Vol. 7 No. 12 (December 1997) pp. 558-561.

LORD DENNING: A BIOGRAPHY by Edmund Heward. Chichester, England: Barry Rose Law Publishers, 1997. Second edition. 260 pp. 26 Pounds Cloth. ISBN 1-872328-431.

Reviewed by Daniel C. Kramer, Politics, Economics, and Philosophy Department, College of Staten Island, City University of New York.
 

England and Wales lack judicial review in the American sense, that is, the power of a court to declare a statute unconstitutional. This is perhaps the main reason that English/Welsh judges are less well known outside the legal profession than are such United States Supreme Court Justices as John Marshall, Oliver Wendell Holmes, Louis Brandeis and Earl Warren. Alfred Thompson Denning (since 1957 Lord Denning), the subject of this biography by Edmund Heward (also a retired judge), is the rare English/Welsh jurist who has been blest with celebrity status.

In the first part of his opus, Heward describes Denning's early days in his home village of Whitchurch, Hampshire, where he was born in 1899 and returned to live in 1963. (As of my writing this in December 1997, he is still alive!) Denning's parents were middle class: his mother was a teacher and his father a draper. He received a scholarship to a local grammar school and entered Magdalen College of Oxford University in 1916 on another grant. He then became an officer in a British Army bogged down in the trenches of the First World War. Denning saw active service in France during the conflict, which killed two of his brothers. After he was demobilized, he returned to Oxford, which awarded him a First, the highest possible grade, in Mathematics. He began teaching this subject in high school, but found that the life of a secondary school educator was not for him. Thus he returned to Oxford to study law and simultaneously was admitted to Lincoln's Inn in London so as to qualify as a barrister, i.e., as an attorney who could argue cases in court. He married in 1932: his wife died in 1941. In 1945 he remarried and the union proved a long and happy one.

In 1944 he was appointed a trial judge and in 1948 was raised to the Court on which he was to make his name -- the Court of Appeal. At the time that Court was an appeals court for civil cases only; but many feel that it was and remains the most important English/Welsh tribunal, as it issues over ten times as many decisions as do the Law Lords (Lords of Appeal in Ordinary) of the House of Lords and relatively few of its decisions are appealed to the Lords. Chapters 4 and 5 depict Denning's innovations in family law and in the methodology of judicial decision-making. Heward notes various decisions protecting a deserted wife's right to continue living in the matrimonial home even though the deserting spouse had sole title to the property -- holdings, which led in 1967 to a statute embodying them. Contrary to English/Welsh tradition, Denning insisted that statutes, contracts and wills be interpreted to insure that they corrected the mischiefs their framers wished them to rectify rather than blindly be given their literal meaning.

Chapter 6 analyzes several major changes in contract and tort law effected by Denning. Thus he brought to England/Wales the doctrine of "promissory estoppel", the notion that one who makes a promise upon which others rely to their detriment may in certain circumstances be bound by it even though she/he has not received any benefit ("consideration") therefor. A famous 1951 dissent of his, finally accepted by the Lords 13 years later, declared that a person injured by the negligence of professionals (accountants in the 1951 case) can recover from them in a tort action. He was also wont to strike from contracts "exemption clauses", i.e., fine print immunizing a seller of goods or a provider of services from liability for his/her carelessness. Chapter 7 discusses his appointment to the Court of Appeal and, in 1957, as a Law Lord of the House of Lords. The latter promotion was ironic, for, as Chapter 14 details, the Law Lords frequently reversed his decisions both before he joined them and after he returned to the Court of Appeal in 1962 as Master of the Rolls (albeit retaining membership in the House). He remained Master of the Rolls, the Court of Appeal's most powerful position, for 20 years.

One of Denning's best known theories was that precedent should at times be ignored in the interests of doing justice -- the point is discussed in several sections of this biography, including Chapter 8. Denning was one of the jurists convincing the House of Lords to admit in 1966 that it had power to overturn its own precedents. His fight against blind adherence to precedent made him popular with the public -- students at Canada's University of Toronto produced a "Lord Denning" T-Shirt on which the word "Equity" was conspicuously blazoned -- but some of his critics felt that he carried the war so far that (p. 222) he often functioned as a "shiekh sitting under a palm tree judging in accordance with his own peculiar ideas of justice".

In Chapter 19, Heward contends (p. 217) that "One of Denning's outstanding characteristics as a judge was his concern for the little man and to protect him from the power of the State, the big corporations and the trade unions". Chapter 9 shows how Denning made it easier for individuals aggrieved by a decision of administrative agencies to appeal to the courts. In one leading case, he declared that a tribunal had offered too paltry a sum as compensation to one who had lost his job as clerk to a hospital board. However, and this a matter Heward overlooks, some of his decisions favoring "the individual" against "the State" held for the rich or for right-wing ideologues rather than for the average working person. In BROMLEY LONDON BOROUGH COUNCIL V. GLC, (1982) 2 WLR 62, Denning upheld a complaint by wealthy Bromley Borough that the Greater London Council could not reduce London subway and bus fares 25% because this would produce too great an increase in property taxes. So thanks to Lord Denning the Jaguar owners of Bromley were left with more pounds to spend for their petrol; while the salesgirl who commuted to work via tube from Leytonstone to Oxford Circus was still compelled to dig deeply into her pocketbook to pay for her ride.

