home in Wales. In terms of his personal family life his daughter reported that he had
‘low-brow’ tastes. He went to the musical the ‘Lambeth Walk’ twelve times. He was a devout Christian and attended
church with his family every Sunday. His Christian faith
was a ‘strong constant in his life’. A local clergyman later described Atkin as a ‘low Church-man with a great love of the Prayer Book’, and reported that many of the villagers went to him with their troubles; he always found time, even on vacation, to talk to them’. As appears from many of his judicial decisions,
he considered that principled decisions that courts make should rest upon the judicial officer having an understanding of the conditions of life of ordinary people. He initiated the appointment as a magistrate
of a sheep farmer who had given expert evidence in a sheep stealing case. Atkin had presided as a Magistrate had thought
the farmer had given clear and fearless evidence. And much like the friendship that developed between
the fictional characters Darryl Kerrigan and Lawrie Hammil QC in The Castle, a friendship
developed between Atkin and the sheep farmer. Atkin’s daughter, Elizabeth, recalled that he didn’t enjoy his work in the Court of Appeal he felt that he was merely the intermediary between one Court and another. And his usual answer when asked by his family during his nine year period on the Court of Appeal about whether he had heard any interesting cases that day was ‘No, very dull’. As a Lord of Appeal in Ordinary, he would
come home and say that he thought he had won his ‘brothers’
over to his side or ‘so-and-so is still not convinced but he may be tomorrow’. All of his letters and judgments were hand written, he didn’t have a secretary. He spent every Saturday morning at the House of Lords working on judgments and took judgments away on vacation to complete them. He and Lady Atkin never travelled abroad. Atkin was heavily involved in the affairs,
of the Medico-Legal Society. He chaired a committee on criminal
responsibility of the insane. He was committed to improving legal education. He championed the education of law in universities
and the improvement of practical legal orientation. He didn’t have any political affiliations, that may explain why he never occupied the Woolsack. He’s been described as a ‘political agnostic’. But when he spoke in debates in the House of Lords, he spoke from the Liberal Benches. The six years that he was a King’s
Bench judge was said to have been the happiest years of his professional career. And he was regarded as one of the greatest criminal judges of his generation, along with Scrutton. The motto ‘tough on crime; tough on the causes of the crime’ may have been coined for Lord Atkin. As I said in 1919, he was appointed to the Court of Appeal, he typically sat with his former pupil master, Lord Justice Scrutton and Lord Justice Bankes. Atkin had a life-long admiration for Scrutton but despite this, he disagreed with Scrutton about the disposition of a number of appeals. And Lord Denning said that Scrutton and Atkin ‘fought for
the body of Bankes’. As a judge he was said to have had a good temperament, courteous and incisive in his questioning. One barrister who appeared in front of him said: ‘He listened to argument with generous indulgence; his interjections were few and in tone almost apologetic; but his observations were as pointed
as a needle.’ Other reports suggest that if he’d
made up his mind, it was hard, if not impossible, to persuade him to change it, and as the intelligence from his daughter reported when he came home, he said that his task the next day was to persuade the other judges over to his point of view. Lord Denning recalled: ‘If
he was on your side, you had no need to worry – he would put the points in your favour.
If he was against you, you could never get him around.’ In the area of commercial law Atkin understood the commercial community and he had a huge practice at the Commercial
Bar. And he understood the importance of certainty in contract law, and in the law generally. He was dismissive of legal fictions, and in United Australia v Barclays Bank said, when these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred. Throughout his judicial career, and not only
in the area of commercial law, Atkin sought to determine legal disputes in a manner which accorded with common sense, and he avoided complex refinements. His biographer refers to his ‘preoccupation with general
principles’. And he attempted to dispose of cases on the basis of an understanding of the life of ordinary people. In one case, Everett’s case the plaintiff launched civil action after being falsely and without adequate justification, certified as insane. Atkin held, in dissent, that the defendants owed a duty of care and his passion and empathy were obvious, as was his marvelous writing style, who’s dissenting judgment was referred to be Lord Haldane as a ‘powerful piece of reasoning displaying anxiety to ‘guard against a possible
miscarriage of justice.’ Atkin said that the poor and the weak should not quote ‘suffer the unspeakable torment of having their sanity
condemned and their liberty restricted’. The competing view, by Lord Scrutton, was as important as that was, it was also important that those who have to make these decisions aren’t deterred by the threat of legal action and be deterred from certify someone because of the threat of an action. And one hears here the echo of modern day debates about the cost and consequences of defensive
medicine. In a number of cases and I deal with them in the paper in Parliamentary debates Atkin displayed and understanding of ordinary people’s lives. In debates on the Marriage Bill, he supported the introduction of cruelty and desertion as a ground of divorce. He was appreciative of the tragedy of a Court of Appeal decision involving the poor laws and splitting up a family. And in workplace injury cases he helped erode the pernicious doctrine of common employment and in Caswell’s case he combined an understanding of the conditions of work in mines, with an ability to conceptualise the doctrine of contributory
negligence, he saw it tied to issues of causation which value judgments are to be made. Both Lord Atkin and
Lord Wright carefully analysed the evidence and concluded that contributory negligence, which then was complete defence wasn’t established. But Lord Atkin went further and provided an insightful analysis of contributory negligence and brought to bear his analytical skills, and principles
applied in other jurisdictions, including Admiralty. As a final note from my previous Galapagos Island area of practice, defamation law in Sim v Stretch he gave a statement of what it means to make a defamatory statement. And that definition has been often sighted since. Professor Brown, reports that the author of Gatley on Libel and Slander, Dr J C C Gatley, was found dead in his chambers in 1936. And open on the desk was The Times law page reporting Lord Atkin’s speech in Sim v Stretch. So, I’m not sure whether we can blame Lord Atkin for Dr Gatley’s death, but there is a circumstantial case there, I think. Turning to Donoghue v Stevenson, the case is familiar to many. Didn’t go to trial. It was a point of law about whether the facts alleged by Mrs Donoghue gave rise to a duty of care. Briefly, the background to this is that the tort of negligence had developed under the influence of Roman law and natural lawyers. The influence of natural lawyers was that there had to be an antecedent duty of care that was breached. In England there were separate functions for judge and jury and the question of whether a duty of care
existed was for the judge to decide. And so if lawyers could frame the issue of duty of care as a legal issue, it was for the judge to decide and that had the tendency to load contentious issues onto the judge to decide and for judges to control the scope of negligence. So there is an enormous body of precedent and the result was a fragmentation of the law of negligence where in Continental Europe there were general principles. At about the time that Atkin went up to Oxford, the first edition of Beven on Negligence appeared and it consisted of 700 pages. In 1889 another author had stated: ‘The Law in regard to Negligence is the most uncultivated part of the “wilderness of single instances” of which our law consists.’ And by the time Donoghue v Stevenson was argued, the fourth edition of Beven on Negligence, was 1570 pages with a table of cases consisting of 175 pages. In the area of product liability there were some exceptional cases in which it had been recognised that a manufacturer owed a duty of care to an ultimate consumer. However the 19th Century case law didn’t evidently recognise a duty of care in the circumstances that Mrs Donoghue alleged. Her case hardly be said to have had good prospects. A few weeks before the events that she alleged. The court in Scotland had rejected a similar claim. She succeeded first instance, failed on appeal, obtained leave to appeal and had the status of a pauper. The case was heard, it was reserved for quite a while and Mrs Donoghue’s appeal succeeded by three-to-two. Lords Atkin, Thankerton and Macmillan constituted the majority, Lord Buckmaster and Tomlin dissented, and Professor Heuston referred to Lord Atkin
as the leader of quote ‘the Celtic majority’ unquote something you’d expect an Irish Professor to say. Lord Thankerton, Lord Macmillian were Scotish and of course Lord Atkin’s father was Irish. The dissenting speech of Lord Buckmaster was delivered first in time. He was sarcastically dismissive of cases that didn’t support his conclusions and one commentator has said that he seems to be moved by some extra legal concern. In any event, turning to Lord Atkin’s speech after framing the issue he observed that it was ‘remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty.’ Instead, the court had engaged on an elaborate classification. And after referring to some of these, he said, ‘Yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found.’ So the search for principle preceded the analysis of precedent and at an early stage in the judgement he comments that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular
