Lord Denning and I: (3) The Final Years

lord-denning This is the third and final instalment of my memories of Lord Denning.

In my first set of memories  I described my unique relationship with Lord Denning during my days as a bar student. The second chapter  described, among other things, my earliest appearances as an advocate in his court. In this final part I am rounding the story off, describing his later years on the Bench and a meeting with him at his home shortly before he died at the age of 100.

Although I appeared in other divisions of the Court of Appeal after 1971, my next memory of an appearance in his court was six years later, on 24th – 25th October 1977 when I successfully resisted an appeal brought by the Indian Government after a very stale claim of theirs against a small company in Lancashire had been struck out for want of prosecution by Mr Justice Boreham as Queen’s Bench judge in chambers four months earlier. John Hobhouse QC (later to become a law lord) appeared for the Indian Government, whose application for leave to appeal to the House of Lords I again resisted successfully two months later.

It was one of a series of cases in which Lord Denning considered it just to bring very stale proceedings to an end, even though there was no specific rule of court permitting this to happen.  He relied on the inherent jurisdiction of the High Court to protect its process from abuse, as I was to do 20-30 years later when devising new remedies for new situations.

As so often occurred in those years there was something akin to a game of ping pong going on between Lord Denning and the House of Lords. In Birkett v James[1] the House of Lords held in 1977 that the remedy was not available even if the defendant could not reasonably remember what had happened if it was still possible for the plaintiff to issue a new writ within the primary limitation period. To counter the argument that a defendant could not suffer any additional prejudice following the issue of the writ if he had already forgotten what happened by the time the writ was issued, Lord Denning invented a new “Sword of Damocles” theory, by which he said it would be unjust to allow a defendant to have to carry on his business or his life indefinitely with a totally stale but revivable action hanging over him. Justice would come to his rescue and save him from any more supposedly sleepless nights – if it was not a business being sued, but the principle also applied to businesses which could not be expected to place a large contingent liability year after year in its accounts when nothing was happening in the litigation at all.

I relied successfully on this line of authority a little later when having an action brought against a well-known solicitor struck out: he had come to the rescue of a litigant whose original claim was about to be struck out, and she had responded to his kindness by suing him, too – but then let this second action go to sleep for many years.

Lord Denning had a penchant for short, expressive sentences. Here is the start of a few of his judgments:

“It happened on April 19, 1964. It was bluebell time in Kent.”[2]

“In 1966 there was a scripture rally in Trafalgar Square. A widower, Mr Honik, went to it.  He was about 63. A widow, Mrs Rawnsley, also went to it   She was about 60. He went up to her and introduced himself. He was no much to look at. ‘He looked like a tramp’, she said. ‘He had been picking up fags.’ They got on well enough to exchange addresses.”[3]

“Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy was a farmer there. His home was Yew Tree Farm: it went back 300 years . . .”[4]

Mr Hook, a Barnsley market trader for six years, had his licence revoked by the local council after he had urinated in a side street one evening when the toilet was shut. He had been confronted by an official:

 “To some this may appear to be a small matter, but to Mr Harry Hook it is very important… We are not told the words used by the security officer. I expect they were in language which street traders understand. Mr Hook made an appropriate reply. Again, we are not told the actual words, but it is not difficult to guess. I expect it was an emphatic version of ‘You be off’. At any rate, the security officer described them as words of abuse. Touchstone would say the security officer gave the ‘reproof valiant’ and Mr Hook gave the ‘countercheck quarrelsome’ (As You Like It V, iv)”.[5]

“When I was young, a sandwich-man wearing a top-hat used to parade outside these courts with his boards back and front, proclaiming ‘Arbitrate, don’t litigate.’ It was very good advice so long as arbitrations were conducted speedily: as many still are in the City of London. But it is not so good when arbitrations drag on for ever.”[6]

I think it must have been during the 1970s that I once heard Lord Denning recite the first page of Charles Dickens’ novel Bleak House by heart in the Old Hall of Lincoln’s Inn itself:

“Fog everywhere. Fog up the river.. fog down the river… Fog on the Essex marshes, fog on the Kentish heights. Fog creeping into the cabooses of collier-brigs; fog lying out on the yards, and hovering in the rigging of great ships; fog drooping on the gunwales of barges and small boats. Fog in the eyes and throats of ancient Greenwich pensioners, wheezing by the firesides of their wards; fog in the stem and bowl of the afternoon pipe of the wrathful skipper, down in his close cabin; fog cruelly pinching the toes and fingers of his shivering little ’prentice boy on deck. Chance people on the bridges peeping over the parapets into a nether sky of fog, with fog all round them, as if they were up in a balloon, and hanging in the misty clouds….

The raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation, Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.”

It was in the autumn of 1978 that I had my next substantive appearance in Lord Denning’s court. He was now nearly 80 but was stubbornly refusing to retire. The case arose out of the employment protection legislation introduced by Harold Wilson’s second administration in 1975. A trade union obtained certain rights if it could be certificated as independent. It had to show it was not under the domination or control of an employer and also not liable to interference by an employer tending towards such control.[7]

Lord Denning was sitting with Lords Justices Sebag Shaw and Brandon. I appeared for the certification officer. My friend Derry Irvine appeared for the staff association. He had won in the Employment Appeal Tribunal (where I did not appear), and in the course of the proceedings he had been allowed to cross-examine the certification officer himself.

At the outset of the appeal Lord Denning was very sympathetic to the Staff Association. It was the sort of constructive non-troublemaking organisation of which he approved. I remember that it was Sir Sebag Shaw, formerly a specialist at the criminal Bar, who helped me swing him round. And once he was persuaded, he went one stage further – and not at any invitation of mine – and ruled that it was quite wrong to expose the statutory decision-maker to cross-examination about his decision.

I later had a charming letter of thanks from my client. He said that no one in his office had been at all hopeful about the outcome –

“and the future freedom from cross-examination by Alexander Irvine (or anyone else) was an unexpected bonus!”

Soon after that I appeared in another private room appointment in a solicitor’s disciplinary matter. Lord Denning was, as always, charm personified, and I think that what he said persuaded the Law Society to bring a period of suspension to an end slightly earlier than would otherwise have been the case. At all events my client, who died quite recently after a very successful career in the law, was extremely grateful. He sent me greetings from time to time whenever I was promoted up the judicial ladder.

If Lord Denning had retired on his eightieth birthday in January 1979, he would have avoided much of the embarrassment that was to follow. Instead, he insisted that he possessed all the Christian virtues except that of resignation, and studiously ignored every suggestion that he might stand down after 35 years on the Bench. In the next three and a half years, he was to be reversed repeatedly by the House of Lords: 10 times in 11 cases, I think, and all these successive reverses did no good to the public appearance of justice.

I was involved in two of these cases. They both involved ACAS, founded in 1975 and saddled with the invidious task of acting as an arbiter in disputes over trade union recognition. The particular flashpoint in my cases arose from the desire of two associations representing professional engineers and managers (known as the United Kingdom Association of Professional Engineers (UKAPE) and the Engineers’ and Managers’ Association (EMA) respectively) to be recognised for collective bargaining purposes by their employers. It was ACAS, to whom was entrusted an overriding statutory duty to promote the improvement of industrial relations, who held the key to this particular door. In each case ballots conducted under ACAS’s auspices had revealed a substantial majority in favour of such recognition.

Their ambitions, however, were thwarted by the existence of a national agreement under which TASS, a TUC affiliate, had been granted recognition in respect of grades that included professional engineers, and the problems of overlapping and fragmented trade unionism had been one of the bugbears of our unhappy industrial relations history in recent years[8]. In these circumstances ACAS were unwilling to give a sympathetic audience to these two claims.

In the UKAPE case ACAS had produced a reasoned decision which bore all the hallmarks of a compromise, stitched together by officials on behalf of a Board drawn from each side of industry which had arrived at the same answer but by different routes. Mr Justice [John] May had set aside its decision, and Lord Denning, sitting with Lords Justices Lawton and Brandon, upheld his decision. Lord Denning, ignoring the fact that Parliament had set up ACAS as the expert decision-maker, went straight to what he regarded as the merits.

