Lord Denning: Life, Law and Legacy

From Michael Freeman, retired solicitor, in the Law Society Gazette, 9 June 2023

Not many judges have biographers. Very few indeed have three. The authors of the first two biographies of Lord Denning knew him well and wrote in his lifetime. This is the first, therefore, that has the benefit of an independent perspective. It is easy to read, full of interesting information, and very well produced.

It is a pity that the author was not able, for whatever reason, to draw comparisons with two judges who were to some extent contemporaries of the great man. Context is important. It would be wrong to think he was a freak. Lord Greene is mentioned very briefly and McCreadie J not at all. Greene was an innovator. He is now largely forgotten, though his most famous case, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, is not. McCreadie J was a youthful judge from a modest background who was always getting into hot water with the appellate courts.

Of course, sometimes Denning looked backwards, as evidenced by his views about the place of women. And sometimes he produced results that were persuasive but unhelpful, such as when he convinced himself that the balance of probabilities and beyond reasonable doubt could be the same thing. There was also the problem of Denning following his own precedents. The real objection, to my mind, was that this was not something a gentleman would do. Denning’s view could easily be supported by taking his name off the judgment he was following. If it were a Court of Appeal decision, not overruled, he could and should follow it. Why not? Sometimes he was carried away by his own sense of justice.

This book is above all a successful attempt to deliver a readable, honest and accurate portrait of the man, and of some of his most interesting and significant judgments. Time will tell where he stands in the judicial pantheon.

"... easy to read, full of interesting information, and very well produced.

(...)

This book is above all a successful attempt to deliver a readable, honest and accurate portrait of the man, and of some of his most interesting and significant judgments."

From the Hon. Michael Beloff KC, one of the most distinguished barristers in England, in the Times Literary Supplement, on 28 July 2023.

Lord Denning was indisputably the best known British judge of the twentieth century, which he all but spanned from 1899 to 1999. The statistics alone are remarkable. After a double first from Magdalen College, Oxford in mathematics and law, he was for almost four decades a senior judge in an era without statutory time limits on judicial service. He was Master of the Rolls for twenty years. Born Alfred Thompson (known as Tom) Denning, in a Hampshire house without running water, electricity or an inside toilet, Denning ascended via a career at the bar to his prestigious office in a judicial equivalent of the transatlantic political journey from log cabin to White House. In the All England Law Reports in 2020 he easily topped the judicial list of the number of citations of his cases. A centenarian at his death, he is the only judge to have been awarded the Order of Merit.

It was not just the magnitude but the manner of his contribution to jurisprudence that made Denning unique. In many leading cases he captured the reader’s attention by an opening paragraph setting the scene with simple but colourful language. Le style c’était le juge.

If his major judgments were memorable, they were not necessarily admired. In his search for particular justice, he rode roughshod over the doctrine of precedent, the cement which gives certainty to the common law. Many of his judicial contemporaries, from the conservative Lord Simonds to the liberal Lord Scarman, were compelled in their appellate judgments to criticize his idiosyncratic approach to established law. Denning opted to move downwards from the judicial House of Lords to the Court of Appeal, where as President of that Court’s Civil Division he could control his case list and had only to persuade one of two junior colleagues to create a majority. If a maestro, he was also a maverick.

Denning was nonetheless on occasion able to dictate the law’s flow in a way which commanded later allegiance. He was a pioneer of the movement from the literal to the purposive method of statutory interpretation. He created novel remedies, such as the Mareva injunction, freezing a defendant’s assets if there was a danger of their removal overseas before judgment was given, to ensure that the fruits of potential victory in litigation were not rendered worthless by their earlier dissipation. He contributed to the explosion of public law, the most significant legal development of his age, though, as James Wilson perceptively notes in his new book, as in his judgments in private law, “there were underlying tensions between his wish to uphold the rule of law and extend causes of action on the one hand and his iron-clad moral code and instinct to defend the state on the other”.’

Dennning indeed had a deeply personal approach to justice, informed by his Christianity, patriotism, service in the First World War and an instinctive sympathy for the underdog. But he was no feminist. He regarded woman’ s chief role as that of a home maker, not an independent player in the workplace, though, counterintuitively, he overturned the Jockey Club’s refusal of a trainer’s licence to a woman years before the Sex Discrimination Act. A foe to Trades Unions, he was a friend of the police. He refused to allow the Birmingham Six to bring civil claims against the police alleging that that they had elicited the confessions which led to the convictions by torture. His dictum that the claims’ potential success offered “an appalling vista” of “the police … being guilty of perjury, … violence and threats” reads even less well since the convictions were later set aside. But his reluctant resignation at the age of eighty was compelled not by this unhappy episode but by his suggestion that not all ethnic minorities could be relied on to bring impartiality to the jury box.