cases found in the books are but instances. And then he immediately formulates what has become known as the ‘neighbour principle’: which we see on the PowerPoint, I won’t read it. Lord Atkin wasn’t the first jurist to articulate the ‘neighbour principle’, In 1767 Lord Bathurst had stated that such a principle in his Introduction to the Law of Trials. But Lord Atkin’s grounding of the principle in the parable of the Good Samaritan was compelling. And as Profession Chamberlain has said, that literary and rhetorical features of the parable lend themselves to persuasive legal reasoning. Rather than looking for, authorities that supported the principle, Atkin said that he hadn’t found any that were against it. Having said that he then embarked upon a masterful analysis of the authorities. For example, he didn’t attempt to overrule Winterbottom v Wright. He chose the more subtle approach of agreeing with Lord Buckmaster that the case was correctly decided, but argued that the issue of law raised in Donoghue v Stevenson wasn’t raised in that case. After analysing the authorities, he turned and looked across the Atlantic and was comforted by the fact that Justice Cardozo in the ‘illuminating judgment’ in MacPherson v Buick Motor Company had reached the same conclusion. In his judgment Lord Atkin glides over the distinction between what the law is and what the law should be. He didn’t really explain why there must be such a general conception. And many would argue the common law doesn’t generate those governing principles. For example, Professor Brian Simpson has argued that: we must start by recognising what common sense suggests, which is that the common
law is more of a muddle than a system, and that it would be difficult to conceive of a
less systematic body of law. Despite this, Lord Atkin treated the categories of case on duty of care as reflective of some general principle. And he backed up that, conclusion by a beautiful hypothetical example concerning a product mixed with poison. And in a beautiful appeal to the province of law, he stated: I don’t think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong. Others have commented about the lack of logic in Lord Atkin’s conclusion, that there must be a duty of care. And Professor MacCormick said well why can’t duties of care as a matter of logic simply crop up whenever they arise. And Justice Michael McHugh in 1998 in an, important paper on judicial method and logic and judicial reasoning noted that logic only takes one so far in deciding novel cases. Justice McHugh explained that Lord Buckmaster’s dissent showed that the cases were ‘logically explicable’ without a general principle of negligence. Lord Atkin’s, decision wasn’t compelled by logic Justice McHugh stated that Lord Atkin’s decision was
based on what he thought justice required, not logical compulsion. It was his sense of
justice and not logic that gave rise to the general principle that has dominated the law of negligence since 1932. The contrast in styles
between Atkin and Buckmaster is noteworthy. Lord Denning unfairly described Buckmaster as timid and other people said that was quite wrong. Sir Frederick Pollock, said that Buckmaster and Lord Tomlin were the last people that you would accuse of being timid. But Sir Frederick Pollock insightfully said of the two dissenting judge part of their opinions read as if they had forgotten that they were judging in a Court of last resort. Clearly, both Lord Buckmaster and Lord Atkin had a commitment to the integrity of the law. Lord Buckmaster saw himself as being bound by precedent to reject Mrs Donoghue’s claim. Lord Atkin saw no
precedent that required him to do so and he was able to discern from categories of cases, a governing principle. For Atkin, principle first precedent second, for Buckmaster precedent first. One might say finally. So let me summarise Atkin’s achievement in Donoghue v Stevenson. The law of negligence had been fragmented. In the 20th century there was a movement back towards an unifying principle and Donoghue v Stevenson can be regarded as the turning point. Chief Justice Gleeson referred to Lord Atkin’s brilliant achievement. And as I’ve said, his judgment is a great work of legal prose. Well, a view 100 years after it was decided, Donoghue v Stevenson is obviously a landmark in the law. And a few years ago, in the special edition to mark 135 years of law reporting, The Law Reports, the Incorporated Council of Law Reporting produced their ‘Top 10′ and Donoghue v Stevenson was in it it was a chronological list, I don’t know whether it rated number one, many would. Of course the case attracted immediate attention in 1933 from legal commentators. However as powerful as Lord Atkin’s, judgment was at the time and as influential as his articulation of the neighbour principle has been over the last century, his speech was only one of three and contemporary commentators adopted the more minimalist approach of Lords Thankerton and Lord Macmillan. And it was Lord Macmillan’s approach that found favour with textbook writers, many
judges including the Privy Council in Grant’s case. Dr Grant’s appeal to the Privy Council
was upheld, but without reference to the neighbour prinicple. Lord Atkin’s biographer wrote of Donoghue v Stevenson quote, “It’s true nature was perhaps not fully understood even by the profession until Lord Devlin’s
speech in 1963 in the Hedley Byrne Case’. And Lord Atkin’s judgment received a very frosty reception from Lord Justice Scrutton in 1933. But Lord Aktin’s speech in Donoghue v Stevenson, more general was more warmly received in the Commonwealth. In March 1933 Justice Herbert Vere Evatt of the High Court wrote to Atkin saying ‘the Snail case’ had aroused great interest at the Bar and the university law schools. And Evatt wrote, on all sides there is profound satisfaction that, in substance, your judgment and the opinion of Justice Cardozo of the U.S.A. coincide, and that the common law is again
shown to be capable of meeting modern conditions of industrialisation, and of striking
through forms of legal separateness to reality. Lord Atkin’s speech wasn’t forgotten in Australia. It was influential in the 1962 decision of Voli v Inglewood Shire Council. And it’s perhaps fitting that his principle should find fertile ground in the land of his birth. Returning to his life, as I said, Lady Atkin died in 1939. He wrote to Evatt in 1940 about how he had a solitary life, but his daughters were caring for him. They discussed recent cases, it’s intriging that Final Court of Appeal judges talk about what they’re going to do to the Court of Appeal below them. And he wrote to Evatt, and proudly reported that, about a particular case, we’ve not given our reasons yet, but that decision is going to receive a good hard knock. He complimented Evatt on his literary efforts. And wrote, how little the public realise how dependent they are for their happiness on an impartial
administration of justice. I have often thought it is like oxygen in the air: they know and care nothing about it until it is withdrawn. The letter concluded: ‘We hear no war news that you do not get: and that seems to me precious little. However we are determined to put an end to the gangsters as you all are.’ In May 1940 Atkin spoke at Gray’s Inn at a reception for refugee lawyers, including Dr Ernst Wolff, who’d been President of the Berlin Bar and the General Council of the German Bar before
Hitler’s rise to power. He later became President of the Supreme Court for the British Zone in Germany. After the reception Dr Wolff wrote to Lord Atkin that his quote ‘kind words of sympathy for our situation went to our hearts’ unquote. Wolff wrote about Britain’s fight against the ‘conspiracy of piracy’ that the German lawyers had suffered, and hoped that after Nazi Germany was destroyed ‘law can prevail again’. I turn to Liversidge v Anderson which was a defining point in Atkin’s judicial career. It was delivered in November 1941, a few weeks before his 74th birthday. And it stands, as one of the most significant of all the
constitutional speeches from the House of Lords in hundred years. Briefly the British Parliament passed emergency legislation, a regulation was passed which permitted the Secretary of State to order the detention of an individual, quote, ‘If the Secretary of State has
reasonable grounds to believe’, and so the provision went. About 15,000 people were detained including Mr Jack Perlzweig who during his time in Brixton Prison changed his name to Robert Liversidge and he sued for false imprisonment. The case in first instance went on the issue of onus. And up to that time the government accepted that the words ‘reasonable cause’ imported an objective test. But when the parallel case called Greene went to the Court of Appeal, the government argued for the first time that, the Home Secretary only had to have, only had to subjectively believe that he had reasonable cause it wasn’t a objective test. Well, that argument was accepted by four of the five Law Lords for reasons I set out in the paper. Atkin was a sole dissentient and he pointed to ‘the
plain and natural meaning of the words’, and gave many examples of where the same or similar words had been held to import an objective test. As Lewis notes, ‘The weight of examples was
and was intended to be crushing.’ There was no ambiguity in the language of Regulation 18B. Atkin then proceeded to demolish the arguments of those who favoured a subjective interpretation. He said that such a matter could be determined by a judge and having demolished those arguments he continued with his famous dissent, I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. And then there was a beautiful passage, which we have in the PowerPoint. And famously he wrote, of the judges, their function is to give words their natural meaning, in this
country, amid the clash of arms, the laws are not silent. They may be changed, but they
