26

LORD DENNING, MASTER OF·THE

OF THE ROLLS

REFORMER, ICONOCLAST.
REFORMER. ICONOCLAST, MORALIST

Hon Jl1sr.ice M D Kuby

1977
 ',~.:, -':
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LORD DENN I ~G?

DENNI~G? ~MASTE!l
~MASTE8 OF:: THE: ROLLS.

REFORMER, ICONOCLAST, MORALI~T

MORALI.ST

Justice "Kirby
Mr. Justice'Kirby
Chairman <;>f :the Australian .La~.. _R~,fo.rm
,Re,fo.rm CQl1lJI!i,ssion
CQIIlJI!i,ssion

BARBAROUS RELICS
Last we'ek'the
we"ek'the HasteI' of the Rolls, Lqrd"
Lqrd' "Denning.,
'Denning_,
struck again. Appeal in London held -that in
The' Court of Appe;l
unmarried woman.
certain circumstances an unm'arried woman, has' the ~ight
-right to oust
ous.t
her love·r from her home where"he is violent and even if he has
,PFoperty'rights
_p,!,operty'rights in the- home'. Reversing by. maj,o~ity earlier
~ecisions,
~ecisions, .the ;court held that modern ~conditions
_the ,cou'rt -_conditions of social
j~ustice
j;ustice require that pel""sonal l:'.ights sho-uld .,take
personal I'.ights _,take priority over
pr?~erty rights.
pr?~erty The case is to go to the the' House _of
_of. Lords.
Perhaps the decision will be reversed. But for the moment, it
stands as the latest monurrient of a·~man
a·~man who has' been described

~s "England,'
as most- revoJ.,utionary j.~dgelf,:
"England,t s most j.~dge!f·:

by the
Fifteen years ago, undeterred hy the' centuries-old
doctrine that the domicile of a wife was always deemed to be
that of her husbanq, Lord Denning castigated this principle as
lithe last bar.barous relic of a wife's servitude nfl •• No doubt
this attack contributed to the modification of this rule both in
England and Australia. Readers who knew npthing mor.e would
simply say that this was a judge determined to strike a blow
for "women's rights". But Lord Denning, a self-confessed
iconocla;.st,
iconocl~st, has, in thirty three .years
-years on the.
the, Bench, established
~imself as a major judicial force
~imself farce for law reform. His decisions
had'an
have, had' an impact on Australian law. One English Law Lord,
writing in The Times in January suggested that ou~ time .would
,would
be seen by legal history as lithe age of law reform, legal aid
and 'Lord Denning".
 - 2 ~

Who is -this most controversial,man and what is it

that he is about?

DENNING 7HE MAN

Alfred Thompson Denning was born in 1899, the son of
lives .
a draper in the village of Whitchurch, where he still lives.
.r,
J,,' ' .
He was one of five -brothers-.- One'
One bec~rne" ~- _Gen'eral
be"Carne"~- _Gen'eral ,. another
rose to be an Admipal. Lord Denning began life as a
teacher but later returned to Oxford" and a -p~r~'uit of the law.
He won scholarships and first class,
clas's degrees in Mathematics
a-nd Jurisprudence,.
a-:hd In 1923 :he -,was
-'was ·called "t'O" the Ba:r.
-called "tb' Ba'I'. He
soon learned that the law and justice are not always the same thir
opin~on which, in accordance .with.
Cases came to him for opin.ion ~ith.binding
binding
authority o-f :the highest courts-, required conclusions
authorityo'f conclusio.ns that
-unjust..
struck him as -unjust" I!The ~House of Lords'had
'!The Lords- had -decided: it)
and -wa.s the end of the matter llU , he later wrote.
tha:t -was
an-d_ that

These cases
ca'ses disturbed
distur_bed ,Denning. 'He later described
describ.ed
the binding principles .as -as "f.alse ido1s,
id01s, :Ylhich.:dis:figured
'Ylhich _dis:figured t·he
t-he
temple of_ ·the.
·the_ law II • ,He
l l _He w'as:t6
was t6 come to a 'position':wher_e
-position- ,wher_e he could
do something about i t_.. t_ ..

