Denning, Alfred Thompson [Tom], Baron Denning
- Robert Goff
Alfred Thompson Denning, Baron Denning (1899–1999)
Denning, Alfred Thompson [Tom], Baron Denning (1899–1999), judge, was born on 23 January 1899 in Newbury Street, Whitchurch, Hampshire. He was the fourth of five sons and the fifth among the six children of Charles Denning (1859–1941), draper, and his wife, Clara (1865–1947), the eldest daughter of John Thomas Thompson, coal merchant, of Lincoln. He was born prematurely, and was not expected to live long.
Family and education
Denning's birthplace, Whitchurch, was (and still is) a small community in north Hampshire, in size between a large village and a small town, where his father kept a draper's shop. Photographs have survived which reveal the small scale of the shop, with very few goods displayed in a tiny window; and Denning later described how his father used to go out in his horse and trap to deliver goods, wrapped up in brown paper and string, to customers in the surrounding villages. Denning provided a proud and vivid account of his family in his book The Family Story (1981). There was indeed cause for pride. The family consisted of one girl, Marjorie (b. 1891), and five boys. Two of the boys, Jack (1892–1916) and Gordon (1897–1918), died on active service in the First World War; astonishingly, of the surviving three, the eldest, Sir Reginald Francis Stewart Denning (1894–1990), became a general, the second, Denning himself, became a great judge, while the third, Sir Norman Egbert Denning (1904–1979), became an admiral. The strength of character seems to have come from the mother's side. Denning epitomized the qualities of his parents in his book: 'Father kind and thoughtful, beloved by all. Mother strong and determined, standing no nonsense' (Denning, Family Story, 21). She is said to have nursed an unconcealed ambition for her children. Denning retained his affection for Whitchurch, and eventually was able to buy a handsome white house there called The Lawn, with the River Test running through the garden. He was proud to describe himself as a Hampshire man; he retained his distinctive Hampshire burr throughout his life; indeed, to some it seemed to become more pronounced as he grew older.
After attending a small private school run by a friend of the family in Whitchurch, Denning went to Andover grammar school; he entered the school in 1909 with his brother Gordon after both had won free places. From there he won a demyship to Magdalen College, Oxford. He went up to Oxford in 1916, and took a first in mathematical moderations in 1917, but his university career was interrupted by the First World War, in which he served with the Royal Engineers from 1917 to 1919, seeing active service on the Western Front. He then returned to Oxford, where he graduated with a first in mathematics in 1920. He then taught mathematics at Winchester for a year; but after a visit to the assizes at Winchester Castle he decided that his career did not lie in schoolmastering but in the law. He returned to Magdalen, where, in one year, he obtained another first, in jurisprudence. These achievements were capped by his joining the very select group of those who tried but failed to achieve a fellowship at All Souls College, Oxford (the fellows appear to have preferred Cyril Radcliffe, one of the most successful lawyers of his generation, who was awarded a fellowship in law). 'I joined the distinguished company of “Failed All Souls”' (Denning, Family Story, 39), as he wrote. His academic successes nevertheless provide early evidence of his brilliant intellect and his capacity for hard work, which in due course provided the foundation for his successful legal career.
His career at the bar and his marriages
Denning was awarded an Eldon law scholarship in 1921, and a prize studentship of the inns of court, and was called to the bar in 1923 by Lincoln's Inn, the oldest and most magnificent of the four inns of court. He gave the inn a lifetime's loyalty and affection. For many years he rented a flat there, up many stairs in one of its most ancient buildings.
Meanwhile, in September 1922, before he had been called to the bar, Denning became the pupil of Henry O'Hagan in 4 Brick Court, in the Temple. The only other member of chambers was Stephen Henn-Collins, but between them they had a wide range of work. Denning was later recruited as a member of these chambers, where he continued to practise during his professional career as a barrister, gradually building up a solid, wide-ranging practice, in London and on the western circuit, to which he naturally gravitated. This he succeeded in doing not only because he was very clever but also because he worked hard and prepared his cases with scrupulous care. One of his principal clients was the Southern Railway Company; his task was to enforce the terms of the company's railway tickets which, as a judge, he later regarded with some disfavour. He took silk in 1938. Just over a year later the Second World War broke out; and it was in the difficult wartime years that he practised as a king's counsel.