speak the same language in war as in peace. And he went on to make a fundamental statement about the role of courts in protecting liberty. And he said I protest even if I do it alone against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. After recapitulating his arguments and referring to the non-natural construction favoured by his colleagues Lord Atkin stated, I know of only one authority which might justify the suggested method of construction. And he then quoted from Alice in Wonderland. Well, views differ about the inclusion of the paragraphs, which ridiculed his colleagues. Many years after the event, Professor
Heuston described them as ‘passionate, almost wild, rhetoric’. And he referred to ‘an
explosion’ in Lord Atkin’s mind. In his review of the style of judgments in the House of Lords between 1876 and 2009, Sir Louis Blom-Cooper writes that Atkin’s language in dissent, quote, ‘reflected a rare departure from the convention that disapproval among judicial colleagues should be couched in decorous language’. A few days before the speech was to be delivered, Lord Simon, who hadn’t sat on the appeal, but had access to the, copies of the speeches that were to be delivered, wrote to Atkin about his inclusion of the Alice in Wonderland reference. The unintended offence, as Simon saw it, was that the literary allusion ‘may be regarded as wounding’ to Atkin’s fellow judges who would take the view that he was satirising, and at worst ridiculing, their efforts. Lord Simon wrote,
that quote ‘neither the dignity of the House, nor the collaboration of colleagues, nor the force of your
reasoning, would suffer from the omission’ unquote. Atkin declined and wrote to Simon that he felt strongly about the matter, quote ‘I have not the slightest intent to ridicule them, nor I think does the passage you mention ridicule them. But I did mean to hit the proposed construction as hard as I could and to
ridicule the method by which it is reached. I consider that I have destroyed it on every
legal ground: and it seems to me fair to conclude with a dose of ridicule. Simon responded politely that he wished Atkin had seen his way to ‘omit the jibe’. Lord Maugham, the senior judge, on the appeal wasn’t present through an administrative problem when the speeches were delivered. And he was naturally stung by Atkin’s words and he took the extraordinary step of writing a letter to editor of The Times, which ostensibly to defend counsel, who had been accused by Atkin of advancing arguments that might have been addressed in the time of
Charles I. Of course Maugham was also defending himself. Atkin maintained a dignified silence, in the face of Maugham’s letter. Maugham himself came under attack in newspapers that actually supported the outcome, of the appeal. And there was a question on notice in the House of Lords about the proprietary of Maugham writing his letter to The Times. Atkin was cold shouldered by his judicial colleagues Lord Wright, who had been a pupil in Scrutton’s chambers along with Atkin and a family friend, cold shouldered Atkin and his daughter. Atkin was no doubt correct in his interpretation, his interpretation had been vindicated as early as 1951. The case was being distinguished by the House of Lords. In 1964 Lord Reid referred to the peculiar
decision and the majority view in Liversidge v Anderson was put to the sword by Lord Diplock in 1980. Who was joined by the other Law Lords in saying that Lord Atkin’s dissent was quite correct. Now, while Atkin’s interpretation is being vindicated, the Alice in Wonderland paragraph was really unnecessarily provocative, and destructive of the collegiality which is part of the proper functioning of appellate courts. Lord Bingham, writing extra judicially as Senior Law Lord, was critical of Lord Simon’s attempt to have Atkin remove the offensive passage. However, in my view Lord Simon was entitled, as a senior judicial colleague of Lord Atkin, to suggest that the offending and satirical passage was unnecessarily wounding to Atkin’s judicial colleagues, and that
the force of Atkin’s reasoning wouldn’t suffer from their omission. Suggestions from judicial
colleagues to revise draft judgments, especially from judges who did not sit on the case in question, should of course be exceptional, lest senior judges interfere with the essential independence of other judges. But the wounding words of Lord Atkin made Liversidge an exceptional case for a constructive
suggestion about a point of style, not of substance, by someone in Lord Simon’s position. Lord Simon
didn’t seek to alter the result of the case or even the substance of Lord Atkin’s proposed speech. He wrote a polite note to Atkin in the interests of judicial collaboration and collegiality. One of the targets of Atkin’s ridicule, Lord Wright in 1944, put the matter in context. He wrote that Lord Atkin’s dissent showed quote, ‘his habitual courage and independence’ unquote. Lord Wright
concluded the obituary as follows: ‘the value of his work will not be found to lie in particular judgments valuable and
important as they are but in the animating motive force which inspired them. His service to the future of English law will be large and lasting’ unquote. Lord Wright was correct. Lord Atkin’s statement of constitutional
principle, has influenced generations of judges and lawyers. His decision in Liversidge v Anderson now reached a general audience in the in the form of an acclaimed play, which was performed in England this year to critically acclaim, called No Free Man. And as we see from the photo above the play discloses some troubling trade secerts about what judges, some judges wear when they’re writing judgments. And it also discloses how kind the families of judges are and particularly daughters in testing, their parent’s feverish conditions when writing judgments. In any event, the dissent, has been regarded as ‘one of the greatest constitutional law judgments
ever delivered.’ And I won’t take the time to read, extraordinary tribute to it by, Lord Bingham. I won’t read it in full but, he said, we’re entitled to be proud that
even in that extreme national emergency there was one voice, eloquent and courageous, which asserted older, nobler, more enduring values: the right of the individual against
the state; the duty to govern in accordance with the law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by
law established, of individual freedom. And things were grim in late 1941 when Atkin delivered that dissent. The Balkans and Crete had been overrun. The British summer offensive in North Africa had been rebuffed. The Japanese menaced the Malayan Peninsular and Singapore. The attack on Pearl Harbour had yet to happen so the United State were not in the war. And so at such a time, Lord Atkin had the courage to be the sole dissentient and to resist arguments, which in times of emergency
would appeal naturally enough. And Justice Keane at the unveiling of the plaque to Lord Atkin in 2012, described Lord Atkin’s speech as quote ‘a ringing blow for liberty and equality under the rule of law. And perhaps most importantly for those
of us who speak the language of Shakespeare, for the integrity of the English language itself.’ Well, finally I want to turn to the honorary Australian. As I said, Atkin served as Australia’s representative on the War Crimes Commission. The Lord Chancellor at the time Lord Simon tried to talk him out of accepting that position. Saying, it was like, taking a 91-ton gun to a relatively small task. But Atkin undeterred participated and attended 12 meetings of the Commission, before his illness
made it impossible for him to continue. Some, like Professor Goodhart, publicly advocated two kinds of responses to war crimes. Those that constituted ordinary crimes would be punished under established criminal laws in individual
states. Others that were described as acts of policy, which were not governed by law, might be
punished by a political act, just as Napoleon Bonaparte had been punished by his victors by
imprisonment on St Helena. Atkin rejected that approach and in a strongly-worded letter to The Times in late 1943. He said punishment shouldn’t depend on the provisions of the penal laws of each invaded State, since they provided no remedy for crimes committed in the country of the enemy, which was possibly
lawful by the law of that country. And Atkin’s opinion, as we see part of it there, was that the crimes of which some of the barbarian enemy have been guilty transcend all domestic laws. They are offences against the conscience of civilized humanity. What is
desired is not revenge, but a vindication of civilization to be achieved by imposing retribution on the criminals so as to ensure so far as possible that in no war in the future
shall like horrors be perpetrated. And Atkin said if possible punish those crimes by the law of the land on which they were committed but that the allies should retain the power to decide, that these, crimes against humanity would be tried in ad hoc international tribunals. And in the paper I’ve given other references to Atkin’s argument that one just shouldn’t be concerned about crimes against British and American nationals and he thought that the public supported his view that the barbarians should be punished for crimes against, for example, the Jews in Europe. Lord Atkin died in June 1944, aged seventy-six. Few English judges, or indeed
any judges, enjoy such an enduring reputation. One hundred and fifty years after his birth,
plaques are unveiled in his honour. Jurists including great Australian jurists like Sir Gerry Brennan make pilgrimages to a town named Paisley where Mrs Donoghue may or may not have swallowed a decomposed snail. In 2015 plays are performed to critically acclaim about one of his finest judgments. One might say that we’ll not see the likes of Lord Atkin in our lifetime. But that wouldn’t be right. We have. Even in the lifetime of the youngest law student in this audience we’ve seen great jurists in this country and in others display the qualities which Lord Atkin exhibited. I need not mention any Australian judges. we know their names. Since this is a lecture
about English judges, I’ll mention just a few great modern English judges. Lord Bingham
displayed the masterful grasp of principle, knowledge of legal history and sense of justice to match that of Lord Atkin. He also shared Lord Atkin’s ability to write beautiful prose. Lord Hoffmann exerted