Appo-inted: a j'udge ·in

,in 1944', he -was elevated. to the
Court of Appeal ~n 1948 and to the. th~ House
Ho-use of Lords in 1957.
19'57. In
"

1962 a vacancy occurred in the position of Master of the Rolls

the Chairman of the,
the. 'Court
-Court o£.
o£ _Appeal. Denning took
too:k this
position and there he remains to this day. At ·the_.age-the_.age of 78,
s-hows no diminution in his intellectual vigour and reforming
he shows
zeal. His appeals to the Ilbroad rule of just,ice itself ll , become if
anything~ become more frequent and more insistent.
anything.,

For a judge to take th~s

th~s course, under our
cur system, is
novel. For the chairman
Chairman of England's second highest court to
do it, and frequently to carry his colleagues with him, borders
on the remarkable. Needless to say, Denning .has
_has his critics.
crifics.
But no-one can ignore the impact of his intellect on the common
law world.
 - 3 -

. STABILITY AND REFORM

Lord Denning illustrates the difficulty facing all
law reformers. The law is a force for stability and predictability
People need to know what the law is so that
~an live peacefully together'without:;es6rt
they c.an together' without:'fes6rt to violence
or, litigation',
oro expensive litigation. But times change. The inventions Of cif
s;~~i_e_nce and 't:ech~61dgy'pr~~~rit
s;~~i~e.nce 'tech~61dgy 'pre'~~rit ch:iliEingesr~t6
ch:iliEinges'~!t6 which
Ip.w which the
olt~h spe"ak's in:
olt~h "t'he" l'anguage 'of' a previo'~s - time. "Moral and
in'-'t"he:'l'anguage
rendering""pre'vioUsi y a~c~pted values
socia"l' attii:\ide's 'change rendering"'-prE;vioUsiya~c~pted
socia'i'
suspect'·o:r/'unpalat.ibie
suspect"or unpalatcibl"e."," e~t:aDiish~ci'<princ'ipies -<that
Well e~t:aDiish~ci'<princ'ipies that
centuri'~s can. ie.id
·:ha:ve . €didtlred 'for centuri'~s
')1.1aY ·:h'a:ve
'-Way ie~d '~t6"_;~iults tha t strike
:~t6 -'.;e:"eiults tlla
t"he inodern' j\ictge 'as unjust"'but
the "modern' uri] ust'-'but the "iaw:, 'ri~nethel.e$s.
"iaw', 'nOnetheless.

The originaI'
originar" genius of the" corrurt~n' law was "the"capacity
the, corrurt~m" 'the"capacity
to adapt rules to 'me~t
me~t differing social"
social 'conditions.
condit'ions. The
'advent of the "'represen'ta
"advent -has" tended ,to
tive 'Parliament 'has-"
'''represen'ta tive'Parll"ament 'to
make' judges, inclu,ding
make" judges; inclu_ding appeal judges, reticent about inve'nting inve-nting
new principles of law or' ove~flirnirtg"decisions i:h'at.ha:ve
or" ove;flirning'decisions ihat"h~ve stood
ot'~tiJj~~"'iw~'~d;;
test'"ot"~tiJj~~
the test mak~ ·het;es~i"
",iW~ "~d;; rtot iIlaR~ 'heJ:;es~r more"'attractive'
mOre'"' attractive"
i~~' dignified 'by~:;"the;;~'i~~"\
because it i~~" 'by-:;"th~;;~'i~~"\ of ;refor~flt' ;;~::d:~cl~r;ed:
of'reforrn ~:;~I~ci~r"ed~
. _, -. ..,.-,;.- •..., .. ~ t "_"1'-. " - .
vis~o~J~c'siril';;hd'§':"~6rie;; tif Lord Denning I's"
~ ~

