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Departure of Lord Denning
by Justice C.K. Thakker*

Cite as : (1999) 4 SCC (Jour) 1

As earth thy body keeps, thy soul the sky,
So shall this verse preserve thy memory;
For thou shalt make it live,
Because it sings of thee.

On 5-3-1999, Lord Denning passed away. After completing 100 years of age, the Master of the Rolls left us leaving behind him a plethora of precedents, several memorable judgments and numerous thought-provoking books[1]

Often innovative, occasionally controversial and undoubtedly a great Judge of the twentieth century, Lord Alfred Thompson Denning, popularly known as "Tom Denning" was born on 23-1-1899 at Whitchurch in Hampshire. After graduating from Oxford University, he was called to the Bar in 1921. In 1944, Lord Denning was appointed as a Judge of the High Court. In 1949, he was promoted to the Court of Appeal and in 1957, to the House of Lords. In 1962, he was appointed the Master of the Rolls and occupied that position up to 1982.

The contribution of Lord Denning will never be forgotten by the legal world. Take any branch of law and you will find judgments of Lord Denning. Be it contract or tort, equity or trust, family matters, landlords and tenants, town planning, housing development, labour law, interpretation of statutes, administrative law or constitutional law, there are bound to be important decisions of Lord Denning.

Lord Denning believed in doing justice - full and complete. He, therefore, interpreted statutory provisions in the light of the ultimate goal to be achieved, which was justice. In spite of the limitations of a Judge, according to him, it was possible to do justice to the cause by interpreting law as required in the case on hand. In his words, "a Judge must not alter the material of which it is woven but he can and should iron out the creases".[2] Though the House of Lords did not approve of the view of Lord Denning and described it as "a naked usurpation of the legislative function",[3]  it cannot be gainsaid that in interpreting a statute, a Judge should not be oblivious and ignorant of justice.

In upholding the right of locus standi, Lord Denning did not stick to the traditional view of a "person aggrieved". He evolved the concept of "sufficient interest of an applicant who approaches a court of law".[4]

In R. v. Greater London Council, ex parte Blackburn[5]  prohibition was sought restraining the Council from illegally exhibiting pornographic films. The locus standi of Blackburn was challenged. Negativing the contention and upholding the locus standi of the applicant, Lord Denning observed:

"If Blackburn had no sufficient interest, no other citizen had and in that event no one would be able to bring an action for enforcing the law and transgression of law would continue unabated."

Though the House of Lords reversed the decision of Lord Denning,[6] in his well-known work[7], Lord Denning said:

I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this or that government department - or this or that local authority - or this or that trade union - is abusing or misusing its power - I always like to hear what he has to say." (emphasis supplied)

In the field of administrative law, the contribution of Lord Denning will be remembered for all time to come. In the English legal system, which was under the influence of Dicey, it was Lord Denning who openly proclaimed: "It may truly now be said that we have developed a system of administrative law." He delivered several judgments on the principles of natural justice. Regarding bias, his views were unambiguous and clear. Applying the test of likelihood of bias, he ruled that the Presiding Officer must be above bias or prejudice. Reiterating the test of Lord Hewart, C.J.[8] , that "Justice should not only be done but manifestly and undoubtedly be seen to be done"; and of Lord Bowen, J.[9]  that "Judges, like Caesar's wife must be above suspicion", Lord Denning said:

"Reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking 'the Judge was biased'."[10]  (emphasis supplied)

Often the concept of "natural justice" was criticised being described as an unruly horse. The reply of Lord Denning was that:

"With a good man in the saddle, the unruly horse can be kept under control. It can jump over obstacles. It can leap fences put up by fictions and come down on the side of justice."[11] 

About the right to be represented by a counsel, Lord Denning asserted that

"when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth but has also right to speak by counsel or solicitor. Even a prisoner can have his friend".[12]  (emphasis supplied)

On delegated legislation, Lord Denning declared that

"whereas administrative function can often be delegated, judicial function rarely can be. No judicial tribunal can delegate its function, unless it is enabled to do so expressly or by necessary implication".

Lord Denning said:

"When an Act is held ultra vires, it is null and void and of no legal effect whatsoever. Such void act cannot even be ratified subsequently. Effect of ratification is to make it equal to a prior command but as a prior command in the shape of delegation would be useless, so also is a ratification."[13] 

His contribution to the "doctrine of estoppel" is unique in nature. Under the traditional law, the doctrine could be used only as a defence but could not be made the cause of action. In other words, it could be used as a shield but not as a sword.[14]  Lord Denning challenged the limited application of the doctrine. In his opinion, the doctrine was based on equity, where justice would prevail over truth. In High Trees[15] , Lord Denning held that the doctrine of estoppel need not be inhibited by narrow application as defence and it was open to the applicant to invoke the doctrine of equitable estoppel to get appropriate relief from a competent court.