a similar intellectual force to that which Lord Atkin exerted during a long career in the English
judiciary. Lord Bingham and Lord Hoffmann, in separate commanding judgments in the Bellmarsh
cases, adhered to important constitution principles about the rule of law in times of war and crisis. And Lord Steyn, in
his 2003 F A Mann lecture, about Guantanamo Bay the legal black hole articulated the need for the rule of law to apply to detainees. In arguing
that alleged war criminals should be brought to justice rather than be exiled on remote islands, Lord Steyn displayed same internationalist sentiments which Lord Atkin did in 1944. So it is not as if Lord Atkin does not have his modern-day counterparts. The point surely is that
modern-day counterparts like Lord Bingham, Lord Hoffmann and Lord Steyn had Lord Atkin
as an example to follow. The early demise of Robert Atkin was a tragedy. However, his demise meant that Lord Atkin was to grow
up in the United Kingdom and became a great English judge, rather than a great Australian. Dick Atkin honoured the dying wishes of his father to be ‘truthful and honourable’, and to grow up a nice, unaffected gentleman without concern for status. He benefitted from the love and
nurturing of powerful women: his mother, his grandmother, his wife. By industry and
intelligence, he made good on the opportunities that were presented to him. And he was fortunate to enjoy the friendship and support of William Hemmant. Today, as we pay tribute to Lord Atkin, there are disadvantaged infants and young people in our communities with the
same potential for greatness as Dick Atkin, but who probably will not have the good fortune to have a modern-day William Hemmant to smooth their path to greatness. We describe Lord Atkin as a great English judge, although he described himself as a
Welshman. Humanity and compassion, coupled with an uncompromising spirit characterised his
life and are his legacy. He searched for principles that he expected to be embodied in the law. His view was that the law should reflect many, but not all, public sentiments about what is moral in our
dealings with others. In declaring and in developing the law, he was motivated by a desire to achieve justice. He showed an understanding of the circumstances of ordinary citizens, and the conditions in which they lived and
worked. in developing the law, he was a progressive in the sense that he believed in the potential of
law to improve society. Atkin toiled for decades as a master craftsman of law and language. In failing health, he stood alone in Liversidge v Anderson in defence of liberty and the
rule of law. And as his final days as Australia’s representative, he argued that war criminals should be brought to justice. The victims of crimes against humanity were owed nothing less. The parable of the Good Samaritan was not simply a clever literary device that Atkin deployed to
establish a point of law. It was a principle by which he lived his life. It was a principle that informed value judgments that he was required to make in administering justice
according to law. It was a principle which in 1940 prompted him to welcome victims of tyranny to London. In extending the hand of friendship to refugees of a different ethnicity and religion to his own, Dick Atkin was not writing about being a good samaritan. He was being a good samaritan. (APPLAUSE) Thank you. Justice Applegarth has prepared a written paper which will be published and I’ve seen it, at least, I’ve seen how thick it is. Tonight he has really just cherry picked from the paper but he’s done so in a way which has woven the strands of Justice Aktin’s personal life with the strands of his jurisprudence. Illuminating and eloquent if I may say so to the Judge. That causes me to do two things. One is to look for the customary parcel. (APPLAUSE) And the second you have anticipated, which is to formally thank the judge We have been really fortunate by the speakers in this series of lectures. This is as I said the fifth lecture. All of the speakers have put in an enormous intellectual effort and great labour in presenting the lectures and tonight again maintained the standard. The sixth lecture will be on Thursday 19 November, Justice Douglas on Lord Denning. The seventh lecture will be on Thursday 3 December, Justice Edelman on Lord Bingham. Can I just once more ask you to thank Justice Applegarth tonight in the usual way. (APPLAUSE) After I hand over to the Judge for one minute can I say that after he finishes having the final word, you will all be invited to refreshments outside. I won’t keep you from the drinks, my final word is I neglected to thank my associate Ms Rebekah Oldfield who has not only been powering the PowerPoints tonight but has helped me with proof reading a judgment across time zones. I am deeply grateful to her conscientiousness work and she will continue to proof read the judgment in the days ahead. Thank you very much Rebekah. (APPLAUSE)

2015 Selden Society lecture – the Hon Justice James Douglas on Lord Denning

Good evening ladies gentlemen. Welcome to
the sixth in this year’s series of Selden Society lectures. Tonight’s subject is Lord
Denning. I look around the room and see many who I suspect have the same fondness for Lord
Denning that I did when I was at law school. He was one of the most famous judges of the
20th century. He was a favourite I think not so much for his learning when we were students
but for those most famous opening paragraphs. I’m sure you’ll hear a little more of
that from our speaker tonight. Justice James Douglas was admitted to the bar in 1973 but
delayed commencing practice, while he undertook studies at Cambridge from which he graduated
Bachelor of Laws and with a diploma of Legal Studies. He has been a judge of this court since 2003.
Justice Douglas. (APPLAUSE) I thank Justice Martin for his omissions.
Especially having regards to his threats. Whitchurch is a tranquil village in Hampshire. Old Tom
Denning died there on the fifth of March 1999. He had been born in his parents’ house in the
same village more than 100 years before, on the 23 January 1899. In March 1974, he was
eight years from the end of his long judicial career. He was still a dominant figure in
the common law world. I mention March 1974 because that was the one occasion when I saw
him in action as a judge. I was a 24 year old recent law graduate, then
working as Sir Harry Gibbs’ associate. I had the great good luck to have accompanied
Sir Harry to London where he was to sit for some months on the Judicial Committee of the
Privy Council. We landed in London early on a weekday morning and checked into Brown’s
Hotel just off Piccadilly. It was a club-like hotel – suitable for judges and bishops, as
a cynical English acquaintance remarked to me at the time.
It was my first trip to London and, energised by the surroundings and the brisk wintry weather,
I set out immediately to see the sights. I knew where I wanted to go – down Piccadilly,
through Piccadilly Circus, along to Trafalgar Square and up the Strand to the Royal Courts
of Justice. It was shortly before lunch. I headed to the Court of Appeal, went in, sat
down and had the good luck to catch Lord Denning, Master of the Rolls, presiding – courteous,
avuncular, with that distinctive Hampshire burr to his voice.
He was the star in the judicial firmament for many law students of my age and that was
the best thing I could then think to do to introduce myself to the sights of London.
Now you might think that was pretty odd. I am almost 42 years older now and, perhaps,
more world-weary. I’m also very much less likely to want to go straight to the Royal
Courts of Justice when I land in London. By the same token, with all respect to my judicial
colleagues in Britain now, there is no-one there at present with the star quality that
then attached to Lord Denning, at least in law students’ eyes.
That quality derived partly from his willingness to try to modernise the law while teasing
his more cautious colleagues. Students also loved his limpid prose. He used a faux-Hemingway
style to tell the story behind the case while laying out his sympathies for all to see.
We all have our own favourite examples. One of mine is Hinz v Berry dealing with the quantum
of an award of damages for nervous shock: “It happened on April 19, 1964. It was bluebell
time in Kent. Mr and Mrs Hinz had been married some 10 years, and they had four children,
all aged nine and under. The youngest was one. Mrs Hinz was a remarkable woman. In addition
to her own four, she was foster-mother to four other children. To add to it, she was
two months pregnant with her fifth child. On this day they drove out in a Bedford Dormobile
van from Tonbridge to Canvey Island. They took all eight children with them. As they
were coming back they turned into a lay-by at Thurnham to have a picnic tea. … There
came along a Jaguar car driven by Mr Berry, out of control. A tyre had burst. The Jaguar
rushed into this lay-by and crashed into Mr Hinz and the children. Mr Hinz was frightfully
injured and died a little later. Nearly all the children were hurt. Blood was streaming
from their heads. Mrs Hinz, hearing the crash, turned round and saw this disaster.”
Another is Lloyds Bank v Bundy: “Broadchalke is one of the most pleasing villages in England.
Old Herbert Bundy, 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. Up to the very hilt. Not to
borrow money for himself, but for the sake of his son. Now the bank have come down on
him. They have foreclosed. They want to get him out of Yew Tree Farm and to sell it. They
have brought this action against him for possession. Going out means ruin for him. He was granted
legal aid. His lawyers put in a defence. They said that, when he executed the charge to
the bank he did not know what he was doing: or at any rate that the circumstances were
such that he ought not to be bound by it. At the trial his plight was plain. The judge
was sorry for him. He said he was a ‘poor old gentleman’. He was so obviously incapacitated
that the judge admitted his proof in evidence. He had a heart attack in the witness-box.
