Obituaries: Lord Denning
Saturday 06 March 1999
A judge is always concerned with priorities. In a difficult case there are a number of competing principles which have to be weighed and one preferred to another. Denning put justice first and precedent came lower down in the scale of importance. Justice was achieved by applying the principles of equity, where necessary, and adapting the law to modern conditions. His attitude to the law was positive and he exercised all the powers of a judge to do right.
Denning had great learning, which enabled him to skirt round awkward precedents with skill and ingenuity and produce a result which accorded with morality and natural justice. He believed that people will not be disposed to obey the law unless they are convinced that it is, on the whole, just and justly applied. To convince, it was necessary to explain, and he was renowned for his clarity of expression: simple words and short sentences. His style was lively and entertaining and he was a storyteller. Simplicity and clarity of language made the law more accessible to the layman. He saw the danger of treating logic as the only basis for law.
Born at Whitchurch, Hampshire, in 1899, the son of Charles and Clara Denning, he was baptised Alfred Thompson Denning, but was always known as Tom. There were five boys in the family and one girl. Two talented brothers were lost in the First World War and, of the survivors, one became a Lieutenant-General in the Army and another a Vice- Admiral in the Navy.
Denning was educated at Andover Grammar School and Magdalen College, Oxford. His education was interrupted by service as a subaltern in the Royal Engineers in the First World War. He saw active service in France, holding a sector not far from Albert, and later taking part in the final advance when Sappers built bridges over the rivers.
Returning to Magdalen in 1919, he took a First in the Mathematical School in 1920. After a short spell teaching mathematics at Winchester College, he returned to Magdalen in 1921 to study for the Final Honours School of Jurisprudence. He obtained first class honours in 1922. He was awarded the Eldon Scholarship and later the Prize Studentship of the Bar at the Bar examination in May 1923. He was called to the Bar by Lincoln's Inn that June and started practice in commercial chambers in the Middle Temple. He gained a substantial practice as a common law junior and took silk in 1938.
Denning was appointed a judge of the High Court in March 1944 and was assigned to the Probate, Divorce and Admiralty Division. He was transferred to the King's Bench Division in 1945, was a Lord Justice of Appeal from 1948 to 1957, a Lord of Appeal in Ordinary from 1957 to 1962 and back again in the Court of Appeal as Master of the Rolls from 1962 to 1982.
In June 1946 he was called on by the Lord Chancellor to chair the first of many departmental committees upon which he served. Owing to wartime separation there was a flood of petitions for divorce and Denning and his committee made a number of suggestions to improve the practice of the divorce court. The committee met at 4.30pm after the courts had risen and by February 1947 had made their report. The committee worked swiftly and without fuss and the report met with general approval.
Soon after his transfer to the King's Bench Division, Denning was nominated as the judge to hear Pension Appeals. He much enjoyed this as there was no appeal from his decisions and he could do what he thought to be right. The minister had put upon the applicant the burden of proving that his injury or illness was due to his war service. Many ordinary people could not do this and lost their right to a pension. Denning, finding justification in a recent Statutory Instrument, changed the burden of proof. He held that if a man was fit when he joined up and unfit when he came out, the burden was on the minister to prove that the injury or illness was not due to war service. The British Legion wrote to him that "by his penetrating investigation and clear exposition he had won their entire confidence". This is a good example of Denning's concern for the little man.
Denning did all in his power to establish what is called "the deserted wife's equity". In 1947 a husband who had deserted his wife took proceedings to recover possession of the house, which the husband owned, but was occupied by his wife and invalid son. Denning invoked the provisions of section 17 of the Married Women's Property Act 1882 which said that in the absence of a marriage settlement a judge could divide the property of husband and wife fairly between them. This was one of the subjects of contention between Denning and the House of Lords. The House of Lords could not bring itself to believe that the 1882 Act meant what it said and in 1970 Parliament had to pass the Matrimonial Proceedings and Property Act 1970 which repeated what it had said in 1882.
Denning was constantly at odds with the House of Lords on a number of subjects: the construction of wills, statutes and contracts; trade unions; and above all the use of precedent. In some cases relating to the abuse of power by ministers, Denning and the House saw eye to eye. On tax evasion, in the early years there were differences, but by the 1970s the House, with a different composition, came round to Denning's point of view, that the Court must look at the reality of the situation and strike it down if it is a sham. Many of Denning's judgments stirred Parliament to put right the wrongs pointed out by him. For instance, his judgments in the 1970s relating to trade unions formed the basis of new legislation.
Right from the beginning Denning tried to restate the law. Lord Devlin, commenting on one of Denning's early cases, said: "Denning, as a very recent puisne, preferred to cut a new channel from the main stream." Denning once said: "I prefer to straighten out the law here and now." He was eager to use the judicial power to do this and thought that the House of Lords was the place where this could and should be done. He spent five years in the House of Lords but failed to bring the other members of the House to his way of thinking.