Viscount:- Sini.6hd's';·· one" of s critics. lilt is even

tha·t we are not
possible that a~cestors.
not, wiser than our a!1Cestors. It is
'to d~t~rmi~~'?wh~the~"
for Parliament "to d~t~rmi~~'?wh~the~' there should be a change in
cha~ge should
the law and what that change ~.:.bell'~'
~.:.be"-~'

Denning suffers no tongue-tied inhibitions just because

Parliament can change the law. leas'
The fact is that Parliaments, 'at leas"
"scant interest in the reform of wide areas
until recently,showed ·scant
of the law. Individual, small in~us~ices
in~us~ices may not amount to
m~ny votes or much interest.
many Repeatedly in his thirty three
years as a judge, Denning has expressed impatience with the
blindlY to follow precendent's
n?t'ion that the judge I s duty is blindly
or, if there is none, to do nothing, ieaving it to the
legislators to act. 195~ he put his view this way:
In 1954-
s-ide?
"What is the argument on the other s'ide?
case' has been fauna
Only this, that no case"has found in
before.'
which it has been done before." That argument
does not appeal to me in the least. Tf we
If
n-ever do anything which has not been done
never
 - 4 -

bef<?re,
bef~re, never' get anywhere.
we shall never The
law w~ll
w~ll stand still while the rest of
w~rld gpes on; and that will be bad
the we,rId
for both"-.
Another aspect' of the original common law system was
con.stan~t law refoi'm .: j
constan.t udg~s and lawyers working together to
mould pr;i.nciples'to fit nove·l circumstances.. Such -inventiveness
is -TIG>t_ n0w"s~ commo~. For exampl-e,
Fe; e.xamPl-e, i~ i937.
i~. i937 _our High Court ha~d
an oppprtunity
op-pprtunity to create a remedy in privacy : developing a
g~neral princi:ple so that a :c.:i,.
-c.:i,. tizen cl.aiming c-a wrongful
invasion of his .privacy could sue f6.r ~amag,e~.
fo.r ~amag,e~. Th~_ court
The
holdi~g that IThowever_
declined t,o do so holdi~g Ithowever_ desirable some limitation
~u'thorit'y ~las cited
upon invasions of privacy might be, no ~u'thorit'y
.w.hie.h· shows
.w.hie,h· ,that any general ri~ht
:that ri~ht of privacy exists". Such
,an argument of precedent WOUld. not have appealed to Denning.
would,not
The- failure
fZlilure develop a general
to develop, ri_ght. of privacy is the
gene:-ral ri.ght.
reason that c~mffiission has been asked in
the Law Reform Commission
Austr.a1i.:;.;.. !.?
Aust~ali.:;..;.. !.~ .do w~~.t__ ".~~e·'
!,.~~e·' cour~_~~,Qpte(f
cour~_~~,QPte(f I?ot tc? do.
not tt?

De~~ing~ ~. i~ England~'
De~~ing~ England~' 'has.. dis~layed no S1..!-Ch reticence. He was
';,

prepared ,to leave it to law reform conrnissions and bureaucrats to

not prePaT.'ed
imp~ave laws
imp;:'ove l~ws which, in his view; ~ould perfectiy well
view'; judges ~ould
In' one case, for example,
attend to. In'one he
examp'le, he found that .courts
~ourts
should imply into a tenancy agree~ent,.
agree~ent,. which said nothing about