Yet the judge felt he could do nothing for him. There is nothing, he said, ‘which takes
this out of the vast range of commercial transactions’. He ordered Herbert Bundy to give up possession
of Yew Tree Farm to the bank. Now there is an appeal to this court. The ground is that
the circumstances were so exceptional that Herbert Bundy should not be held bound.”
You might not be surprised to learn that Mrs Hinz held on to her generous award of damages
for nervous shock and that Lloyds Bank were given the silver medal on Mr Bundy’s appeal.
His eloquent defence of village cricket, in dissent in Miller v Jackson; is so inimitably
English but I shall not pause to read it to you. Nor shall I read the introduction to
Broome v Cassell & Co, even though it is as riveting an account of war time naval action
as one would find in the novels of Patrick O’Brian or C S Forester. His skill as a
writer was evident and one assumes that his eloquence and presence made him a powerful
advocate but it is his judicial work that made his name.
I propose to provide some details of his upbringing and early career, to speak about his judicial
philosophy and how that played out in some areas of the law in particular and to conclude
with some observations about his Achilles’ heel as a judge, too great a readiness to
confuse personal prejudice with his notions of justice.
The literature on Lord Denning is immense, with many contributions from the man himself
in book, articles and speeches. Apart from the books and articles about him, there is
even a Denning Law Journal devoted to the examination of the legal issues dear to his
heart. I have to thank my associate Jarrod Jolly for filtering through the mass of material
to allow me to focus particularly on Lord Denning’s judicial philosophy. But first
to his family background and early career. Lord Denning was very conscious of the Saxon,
Viking and Norman ancestry of the English and believed that the word “Denning” suggested
Danish descent while his Christian name, Alfred, betokened the Anglo-Saxon King and lawgiver,
Alfred the Great. The thousandth anniversary of King Alfred’s death occurred in his birth
year and led his parents to choose that name for him. He was known, generally, however,
as “Tom” after his second name, Thompson. Some of his ancestors had been prominent during
the English Civil War on both sides of the conflict. But his more recent ancestors had
lapsed into poverty and obscurity. He and his siblings did much to reverse that situation.
There was one daughter and four boys. He was the fourth boy. They had a poor but happy
childhood. He was a brilliant student at Andover Grammar School, which he attended on a scholarship.
Of it he said: “… an Elizabethan grammar school. What could you have better?”
He received a scholarship to attend Magdalen College, Oxford where he began to study mathematics
in October 1916 before his conscription in the summer of 1917. He was keen to join the
Army and served on the western front with two of his brothers. Jack who was killed at
the battle of the Somme and Reg who was wounded there. Another brother, Gordon, fought at
Jutland and died of tuberculosis in 1918 derived from his war service. Tom Denning himself
fought at the Somme in April 1918 in decisive fighting which resulted in the collapse of
the Ludendorff offensive and laid the basis for the allied victory in September to November
1918. He described his two brothers who died as
“the best of us”. That was a significant claim. Lord Denning’s own talent was obvious
but of his two surviving brothers, Reg later became a lieutenant-general and Norman a vice-admiral. Tom returned to Oxford and completed his education in mathematics after the end of the war. His
university career was brilliant. In spite of the quality of the education available
at some of the English grammar schools, such as Manchester Grammar, it seems clear that
the inhabitants of the upper echelons of the English class system did not rate them highly.
Denning himself felt ashamed at having been at a grammar school, but, as he later wrote,
he “need not have worried. Everyone was very understanding. And when I took a First
Class in 1920, they were as proud of my achievement as I of theirs.”
He then taught for a year at Winchester College but, with encouragement from the president
of Magdalen, returned to Oxford to read law. He received a scholarship founded in memory
of Lord Eldon to be awarded to “a Protestant of the Church of England” who had obtained
a first class honours degree as an undergraduate. He was devoted to the Church of England and
had a first class degree. Magdalen’s academic reputation in the early
1920s was not stellar parcet some of the inhabitants in this room that have studied
there. It had a reputation for the social position of its students rather than their
scholarly talents. Denning described his law tutor there as knowing no law except on the
Statute of Frauds. The tutor was an unsuccessful barrister who had once had a case on that
subject. Nonetheless, Denning received first class honours in the law school with very
good marks for most subjects, except jurisprudence for which he received a gamma minus. He reflected
that: “Jurisprudence was too abstract a subject for my liking. All about ideologies,
legal norms and basic norms, ‘ought’ and ‘is’, realism and behaviourism, and goodness
knows what else.” That did not deter Lord Denning from developing
his own philosophical approach to the law, particularly during the period when he sat
on the Court of Appeal during the 1950s. The depth of that approach is another issue. He did not succeed in the testing competition to become a member of All Souls College at
Oxford, an academic research institution with no undergraduate students. Undeterred, he
pressed on with his ambition to become a barrister. He had the assistance of a prize studentship
of £100 per annum which helped him survive until his practice grew. He commenced at the
Bar in 1923 and by about 1930 was making £1,000 per annum. He also wrote articles for the
Law Quarterly Review and helped bring out a new edition of Smith’s Leading Cases in
the Common Law. He also co-edited the 9th edition of Bullen & Leake’s Precedents of
Pleadings published in 1935. The work on Smith’s Leading Cases, he said, taught him most of
the law he ever knew. It was an immense task involving much research and, in particular,
assisted him to resolve the issues raised in the High Trees case in 1946, a decision
to which I shall return. In 1932, he married Mary Harvey, the daughter
of the vicar of his home town in Hampshire, Whitchurch. His religious instincts were deep
and significantly influenced his philosophical approach to the law. They had one child, but
Mary died tragically in 1941. Their son later became an academic and a fellow of Magdalen
College. Tom Denning remarried Joan Stuart in 1945. They remained happily married until
her death in 1992. He had been granted silk in 1938 and was made
a judge in the Probate, Divorce and Admiralty Division in 1944. He had never done any divorce
work as a barrister, nor did he like it, but the offer of a position on the High Court
was not one he felt he should refuse. He was then only 45 years old and young for such
an appointment. Judges appointed then were not obliged to retire at any particular age.
He transferred to the King’s Bench Division late in 1945.
The next year, he delivered judgment in Central London Property Trust Limited v High Trees
House Limited, the decision by him which has probably influenced the development of the
law more than any other. I say that advisedly because, rather surprisingly,
it is the only decision of Lord Denning included in the list of “15 top cases” compiled
recently by the English Incorporated Council of Law Reporting from the votes of its readers.
They were asked to select the cases they thought had made the greatest contribution to English
legal history during the last 150 years, the period covered by the authorised law reports.
When one includes the shortlist of 40 from which the 15 were chosen, the only other judgment
attributable to Lord Denning is his dissenting view in the Court of Appeal in Norwich Pharmacal
Co v Customs and Excise Commissioners. The majority in the Court of Appeal was upheld
in the House of Lords so Denning’s dissent was not influential. The only other decision
of some note to which I could make a link was Hedley Byrne & Co v Heller & Partners
dealing with negligent misstatement. I refer to it because, although Lord Denning
was not a party to the reasons, his dissenting views in Candler v Crane, Christmas & C were,
no doubt, influential in the adoption of the majority view in Hedley Byrne. Lord Denning
himself also believed that his judgment in Candler v Crane, Christmas was his most
important. The High Trees case is regarded as the source
of the doctrine of promissory or equitable estoppel, at least in English law. In reasons
brief by modern standards, Denning J decided that the representation by the landlord that
payment of rent at the full rate would not be enforced, although not a representation
of existing fact but one as to the future, was still enforceable as a promise intended
to be binding even if it lacked consideration. The prospect that a promise to accept a smaller
sum in discharge of a larger sum, if acted upon, would, therefore, be binding without
consideration pleased him as a result of the fusion of law and equity.
The High Court of Australia through Sir Owen Dixon had adopted a different approach leading
to a similar result in Grundt v Great Boulder Proprietary Gold Mines Ltd when Sir Owen said:
“The principle on which estoppel in pais is founded is that the law should not permit
an unjust departure by a party from an assumption of fact which he has caused another party
to adopt or accept for the purpose of their legal relations. … One condition appears
always to be indispensable. … It is often said simply that the party asserting the estoppel
must have been induced to act to his detriment.” In a later, 1975, decision, Moorgate Ltd v
Twitchings, Lord Denning referred to that approach and to some correspondence he had
with Sir Owen about the High Trees decision. In Moorgate he modified his view by describing
the issue as whether it would be unjust or inequitable to permit a party to withdraw
from the assumption. I have not been able to track down the correspondence
between the two but Sir Owen had, interestingly, delivered an illuminating talk on judicial
method at Yale in 1955. Without explicit reference to the High Trees decision, but referring
to a very similar factual situation, he discussed how a judge might approach the issue in the
following words: “What might a modern court of last resort say to the claim? What might
reforming zeal do if coupled with boldness of innovation? It could hardly go as far as
denying that consideration is necessary to the formation of every simple contract … .”