Lord Denning believed in the preservation and maintenance of the rule of law. Hence, when injunction was sought against an illegal act of a public authority and it was contended by the authority that if injunction were granted, there would be administrative chaos, Lord Denning proclaimed:

"I must say this: If a local authority does not fulfil the requirements of the law, this Court will see that it does fulfil them. It will not listen readily to suggestion of chaos.... Even if chaos should result, still law must be obeyed."[16]  (emphasis supplied)

Lord Denning was a progressive Judge. He believed in doing justice to the case on hand. His judicial philosophy is reflected in the following statement:

"My root belief is that the proper role of the Judge is to do justice between parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all that he legitimately can to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for legislation to intervene; because that can never be of any help in the instant case."[17]

He was, however, conscious of the limitations of a Judge and hence proceeded to state: "I would emphasise, however, the word 'legitimately'; the Judge is himself subject to law and must abide by it."[18]

He reiterated what Thomas Fuller said more than three centuries ago: "Be you ever so high, the law is above you."[19]

Lord Denning always emphasised that a Judge must be cool, quiet and sober. He stated: "One thing a Judge must never do. He must never lose his temper."[20]

Lord Denning was a champion of personal liberty and individual freedom, but not at the cost of interest of society at large. According to him, a balance must be struck between private rights and social security. In a country where Parliament is sovereign and can do everything, "but make a woman a man and a man a woman", Lord Denning stated:

"To my mind it is fundamental to our society to see that powers are not abused or misused. If they come into conflict with freedom of an individual or with any other of our fundamental freedoms, then it is the province of the Judge to hold the balance between the competing interests."[21]

Lord Denning was very popular with law students. Mr Alex Lyon, MP who was a law student said:

"Lord Denning was my great hero when I was a law student. I used to go to sit in the court just to listen to him. He has a beautiful voice and beautiful delivery but I was also enthralled by what he was doing to the law to advance it into the twentieth century."[22]

On his seventy-ninth birthday, a student from the University of Toronto sent a birthday card to Lord Denning. It was a cartoon showing a horse and a rider leaping over a fence and was titled: "Obstruction to Justice". The horse had a streamer on his tail, with a label, "Public Policy". The rider was a Judge, in joyous mood and in full control, with wig and gown flying. Lord Denning was very much pleased and replied wishing that the students should become good horsemen and horsewomen.[23]

On 31-7-1982, farewell was given to Lord Denning on his retirement. In the valedictory speech, the Lord High Chancellor, Lord Hailsham of St. Marylebone said:

"It is given to few men to become a legend in their lifetime. There would be few in this country who would deny that Lord Denning is one of these few. From the numbers and standing of his own fraternity of the law assembled here today to do him honour, we can readily infer, that he has been and is a golden legend."

The Lord High Chancellor concluded:

"Without him, things will never be quite the same again. I like to think that notwithstanding his retirement our period of creativity will not quite come to an end, still less relapse once more into quiescence. But, Master of the Rolls, we shall miss you. We shall miss your passion for justice, your independence and quality of thought, your liberal mind, your geniality, your unfailing courtesy to colleagues, to counsel, and to litigants in person who, like the poor, are always with us, particularly in the Court of Appeal. Above all, we shall miss you and your gift of friendship, your sturdy independence, and your unflagging and effervescent enthusiasm. Now you belong to history. But here you see around you a company of admirers and friends. We wish you well, both you and Lady Denning. Come and see us often, both you and Lady Denning. Come and see us often. Wherever lawyers are gathered together they will always rejoice to see you in their midst."[24]

Many Judges have been admired for their learning and erudition but Lord Denning was loved by one and all. It was because of his basic humanity, unfailing courtesy and kindness towards litigants, lawyers and brother Judges. Lord Scarman said: "He was the finest Judge that I ever met in my time, one of my heroes." Lord Woolf, the present Master of the Rolls remembers how Lord Denning guided him when he was a young advocate. Rich tribute was paid by Lord Chief Justice Bingham when he stated: "Lord Denning was the best-known and best-loved Judge of this, or perhaps any generation."

The author was fortunate enough to have Lord Denning's blessings in all his works.[25] Though the author had no occasion to meet Lord Denning personally, he would always cherish the memory of Lord Denning for the blessings and encouragement extended to him for the last more than six years.

Though Lord Denning is not with us today, one would recall that "the fact that we cannot see our friends or communicate with them after transformation which we call 'death' is no proof that they cease to exist".

We can only pray to God for eternal and everlasting peace to the departed soul by stating what Alic Cary said: "Ye doubting souls, from doubt be free-
ye mourners, mourn no more;
For every wave of Death's dark sea,
Breaks on that blissful shore."

