The Hallmark Of A Controversial English Judge
Who Would Not Allow The Law To Get In The Way Of Justice
He deserves more space than I devote to him here as he was a man of contrasts: of incongruous libertarianism while prejudiced towards early black immigrants sitting as jurors (he suspected they lacked familiarity with English customs and culture) ; he was a stuffy conservative who upheld the property rights of unmarried couples. Where he saw fit he was a contrarian fighting for the rights of the ordinary man, especially when disadvantaged by social or financial circumstances.
If he observed a defect in the law that caused injustice, he did not hesitate to contrive a well-reasoned argument for overturning it. Above all, he wished to make the law understandable by the use of precise and plain English.
It is seldom that the name of an English judge is, in his day, as well known as those of politicians and celebrities. Indeed, Lord Denning, Master of the Rolls, was a celebrity. What’s more, it was a status he did not shy from.
He first came to public recognition during the Profumo Affair of the early 1960s. This notorious scandal involved a Harley Street osteopath, Stephen Ward, who introduced a Government Minister, John Profumo, for sex with a young attractive woman, Christine Keeler, and a Soviet Naval Attaché, Captain Yevgeny Ivanoy, who was in a relationship with Keeler.
Profumo lied to the British Parliament about the affair and, when found out, was forced to resign in a storm of espionage and scapegoating. The osteopath, Ward, was charged with living off immoral earnings (of which there was scant evidence). When giving testimony in the trial the young woman, Keeler, revelled in the publicity, denouncing her erstwhile sugar daddy. Ward committed suicide. Some still claim it was murder by the security services and, after all these years, the matter remains unresolved and under official review. The Soviet Naval Attaché, Ivanoy, was recalled to Moscow before the tangled affair became public knowledge.
The Government appointed Denning to submit a report on the matter, concentrating on the scurrilous rumours surrounding the affair. The 70,000-word ‘Denning Report’ was published for public consumption in September 1963 and became an instant best seller.
A Brief Biography
Alfred Thompson ‘Tom’ Denning was born in the southern English county of Hampshire at the beginning of the last year of the 19th century; he died in the last year of the twentieth. As good a span of life, you might say, that any man or woman could reasonably expect and which most of us are denied. His beginnings were lowly - he was born into the family of a draper, one of six children.
Throughout his years of education and tuition Denning relied upon the award of scholarships and bursaries to take up his school place, his admission to university and to the Inns of Court to train as a barrister. He was very bright, earning separate first class degrees in pure mathematics and in law at Magdalen College, Oxford and winning top place in his Bar exams.
Denning could have avoided military service during the First World War on account of a weak heart. However, Denning was a willing recruit and successfully enlisted. He survived WW1 and on demobilisation he completed his interrupted studies at Oxford. He saw his future as a research fellow at All Souls College, Oxford but came unstuck when his pronunciation of Latin was held to be inadequate. Just as well, say many, as academia’s loss was undoubtedly the judiciary’s gain.
The judgments of Lord Denning are well worth reading because of the development of the law that he pursued in such areas as trusts, the powers of public bodies, contract and tort. He was elevated to the House of Lords, the highest court of appeal, but he soon saw the position of Law Lord as too constraining: he would sit with four fellow Lord Laws so that his individual influence was diluted. Moreover, he became frustrated with the insufficient number of cases submitted for final appeal.
When the position of Master of the Rolls became vacant he made known his willingness to ‘step down’ and put his name forward. The Master of the Rolls heads the Court of Appeal. The number of appeal cases was large and varied. Denning could choose which case to sit on, and to select the two other judges who would accompany him. He would be in the driver’s seat.
But rather than describing Lord Denning’s undoubted (and often controversial) contribution to the common law, this musing is aimed at revealing his love of plain language that spoke directly to the public without legalese, without jargon.
A Case In Point
I have chosen to reproduce verbatim a part of his judgment in a case that I have no doubt he chose deliberately to hear. It includes elements of his life that were significant to him as a Hampshire man — a rural village, the game of cricket and the importance of the local cricket club in binding a village community together.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DURHAM DISTRICT REGISTRY
Royal Courts of Justice
6th April 1977
B e f o r e :
THE MASTER OF THE ROLLS (Lord Denning)
LORD JUSTICE GEOFFREY LANE
LORD JUSTICE CUMMING-BRICE
MILLER -v- JACKSON
Crown Copyright ©
THE MASTER OF THE ROLLS: In the summer time village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in the County of Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with consequences, I suppose, that the Lintz cricket club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.