the subject, an obligation upon the landlord to take care

that lifts and staircase~
staircase~ were reasonably fit for the use of

tenants and their visitors. 111 am confirmed in this

111 view ll , he
view",
said "by the fact that the Law Commission in their codification
of the law of landlord and tenant, recommend that some such
term should be implied by statute. But I do not think.we need
to wait for a statute. We are well able to imply it now in the
same way as judges have implied terms for centuries. Some
people seem to think that now there is a Law Commission, the
judges should leave it to them to put right any defect and
jUdges
to ,make any new development. The judges must no longer play
a constructive role. They must be automatons applying the
existing rule. Just think what this means. The law must stand
still until the Law Commission has reported and Parliament
passed an Act on it; and, meanwhile, every litigant must have
 - 5

de~d hand
his case decided by the de?-d hand" of the past. I decline to
such- a; sterl:1e role so I--'hold
re-duce the judges t6 'Such-'a; r--'hold here that
there clearly to be implied sorne~~uch
is clea"rTy sorneo:;"sllch term 'as the Law
recomme'nds I I .
Corruni-ssion recomme'nds".
':".
':".'

This passage gives the flavour and texture of this

extraordinary judge' ~ style'. Short sentences. '~Pungerit
'~Pungerit

phrases. Headings in his"-judgrri-errts th~ ''read~r

his"-judgrri'errts to" guide the reader through
-reas~ning.
hts' -reasoning. -critics and enemies acknowlecrg~
his'critics
Even his ackri.owlecrg~ his
skill in handling the letga'l techniques ar'!-d' in' ·presenting them
aI1d' in'·presenting
because''of
in prose which is start-ling because ft"s"contrast
of it's' 'contrast to'
to- the
style in which Judgments are written;
no"rmal styl_e
normal written;'

DENNING THE DISSENTER-

Der;nirt~'f-S' view. of his rol'e
Needless to say Lord Der;nin:g"'s' rol"e has
frequently driven' him into 'dissent."
'dissent.'· Even wher'e",
where', in the Court
of Appeal, he~has'
he~has·carried~~he'aay,
carried :',the "day, he has sometimes been
reversed in the House of Lords, in.:chi·lling
in::chi'lling Iahguage. 'One of
-' his abiding concerns has,has been :to refo~in
refot-in - the law of contJ:"'ac_t.
cont]:"ac_t_
·waged a battle"-o-v'er'''a~
He has 'waged quart:~r~'6f--'~"'i::eritu~y' agai~st the
battle·'-6v·er:;·a~qtla.rt:~r~·O-f"'i:i"'i::ehtut.Y
un f afrO'--
a.i:rO'·· excl iisfoi1.'j~6 fi'iila
ex61 u"sfciil.'/~6 t.lr
im-§ "-b"y;:
'iilaim-§ i;.if'~Ii ·'~t~:t-Ih5:; :"s'd'met
--b-y;:wri;,if'~h"~t~:t-Ih5:;'- :fme;~ di ssguised
'sd'met:fme;~ gui sed
-ticketorform~
on 'the back of' a -ticket or form~ But' to his 1951·
But· 1951' plea for ·the
'the
rea,li:ty of contt'acti~g,:relatidhship's,
at:· the rea.li,ty
law to look at" contrac'ti~g':relatidhship's, the
Lords ansvlered menacingly. lIPhrases, 'ocbur ll ,
"Phrases,'oct:ur
-, Lord. Sim~n
said' Lord_
"which give us some concern". Lord Simonds added "It is no
doubt essential to the life of the
t'he tomffionlaw
tominon law that" its'
that'its'
principles should be adapted t'o meet fresh'·'circumst-ances
fresh"'circumst-ances and
needs. resp~ctfully demur to saying that there has been
But I respe:ctfully
or need be any change in the well known principles of
construction of contracts".