After that oblique and apparently intended barb at the original Denning approach, Sir
Owen went on to consider a number of possible answers to the problem, including the application
of theories from the law of contract. He also said that the doctrine of estoppel could cover
the issue raised by the High Trees case, whether an agreement to reduce rental payments, not
supported by consideration, could nonetheless be enforced, by saying: “It is by no means
fanciful to regard the fundamental principle of an estoppel which comes from dealings between
the parties to be simply that one of them is disentitled to depart from an assumption
in the assertion of rights against the other when it would be unjust and inadmissible for
him to do so. It is a necessary condition that the second should have acted or abstained
from acting, upon the footing of the state of affairs assumed, in such a way that he
would suffer a detriment if the first party were afterwards allowed to set up rights against
him inconsistent with the assumption. It is further necessary that it should be unjust
and inadmissible for the first party to depart from the assumption for the purpose of asserting
rights.” That focus on injustice or unconscionability
and detriment did not appear in the High Trees decision. In Australia, particularly since
the High Court’s decision in Waltons Stores v Maher, the focus is clearly on unconscionability
and detriment, not on whether the promise was intended to be binding even if it lacked
consideration. In 1948, two years after the High Trees decision,
Denning J was promoted to the Court of Appeal where he remained as a Lord Justice until
his appointment to the House of Lords in 1957. Professor R F V Heuston, whose insights into
Lord Denning’s work and life repay reading, said of that period in Denning’s life: “If
the reader of the law reports had not already realised it, there were now many signs of
a powerful new mind at work. In many ways the judgments of the Fifties are classic Denning;
there is still enough respect for precedent for the analysis of the cases to be full and
careful, and the style, clear and vivid, is not yet marred by the self-conscious tricks
of the Seventies.” It was during his first period in the Court
of Appeal, before he rejoined it as Master of the Rolls in 1962, that Lord Denning himself
said that he developed his judicial philosophy. His willingness to express a philosophy has
been described as unusual. As Professor A W B Simpson said, rather memorably: “Hardly
any of those many hundreds of forgotten and curiously anonymous men, and they were men
then, who have held high judicial office in the common law system have left us even the
briefest statements of their judicial philosophies. Indeed, so far as most of them are concerned,
there is no reason to suppose that they possessed one in any self-conscious or articulate sense.
Just as plumbers may plumb for a lifetime without perplexing themselves as to what it
is all about, so too may judges judge, and most do. But from time to time there have
been exceptions, and Lord Denning is one.” Lord Denning’s expression of his judicial
philosophy was typically brief and dogmatic and I quote: “(i) Let justice be done; (ii)
Freedom under the law; (iii) Put your trust in God.”
He took as his motto when made a law lord, “Fiat justitia”, discarding the conventional
additional words “ruat caelum” on the theory that, if justice is done, the heavens
should not fall; they should rejoice. The Denning Law Journal’s take on Lord Denning’s
values is more expansive and includes the importance of developing the common law; the
need for judicial and community recognition of the importance and urgency of reform and
modernisation of the law; the importance of preserving the traditions of judicial independence,
integrity and creativity; the importance of reflecting upon the interplay between law
and morality; and the essential role to be played by the law in the defence of the individual
in the modern state. Let me deal with Lord Denning’s own three-part
formulation though, and in reverse order, starting with “Put your trust in God”.
He was a devout Anglican all his life, loving that church’s worship, liturgy and language.
For many years he presided over the Lawyers’ Christian Fellowship. In one of his books,
The Changing Law, he wrote about the derivation of many of our fundamental legal principles
from Christianity. He began by discussing the obligation to tell the truth and keep
one’s promises. The latter he contrasted with what used to be called contracts of adhesion,
where the party with less economic strength has no ability to bargain about the terms
but must either accept them or go without the benefit of any contract at all. He drew
on the views of St Thomas Aquinas to excuse holding a party to the letter of such a contract
where unforeseen circumstances have arisen which make it unjust to enforce it against
him. He regarded that as an area where the law had overreached itself with contracts
as it had in respect of the interpretation of statutes. His view was that literal interpretations
of contracts or statutes could lead to departures from quote “real” unquote truth. He promoted
the purposive approach to the construction of statutes now adopted in Australia rather
than the existing common law rules requiring interpretation according to the grammatical
and ordinary sense of the words. He equated our conception of justice with
the Christian teaching of love for God and your neighbour which he illustrated by Lord
Atkins’ decision in Donoghue v Stevenson and the discussion there, derived from the
parable of the Good Samaritan, about who was the neighbour to whom a duty of care was owed.
He also discussed punishment for crime in the Christian context, treating the abolition
of capital punishment as a reflection of a more Christian outlook on the right way to
punish offenders, focussing on the reformation of the criminal. He drew attention to the
need to recognise that society itself is responsible for the conditions which make people criminals.
In that context, however, he also stressed individual responsibility, including repentance.
In discussing criminal responsibility, he focussed on the need to show that the offender
had a guilty mind, the rule of English law from the time of Henry I, equating crime with
sin. He justified the rules relating to criminal
insanity by reference to Christian principles so that if the offender was driven by some
blind impulse but which he knew, nevertheless, was wrong, he was not excused in law. Then,
in addressing the relations between man and the State, he drew on the primary principle
of Christian ethics in politics as respect for every person simply as a person. He illustrated
this with the words of the 13th century cleric and jurist Henry of Bracton that “the King
is under no man, save under God and the law”. Those were the words used by Lord Coke, in
response to Charles I’s views on the divine right of monarchs. In modern terms they mean
that the executive power is under the law. Lord Denning contrasted our system in that
context with modern totalitarian systems of government.
He used Christian principles to argue against the evils of excessive accumulation of wealth
and opportunity in the hands of a few. He referred to the creation of the welfare state
in Britain and the enforcement by the courts of obligations of employers, to provide safe
conditions of work to their workers and compensate them for injury. He also discussed however
the dangers posed by the welfare state in increasing governmental powers over the individual.
Finally, he referred to the institution of marriage and the availability of divorce since
the State abandoned the principle of indissolubility. In concluding his views on that he said: “People
have come to regard divorce as a matter which can be arranged between the parties. In so
doing, they only too often disregard the interests of their children and pursue their own selfish
ends. Every thinking person is profoundly disturbed by this state of affairs. It has
a grave effect on the family unity and on the national character …”
This is an example of something I mentioned earlier, the problems in the application of
the law caused by the confusion of personal prejudice with an ideal of justice. Another
example comes from his refusal to accept the decriminalisation of homosexual acts between
consenting adults. He was vociferous about that in later life.
This mixing of personal prejudice and an ideal of justice may be exemplified by his decision
in Ward v Bradford Corporation where he said this, in an apparently ex tempore decision
about a young woman who had been expelled as a trainee teacher: “If there were any
evidence that Miss Ward had been treated in any way unfairly or unjustly I would be in
favour of interfering. But I do not think she was treated unfairly or unjustly. She
had broken the rules most flagrantly. She had invited a man to her room and lived there
with him for weeks on end. I say nothing about her morals. She claims that they are her own
affair. So be it. If she wanted to live with this man, she could have gone into lodgings
in the town and no one would have worried, except perhaps her parents. Instead of going
into lodgings she had this man with her, night after night, in the hall of residence where
such a thing was absolutely forbidden. That is a fine example to set to others! And she
a girl training to be a teacher! I expect the governors and the staff all thought that
she was quite an unsuitable person for it. She would never make a teacher. No parent
would knowingly entrust their child to her care.”
No doubt the decision was legally justifiable as Ms Ward had broken the rules. But Lord
Denning’s statement that he was saying nothing about her morals was a trifle disingenuous! Lord Denning’s second philosophical plank was freedom under the law. From an early stage
he insisted that the common law needed to develop better remedies for judicial review
of administrative action. Those views were first expressed by him in the Hamlyn Lectures
he delivered in late 1949. He was remarkably prescient about the need to develop better
administrative remedies and eloquent in describing the forces demanding better redress in the
courts for the abuse of governmental power. He strongly endorsed Lord Atkins’ dissenting
speech in the wartime decision of Liversidge v Anderson. Contrary to the majority and using
vividly pointed language directed at his judicial colleagues, Lord Atkin said that the courts
could examine the reasonableness of a minister’s belief that a person was “of hostile associations”.