Denning was twice married. He married first, on 28 December 1932, (Hilda) Mary Josephine Harvey (b. 1899/1900), daughter of the Revd Frank Northam Harvey, rector of Fawley, Hampshire. This marriage took place after a long courtship, during which Denning was deeply in love with Mary, but she did not at first feel able to return his affection. But in the end she did so, and their marriage was very happy. They had one child, Robert (1938–2013), who followed in Denning's footsteps to Magdalen College, Oxford, where he became a fellow and professor of inorganic chemistry. Denning was devoted to Mary, and her death in November 1941 was a great blow. Fortunately, however, he married again, on 27 December 1945. His second wife was Joan Daria Stuart (1899/1900–1992), the daughter of John Vinings Elliott Taylor, publisher, and widow of John Matthew Blackwood Stuart, engineer. She was a wonderful wife to Denning, gentle and kind but a tower of strength. Through her he was the inheritor of an extended family, including her daughter Hazel Fox (b. 1928), a brilliant lawyer in her own right who became a fellow of Somerville College, Oxford, and as a leading international lawyer became director of the British Institute of International and Comparative Law, of which Denning was chairman. Her husband, Sir Michael Fox (1921–2007), was himself to become a distinguished appellate judge.
Appointment to the bench
In 1944 Denning became recorder of Plymouth; later in the same year he was appointed a justice of the High Court. He was then the youngest judge on the High Court bench. It was said that he had attracted the attention of the lord chancellor, Viscount Simon, when he appeared before the appellate committee of the House of Lords in United Australia Ltd <i>v.</i> Barclays Bank Ltd (1941).
When appointed to the bench, Denning (who was knighted the same year) was first assigned to the Probate, Divorce, and Admiralty Division of the High Court. Most, if not all, of his work in London was in divorce. Having regard to his strict views on the sanctity of the marriage vow, this cannot have been congenial work for him; but he discharged his duty with great humanity. Indeed, shortly after his transfer to the King's Bench Division of the High Court in 1945, he was invited by the lord chancellor to chair a committee to inquire into the administration of the divorce law, with special reference to expediting the hearing of suits and reducing costs, and to considering whether machinery should be available for the purpose of attempting reconciliation between the parties. With characteristic speed and efficiency he guided his committee to present its report within six months. The report was very well received: and two years later Denning was invited to become president of the National Marriage Guidance Council.
When he was transferred to the King's Bench Division in 1945, Denning also inherited the position of judge for pensions appeals, on whom fell the duty to adjudicate on war pensions—a matter of great importance in the aftermath of the Second World War. There was no appeal from his decisions, a fact of which he took full advantage. At that time there was great dissatisfaction because the burden of proof rested on the applicant to prove that his disability or injury was due to war service. Early in 1946 Denning removed the grievance by holding that, if a man was fit for service when he joined up and was discharged on medical grounds, this raised a presumption that his disability was due to war service: in other words, he reversed the burden of proof. This was an act of great judicial courage, the precursor of many others yet to come; and it was followed by a ruling which had the effect of allowing appeals out of time. The result was little less than a revolution in the handling of these claims, a remarkable achievement for a judge of first instance who had only recently been appointed to the bench. The decisions must have been well received. They did not in any way harm his prospects of promotion, since he was promoted to the Court of Appeal in 1948, before he was fifty.
Denning served as a lord justice of appeal from 1948 to 1957, when he was promoted to the House of Lords as a lord of appeal in ordinary, with the title Baron Denning of Whitchurch. His time in the appellate committee of the House of Lords was not altogether happy. This was partly because, in such a substantial group, of which he was the junior member (the law lords habitually sit in a committee of five) he could not dominate the committee; but principally because it was in the House of Lords that he found most opposition to his desire to mould and develop the common law in order to achieve practical justice. The opposition was expressed principally by Viscount Simonds, who felt deeply that Denning's approach to his judicial work conflicted with the doctrine of precedent by which all judges are bound. In one case, Rahimtoola <i>v.</i> Nizam of Hyderabad (1958), the disagreement between Denning and Simonds entered the public domain through a magisterial rebuke administered by Simonds, which Denning must not only have regarded as uncalled for, but also have seen as very wounding. The specific ground for complaint on this occasion was that Denning had proceeded on the basis of arguments and cases cited neither by counsel in argument nor by the judges in the courts below. However, the opinion expressed by Denning in that case, that a sovereign state engaged in commerce should not be entitled to invoke the protection of the principle of sovereign immunity, subsequently gained acceptance, both judicially and in due course by statute; on this occasion, as on many others, Denning was ahead of his time.