Undeterred, Denning has gone on to effect important

in contract law, always ,guided by' jus·tice
changes in jus'tice and cornme,rcial
comme,rcial
as he saw it.
morality, ,as But h~s enthusiasm has not been
t~ contract, cases.
J,.imited to He'·has helped to 'dispose of the
He"has
hospital was not liable for-the
principle that' a ho'spital for the negligence of
its professional staff. He decided the first" o'f
0'£ many cases in
which a deserted wife was held entitled to remain in the·
the'
ma'tr'imonial, home,.
ma'tr'imonial' In 1951 he wrote 'a famous dissenting judgment
 - 6 -

calami~ous exception from the law of negligence

lamenting the calamitous
which relieved many, including professionaJ. advisors, from actions
d~ages for loss caused by negligent
for d~ages as distinct fr9ffi
fraudulent misrepresentations. He did not hesitate to dissent,
although he was then but recently added to the Court of Appeal. The
language he used was typical :
"This .argument(about
-argument;about the novelty'of the: action
does not appeal :to
.to me in.,the
in.·the .least.:_
.least.:< It ·has
been pilt al~ the great cases which
put forward in al.l
have been milestones of progress in our
Ollr law.

In each of these+ cases- the jud.ge!?; were clivi.ded

jud.gel?;were
in opinion.· q.n the··,oJ1~,
the-., one, si¢Le .. there were
were_
timorous souls who were fearful
fea·rful of allowing a
new cause of action. On the other side: there
were :the
the bold ·spirits
,spirits who weJ;',e' ready'
ready- .t.o,
.t.o. allo,,?
it if j-ustice
justice so required. It was .fortunate
co~on law that the progressive' view
for the cOJ.IU1lon v.ie_w
prevailed t.'. ..'.
Although in 1951 the progress~ve
progress~ve ~~ew ~vl.ew did not preva~l,
preva~l, in 1963
the House of,.
of,_ ·Lords introduce·d' a . .limit,ed
introduce·d· ..limit,ed duty of--care for. ~persons
of··care ~persons
who
wlio take upon the~selyes to supply.:
upon·. themselves supply_: i-nforma,tipn
i-nforma,tipn or' advice to
o.r 'advice
. people that they, know wili place. reliance on·"it. on·--it. Denning1s
Denningls
dissent oflg.51
of 19-51 became the rule in 1'963
1-963 and has now been
substantially adopted in Australia~
SUbstantially Australia~
"

DENNING AND HIS CRITICS

A man who-turns the law so often on its head is bound
to attract criticism. In 1971 some thought he went too far
when he held that decisions of the House of Lo,rds Lords not only did
not bind the lords thernselves
thernselyes but might not bind the Court of Appeal. He
could not abide a decision of the Lords which had abolished
punitive
puni tive damages. He saw it as ·havin.g "knocked down the
common law' as it had existed for centuries." Taking two
colleagues with him, he held that this 'rule of the Lords
this-rule
"should
II s hould not be followed because the conunon law of England on
subject was so well settled before 196~
this SUbject 196~ that it was
waS not
open to the House of Lords to overthrow it ll
it". •

It remained for Lord Chancellor

Cha-ncellor Hailsham to deliver
a sharp rebuke. "It
Ult is necessaryll
necessaryU said the Lord Chancellor
 - 7 -