Denning gave more lectures and addresses than any judge has ever given. It all started in 1949 when he was invited to deliver the first Hamlyn Lecture. After this he was in constant demand to speak to universities and other bodies. From 1954 this demand spread overseas. He played a large part in bringing together people of all races and cultures and was once described as an "Ambassador-at-Large for the common law".
Until 1977 he travelled tirelessly during the law vacations to all parts of the world lecturing and addressing conferences. He was popular with students and the young and had the unusual distinction for a judge of being the inspiration for a variety of T-shirts emblazoned with words such as "Equity - Denning". He took a particular interest in the education of students in Africa and in 1960 was chairman of a committee on legal education in that country. He was revered overseas and it has been said that in most Commonwealth countries he was regarded as the greatest legal luminary of the century.
Denning's most important inquiry related to the circumstances of the resignation of John Profumo, Secretary of State for War, in 1963. The object of the inquiry was to investigate the rumours about corruption in high places. Denning sat at a long polished table at the Treasury building, flanked by two secretaries and assisted by two shorthand writers. The witnesses entered through the rear passages of the Treasury and were interviewed by Denning who had to act as judge, prosecutor and investigator. The inquiry started work in June 1963 and the report was issued in September. The Denning Report proved a best-seller and over 100,000 copies were sold in the first three days after publication. Queues formed up outside the Stationery Office. It has been described as "the raciest and most readable Blue Book ever published", and made Denning's name known to a wide public.
In 1979 Denning wrote a book, The Discipline of Law, which gave his views on many legal questions and was the start of a long stream of books. The book of the most general interest was entitled The Family Story and told the tale of the remarkable Denning family. In 1982 he wrote a book, What Next in the Law, which was to prove his downfall. In it were some unguarded remarks on picking a jury in a recent case. The passage was interpreted as if Denning was actuated by racial prejudice and two of the black jurors in the case sent letters to Denning and his publishers threatening legal proceedings. Denning was 83 years of age and thinking of retiring soon but the threat of legal proceedings precipitated this retirement. The action was settled and the offending phrases deleted.
Denning's valediction in the Lord Chief Justice's Court on 30 July 1982 was a memorable occasion. All seats were taken well before the appointed time and barristers in wig and gown were pushing unsuccessfully at the swing doors to get in. The Lord Chancellor, Lord Hailsham, presided and said that it was given to few men to be a legend in their lifetime. He said that before the Second World War the common law had been in a period of quiescence but after it she had awoken from her slumbers and entered upon renewed creativity. He acknowledged the vast debt owed to Denning for his deep learning, powerful legal intellect and pungent English style. They would miss his passion for justice, his independence and quality of thought, his liberal mind, his geniality and unfailing courtesy to colleagues, to counsel and to litigants in person.
In retirement Denning said that he did not want to be idle. He was glad to be free to take part in political controversy which he could not do as a judge. He wanted to help with legislation in the House of Lords, particularly on social questions and law reform. Up to the spring of 1988 he spoke regularly in debates in the House of Lords on subjects that interested him. He was never long out of the news and frequently spoke on the radio and appeared on television. He took a great interest in affairs in Hampshire, particularly on rights of way and village schools.
In his 92nd year some unwise remarks to The Spectator caused controversy, when A.N. Wilson reported Denning's opinion that, if the death penalty had been in force when the Guildford Four were convicted, "they'd have probably hanged the right men", and that if the Birmingham Six had been hanged, "we shouldn't have all these campaigns to get them released". He said later that he had been quoted out of context.
Denning had a mild and unassuming manner and always retained his Hampshire burr. His outstanding characteristic was speed. He talked and moved quickly, took the point quickly and was a very quick worker. Many remarked what a tiger for work he was. He had a retentive memory and a good sense of humour, and was courteous to everyone. He loved his home and library at "The Lawn", Whitchurch, and was particularly fond of his trees. Above all he was devoted to his wife and family and to the pleasures of family life. He was twice married, first to Mary Harvey, who died in 1941 leaving him with a son, Robert, aged three years at that time. Robert later became a Fellow of Denning's old Oxford college, Magdalen. In 1945 Denning married Joan Stuart, who had two daughters and a son. She died in 1992.
Alfred Thompson Denning, judge: born Whitchurch, Hampshire 23 January 1899; called to the Bar, Lincoln's Inn 1923; KC 1938; Kt 1944; Judge of the High Court of Justice 1944-48; PC 1948; a Lord Justice of Appeal 1948- 57; created 1957 Baron Denning; a Lord of Appeal in Ordinary 1957-62; Master of the Rolls 1962-82; Chairman, Royal Commission on Historical Manuscripts 1962-82; OM 1997; married 1932 Mary Harvey (died 1941; one son), 1945 Joan Stuart (nee Elliott Taylor, died 1992; one stepson, two stepdaughters); died Winchester, Hampshire 5 March 1999.
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