I must say I am surprised the developers of the housing estate were allowed to build the houses so close to the cricket ground. No doubt they wanted to make the most of their site and put up as many houses as they could for their own profit. The planning authorities ought not to have allowed it. The houses ought to have been so sited as not to interfere with the cricket. But the houses have been built and we have to reckon with the consequences.
Denning goes on to argue a case in law:
I would, therefore, adopt this test: Is the use by the cricket club of this ground for playing cricket a reasonable use of it? To my mind it is a most reasonable use. Just consider the circumstances. For over 70 years the game of cricket has been played on this ground to the greater benefit of the community as a whole, and to the injury of none. No one could suggest that it was a nuisance to the neighbouring owners simply because an enthusiastic batsman occasionally hit a ball out of the ground for six to the approval of the admiring onlookers. Then I would ask: Does it suddenly become a nuisance because one of the neighbours chooses to build a house on the very edge of the ground - in such a position that it may well be struck by the ball on the rare occasion when there is a hit for six? To my mind the answer is plainly No. The building of the house does not convert the playing of cricket into a nuisance when it was not so before. If and in so far as any damage is caused to the house or to anyone in it, it is because of the position in which it was built. Suppose that the house had not been built by a developer, but by a private owner. He would be in much the same position as the farmer who previously put his cows in the field. He could not complain if a batsman hit a six out of the ground - and by a million to one chance- it struck a cow or even the farmer himself. He would be in no better position than a spectator at Lord’s or the Oval or at a motor rally. At any rate, even if he could claim damages for the loss of a cow or the injury, he could not get an injunction to stop the cricket. If the private owner could not get an injunction, neither should a developer or a purchaser from him.
What impresses me about this almost lyrical judgment by Denning is that he writes in a conversational style that makes the reader feel he is addressing them alone. You could be sitting beside him while he explains events like a storyteller, in words that are clear, to the point and readily understood. You are left in no doubt why he opposes the claim by the house-owner. You may not agree with his view but you are left in no doubt why he held it.
As it happened, his fellow judges did not agree with Denning although the claim for an injunction was dismissed. Instead, the cricket club was required to pay £400 in damages for nuisance caused to the house-owner. But Denning’s preferred outcome was, nevertheless, achieved: the Lintz cricket club was not prevented from playing on their designated cricket ground, and life in the village was to that extent allowed to continue as it had done for a century past. Most would agree, I think, that a greater justice was done.
- Denning's judgments in case after case performed the feat, achieved by no other judge, of speaking directly and compellingly to ordinary people in well-constructed and lucid prose. Concepts which lawyers had struggled to articulate, clashes of doctrine which seemed insoluble, would emerge in his judgments as crystalline statements of principle. The Guardian, Saturday 6 March 1999 14.05 AEST
- Denning's style, whether in his judgments or in his books, was always simple, clear, vigorous and direct. He used short sentences in which adjectives, sometimes even verbs, were at a premium; and he liked to present the facts in the form of a story. The Telegraph 12:01AM GMT 06 Mar 1999
Lord Irvine of Lairg then Lord Chancellor, said that the name
of Denning was a ‘byword for the law itself. His judgments were models
of simple English which ordinary people understood’
Lord Donaldson, his successor as Master of the Rolls, said that Lord Denning was ‘always looking to see whether the law could be improved and had a particular regard to those whom he regarded as the underdog. He was a very great communicator, and put forward his views in words which the ordinary man in the street could fully understand, and which the tabloid reporter could report’.
1 I went back to Oxford for a day or two to try for that most coveted of academic awards - a fellowship at All Souls. I could answer the legal questions all right, but we had to read Latin aloud. My pronounciation (sic) was mixed between the old and the new. That did not suit that stronghold of classicists. So I joined the distinguished company of ‘Failed All Souls’! Like the more numerous company of ‘Failed BA’.
- Lord Denning The Family Story [London 1981] pp 38-39.
This admission deserves comparison with a sketch performed by Peter Cook, ‘Sitting on the Bench’:
“Yes, I could have been a judge but I never had the Latin, never had the Latin for the judgin'. I just never had sufficient of it to get through the rigorous judging exams. They’re noted for their rigour. People came staggering out saying, ‘My God, what a rigorous exam’ - and so I became a miner instead. A coal miner. I managed to get through the mining exams - they’re not very rigorous. They only ask one question. They say, ‘Who are you?’, and I got 75% for that."
- Peter Cook Sitting On The Bench [Fortune Theatre 1961]
Tragically I Was Born An Only Twin - The Complete Peter Cook ed. William Cook. [London 2002] p 45.
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