~.9wer tie.r""in~ludi~g
-f9r- each ~.9wer
·fpr· tie.r""in~ludi~g the Court of ~ppeal,.
~ppeal,. to..
to._.a,ccept
}3,Ccept
. ,.;tJ:le_ ..de<;!i.~,i.<?;n_~:<..o~f. .:~r~.:,,;RJgP:~r:.
:loya:J-ly',.;tJ:le_,.de~i.~,i.9.;n~:,
loya:J-ly .,th~.:",p.~gP:~r:- :t:j,.~r:5".
:t:j,.~r:5.t II " .By.t.
1\ " . it is not
1y"..D~nI:1ing.'
c;:m 1y·
<;:m j_W;li~~?:~·.:;_~~5i.:-_ ~9,tt.r..'-:E.gr:.~)~~V~5.i.ye;...~?-~.gal cr i tic
D_~ nJ:1 in g.' 5 _j_W;li~~?:6·.:;_~~5i.:--~Stt.r..'-./25?,r:.§)~~v~1.~,ye;~~,~2-~.gal tics5
v:~et?s "_. So.me..
. whb ,express astonishment at hi!?_. v:~e't?s,,_, SO,me .. brli,eve th:at
tIl:at
Denning is excessively teleological in his approach.. He is
thinkin~
charged with thinking. o~. the.
o~.the. result he wants before he considers
rea~oni~g. ?ri..
t~~ legal rea~oni9g. ~h~ch. :i,.
?ri._ Wh~ch. J:a.~.- to be fO~I)d~9.
j,. t I:a.~:_ fO~I)ded. This
proc~ss is all V~I:'Y;,~el.l.,
pr()c~ssis V~t:'y;,~e1.l.., l:f- th,.er~ _)..~
lX _th,.er~ )_~ ..,ag1?e~mt:[1,t
,ag1?e~mt:[1.t _·o:n,.the~·
_·0!l .. the~· .
first -pri1].cipJ-~s that:
-pri1].cipJ;~s tha1;: are gui,dft.n~.J1~~.~:.:_:.B}.~t_ .... S~9Uld
gui,?j.n~.)1~~,~:.:_~B}.~t_ s~ould.. judge,_,
a. judge,_.
f1ear-·'. to the a-p~x_,
f1ear !P--~ .. legal~
a-p~x.. of .. ;P--~ o.:r..
legal~. sys.tern., ~b~.~ .. to
sYE.tern., :.. b~. <3.-b~.~ v~nt
.. g.iye v~nt
to,:g.iye
to his personal.
personal
".. val ue,.?ys.t~m,
value,_?ys,t~m, thereby: disr.upting
therebydisr,upting ~e:ttled
~e:ttled principle
principlE
- . . " - ... ...".. --",.
,.' ".--
' .'. . " .-. ",'. ,"
"., .'',
, .", '., .

. and creating'
''.',
.'.
con-fusion
con·fusion
.".' • •---. •.,....
.•• , ' -."
_."
.and
;-
:_ . '
uncer.ta-inty;,.in,
.anduncer.ta·inty;,.in,
, ;-"'..
:"..
' ':.
: •.,,'.'-, :--:', .'
," '_:-:, • ,-"''".
,""'.: ,:;; •.
the·. law?
Co ;':.:.'~.
."".,;'::;.'~. . -
_

Duri;"lg..:the ~ 6,0 s .. penning took...

Duri:flg .. :the 1l~6,Os_. took-.. a;.. lead.j.ng. p~rt in the
a" .. leadj.ng.
assaul t on Minist.erial, and~, Executive.
Minist.erial"and~: Executi ve. au..t9~r.i.ty.._ !l~,
aU.-.,:tPl?r_~.ty. !1~, leapt to
the de'fence of :t:t.l_~: map~ .i~}~i.n.K
:t;he. ,Ii :t:t.l_~:
of·- :t;he.,l,i .i~}~i.n.K ~~:t.~j;.~,~:;.:}tl;lT~~~~racy.
~g:,.~j;.~,~,;;}f·~.!~~~~racy. He
01d"Bil1.9f_Righ1;~._ • >.A~.Tec_ently
appealed to the 01(:L,Bil1.9f_Rig)l1;~._ ",A~.Tec_ently, as January 197~
197~

he :took
:took, pa:rt
pa;rt t,:..he 9-ecision
in t.:.,he 9.ecision by ..which. .. the,.
..which Court .-of "App.eal
-. . .. " . - - ..•_
--. .
._
, " "..
- --:..'"
" ' .' . ..
'".-":"~~'E',~~: . " ,"
r'c :--~'~ ~. .