Denning’s legacy to the substance of the law is hard to quantify. His judgments are still cited but in declining numbers as the Human Rights Act, which came into force after his death, increasingly commands attention in litigation. It was left to his successor as Master of the Rolls, Lord Donaldson, to modernize civil procedure.

Wilson, a qualified lawyer with an eclectic range of previous books to his credit, recognizes that Denning was a man of, not in advance of, his time. But in emphasizing that the expression of some of his subject’s views on matters such as traditional morality (which he calls “antediluvian chuntering”) or mass immigration would nowadays be unacceptable, he sometimes applies the standards of Hampstead rather than of Hartlepool. Denning, an uncommon lawyer, was more in tune with the common man.

This is not the first book to have considered Denning’s career nor is it likely to be the last; but, by making full use of archival material in its treatment of Denning’s life outside as well as inside the law (including arguably excessive coverage of Denning’s report into the Profumo scandal, in which he concluded that there had been no security risk), it is for now the best.

"This is not the first book to have considered Denning's career nor is it likely to be the last; but, by making full use of archival material ... it is for now the best."

The following letters appeared in the Times Literary Supplement on 11 August in response:

Lord Denning

In a mood of inclusivity and diversity, or what used to be called inverted snobbery, Michael Beloff (July 28) praises Lord Denning for being “in tune with the common man” in matters of public morality, and faults James Wilson’s biography for judging Denning by “the standards of Hampstead rather than of Hartlepool”.

In the course of his maiden speech in a House of Lords debate in 1957, Denning urged that it should be a criminal offence for any man to undergo a vasectomy that enabled him to enjoy “the gratification of sexual intercourse without any of the responsibilities”. He lamented “that Hell Fire and eternal damnation hold no terrors nowadays”. Speaking in tune with the prejudices of Beloff’s common man, he likened male homosexuality (“unnatural vice”) to bestiality and incest, and claimed that “right-thinking people” agree that it threatens the “safety” of society and “the integrity of the human race”. According to law, he said, “the normal man” is justified when he “repels with a fist” another man’s overtures. The wholesome tradition of queer-bashing would be jeopardized by the decriminalization of male homosexuality: “the man who strikes the blow … might be said to [have committed] an unjustifiable assault”.

Often the standards of Hampstead are preferable to those of “red wall” seats.

Richard Davenport-Hines
Ardèche, France

Michael Beloff writes that Lord Denning was “the only judge to have been awarded the Order of Merit”. Sir Owen Dixon, Chief Justice of Australia, was another, appointed to the order in 1963.

Yuan Yi Zhu
Harris Manchester College, Oxford

From Dr Charles Wynn-Evans, a partner at Dechert LLP, published in the New Law Journal on 11 August 2023.

Lord Bingham described Lord Denning as ‘the best-known and best-loved judge of this, or perhaps any, generation… cherished by his countless friends on the Bench, at the Bar and among the wider public throughout the Commonwealth.’ Whether talking of village cricket or the incoming tide of European law, what James Wilson describes in this biography as Lord Denning’s unique homely writing style is, of course, legendary, and his relentless focus on (his view of) justice in the particular case continues to attract much admiration.

Nonetheless, Lord Denning remains a controversial figure for many reasons, including his approach to judicial decisionmaking and disregard for stare decisis, as well as his various extraordinary—particularly by modern standards—judicial and extrajudicial observations, including describing homosexuality as a ‘cult’, saying (in the case of the Birmingham Six) that the consequence for the English legal system of accepting that police officers were lying was such ‘an appalling vista’ that every sensible person would reject further legal action, and suggesting that non-White people should not sit on juries.

A review of Lord Denning’s life and work from greater distance and with perhaps a more rounded perspective than earlier biographies, is certainly welcome. In this book, James Wilson takes on very successfully the challenge of drawing together Lord Denning’s upbringing, background, influences, and career with the legal and political significance of his judicial work. Notwithstanding constraints of space and the fact the book is not aimed solely at a legal audience, it provides not only a detailed, insightful, and accessible account of Lord Denning’s life and career; it also includes creditably succinct and yet scholarly accounts of his contribution to areas as diverse as the common law, family law, employment law, public law, and security of the realm, as well as drawing analogies between issues addressed by Denning and current legal debates.

