Despite his controversial views Lord Denning was an extremely popular lawyer. Ryan Dunleavy reveals why The Lawyer has named him Lawyer of the Century
At a legal dinner Lord Denning once said: “Unlike my brother judge here, who is concerned with law, I am concerned with justice.”
Throughout his life Denning, the former Master of the Rolls who died at the age of 100 this year, put his principles before his legal practices, and that is why he can justifiably be named as the lawyer who made the most impact on the legal world this century.
Denning also spanned the period like no other man in legal history. His tenure of high judicial office – almost 40 years – was the longest on record.
Alfred Thompson “Tom” Denning was born on 23 January 1899 at Whitchurch, Hampshire. He died on 5 March 1999 after a glittering legal career.
He gained a double first in mathematics and law from Magdalen College, Oxford and in 1923 was called to the bar by Lincoln’s Inn after coming top in the bar exams.
He took silk in 1938. After sitting as a commissioner of assize in Manchester in 1943 it became apparent that he had the right qualities to become a judge. In 1944 he was appointed as a High Court judge. In 1948 he moved to the Court of Appeal, and in 1957 became a Law Lord. In 1962 he returned to the Court of Appeal as its head, Master of the Rolls, where he remained until he retired in 1982.
At this time the Court of Appeal was hearing about 800 cases a year and Denning was fully aware of the power his position held. As he said, it “really does lay down the law in civil cases in this country”. And indeed, Denning used this power to implant his personal views into the law.
Above all Denning was a religious man. This is where his devotion to justice stemmed from. “Without religion there is no morality,” he wrote, “and without morality there is no law.”
He was also fiercely patriotic. He fought in the First World War between 1917 and 1919, and immediately volunteered for service when the Second World War broke out but was rejected for being too old.
Michael Beloff QC, head of 4-5 Gray’s Inn Square, who often appeared before Denning, says: “If he had not been a lawyer he could have been a great de Gaulle-like right-wing speaker.”
His judgments were based more on his own ethical views than statutes or previous common law rulings, and his role as president of the Lawyers’ Christian Fellowship played a huge part in his interpretation of the law. He kept a bible with him when writing judgments and boasted: “It is the most tattered book in my library.”
His deeply held religious convictions made him see the law as a tool to reach a fair outcome rather than an entity in its own right.
Instead of rigidly applying the law to a given set of facts he would try to reach an outcome that he saw as just, even if a wrongdoer had the law on his side.
Beloff says: “There were times when Lord Denning wanted to reach a particular result and felt like he could not do so. He would try every way he could to find in the person he favoured’s way.”
It was Denning’s principles that led to him make profound changes to the legal system, which were often opposed by the rest of the legal community. His achievements in this capacity include the creation of the concept of promissory estoppel in the 1940s – a legal doctrine that gives rights to people in commercial disputes who have acted on the promise of another.
He also established the “deserted wife’s equity”, giving women the right to stay in the matrimonial home and ruled that an unmarried partner who contributes to buying or improving a home may claim a share under trust law. And he created the Mareva injunction, which freezes assets such as bank accounts pending litigation.
These developments all play a part in the modern judicial system and they all have the underlying thread of fairness running through them.
However, it was not only what Denning said that was significant, but also how he said it.
Instead of obscuring legal points in complex language, he tried to make the law accessible to ordinary people by using a mixture of plain English and colourful prose – his judgment in Hinz v Berry (1970) started with: “It happened on 19 April 1964. It was bluebell time in Kent.” Students still read his judgments as examples of how lawyers should communicate.
But Denning was not without his critics. His personal ethical views were paramount and for some these were based on incorrect assumptions. Indeed, Denning’s trials could be construed as having a higher element of subjectivity and for those who disagreed with Denning’s outlook on life this made him a liability to the development of the law rather than an asset.
Some argued that his interpretation of the law through his own tinted spectrum subverted the running of parliamentary democracy. They argued that Denning should not be allowed to reinterpret the law because he was not elected to do so. Lord Chancellor Simonds once described Denning’s outlook as “heresy”.
Denning’s public image was also a problem, mainly due to some of the more controversial comments he made about individual cases. In a 1990 Spectator interview he said that the Guildford Four, who had just been released from jail after 15 years because their original conviction was found to be unjust, should have hanged.
“They’d probably have hanged the right man,” he said. “Not proved against them, that’s all.” He made similar comments about the Birmingham Six, but later said that capital punishment was morally wrong, although in his earlier days as an assize judge he had sentenced men to death and had ordered strokes of the birch.
These inflammatory statements were not out of character. He once referred to European Commissioner Sir Leon Brittan as a “German Jew”; suggested immigrants may not be suitable as jurors; and held that a divorcee would make an unfit divorce judge.
Denning’s religious convictions inspired his quest for fairness based on morality, but they also led him to make decisions based on unflexible Christian dogma. This became increasingly out-dated in a modern multicultural Britain and his patriotism belonged more to the first half of the century than the latter.
Beloff says: “I am a huge fan of his but he belonged to another era. He represents the notion of old-fashioned imperial British justice. It is a vanished world. He had classic English interests: cricket, grammar schools, and no racial notions because there were no minorities in old England.”
Whatever his failings, Denning stands over this legal century like no other figure.
He showed lawyers how judgments should be communicated, dared to change laws that he thought were wrong, and spoke out for justice. For these radical stances he will remain an icon for the legal community well into the next century.