granted an.
granted ~nj UI"l;9.ti.9~.;,p?.:;:.:tJ~e ,aJ'P_li,?aB~:l!1;_:5?;
an_ ~njuI1;9.ti(?~.;,B?~;:.:t:he ,aJ'P_li,?aB~:l!"l:_:5?,; '~",;,'~'
'~:"., '~'..:."...:' . "
priva~e
pri vaie
.,,'.
.'.
citi:.:£en.,·direct~d.,a:t
citi.fen.
","-"
,·di'rect~d.
..,.--" - .•
-""".~'
,at'
... .. ..........
-'''~''.'~''',..,--,_.
a .uni.on.·.which·,
a.uni,on.
...--.,,,.".
---.,-".~.~
---~".-.~.
'.which:,
,-.""'~""',,.-~"
~." ""'.
"contrary_
__contrary_to
" ,. '" ,,·,"......c,·,...
"":'.
."C"_"--.""",,Cf~~·-·'·''.~
to law,.•
- '"..__ ., ,-'
'''''_'''"''''''''',,;'';~~'_"'' ''-'~ "C";'.,"",';.~·,
.,.~,~ •. , .. .., ," ._

h~d ~nns:~.J-:lQ.~e.-~.::fLJ',"~P,: . o. P tRP..~t~.,~:s~eIJ..Y2:S~;.~,.,:t~L:~,§f?~~_h.Af.~~c,a".

~nnS:~.1-:l:r!-.~e.-~.: .~.. ;~P,"~ll,:P.P tRP..~t~.,/?I~·IJ..Y2:c:~;.~,.,:t?:....~,§f?~~_h ,Af.~~c,a.. He
rejec:t:~p..
rejec:t:~~:l. th~-:: ,.ql.~~m,
,.ql.~~m, t.r:~:t:,
t.r:~:t:.. th~"A_ti;qF!1~x;,:,~~n.era}:',s
th~.,A_ti;qF!1~x:-:-~~n.er~~:'.s fia~.~
fia~.: ,~.as.
.~.as.
'necessary to. perwit" <?-: private citizeIl...tobring.
to.pern.ri-t citizeIl.:to bring. the case. I1Every
individual in. the land ,has an... in~te.!,es,t
_.has an... in~te.!,es,t.. .i"n
j"n the ,channels of
communi cat ion being kept open"
open.. The law shall be obeyed. Even
by the most powerful. Even by the Trade Unions. ~I]e sit here
to carry .out.the law. To see that, the law is obeyed.
o.beyed. And
that we·will do. A subject cannot disregard the law with
impunity. To every SUbject la~d, no matter how
subject in this laz:d,
powerful, I would use ~homas
~homas Fuller'S words
Fuller's ov~r
ov~r three hundred
years ago .1Be
.IBe you never so high, the law is above you'."

Subsequently the House of Lord~

Lord~ reversed this decision
holding in effect that the courts could not question the long
established rule that i t was for the Attorney-General no~ the
cour,ts to decide whether such actions should be brought. This
very question is now under st~dy
st~dy in the. Law Reform Commission
_in Australia.
.in There are some who say that Lord Denning's view,
though not good law, may yet be right. Others. assert that
 - 8 -

he is to"o concerned- with the "little man -and 1"'orgets that,

manllll -and£'orgei:s
:state, the elected government represents the
in the modern .state,
mass of "little 'pec-ple- and" is -no,
·pec-ple'uu and, longer -the>
:no ,longer -the- Crown exe~ti-ng
exe~ti-ng

selfish overweaning power.-

power.