Master of the rolls
All this must have added to Denning's pleasure in returning to the Court of Appeal in 1962 as master of the rolls, where he sat in a court of three over which he presided and which he could more easily persuade to his point of view; where he could influence the choice of cases to be decided by his court; and where his court could proceed with greater speed than in the more stately House of Lords, so that he could give judgment in a greater number of cases. He was reported as having said (no doubt with his tongue at least partially in his cheek) that, in the Court of Appeal, where he sat with two colleagues as opposed to sitting as a member of a committee of five in the House of Lords, the odds against justice being done had been shortened from 4–1 to 2–1. He served as master of the rolls, in which capacity he presided over the civil division of the Court of Appeal, for the astonishing period of twenty years, until his retirement from the bench in 1982.
It was during his time as master of the rolls that Denning really caught the popular imagination. 'Lord Denning decides …', shouted the banner headlines. His colleagues who sat with him were ignored, and if his decision was reversed by the House of Lords—as from time to time his decisions were (indeed at one time no fewer than nine of his decisions in a row were reversed)—the newspapers were not interested. It was Lord Denning who interested them, partly because he was seen as the champion of the man in the street against those in authority, partly because he expressed himself in language which ordinary people could understand, but mainly because, with his passion for justice, his unique personality, and his command of language, he had simply caught the popular imagination. In 1983, in a foreword to a book published after Denning's retirement, Lord Devlin wrote that 'the secret of Lord Denning's attraction—for the profession as well as for the general public—is … the belief that he opens the door to the law above the law' (Jowell and McAuslan, vii).
Denning's judicial qualities
In practical terms Denning's essential qualities were his brilliant intellect, coupled with an astonishing memory—he appears to have had almost total recall—and boundless energy. With these remarkable gifts he produced, over his long judicial career, a remarkable number of judgments. Very frequently his judgments were delivered extempore, which speeded up his court in dealing with cases, and so also the number of cases in which he gave judgment. As his colleagues who sat with him observed, the notes he took during argument were of the most exiguous kind: he was able to rely on his superb memory. His summaries of the facts and issues were vivid, economical, and lucid in the extreme; he must have been the greatest master of relevance ever to sit on the English bench. There are memorable examples in the pages of the law reports. Perhaps the most famous is in Beswick <i>v.</i> Beswick (1966), in which his judgment opened with words which became immortal: 'Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales and weights' (Denning, Family Story, 208). There are many other examples, almost as vivid. In Lloyds Bank <i>v.</i> Bundy (1975), for example, his judgment began:
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 three hundred 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.ibid., 210
His statement of the facts in each case was followed by an equally concise and lucid statement of the legal issues, in which complexity was reduced to simplicity; and his conclusion was expressed in words which left no one in doubt as to the reasons for his decision.
In the Court of Appeal Denning dominated his court. This was not so much a matter of his prestige. It was rather that his grasp of the case was from the outset so secure, and that his mind operated with such speed and accuracy, that it must have been difficult to keep pace with him. In particular few, if any, of the judges who sat with him could prepare to give an extempore judgment with his speed and skill.
Denning's relationship with the advocates who appeared before him was friendly and courteous. It was a pleasure as well as a privilege to present a case before him. He was never overbearing. He was always deeply interested in the case, however arid the point of law, however small the sum at stake. He always listened with care and courtesy to the argument of counsel, however junior and inexperienced he or she might be; though his reactions were so quick that pages of counsel's notes seemed to melt away like the snow in summer, and rapidly had to be discarded as irrelevant. His conclusion was always expressed in such simple and compelling language that the unsuccessful advocate sometimes wondered how he had had the temerity to argue to the contrary.
Denning was famous for the skill and tact with which he dealt with cases presented by litigants in person. Many litigants in person lack the competence to present a case in a court of law; and some judges have found their patience tried to breaking point when a hopeless argument is presented with such persistence that it seems impossible to bring the case to any reasonable conclusion. But somehow Denning had litigants in person eating out of his hand. The combination of innate courtesy and natural friendliness, his total lack of any pomposity, and his remarkable accent, coupled with his complete grasp of the case and his evident interest in it, had the effect that the litigant left the court convinced that he had had a fair hearing, even though he may have come away empty-handed.