It was, he said,

“another story of David v Goliath. By which I mean a small trade union pitted against a giant one…  For ACAS to take account of threats of industrial action was to make it the tool of the powerful trade unions…”

I represented ACAS in Lord Denning’s court on my own. Peter Scott QC led me a few months later when the House of Lords unanimously overruled their decision. Lord Scarman, applying elementary principles of administrative law, said that the courts would invalidate the exercise of a statutory body’s judgment or discretion only if satisfied that no reasonable person charged with the body’s responsibilities under the statute could have exercised its power in the way it did.[9]

The other case, EMA v ACAS, was concerned with a procedural quirk. EMA had nullified the jurisdiction of the TUC, to which it was affiliated, by issuing High Court proceedings and obtaining interim relief against it which it then did nothing to pursue. It then issued proceedings against ACAS in an effort to persuade it to back its claim for recognition for collective bargaining purposes while the TUC was temporarily hors de combat. Its claim for interim relief was refused by Mr Justice Oliver: on this occasion I was opposed to two QCs, with Derry Irvine, newly appointed to silk, sitting alongside his leader, Peter Weitzman QC, while I occupied the bench behind them as ACAS’s sole advocate.[10]

EMA immediately appealed on the grounds that Mr Justice Oliver had been wrong, but it remained uncertain until the very last minute whether it was actually going to prosecute its appeal. In the end it did, and when Lord Denning challenged me on the basis that whatever had been the rights and wrongs of the case a year earlier, since then ACAS had done nothing and the Court of Appeal was entitled to judge its inactivity as at the time of the appeal hearing. I replied that this was not the case I had come to meet.

Lord Denning had again invited Lord Justice Lawton to sit with him: I suspect that he believed that Fred Lawton would reach the same result as he did, by one route or another. Ignoring the complexities of the case that had been created by EMA’s own tactics, he applied Magna Carta:

“To none will we sell, to no one will we delay or deny right or justice.”

The third member of the court was Lord Justice Cumming-Bruce, the former Treasury Devil, who found the problem more difficult to resolve. He believed that Mr Justice Oliver had been correct in May 1978 when reviewing ACAS’s decision four months earlier. It was, however, the duty of the Court of Appeal to declare that the situation a year later was different.

On this occasion the House of Lords split 3-2 in favour of overruling Lord Denning. Lord Scarman, who again gave the leading judgment, said that Lord Denning’s court should have held that if they were to judge ACAS’s inaction as at May 1979 they should have given ACAS the opportunity to explain its continuing reluctance to intervene – and he believed that it would have had a lot to say.

These two cases were an embarrassment in the sense that my clients, ACAS, who understood all the complexities of modern industrial relations, were taken rather by surprise by Lord Denning’s very old-fashioned approach to the difficult problems whose resolution had been entrusted to them and not to him. These two decisions, however, were not as wildly out of joint as his rulings, made at about the same time, in which he applied a blind eye to the language used by Parliament in the Employment Protection Act 1975 and the prior rulings of the House of Lords in the topics he was addressing.

In Duport Steels Ltd v Sirs[11] Lord Scarman said:

“My basic criticism of all three judgments in the Court of Appeal is that in their desire to do justice the court failed to do justice according to law… Legal systems differ in the width of the discretionary power granted to judges, but in developed societies limits are invariably set beyond which the judges may not go. Justice in such societies is not left to the unguided, even if experienced, sage sitting under the spreading oak tree.”

At about this time Lord Denning’s near-contemporary Patrick Devlin (who had retired from the Bench as soon as his 15 years were up) was interviewed by Sir Robin Day. The interview went like this:

“Lord Devlin, you are of the opinion that legislation is a matter for Parliament and not for the judges?” (which Lord Devlin in his expressively deep voice answered in the affirmative).

“Lord Denning takes the opposite view”, Day continued.

To which Lord Devlin answered shortly: “So I understand.”

“But this is a matter of some considerable importance. You must have more to say upon the subject.”

After a short pause, Lord Devlin answered, “Lord Denning is a very great judge.”

“Yes, we all know that”, answered Day, “But surely you must have more to say than that.”

“Lord Denning is a specimen tree,” Lord Devlin replied, “You must not have a whole avenue of them.”