Lord Sumption observed in a recent Spectator book review that most biographies are coloured by hero worship. This criticism certainly does not apply to this book. While suffused with respect, admiration, and affection for its subject, it does not shy away from or indeed excuse the more controversial aspects of Lord Denning’s career. It nonetheless contextualises Lord Denning’s work while reflecting his work ethic, devotion to public service, patriotism, and Christian values. One can only agree with Lord Neuberger’s assessment in the foreword that Wilson ‘has managed to capture both the man and the judge’.

Wilson’s book also reflects the point that history does not repeat itself, but it rhymes. The controversies surrounding Lord Denning’s Profumo report—as to its scope, purpose, and approach to evidence—chime with debates about more recent judicial and non-judicial inquiries. Lord Denning’s treatment of litigants in person presaged the subsequent wider and deeper institutional understanding of the issues faced by, and the modernisation of the approach of the courts and tribunals to, unrepresented parties. One is also struck by the point, brought out well by Wilson, that, while Denning may have been the public face and have given the leading judgment in many of his more controversial judgments in the Court of Appeal, these were often unanimous decisions. Both in relation to the judgments in which he was involved, and his public persona and pronouncements more generally, the Lord Denning experience serves as a valuable reminder of the undesirability of cults of (judicial) personality.

Wilson’s book does leave one thinking that, for all the controversies of his career, the spirit, if not always the legal method, of Lord Denning’s approach should still be valued—not least in respect of what Lord Bingham described as the chords which were dominant in his decisions: fairness, and freedom—of the press, of mind and conscience, from executive interference, and under the law.

"... provides not only a detailed, insightful and accessible account of Lord Denning’s life and career; it also includes creditably succinct and yet scholarly accounts of his contribution to areas as diverse as the common law, family law, employment law, public law, and security of the realm"

"One can only agree with Lord
Neuberger’s assessment in the foreword that Wilson ‘has managed to capture both the man and the judge’"

From Mr Robert Shiels in the Scottish Legal News, 22 September 2003.

Writing about, or even contemplating, the whole life of someone is a daunting task, particularly if that person had been as busy as Lord Denning. Born into a family of modest means in a small Hampshire town in 1899, he went on to gain two firsts from Oxford and served in the army in the First World War, before becoming a successful barrister and serving almost 40 years as a senior judge, and lived for 100 years.

In the context of England of his time, the achievements of Lord Denning within the judicial hierarchy were remarkable. Later, however, his views on society and justice became very anachronistic as shown by his rigid adherence to the late-Victorian and Edwardian morality of his childhood, and the place of people within society.

Perhaps he was the most famous English judge of the twentieth century but he had his detractors, and supporters who supported his views. It is easy to see on the legal sources why James Wilson was justified in this excellent biography in referring to Lord Denning as “ever the spokesman for passengers on the Clapham omnibus”.

As well as the decisions that were reached, the judgments of Lord Denning were legendary for both their style and substance. The style was instantly recognisable, with “almost staccato prose”, producing a brevity and clarity that was unrivalled amongst his contemporaries. The substance of the judgements was often less about law and more about achieving justice in each case before him, as Lord Denning looked for the fairest outcome.

The impressive bibliography suggests that this is the sixth book about Lord Denning (and there is also a thesis for a doctorate). Yet, this new book is a triumph of legal writing in providing an introduction for law students as to the workings of the law. It also presents thematically, for lawyers and the interested public, the various decisions of Lord Denning on a wide variety of subject-matter to show the manner in which existing precedent was manipulated and how that became controversial, and publicly so, with other judges.

Despite many controversies, Lord Denning led an extraordinary life, this study does not avoid the errors or failings of the judge, but does not overly state his great attributes. James Wilson presents an impressive array of case law and material set out, the reader is left to decide what the true contribution of Lord Denning was to English law and the duties of judges.

"This new book is a triumph of legal writing in providing an introduction for law students as to the workings of the law."

From the Hon. Justice Tom Carey, Ontario Superior Court. Published in Court, Community, Connection, the Newsletter of the Ontario Superior Court Judges’ Association, Issue 59, Spring 2024, p 17.

"an excellent and thorough review of the still relevant, and always controversial jurist."

"Wilson has delivered a well-organized, readable, and interesting biography/legal-social history that should give a judicial reader both insight and knowledge of perhaps the most influential jurist of the modern era."