Denning was a lion for work. His concentration seemed never to flag. At the conclusion of each case he habitually gave the first judgment, usually, if not always, unreserved, scarcely seeming to refer to his sparse notes. And hardly a gap used to separate one case from another. It was always: 'Next case please'. Almost before counsel in the last appeal had left the court Denning began to hear the next appeal with the same care and consideration as he had given to the one just completed. His enthusiasm for his judicial work never faded.
That Denning was a great master of the common law, there can be no doubt. How did he achieve that mastery? It cannot have been the product of his study of the law for one year at Oxford University. Of course, he must have learned a good deal from his practice at the bar; but knowledge of that kind tends to be scattered and disorganized. It seems that he must have learned most from his work as one of the three editors of the thirteenth edition of Smith's Leading Cases (1929). This was a remarkable book which in the days before legal textbooks was much used by practising lawyers and was described as 'a work of incalculable benefit for the student'. Denning himself recognized that he must have learned a great deal about the fundamental principles of the common law from his work as editor, when he said of the book that 'it taught me most of the law I ever knew' (Denning, Family Story, 94).
Some important cases
Perhaps the first of Denning's famous cases was the High Trees case (Central London Property Trust Ltd <i>v.</i> High Trees House Ltd, 1947), decided when he was a judge of first instance. This case was concerned with the doctrine of equitable estoppel, but in his judgment Denning appeared to be undermining a much criticized fundamental principle of the law of contract called the doctrine of consideration; and all the lawyers, especially perhaps the academic lawyers, speculated whether the days of that doctrine were numbered—there were certainly parts of Denning's judgment which appeared, and perhaps were intended, to point in that direction. But after an exciting period of speculation, the case settled down as one which revived the doctrine of equitable estoppel which, as a result, acquired new prominence as a principle of great utility.
One of Denning's most admired judgments was his dissenting judgment in Candler <i>v.</i> Crane Christmas & Co. (1951). This case raised the question whether a person can be held liable in tort for damage caused by a negligent misstatement. Of the Court of Appeal, only Denning held, in his dissenting judgment, that a person could be so held liable. The principles stated by him in his judgment were expounded with such extraordinary clarity and simplicity, and with such prophetic accuracy, that nearly forty years later they were accepted by the House of Lords without amendment in Caparo Industries plc <i>v.</i> Dickman (1990).
Other influential judgments were concerned with controlling the abuse of power. Two early cases in this line, in which Denning gave judgments of which he was particularly proud, were R <i>v.</i> Northumberland Compensation Tribunal ex parte Shaw (1952) and Barnard <i>v.</i> National Dock Labour Board (1953). These followed on his remarkable treatment of the subject in the first series of Hamlyn lectures, delivered by him in 1949. It was cases such as these which persuaded the press, and therefore the public, that Denning was protecting ordinary people from those in authority. This was particularly true of his judgment in the later case of Congreve <i>v.</i> Home Office (1976), known as the ‘television licence case’, decided when he was master of the rolls. There the plaintiff, faced, like many thousands of other licence holders, with an impending increase in the cost of his licence, applied for a new licence before his old one had expired, in order to beat the date of the rise. The Home Office demanded the increase of £6; and, when the plaintiff refused to pay, revoked his licence. The plaintiff asked for a declaration that the home secretary had acted unlawfully. With Denning presiding, the Court of Appeal granted the application. Bernard Levin's comment on this decision was: 'Blow the trumpets of victory for US over THEM in the TV Licence War' (The Times, 5 Dec 1976). Even more memorable was his injunction to the attorney-general, in Gouriet <i>v.</i> Union of Post Office Workers (1977), reported in 1978, to bear in mind the words of Thomas Fuller: 'Be you ever so high, the law is always above you'. Denning's judicial work in this field paved the way for the most welcome development by the House of Lords of a rational and effective system of judicial review of executive and administrative action.
In Conway <i>v.</i> Rimmer (1967) Denning, in a dissenting judgment in the Court of Appeal, declined to follow a ruling of the House of Lords that an objection by a minister to the admissibility of evidence in a court on the ground of crown privilege was conclusive and could not be overridden by the court. The House of Lords then exercised the power recently acquired by it to depart from an earlier decision and unanimously upheld the opinion expressed by Denning in his dissenting judgment. The practical effect was that Denning, sitting in the Court of Appeal, had overturned a decision of the House of Lords.