I appeared in Lord Denning’s court one last time in 1981, just after I had taken silk. This was a challenge to an interlocutory injunction I had obtained in an employment dispute at a shipyard in the North-East. Now aged over 82, Lord Denning was streets ahead of his two very quick-witted colleagues, Lord Justice Ackner and Sir Denys Buckley, in his command of the relevant case-law. The injunction was set aside, but I received a friendly note from Desmond Ackner afterwards, which did a lot of good to my morale.

He himself had joined the Court of Appeal in 1980. Five years later he gave these impressions of the experience of sitting with Lord Denning during the first two years of his time in that court:

“There were occasions when I did not agree with his judgment. Sitting as No 2 at his right-hand side in court was one of the most responsible and exhausting of judicial activities. Not only did you have to keep up with him, which was very hard work, but if you were going to disagree, the odds were that you would have to do so in an ex tempore judgment and would probably be supported by judge No 3. You would thus be giving the majority judgment of the court. When this occurred there would be no form of pressure by Tom to bring you in line, or resentment for slowing up the development of the law as he saw fit. If the two of you were going to disagree he would probably say, ‘Well, you two had better write your dissenting judgments.’ Tom did not ‘dissent’. He had this tremendous gift of total confidence in the correctness of any decision he made and that if he was in the minority, sooner or later he would be found to be right (as was, indeed, not infrequently the case).”

By this time Lord Denning had developed the habit of producing a new book almost every year, in collaboration with Butterworth’s. Thus the Discipline of Law (1978) was followed by The Due Process of Law (1980) and by The Family Story (1981). In The Family Story, where he describes the lives of himself, his brother the Admiral, his brother the General, and the two brothers (“the best of us”) who had died during the First World War – in which he had served as a commissioned officer in the Royal Engineers for nine months in France himself – he included so many stories I had heard so often in his talks to students that I felt emboldened to write a chatty letter to him to tell him how much I had enjoyed the book.

I received this reply, dated 4th August 1981, almost by return of post:

“My dear Henry, It was a great delight to receive your letter, written in your own hand on the Royal Wedding Day. I did not realise we had given you a silver punch spoon 15 years ago. How times have changed since then – with your fine and growing family and all your splendid progress at the Bar.

I am so pleased that you liked my book “The Family Story.” I had great help with it from Miss Legg (who is actually typing this letter to you). I did it in the holidays last year in just about six weeks so obviously could not do it on my own. It is the greatest pleasure to me that so many should enjoy it.

Your memory is indeed good – of coming over as you did to “Fair Close” long years ago now. I really enjoyed your delightful letter.

I am so glad that your father has been writing your family story. He will indeed have a great story to tell, not only of his father (whom you mention) and of your mother and he himself, but also possibly you of the younger generations[12].

I do hope that you will come before us in our Court. If I may say so you are of the greatest help to us and I look forward before very long to hearing of your further advancement in the law. With very kindest regards, Yours very sincerely, Tom Denning.”

I never appeared in his court again. The following year it all came to an unhappy end.   His fourth book, What next in the Law (May 1982), contained a passage in which he advanced the proposition that all British citizens were no longer qualified to serve on juries because

“the English are no longer a homogeneous race. They are white and black, coloured and brown,” he wrote. ”Some of them come from countries where bribery and graft are accepted and where stealing is a virtue so long as you are not found out. They no longer share the same code of morals or religious beliefs.”

Out of the ensuing brouhaha, which included a threat by two jurymen in a recent trial (which he also mentioned) threatening to sue him for libel, emerged the official statement that Lord Denning would be retiring before the new legal year started in October.

And indeed he did. I was lucky enough to find a seat in a crowded courtroom on 30th July that year when the Lord Chancellor, Lord Hailsham, formally said “Good-bye” and “thank you” on behalf of us all. His address ended like this:

“Without him, things will ever 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 lapse once more into quiescence. But, Master of the Rolls, we shall miss you. We shall miss your passion for justice, your independence 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…”

He never sat as a judge again, although from time to time he was unwise enough to comment to the media about affairs of the day, often in terms which suggested how out of touch he had now become.

