Lord Denning and I (2): 1962-1972

 

In the first blog in this series I wrote a little about Lord Denning’s life and his work as a judge up to the time I first met him in the autumn of 1961. I then went on to describe the work I did the following year as his personal gofer, bringing Bar students from all four Inns of Court to Cumberland Lodge in Windsor Great Park for residential weekends with senior members of their Inn.

Over a thousand people from all over the world have now “viewed” this story, and in this second part of these memories I will describe my dealings with Lord Denning over the next ten years. One day I will tell of my final meeting with him, at his home in Whitchurch not long before he died.

In the eyes of some of today’s lawyers he is rather a discredited figure. This is due to a combination of staying on as a judge for far too long (he was 82 when he was finally forced to retire) together with some of the comments he made towards the end of his life about the Birmingham Six and others which would have been better left unsaid, and also by the style and content of his 1963 report on the Profumo affair which still resurfaces as an item of news from time to time.

In my eyes, for all his shortcomings in old age, he was the most inspirational figure I ever had dealings with. A lot of the useful things I managed to achieve in one way or another owed their origin to that first meeting I had with him at the Athenaeum when he articulated his very firm belief that there was much more to the business of lawyering and the business of judging than the opinions or the judgments one wrote as a part of one’s day-time job.

I stopped living and working at Cumberland Lodge in the summer of 1962 after passing my Bar Part I exams in chunk-sized bits with the help of a correspondence course. I then continued to organise the Bar student weekends there for a few more months up till the time when we finally brought my own Inn, the Inner Temple, into the fold just before Christmas.

I then continued to try and provide practical help for Commonwealth Bar students in London while I was working for Bar Finals. In this context I remember inviting Lord Denning to come and speak one evening to overseas law students who were living in a big British Council students’ hostel in Hans Place (behind Harrods), in a building which later enjoyed a short spell of life as the Knightsbridge Crown Court.

When Lord Denning spoke to students he would start by reeling out a whole series of “jokes” I heard again and again – on popular misconceptions of the nature of the office of Master of the Rolls (with some people placing it in the bread-making business or in the manufacture of expensive cars), on the shortening of the odds against justice being done from 4-1 against to 2-1 against when he returned to the Court of Appeal in 1962, or on the House of Lords being like Paradise (a place one would like to get to one day but not yet). With his audience eating out of his hand, he would then go on to talk about the rule of law, the independence of the judiciary, and all they needed to know when they went back to their home countries as the leaders of the future. When he spoke informally to any of them they would feel they had secured his individual attention, and would never forget it.

I remember his inviting me at about this time to lunch with the Benchers of Lincoln’s Inn after the Sunday service in the Inn’s Chapel one day. That was the only time I met Lord Justice Harman, whose judgment in passing-off litigation between two claimants to the title of welterweight boxing champion of Trinidad included his observation that:

“it occurred to me for the first time during the hearing to regret the desuetude of ordeal by battle as a method of trial.”[1]

This judgment was drawn to my attention when I was hearing a case involving the heavyweight boxer Frank Bruno and his family nearly 30 years later.

One of the functions of the Master of the Rolls included a jurisdiction to hear appeals by solicitors from certain disciplinary decisions, and during my pupillage year I went once or twice with my pupil-master Peter Webster to Lord Denning’s private room, across the corridor from his courtroom (then numbered “AC 1”, and now Court 3 in the central block of the Law Courts in the Strand). Peter often represented the Law Society in such cases, as did I a few years later on. In the informality of his room Lord Denning always gave the appellant solicitor the feeling that he had had a studiously fair hearing, although he was usually unable to accede to what he was asking for.

In those days the Westminster Abbey Service and the Lord Chancellor’s Breakfast at the start of each legal year was followed at 2 pm by a procession of the judges, in full-bottomed wigs and ceremonial robes, through the Great Hall of the Law Courts up to the courts in which they would sit for what was left of the day. I would sometimes watch it. Lord Denning, as Master of the Rolls would always lead this procession – the law lords did not count as judges for this purpose.  The ceremony was subsequently abandoned in the interests of achieving a full half day of work that day.