One of Denning's great campaigns was to promote a purposive, rather than a literal, approach to the construction of statutes and documents. This campaign, which at first provoked opposition but ultimately achieved considerable success, is associated with a vivid metaphor coined by him in his judgment in Seaford Court Estates Ltd <i>v.</i> Asher (1949), when he stated that the judge must not alter the material of which the statute is woven, but that he can and should iron out the creases. In a dissenting judgment shortly after, in Magor <i>v.</i> Newport Corporation, reported in 1952, he adopted a similar approach, which, however, provoked the wrath of Viscount Simonds in the House of Lords. In the same year, in a case which attracted much attention at the time, British Movietone News Ltd <i>v.</i> London & District Cinemas Ltd (1952), concerned with the construction of a contract, Denning went further. He said that the courts should not always follow the literal meaning of the words in a contract but should consider the background against which the contract was made and changed circumstances, not in the contemplation of the parties, in order to do therein what is just and reasonable: 'The court qualifies the literal meaning of the words so as to bring them into accord with the contemplated scope of the contract' (Freeman, 222). This statement of the law was criticized by Viscount Simon in the House of Lords; but gradually the courts adopted a purposive approach, doing their best to give effect to the evident intention of the contracting parties.
Another campaign of Denning's which proved to be less successful was for the recognition of a 'deserted wife's equity', that is, for her right to remain in the matrimonial home, as against any successor to the husband's title, unless he neither knew, nor should have known, of the wife's situation. This, however, ran into difficulties because it failed to take proper account of the rights of other persons in the relevant property, and in National Provincial Bank <i>v.</i> Ainsworth (1965) the deserted wife's equity was, in Denning's words, 'blown to smithereens' (Heward, 52) by the House of Lords. More successful was his exploitation of injunctive relief to restrain the transfer by defendants of their assets out of the jurisdiction pending judgment in legal proceedings in this country. This much needed power came to be christened the 'Mareva injunction' after one of the early cases (Mareva Compania Naviera S.A. of Panama <i>v.</i> International Bulk Carriers S.A., 1975) in which the relief was granted by Denning and his colleagues in the Court of Appeal. It was criticized at the time as an illegitimate extension of the use of injunctive relief; but it proved to be so useful in practice and was so frequently invoked that it was legitimized by statute, in the Supreme Court Act (1981).
One subject in which Denning was deeply interested was the development of a coherent law of restitution, to provide for adequate remedies in cases in which the defendant had been unjustly enriched at the expense of the plaintiff. At one time he started to gather together the relevant material with a view to writing a book on the subject but had to leave the task to others, warmly encouraged by him. Even so, some of his decisions betrayed his interest in, and knowledge of, this subject: in particular, Nelson <i>v.</i> Larholt (1948) and Larner <i>v.</i> L.C.C. (1949).
When European law appeared on the scene Denning, who must have regretted the inevitable downgrading of the common law, nevertheless adopted a realistic attitude. Characteristically, he spoke in vivid language: 'The treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back' (Freeman, 369).
Denning was involved in a great range of activities outside his judicial work. His friendship with Professor Geoffrey Cheshire, Vinerian professor of English law at Oxford University, led to his appointment as chairman of the trustees of the Cheshire Homes for Incurables, founded by Cheshire's son Wing Commander Leonard Cheshire VC. He was also the first chairman (from 1959 to 1986) of the British Institute of International and Comparative Law, an institute of great importance which grew out of two other institutions. Not only was he a highly effective chairman, but his great reputation proved a magnet for endowments for the institute. Among the numerous other bodies to which he gave his support were Magdalen College, Oxford, Birkbeck College, London, and the University of Buckingham; the Law Society, the Magistrates' Association, and the Lawyers' Christian Fellowship; the Historical Manuscripts Commission and the English Association; the National Association of Parish Councils; and the Drapers' Company. He was also chancellor of two dioceses, London and Southwark.
In 1963 Denning conducted the inquiry into the Profumo affair, an exercise which he performed in only three months and in a highly effective, if unorthodox, manner which deprived the media of the opportunity to rake over the ashes of a much exaggerated scandal and was infinitely less expensive than the more cumbrous inquiries of later years (though it has to be said that his report was criticized as showing signs of naïvety).