Lord Denning drew attention to the willingness of the then regime in the USSR to encroach
on the liberty of the subject. He also relied, despite his reputation for Anglo-centrism,
on French law to show how the control of the executive can be handled differently, not
only in respect of administrative law, but also in the regulation of abuses of power
by police. In concluding his discussion about remedies
for abuse of power, he recommended the replacement of the old prerogative writs, mandamus and
certiorari, and actions on the case by new and up to date machinery, by declarations,
injunctions and actions for negligence administered through the courts rather than in Parliament.
Those views have been adopted legislatively or by procedural changes in many jurisdictions
and show one aspect of his continuing relevance separate from the effect of his decisions.
These themes about the abuse of power remained important to him for the rest of his life
and figured prominently in later writing by him. In a controversial book published by
him just before he retired, ‘What Next in the Law’, he said: “…the most important function
of the law is to restrain the abuse of power by any of the holders of it – no matter
whether they be the Government, the newspapers, the television, the trade unions, the multi-national
companies, or anyone else.” And now to the first of Lord Denning’s philosophical
principles, “Let justice be done”. It gave rise to the most controversial aspects
of his career. To the outside observer, his view of doing justice according to law depended
very much on his subjective view of the merits of a case. As he said himself: “If there
is any rule of law which impairs the doing of justice, then it is the province of the
judge to do all he legitimately can to avoid that rule – or even to change it – so as to
do justice in the instant case before him. He need not wait for the legislature to intervene:
because that can never be of any help in the instant case. I would emphasise, however,
the word ‘legitimately’: the judge is himself subject to the law and must abide
by it.” It was not long after his elevation to the
Court of Appeal that his decisions began to draw pointed attention from the House of Lords.
In British Movietonews v London & District Cinemas, the Court of Appeal had suggested
that parties were no longer bound by a contract if there had been an unexpected turn of events
which might fall within the literal meaning of the words used but outside the true intention
of the parties. Viscount Simon said that Lord Justice Denning’s judgment included “phrases
… which give us some concern” and went on to say that the authorities relied on by
Denning LJ did not support the propositions he advanced.
Another criticism was made by Lord Simonds in Magor & St Mellons v Newport Corporation.
Denning LJ had said that the Court’s role was to find out the intention of Parliament
and of the Ministers and carry it out as part of the process of statutory construction and
that it could do that better by filling in the gaps and making sense of the enactment
than by opening it up to destructive analysis. Lord Simonds said that appeared to be a naked
usurpation of the legislative function under the thin guise of interpretation. There was
speculation in Australia, apparently, whether Denning LJ might be removed from office.
Nonetheless, when a vacancy occurred among the Law Lords in 1957, Denning was appointed
to the position. He stayed there until 1962 when he returned to the Court of Appeal as
Master of the Rolls. He did not enjoy his time in the House of Lords as much. There
appears to have been some personal tension between him and Lord Simonds, who continued
to criticise his views. In private correspondence with Sir Owen Dixon between 1955 and 1957,
Lord Simonds said, of Denning, that he was personally attractive and had great learning
but that he regarded him as a “judicial menace”. Other observations by Lord Simonds
were: “He is learned, very learned, in the sense that he knows as much law as the rest
of the Bench put together and has it at his finger tips. But if you add, that, if so,
much learning hath made him mad, I can only respectfully concur.”
And, seven months after Denning became a Law Lord in 1957, this again to Sir Owen Dixon:
“Denning himself is a thorn in the flesh – there is in him not only a passion for
display but a faultiness of judgment which may become dangerous.”
Sir Owen wrote back to Lord Simonds in 1956 that Denning baffled him: “He seems always
to be setting principle at defiance. I do not think wild horses would get a majority
of the High Court to follow some of his decisions.” Let me move on!
The House of Lords still regarded itself as bound by its own previous decisions until
1966, something that Lord Denning struggled to accommodate with his views about the need
to loosen the doctrine of precedent, particularly in the House of Lords.
The most severe criticism of him made in those House of Lords years was his joining in the
unanimous decision in DPP v Smith on the meaning of mens rea or criminal intent to establish
guilt for murder. That decision was trenchantly criticised by Sir Owen Dixon in Parker v The
Queen, the decision which ended the practice by which our High Court had previously followed
decisions of the House of Lords. Sir Owen thought that decision contained propositions
which he could never bring himself to accept and Sir Wilfred Fullagar characterised it
to Sir Owen by saying that they were “hanging men for manslaughter in England now”.
Lord Denning was later embarrassed by his agreement in DPP v Smith, saying that he would
have liked to have delivered a separate judgment but was discouraged from doing so. That encouragement
to agree with other decisions appears to have been one of the reasons he did not like the
work in the House of Lords so much. When asked later why he moved to the Court of Appeal
he replied that he was too often in a minority, saying that in the Lords it was no good to
dissent. On other occasions he said, rather more archly, that the odds of justice being done increased when he was one of three rather than one of five. After his return to the Court of Appeal in 1962, his prominence increased. He had been
in demand as a speaker particularly since the Hamlyn Lectures in 1949 and that demand
became international. He became a significant public figure in 1963 when appointed to conduct
the Profumo inquiry into alleged misconduct by a Cabinet minister. At the time he was
described in The Observer in these terms: “It has been left to Miss Mandy Rice-Davies,
one of the prostitutes at the centre of the business, to bring home to the public what
every barrister, who ever appeared before him knew already: that he is ‘quite the
nicest’ judge. Charming, infinitely courteous, always anxious to help: this is how Tom Denning
has always been known at the Bar. Tall and thin, neat and unobtrusive in his dress, sociable
enough but not in the dining-club, old-boy reunion, City banquet sense, he has always
been a bit of a lone wolf, incredibly hard-working, ruthlessly honest – the whitest lie pains
him – dissenting because it is in his nature and his upbringing to bear witness, to keep
faith, to do duty, a little proud in his independence.” He received many honorary doctorates from
universities throughout the world and published regularly towards the end of his judicial
career. By then, however, his popularity had begun to wane.
There was a suggestion that, as Master of the Rolls, he would pick the cases on which
he sat, particularly the ones where he believed the law needed to be changed.
To facilitate that he would chosen the judges to sit
with him from those who, he believed, favoured change in the law. On one such occasion, however,
the tactic did not work. The two judges sitting with him on a case in which the decision had
been reserved came to discuss it with him. The first judge to speak said he did not agree
with Lord Denning’s already circulated draft judgment in the matter and would write his
own reasons. Lord Denning told him: “That’s alright, you can dissent”. The other judge
then told him that he too disagreed with Lord Denning’s reasons to which, ever confident,
he replied: “Oh that’s fine. You can both dissent.” Never fond of the doctrine of precedent, he had embarked on a campaign to free the Court
of Appeal of its obligation to follow its own decisions. His theory was that the relaxation
of that rule in 1966 by the House of Lords also applied to the Court of Appeal. In Cassell
v Broome, he had invited the Court of Appeal and trial judges not to follow Rookes v Barnard,
a clear decision of the House of Lords on the proper scope of exemplary damages in defamation,
asserting that the decision had been given per incuriam, in ignorance of an earlier decision.
He was not alone in his dislike for Rookes v Barnard, as our High Court refused to follow
it in Uren v John Fairfax & Sons. Denning was severely rebuked for his heresy by the
House of Lords, however, and also rebuked in Gouriet v Union of Post Office Workers
for suggesting that the courts could control the decision of the Attorney-General to lend
his name to relator proceedings. Lord Diplock observed, probably referring to Lord Denning’s
dissenting remarks, that the failure to recognise the distinction between private law and public
law below led to “some confusion and an unaccustomed degree of rhetoric”. Professor
Heuston certainly took the remark as a reference to Lord Denning and had this to say: “Denning’s
style had always been unusual: by the mid-seventies it was not quite so admired as it had been.