A little later I remember watching some of the proceedings in Ward v James,[2] in which he presided in a rarely-convened full court of five judges of the Court of Appeal[3] which effectively brought to an end the age-old practice of trial by jury in personal injury cases.

I next appeared before him in court three times between 1969 and 1971. I have already told the story of two of these appearances.  The first I described like this:

[In TIL v Bagley] Rodger Winn, who had had a very distinguished period of war service in naval intelligence, was a member of a court composed of himself, Lord Denning and Lord Justice Salmon (a future law lord) before whom I successfully appeared on 7th-8th March 1969 on a county court appeal in which I persuaded them to set aside an extraordinary finding of fact that the steering wheel of a second-hand car had come off in the driver’s hands while he was negotiating a roundabout. The appeal from a judgment of Mr Deputy Judge Norman Stogden in the Ilford County Court for about £350 came to that court as of right, and I remember those three intellectual heavyweights passing a sample steering wheel up and down the bench during the course of my submissions.

And, for the other case, just over two years later:

During this period I appeared in [Lord Denning’s] court as counsel for the former wife in Hargrave v Newton[4] on 15th July 1971 when he relied on a passage in Lord Reid’s dissenting speech in Gissing to uphold the favourable ruling I had obtained from a divorce registrar.

My client had found some of the money stolen in the Great Train Robbery in a hiding place on Leith Hill, and had spent the reward of £5,045 on items the couple could not otherwise have afforded – she already paid for some of the family expenses out of her salary – while her husband continued to pay the mortgage instalments and little else. With my encouragement Lord Denning applied this test:

“Did the wife make a substantial contribution direct or indirect to the acquisition of the house or the repayment of the mortgage or the loan? If her efforts or her contributions relieved him of other expense which he would otherwise have had to bear – so that he would not have been able to meet the mortgage instalments or the loan without her help – then she does make an indirect contribution.”

This eminently just decision was frowned on by academics,[5] and when Mr Justice Bagnall, a former Chancery silk, came to analyse all the decisions of the Court of Appeal during this period,[6] he found that all except Hargrave v Newton could be regarded as legitimate applications of trust law. My case, however, he found hard to understand. Perhaps it was the advocate wot won it.

On 10th and 11th December 1970 I had appeared in the third of these cases, Applegate v Moss, a decision on two points of law which found its way into the bound volumes of the Law Reports[7]. My two clients had bought a pair of newly constructed semi-detached houses in which, in Lord Denning’s later words, the builder had “put in rubbishy foundations and then covered them up.”     I had fought and won the case for them in a five-day trial before Mr Justice Paull earlier that year, but the developer appealed on the grounds that the trial judge had misapplied the provisions of the Limitation Act which permits an extension to the standard limitation period when the plaintiff’s cause of action was concealed by fraud, and also that he had also misdirected himself on the amount of damages the should award.

All three members of the court gave these arguments short shrift. It was a period when the courts were starting to grapple with problems arising from the changes in the value of money between the date of a judgment (or of the cause of action) and the date of a subsequent appeal hearing, and from their desire to mitigate the harshest effects of the limitation rules. This judgment, which also found its way into the text-books, marked a step along that journey.

In all three cases Lord Denning presided benignly, always ahead of the argument, throwing out comments in his unique accent, which some attributed to his origins as a man of Hampshire and others thought he had created for himself. He was a delight to appear in front of, even if, as was not my fate on any of these occasions, one was on the losing side.

The sums at issue in these three cases were £350, £1,900[8] and £2,100 respectively, which says something about the change in the value of the pound sterling since 1969-71.

His treatment of litigants in person – and there were fewer in those days – was a pleasure to watch. For a few minutes they walked tall, as he quietly and patiently let them develop their arguments for a few minutes, before bringing the hearing – and their appeals – to a dignified end.