Denning was always ready to meet students and to address them, and he gave up much time to them. They were fascinated by his judgments: exciting, not too long, vivid, and easy to understand. They loved his tilting at authority, his passion for justice, sometimes at the expense of the doctrine of precedent, and his protection of the little man from overbearing authority. But especially they loved the man himself: approachable, warm, friendly, informal, and lacking in condescension. The master of the rolls' court in the Royal Courts of Justice always had a sprinkling, sometimes a substantial gathering, of people in attendance. They were mostly law students, but also some unemployed young barristers and even some members of the public. They used to come just to watch, and to listen to, Lord Denning.
Denning's overseas tours took him all over the common law world (often with his wife) and he visited many countries outside it. He was preceded by his great reputation; but as always the magic of his personality, and his deep interest in the activities of his hosts, combined with his natural courtesy, made a profound impression. These long journeys, and the many engagements at his destinations, must have been very exhausting yet his energy enabled him to cope. He was deeply admired by the lawyers who practised in the Commonwealth. Lord Bingham later recalled that he once met a Guyanese advocate who practised from Denning Chambers in Georgetown and who had christened his eldest son Alfred Thompson.
On these tours Denning must have had many speaking engagements. Although diffident at first, he acquired great skill, and his own special style, as a public speaker. He usually spoke without notes, and had a great sense of drama; his Hampshire accent reinforced the dramatic effect of his delivery. Everybody enjoyed his speeches. He had a number of favourite stories: it did not seem to matter that his audience had heard them before—they enjoyed hearing them again and again. In his speeches he spoke of his deep affection for his country, its history and traditions, for Shakespeare (from whose works he could quote long passages by heart), and above all for the common law and its greatest offspring, the rule of law. It was when he spoke in public that his audience had a vision of his personality, rounded and complete despite its extraordinary contradictions: the combination of simplicity and shrewdness in his character, and of tradition and modernity in his outlook.
During the later part of his judicial career and after he retired, Denning published a number of books. The first was The Discipline of the Law (1978). It began with a consideration of the construction of documents, in which he contrasted the approach of the 'strict constructionists' with that of the 'intention seekers'. The reader was left in no doubt to which school Denning himself belonged. In the second part he considered 'misuse of ministerial powers'. This reflected his determination that the exercise of these powers should be subject to review by judges. In 1981 he published The Family Story, his proud and affectionate account of his remarkable family. This was followed in 1982 by What Next in the Law.
Sadly, two passages in the latter book, relating to the suitability of black jurors, caused great offence to the black community and led to adverse press comment. The Daily Mirror spoke to Lady Denning. She replied: 'He is very distressed. He has done more for the black people in this country than any other judge. He is very upset. He realises that he has made a mistake' (Denning, Closing Chapter, 11). Denning wrote to the lord chancellor, offering to retire at once. The lord chancellor persuaded him that he should not retire until the end of the long vacation. Meanwhile, however, two black jurors who had participated in a trial at Bristol threatened proceedings against Denning for libel. He took legal advice from a very experienced solicitor, and from leading and junior counsel. Agreement was reached. No writ was issued, and no damages were sought. The book was withdrawn, the offending passages were removed, and Denning made a public apology in terms which were agreed. It was a sad end to a great career. A man who had been accustomed to speak his mind with impunity had gone too far. The blow was, however, softened by a generous letter written to The Times by Rudy Narayan, the secretary of the Society of Black Lawyers, in which he wrote:
The remarks are clearly wrong and it is good to read Lady Denning's quoted remarks. Lord and Lady Denning have thousands of friends in Africa, Asia and the Caribbean who will be surprised at his remarks, and his own and Lady Denning's distress is plain to see. 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.The Times, 26 May 1982
In 1983 Denning published his fourth and last book, The Closing Chapter. In it he recounted, with engaging frankness, the sad story of his retirement from judicial office. It has to be admitted, even by his warmest admirers, that this unfortunate episode revealed a flaw in his character: a streak of hubris which led him to believe that he was not as other men were, and in particular that he was not subject to the same restraints as other judges. It was this trait in his character which led him not merely to develop the common law in an acceptable manner to achieve practical justice, but on occasion to decide individual cases simply on the merits as he saw them, without troubling too much about settled legal principle which might point in another direction. It was this aspect of his work which most upset judges who heard appeals from his decisions, and which led to many of his decisions being reversed by the House of Lords, with consequent waste of judicial time and of legal costs. For his successors on the bench, however, his great achievement stands: that he taught the English judiciary that the common law cannot stand still. It must be capable of development, on a case-by-case basis, to ensure that the principles of the common law are apt to do practical justice in a living society; even so, it is recognized that this must be done within the confines of a doctrine of precedent, the function of which is to ensure stability in the law and consistency in its administration, but which must not be construed too strictly to preclude the organic development of the common law.