Other cases rather oddly deemed by Heward to stand for the proposition that Denning wanted to safeguard the "little person" from mistreatment by Leviathan are one declaring that the police must enforce the regulation of gambling clubs more strictly, and another allowing an "ordinary citizen" to ask for an injunction against the showing of a television film on the American pop artist Andy Warhol.

Denning during the 1970s and early 1980s issued a series of decisions that led some to charge that he was out to cripple the unions. Heward, to his credit, devotes a whole chapter (#12) to the Master of the Rolls' trade union jurisprudence. His position there is that Denning was not anti-union but simply out to protect innocent parties against abuses of power. (See, e.g., p. 134). However, most of the cases he cites indicate that the Master of the Rolls WAS disenchanted with unions, a thesis strongly supported by an assertion in a 1979 lecture that "The greatest threat to the rule of law today is posed by the big trade unions". (Quoted p. 139).

It will be noted that this is the second edition of this biography. The first appeared in 1990. Reviewers took Heward to task for ignoring various nasty episodes in Denning's lengthy career, including his scathing dismissal of a suit by the Birmingham Six against the police for beatings while they were in custody. (The Six were Irish convicted in 1975 of bombing pubs in Birmingham.) Denning asserted that the suit was "a scandal that should not be allowed to continue". (Quoted on p. 224). Notwithstanding this, it was eventually realized that the evidence against them was shoddy and they were liberated in 1991.

In his second edition Heward has added a new Chapter 20 (some of which could have been fused with Chapter 18 describing Denning's activities since his retirement) to rebut charges that his is a hagiography. He does describe there the Birmingham Six episode and even grants (p. 229) that "there was a seemingly hard side to [Denning's] nature". But soon after that he reverts to lauding the latter's efforts to update the common law and "to bring justice into the administration of the law".

"Justice into the administration of the law." Not much justice for non-Britons from Lord Denning, a point that Heward persistently underplays. The Birmingham Six are one example, but there are many more. To note just two, there is his opinion in MANDLA v. DOWELL LEE, (1982) 3 W.L.R. 932, later reversed by the Lords, that a headmaster of a private school could refuse to admit a Sikh boy unless he had his hair cut and stopped wearing the turban required by his faith. Heward gives us the facts of that case in Chapter 17 (as well as Denning's remarks about colored jurors being unwilling to convict alleged colored rioters that forced him to resign in 1982 at the age of 83). However, he omits some of the Master of the Rolls' juicier language, e.g., that the headmaster was "pursued relentlessly" by the Commission on Racial Equality and that, not affluent enough to hire an attorney, he argued his case "moderately and with restraint." The bias in favor of the "real Englishman" is so glaring that the biographer ought to have pointed it out. Omitted by him is DE FALCO AND SILVESTRI V. CRAWLEY BOROUGH COUNCIL, [1980] 1 ALL E.R. 913, where Denning allowed the Council to violate a statute providing that localities must house the homeless. Here the homeless were Italian families who were part of "the advancing tide from the Common Market...." He hinted that he might have reached a contrary result were the applicants from, say, Yorkshire! Heward comments that Denning "and his brothers had served in the First World War and he was a patriot. An Englishman is inclined to be suspicious of foreigners and he shared this prejudice". (p. 23l). Stuff and nonsense: one can love his/her country without looking down at newcomers to its shores.

In addition to minimizing the extent of Denning's anti-foreigner and anti-trade union preferences, the Heward volume has other flaws. A brief chart outlining the English/Welsh court system in the various shapes it assumed during Denning's thirty-eight years as a judge would have been useful. I do not understand why a biographer who feels that Denning was out to help the little person fails to mention his rightly-renowned dissent in HUBBARD V. PITT, [1976] QB 142, where he was willing to let social workers demonstrate peacefully outside the office of a real estate agent who was forcing poor tenants out of his houses for purposes of gentrification. He contended that "the right to demonstrate and the right to protest on matters of public concern" are "often the only means by which grievances can be brought to the knowledge of those in authority...Our history is full of warnings against the suppression of these rights".

We can take Denning's word for it (quoted p. 134) that he is independent of all political parties, and no one doubts that he is a convinced Christian; but Denning the student, the soldier, and the barrister must have expressed views on politics and economics to his friends and family. What, for example, did he think should be done to remedy the unemployment caused by the Great Depression? Did he believe Britain should rearm to meet the challenge posed by the rise of Hitler? What were the views of his parents? Heward has made no attempt to ascertain matters such as these.

Obviously, Heward's biography is far from perfect. Nonetheless, buying it certainly would not be a waste of money. Though a 1984 collection of essays (LORD DENNING: THE JUDGE AND THE LAW, edited by J.L. Jowell and J.P.W.B. McAuslan) delves much more deeply into Denning's jurisprudence and influence, Heward's work does discuss a reasonable number of his decisions. Moreover, it is clearly written and thus likely to hold the interest even of those who have never studied law formally. And Denning, as the book shows, did do much to arouse the English/Welsh judicial system from a sonnambulistic trance, which is why even his critics on the left admit his greatness and why those interested in "law and politics" should become acquainted with him.


Copyright 1997