Until 1947 there were only six judges in the Court of Appeal. The number was then increased to nine. By 1971 there were 15, and when I joined the court in 1996 the size of the court was being increased to 36, a number at which it has more or less stayed ever since. There used to be far less paper to read – before the days of the photocopier every document for the court had to be typed (with six or seven carbon copies) – and no skeleton arguments. The emphasis was on orality. At one point in the 1970s, when the volume of paper was beginning to grow, Lord Denning announced that litigants in his court should expect that the judges had read all the papers before the appeal started. The following day Lord Justice Russell, who presided in the next most senior division of the court, announced that litigants in his court should expect no such thing.

A listing in the Court of Appeal took precedence in your diary over all other business (apart from the House of Lords), and this sometimes made things rather awkward because the court very seldom allotted fixed dates, and cases might last longer than expected, with no pre-set timetables. In nine cases out of ten (Lord Denning’s own calculation) the court would give an ex tempore judgment, either immediately argument was completed or the following morning. The judges were allowed a good deal of leeway in “revising” their judgments in order to make the transcripts more readily readable. A transcript of every Court of Appeal judgment was filed in the Supreme Court Library, and there it stayed unless the judgment was deemed worth reporting in one or other of the comparatively few series of law reports.

During these years Lord Denning was often embattled against the House of Lords – on their treatment of the property rights of deserted wives, on the right of the Court of Appeal to overrule one of its own judgments and on their ruling on exemplary damages in Rookes v Barnard[9], for instance, but I was not involved in any of these developments which have been told many times elsewhere.

In the next – and final – instalment of this series I will write about my last four appearances in his court in the twilight of his long judicial career and of my final meeting with him at his home in Whitchurch.

 

 

 

[1] Serville v Constance [1954] 1 WLR 487, 491.

[2] [1966] 1 QB 273.

[3] I sat only once in such a court during my time in the Court of Appeal, along with the Lord Chief Justice (Lord Woolf), the Master of the Rolls (Lord Phillips), and Lords Justices Ward and Chadwick. The case was Taylor v Lawrence [2003] QB 528, when we held that in certain very rare circumstances the Court of Appeal might be willing to reopen one of its own decisions. Undeterred by what we had said about the rarity of such a case, nearly 200 litigants in person sought to invoke this new jurisdiction in the next 12 months.

[4] [1971] 1 WLR 1611. He was sitting with Lords Justices Phillimore and Megaw.

[5] See, for instance, Michael Freeman in Lord Denning, the Judge and the Law (ed Jowell & McAuslan,1984) at p 141.

[6] In Cowcher v Cowcher [1972] 1 WLR 425.

[7] [1971] 1 QB 406. Lord Denning was sitting with Lords Justices Edmund Davies and Megaw.

[8] The judge’s award of £1,900 was increased to £2,900 together with interest at 7¼% from 1965.

[9] In Broome v Cassell & Co Ltd [1972] AC 1027 Lord Denning said that the House of Lords had reached its earlier decision per incuriam, and increased the plaintiff’s damages accordingly. The House of Lords in due course retorted that it had done no such thing, and in any event Lord Denning had no business to tell them that they had.

5 thoughts on “Lord Denning and I (2): 1962-1972

  1. Pingback: Lord Denning and Sir Henry Brooke: 1962-1972 – Bermuda Legal

  2. Pingback: Ex-Court of Appeal judge lifts lids on what it was REALLY like working with Lord Denning - Legal Cheek

  3. Here is a comment about this blog.

    “As a Bar Student, I observed Lord Denning in the Court of Appeal in the 1960s. He was very good at dealing with litigants-in-person.

    I remember well a litigant-in-person who was applying for leave (permission) to appeal to the Court of Appeal. He quoted a case from 1924 which appeared to have nothing to do with the issues.

    Denning did not interrupt but listened to him intently for about 5 minutes and then said that he would like to hear what the Barrister for the other side had to say.

    The Barrister rose and explained that the 1924 case involved the Applicant’s father. Denning explained (in a kindly fashion) to the Applicant that he was unable to grant leave and the Applicant left the Court happy that he had had his say and been listened to by the most famous Judge in the land.”

    Like

  4. Pingback: Lord Denning and I: (3) The Final Years – Henry Brooke

  5. Pingback: Lord Denning’s unique prose style: 34 more examples – Henry Brooke

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