In 1982 Denning retired to Whitchurch, where he had many visitors. He usually received them in his study, filled with mementoes of his career, including the desk of his most distinguished predecessor, Sir George Jessel, at which he used to sit. The mantelpiece and the top of his bookcase provided a home to many gifts from overseas, including carved elephants and other animals from Africa. Some of his visitors came to fish, at his invitation, in the River Test as it ran through his garden; among them was Viscount Simonds, whose deep and public disagreement with Denning's more revolutionary judgments seems to have left no trace of rancour.
For some years after his retirement Denning continued to go up to London. He spoke in the chamber of the House of Lords on many topics. But sadly both his eyesight and his hearing became gravely impaired and increasingly he was confined to his home, where he had the benefit of an effective apparatus, involving a microphone and large earmuffs, to overcome his deafness. He spent a good deal of his time offering free advice on the law, of dubious practicality, to all sorts of people. He even himself embarked on litigation on local issues from time to time. But his greatest pleasure was derived from his family, and especially from his grandchildren. The death of his second wife, Joan, in 1992 was a great blow.
Denning received many honours, including honorary doctorates from numerous universities in Britain, Europe, and United States, and the Commonwealth, and honorary fellowship of the British Academy. Very late in his life he received the great honour of being admitted to the Order of Merit, a unique distinction for a judge. The award gave great pleasure, not only to himself but also to his many admirers in the country. Unfortunately he was by then no longer able to travel to London to receive the insignia from the queen; instead her representative made the presentation to Denning in his home at Whitchurch.
Denning's 100th birthday was an occasion for great rejoicing, at his home in Whitchurch and by his many admirers in the country at large. A family party was held at The Lawn. Outside, the church bells were ringing—including a new tenor bell, Great Tom, cast in his honour and making up a peal of ten bells, unusual for the church of so small a community. Inside the house, a section of the Basingstoke male voice choir sang 'Happy birthday to you'. Robert Denning opened and read his telegram from the queen; Denning had already received on the previous day a telegram from the queen mother. He died only a few weeks later, on 5 March 1999; he was taken ill at home in Whitchurch, and was rushed by ambulance to the Royal Hampshire County Hospital, Winchester, where he died of an internal haemorrhage combined with old age. He was buried in the graveyard at Whitchurch, beside the grave of his second wife, Joan.
Denning's great career was recalled by an enormous congregation at a memorial service in Westminster Abbey on 17 June 1999, at which his extraordinary character and achievements were extolled by Lord Bingham of Cornhill, who described Denning as 'the best-known and best loved judge in our history' (The Times, 18 June 1999). The size of the congregation reflected not only the vast range of his activities and the number of organizations in which Denning was involved, but also the deep affection in which he was held by the whole legal profession.
Character and assessment
Tom Denning, as he was known in his family and to all his many friends, was a tall man of considerable presence, though he habitually appeared to be half-smiling. When he removed his judicial wig, his head was revealed to be surprisingly bald, fringed with grey hair.
In pursuing his great aim of modernizing the law, Denning came to be regarded by some as a revolutionary. Yet it is a curious, even paradoxical, fact that, at heart, he held views of the most conventional, indeed old-fashioned, nature. He was a devout member of the Church of England, and described religion as 'perhaps the chiefest influence [on him] of all' (Denning, Family Story, vi). He was deeply patriotic in his love for his country and its history and culture. He was a lifelong teetotaller and non-smoker—principles adopted by him when he was a university student and very short of money, but observed by him rigorously throughout his long life, except that he took a small glass of port for toasts. His morality was strictly conventional and his views on topics such as capital punishment and homosexuality could be, and were, regarded as reactionary. That these aspects of his ethos did not diminish the esteem in which he was held by the general public was largely due to his simplicity of character, his evident courage and public spirit, his personal charm and great charisma, and his passionate belief in freedom under the law and in fair play. Also his evident determination to protect the little man from overbearing authority made him very attractive to the media, so that they seem to have been inclined to forgive the more extreme expressions of his old-fashioned morality.