* Judge, High Court of Gujarat, Ahmedabad.Return to Text

  1. Freedom under the Law, (1949); The Changing Law, (1953); The Road to Justice, (1955); The Discipline of Law, (1979); The Due Process of Law, (1980); The Family Story, (1981); What Next in the Law, (1982); The Closing Chapter, (1983); Landmarks in the Law, (1984). Return to Text
  2. Seaford Court Estates Ltd. v. Asher, (1949) 1 KB 481; (1949) 2 All ER 155; (AC) see also Asher v. Seaford Court Estates Ltd., (1950) All ER 1018; 1950 AC 508. (HL) Return to Text
  3. Magor & St. Mellons Rural District Council v. New Port Corporation, (1951) 2 All ER 839 : 1952 AC 189. Return to Text
  4. Attorney General of Gambia v. Pierra Sarr N'Jie, 1961 AC 617 : (1961) 2 All ER 504 : (1961) 2 WLR 845 : Maurice v. London County Council, (1964) 2 QB 362; Attorney General ex rel McWhirter v. Independent Broadcasting Authority, 1973 QB 629 : (1973) 1 All ER 689 : (1973) 2 WLR 344; Rex v. Greater London Council, ex parte Blackburn, (1976) 3 All ER 84 : (1976) 1 WLR 550; Gouriet v. Union of Post Office Workers, (1977) 1 All ER 969 : (1977) 2 WLR 310 : 1977 QB 729. Return to Text
  5. (1977) All ER 696 : (1977) 2 WLR 310 : 1977 QB 729. Return to Text
  6. Gouriet v. Union of Post Office Workers, (1977) 3 All ER 70; (1977) 3 WLR 300 : 1978 AC 435 (HL). Return to Text
  7. The Discipline of Law, (1979), p. 144; see also V.G. Ramachandran: Law of Writs, (1993), pp. 24-25. Return to Text
  8. R. v. Sussex Justices, (1924) 1 KB 256 (259) : (1923) All ER 233 : 93 LJKB 129. Return to Text
  9. Leeson v. General Council of Medical Education & Registration, (1889) 43 Ch D 366 (385) : 1886-90 All ER 78 : 61 LT 849. Return to Text
  10. Metropolitan Properties Ltd. v. Lannon, (1969) 1 QB 577 (578) : (1968) 3 All ER 304 : (1968) 3 WLR 394. Return to Text
  11. Enderby Town Football Club Ltd. v. Football Association Ltd., (1971) Ch D 591 (606) : (1971) 1 All ER 215; see also The Discipline of Law, (1979), pp. 170-73. Return to Text
  12. Pett v. Greyhound Racing Association (I), (1968) 2 All ER 545 (549) : (1969) 1 QB 125 (132) : (1968) 2 WLR 1471. Return to Text
  13. Barnard v. National Dock Labour Board, (1953) 1 All ER 1113 (1119) : (1953) 2 QB 18; see also The Discipline of Law, (1979), pp. 79-81. Return to Text
  14. The Closing Chapter, (1983), pp. 254-57; The Discipline of Law, (1981), pp. 199-223. Return to Text
  15. Central London Property Trust Ltd. v. High Trees House Ltd., (1947) 1 KB 130 : (1946) 1 All ER 256; see also Robertson v. Minister of Pensions, (1948) 2 All ER 767 : (1949) 1 KB 227; Lever (Finance) Ltd. v. Westminister Corporation, (1970) 3 All ER 496 : (1971) 1 QB 222. Return to Text
  16. Bradbury v. London Borough Council, (1967) 3 All ER 434 (441) : (1967) 1 WLR 1311. Return to Text
  17. The Family Story, (1981), p. 174. Return to Text
  18. Ibid. It was however, doubtful whether the word "legitimately" had any significance in view of another statement: "I never say 'I regret having to come to this conclusion but I have no option.' There is always a way round. There is always an option - in my philosophy - by which justice can be done." The Family Story, (1981), p. 208. Jowell & McAuslan: Lord Denning: The Judge and the Laws, (1984), p. 80. Return to Text
  19. The Family Story, (1981), p. 179. Return to Text
  20. Ibid, at p. 206. Return to Text
  21. Ibid, at p. 179; see also Freedom Under the Law, (1949), p. 179: "The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other." Return to Text
  22. The Listener, September 27, 1979. Return to Text
  23. The Discipline of Law, (1979), pp. 172-73. Return to Text
  24. "Farewell to Lord Denning": The Lord High Chancellor Lord Hailsham of St. Marylebone, on July 30, 1982. Return to Text
  25. Justice C.K. Thakker; Administrative Law, (1992), V.G. Ramachandran; Law of Writs, 5th Edn. by Justice C.K. Thakker, (1993); Criminal Procedure, (1994); Civil Procedure, (1997); Lectures on Administrative Law, (1998), Ratanlal & Dhirajlal; Law of Crimes (24th Edn.) by Justice C.K. Thakker (1998). Return to Text
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