The structure of the judgment was as clear and sound as ever, and often praised by his
fellow judges, but a certain striving after effect had become noticeable in the style
rather than in the arrangement. There were few or no subordinate clauses, and sometimes
no verb in the sentences. So the style was lacking in cadences. Also the terse vivid
opening sentence, to which he himself attached so much importance for gripping the reader’s
attention, often seemed inappropriate, especially in cases of severe personal injuries. Parodies
began to appear – sometimes quite amusing.” The popular press had also sharpened its focus
on judges, even in the civil cases in which Lord Denning specialised. Rebukes of him by
the House of Lords received great publicity and sometimes provoked vigorous responses
from Lord Denning himself. A contributor to an academic journal in 1980
said: “We are witnessing the tragic drama of a great judge whose acute sense of rightness
has become a conviction of righteousness, whose consciousness of the need for justice
has led him to become a self-appointed arbiter in the politics of society and whose desire
to draw attention to defects in our law has more noticeably drawn attention to himself.
Aided and abetted by the media, whose motives are not coincident with the interests of justice,
of the legal system nor of the noble judge himself, the process has accelerated and the
Master of the Rolls now takes his daily place alongside the good and the bad in the nation’s
headlines.” By then the subject of his potential resignation
had become an issue. He was much more senior than the other judges and less likely to pay
much attention to what they said. Professor Heuston says that, by then, he seemed
to be in a state of some intellectual and social isolation, not having any younger judge
who could act as friend or adviser. Professor McAuslan made a perceptive comparison of Lord
Denning with Lord Mountbatten, saying: “What Lord Mountbatten was to the Royals, Lord Denning
is to the judiciary; unorthodox, larger than life, a great performer, eager to emphasise
his own considerable contributions to public life and present them in the best possible
light ….” Professor Heuston went on to say to that list of shared qualities might
be added a certain absence of humour about self. Lord Denning’s resignation came finally in 1982, in his 83rd year. It was precipitated
by the publication of his latest book, the fourth in three years, titled ‘What Next in
the Law’. It created a hullabaloo. He called into question the suitability of immigrants
and non-whites for jury duty. It incorporated remarks he had made a year before, that the
black defendants’ lawyers in cases arising out of the Bristol race riots had made their
jury selections and objections based on race. Those remarks had been shown to be false.
He went on to say that: “The English are no longer a homogenous race. They are white
and black, coloured and brown. They no longer share the same standards of conduct. Some
of them come from countries where bribery and graft are accepted as an integral part
of life: and where stealing is a virtue so long as you are not found out. They no longer
share the same code of morals. They no longer share the same religious beliefs. They no
longer share the same respect for the law.” Earlier in 1982, he had controversially refused
to find that Sikhs were protected as a “race” under the existing anti-discrimination law,
a decision overturned by the House of Lords. In 1980 he had ranted against the Birmingham
Six in the case of McIlkenny saying: “This case shows what a civilized country we are.
Here are six men who have been convicted of the most wicked murder of 21 innocent people.
They have no money. Yet the state lavished large sums on their defence. … In their
evidence they were guilty of gross perjury. Yet the state continued to lavish large sums
on them – in their actions against the police. It is high time that it stopped. It is really
an attempt to set aside the convictions by a side-wind. It is a scandal that should not
be allowed to continue.” It was later established that the Birmingham
Six had been set up by police, that their confessions had been coerced and that they
had no part in the bombings. All of these events attracted significant
publicity, the controversy over the contents of the book being the last straw. The published
version was withdrawn and replaced with the offending parts excised. Lord Denning released
a statement through the Clerk to the Master of the Rolls saying that he had intended for
some time to retire by 30 September 1982 because of his advanced age, but that in light of
the recent controversy which had arisen over his book it was decided to bring the announcement
forward. He continued sitting until the end of July 1982.
Rudy Narayan of the Society of Black Lawyers offered an elegant footnote to the controversy
created by Lord Denning about coloured jurors by saying: “Lord Denning remains one of
the greatest judicial minds of his century. A great judge has erred greatly in the intellectual
loneliness of advanced years; while his remarks should be rejected and rebutted he is yet,
in a personal way, entitled to draw on that reservoir of community regard which he has
in many quarters and to seek understanding, if not forgiveness.”
These idiosyncrasies of Lord Denning’s later years illustrate the fundamental issue raised
by the first principle of his judicial philosophy, “Let justice be done”. What is justice
if it is avowedly idiosyncratic to the extent that it could be with Lord Denning? When those
idiosyncracies include apparently serious prejudices the danger to the rule of law becomes
significant. Sir Owen Dixon’s discussion of judicial
method back in 1955 in the context of the High Trees decision concluded with what can
only be regarded as pointed remarks. It is an error, he wrote: “If it is believed that
the technique of the common law cannot meet the demands which changing conceptions of
justice and convenience make. The demands made in the name of justice must not be arbitrary
or fanciful. They must proceed, not from political or sociological propensities, but from deeper,
more ordered, more philosophical and perhaps more enduring conceptions of justice. Impatience
at the pace with which legal developments proceed must be restrained because of graver
issues. For if the alternative to the judicial administration of the law according to a received
technique and by the use of the logical faculties is the abrupt change of conceptions according
to personal standards or theories of justice and convenience which the judge sets up, then
the Anglo-American system would seem to be placed at risk. The better judges would be
set adrift with neither moorings nor chart. The courts would come to exercise an unregulated
authority over the fate of men and their affairs which would leave our system undistinguishable
from the systems which we least admire.” Sir Owen later wrote to the leading American
Supreme Court judge, Felix Frankfurter, telling him that, to a certain extent, he was aiming
at Denning LJ in his remarks. However, rather to his consternation, he had received a letter
from Denning shortly after the talk saying he completely agreed with everything Dixon
had written in the address! Let me conclude. In retirement Lord Denning
continued to give interviews, including a notorious one in 1990 with A N Wilson from
the Spectator. He also continued to attract attention, sometimes for all the wrong reasons.
One of the saddest episodes of his later life was his participation in a television show
hosted by the since disgraced paedophile, Jimmy Savile. The subject was the trial of
Enid Blyton’s character “Noddy” where Lord Denning presided in his dotage and in
full judicial regalia. I only watched a little of it. I just thought it was so sad. His latter years
show the virtue of the statutory retirement age.
Lord Denning in his prime was a man of great warmth, courtesy and charm, much loved by
those who knew him well. He was a great judge in so many respects, particularly in his recognition
of the need for change and development in the legal system. His best judgments reflect
a high degree of scholarship and a talent for expressing the law clearly and simply.
Many of his decisions, even if not ultimately persuasive as precedents, have provided inspiration
for legislative change. So have his other writings. I have mentioned the modern development
of better legal remedies for judicial review of administrative action as one example. Another
example that springs to mind is the legislation that has entrenched the rights of spouses
to share in matrimonial property held in separate names. Early in his career in the Court of
Appeal he had argued that a deserted wife had an equity in the matrimonial home, a stance
he maintained “despite some legislative setbacks and regular rebuttal by the House
of Lords” and which eventually attracted statutory intervention.
His decisions may have been affected by hidden or old-fashioned prejudice, particularly because
of his confidence in his own judgment of what was just, the strength of his self-belief.
Any judge, however, needs to faithfully re-examine his or her assumptions about life and society
in the light of new knowledge to avoid making decisions inconsistent both with justice and
the law. To adopt the words of the monk and writer, Thomas Merton: “One must face the
fact that ‘good intentions’ are only good as long as they are faithfully re-examined
in the light of new knowledge, and in the light of their fruits. … The ethic of subjective
‘good intentions’ has been judged and found wanting. We must refocus on the objective
results of our decisions!” Lord Denning’s subjective good intentions
needed a healthier dose of legal objectivity to secure his place in the legal pantheon.
Thank you. (APPLAUSE) Justice Douglas has recalled for us why so
many of us regard Lord Denning as a hero. He has tempered that with his review of those
less attractive aspects on his character. Which became so evident later in his life.
Lord Denning’s turn of phrase was not confined to his judgments. In an interview he gave
to the Daily Mail he was asked his opinion of the workings of parliament. He said, “the
House of Commons start it’s proceedings with a prayer. The Chaplin looks at the assembled
member with their varied intelligence and then prays for the country”. The influence
of Lord Alfred Denning will be with us for a long time. Justice Douglas’s iridation
tonight, he eloquently reminded us why that is so. As a token of our thanks. Sorry, it’s
domestic (laughs). Would you please join me in expressing our appreciation, [Justice Douglas
– It’s French]. He got the wrong one (laugher (APPLAUSE). The final in this excellent
lectures will be presented by Justice Edelman when he speaks about one of England’s greatest
judges Lord Bingham. It will take place here on Tuesday the third of December. I invite
you to join us then. I invite you to join us now for refreshments in the gallery. Good