Denning's great achievement was that he reminded a whole generation of lawyers that the duty of a judge is not merely to apply the law but to do justice; and that, if justice was to be done according to law, the common law could not stand still—it must be developed to respond to the needs of justice in a living society. The path he chose was the path of justice; he once wrote, 'so long as I did what I thought was just, I … could sleep at night. But if I did what was unjust, I stayed awake worrying' (Denning, Family Story, 183). It is difficult to imagine more fundamental lessons than those he taught: and so effectively were the lessons reinforced by the example of his own judicial work that by the time of his death their precepts were regarded as axiomatic, throughout the common law world. Yet in the earlier years of the twentieth century many influential judges regarded their function as being simply to apply the principles of the common law as then understood, and as laid down in the decided cases. They regarded it as an abuse of judicial power to ‘change’ the law as Denning sought to do; that, they thought, could only be achieved by legislation. One of his principal critics, Viscount Simonds, spoke of 'a naked usurpation of the legislative function under the thin disguise of interpretation' (Freeman, 220). This philosophy, although espoused in all good faith, was stultifying in its effect. Even so, it required great courage on the part of Denning to challenge it and great perseverance on his part to overcome it, in the face of considerable opposition from a number of the older judges. He gradually acquired allies, not only on the bench but also, and perhaps especially, in the academic world, in support of his campaign, and in the end his view prevailed.
With the wisdom of hindsight Denning's victory can be seen to have been entirely justified. It may from time to time cause some temporary instability in the law; but in the long term practical justice has been the beneficiary. Indeed, it can be said that the common law, based as it is upon a case law system, was ideally suited for Denning's purpose; it is surely much more difficult for judges to change a codified system, or indeed to identify an intellectual justification for doing so, than it is to develop by judicial decision a system of law which consists of previous decisions by the judges themselves.
Denning was one of the greatest and most influential judges ever to sit on the English bench. Some would maintain that the title of this country's greatest judge of all time should still be awarded to Lord Mansfield (who, in the age of the Enlightenment, transformed its medieval common law and procedure into a modern system which has survived through the centuries, and who was also the father of commercial law). Nevertheless, few would dispute that Denning was the greatest English judge of the twentieth century.
- Lord Denning, The family story (1981)
- Lord Denning, The closing chapter (1983)
- I. Freeman, Lord Denning: a life (1993)
- E. Heward, Lord Denning: a biography, 2nd edn (1997)
- J. L. Jowell and I. D. W. B. McAuslan, Lord Denning: the judge and the law (1984)
- S. Krebs, Lord Denning et le droit communautaire (1983)
- P. Robson and P. Watchman, Justice, Lord Denning and the constitution (1981)
- The Times (6 March 1999)
- Daily Telegraph (6 March 1999)
- The Guardian (6 March 1999)
- The Independent (6 March 1999)
- Lord Goff of Chievely, ‘Lord Denning: a memoir’, Denning Law Journal (1999), xxiii–xxxiii
- Denning Law Journal (1999) [special issue]
- Lord Bingham of Cornhill, ‘Address at the service of thanksgiving for the Rt Hon Lord Denning OM’, Denning Law Journal (2000), 1–6
- b. cert.
- m. certs.
- d. cert.
- personal knowledge (2004)
- private information (2004)
- Bodl. RH, papers relating to conference on the future of law in Africa
- Hants. RO, corresp., diaries, personal and family papers
- Bodl. Oxf., letters to A. L. Goodhart
- W. Stoneman, photograph, 1945, NPG
- N. Hepple, group portrait, oils, 1958 (A short adjournment), Lincoln's Inn, London
- photographs, 1963–80, Hult. Arch.
- W. Bird, photograph, 1964, NPG
- E. Halliday, oils, 1974, Lincoln's Inn, London
- A. Newman, colour print, 1978, NPG
- A. Newman, photograph, 1978, NPG
- J. Ward, oils, 1978, Birkbeck College, London
- photograph, 1980, repro. in The Independent
- B. Organ, oils, 1982, NPG [see illus.]
- photograph, 1987, repro. in The Times
- photograph, repro. in The Times
- photograph, repro. in Daily Telegraph
- photograph, repro. in The Guardian
- photographs, repro. in Denning, Family story
- photographs, repro. in Freeman, Lord Denning
- photographs, repro. in Heward, Lord Denning