Other critics point to Denning'.s

Denning1.s concern to uphold
valiantly Christian pr:inciples o"f- mO:fality -and.·to
-and to _impose them
memQers of society,;
.on all memQe-rs society. ~In one famous case,he
-In case, he den~ed
den-ied
young' gi"rl,
relief to a young-' gIrl, 'Gillian Ward, who had
Gillian Ward,- ha-d been expelled
from a Tea-ehers
Teaehers'I Col"lege
College - after being-
being· found with a man in her
room at night. "I do not
hot t1]i!lk
tl]i!1k she has been treated unfairlY
unfairly
or unjustlyll, said Lord Denning. - -"She- -had-broken- the r.ules
.IIShe-'had-brbken- rules
most £lagrantlY. I say nothing about her morals. She claims
affair~ _ So -be i-to
are-, her own affair~
that t-hey are-' i"t . .-•
. ..
. .:_-Hut.
_-Hut. instead of going
'into lodgings'~
-into lodgings'~ had··this
she had with"he·r;c night after night.
'·this man' with-·he·r;,
That is a' fine example to' s'et to others! And -she is a girl
trairtiri'g' to be a teacher!,.
trairiiri'g' teacher! .. She 'would-
'would-never
never make a teacher.
No~'parent ~ould knowingly entrtlst~
No~'parent -would entrust: -their 'child to her care-II.
care-I!.

TlTe{' same' strong language_'

Th'e-'" -came ':o'uf
language_" -came -:ci-uf in' his'--weTl -known
-knOWn
report on the' "Prof'umo'
II Prof'umo' Affai.-r"
Affai:r" in' ·,:t96·3";,
']:'96'3";, He did nOT,
nOT· ·b"aulk
at laying responsibility squarely on the Prime Minister and
his colleagues. The report bears' -the or
~he mark of- hi&~rnoral
his_:-·rnoral outrage
and its impact was the more electrifying because' 6£
6f this.
".
Those who do not complain about his l!bl.ind
ubl.ind spo-t"
where matters of morality are involved, assert that he is just a
IIconservative member of the English rUling
ruling class" who reflects
attitudes
the atti in:~hich he grew up and which was
tude-s of a Britain in>.which
still a great Imperial power.
then stili Wherever an international
element is involved in the case, it is said, Denning has
down in favour of English law and English courts
always corne davIn
to the exclusion of applying foreign law to the parties
par'ties I
transactions.

DENNING THE REFORMER

scandalis~d by Denning or admire
Whether lawyers are scandalise.d
his persistence, courage and reforming zeal, he is not a man
who can be ignored.
Hho Even today, at 78, he continues to have
 - 9 -

. life of
an influence on the .life We.li':.~, . in
~e law. We.li'(.~: a time of .change :
and people expect judge~
judge~ c0~11enges Qf
_meet the ct'la.llenges
to .meet 0.£ change.
Leaving every. pefoI?fLl._~o
every.pefoI?fLl._~o P-~r:'liament. will. simp-ly Do"t.
P-~r:'liament.will.sirnp_ly no"t. .•·.
do .•'. Denning
.reminds us -of the origiJ:lal
origil:lal genius of the comrron law: adapting the law's
reasonable predictability and certainty to new times.

"What then i·s the way of. an.iconoclast?"

an;iconoclast?tl he once
asked an Oxford audience.. lilt is -the_way of one who is not
content to accept cherished beliefs simply because they have
been· long accepted. If .he finds that they are not suited to
t~mes or -j:hat they. -work -,l,nj.us-tice
the times ~,i,nj_us_tice f."·:;he
f_"-:;he will see whether there
comp~t.ing prinqiple which
is not' some comp~t:.ing which_... can be applied in the case
in, hand. _~riters old
He will search the.old cases, and the _~riters
,and new, until he finds it. Only in this Wqy ~aw be
V!g.y can the J,aw
~03:I1d
stagnation~03:I1d
saved from stagnation ~~c;:;aY-!k<
9.-~c;:;ay-lk<

Revol~tionary judgeo~
Revol~tionary judge o~ maverick? Iconoclast or
~~ral~s~?_
harsh J1!.0.rali.st} O~}2': thing ~s certain,
_ O~~:thing Lo~d D:enning
c.e,rtain, Lor:d. ~enning is a towering
figure of the common la,w l~w whose passion for justice and reform has
lessons for u~-all.
u~-all. . ..... .. :

. ......

".