It was not, however, my last dealing with him. In 1996, soon after my promotion to the Court of Appeal, I saw Vibert Lampkin, a judge from Ontario who was one of his large Canadian judicial fan club, and scribbled a brief note for Vibert to take with him when he visited Lord Denning the following week.  I received a brief manuscript response, dated 1st July 1996, which said (in so far as it was legible):

“Dear Henry, I am pleased with your letter brought by Vibert. I congratulate you on all your promotions and successes of late – and thank you for [illegible} Vibert – for whom I have a great regard. Yours ever, Tom Denning.”

I have now included Vibert’s memory of this visit in a separate blog: Another Memory of Lord Denning in his old age.

His beloved wife Joan had died in 1992, and he was now deaf and blind and lonely, and this letter encouraged me the following year to ask his stepdaughter, Hazel Fox, whether she thought he would appreciate a visit from me. She said she was sure he would, and thus it was that on 15th November 1997, on my way home from a visit to my 89-year old mother in Marlborough, I stopped in at The Lawn, the large house in Whitchurch which had been Lord Denning’s home since 1963.

I described this visit in a letter I wrote to Vibert Lampkin following his death 16 months later:

“You need not be saddened. He had reached his century, said his Nunc Dimittis and was ready to move on. I went to see him myself at The Lawn in the autumn of 1997. He was blind and very deaf, although I had a lovely 45-minute conversation with him. He seemed generally thrilled that a new member of the Court of Appeal, 37 years his junior, had come to see him, and he kept bubbling over with excitement about the incorporation of the European Convention of Human Rights into English law: ‘English judges deciding the rights of English people in English courts’, he kept saying. I told him that if he was 40 years younger, he would have been in the thick of it, and he did not disagree.”

It was an experience I will never forget. He had a massive hearing aid contraption on his head, and I spoke to him in his beloved library through a small microphone, which enabled him, I think, to hear quite easily. A friend was with him in case I tired him out too quickly, but he was still going strong when I judged it an appropriate time to leave.

I never saw him again. Later that month Her Majesty The Queen had the imagination to admit him to the Order of Merit, although he was too frail to travel to London to receive the insignia of the Order from her in person.

The following year he had one or two illnesses, but he was determined to live until he was 100 (on 23rd January 1999) and so he did. Harry Woolf, then Master of the Rolls, had arranged that all the members of the court should sign a birthday card for him. I think we all also clubbed together to buy him a small present. In due course we received this response from his faithful former clerk Peter Post:

“When Lord Denning celebrated his 100th birthday recently, he received many cards, messages and letters which have all been read and described to him. He particularly treasured those from the Court of Appeal but regrettably, due to his virtual blindness and considerable frailty, he is unable to write personally to thank each for their remembrance of his very special occasion, and has asked me to do so for him. His son, Professor Denning, is writing separately to the master of the rolls to express his father’s gratitude for the presentation made in Whitchurch on 30th January by Lord Woolf. Lord Denning was delighted that no less than 37 signatures were on his card, which evoked the spontaneous comment ‘Far more than in my day!’ Please accept his sincere thanks.”

He died on 5th March 1999. Like the other judges of the Court of Appeal, I was given pride of place in the choir stalls at his Memorial Service in Westminster Abbey on 17th June. In his address the Lord Chief Justice, Lord Bingham, called him “the best known and best loved judge in our history”. He said that he probably headed “the roll of great emancipators” of English common law:

“When he was young, the glory of the common law appeared to have been extinguished forever. He brought a new, adventurous and imaginative vision to bear. The secret of his attraction to the legal profession and to the general public was … the belief that he opened the door to the law above the law. He had, to the end, an almost uncanny insight into the thoughts and values of his fellow countrymen.”

Amen to all that.

It is poignant to think that we were to return to that great Abbey only 11 years later for Lord Bingham’s own memorial service. Tom Bingham and Tom Denning were in their very different ways the two greatest English judges of the last 100 years. I was privileged to be able to call each of them my friend.

[1] [1978] AC 297.

[2] Hinz v Berry [1970] 2 QB 40.

[3] Burgess v Rawnsley [1975] QB 428.

[4] Lloyd’s Bank Ltd v Bundy [1975] QB 326.   The Salisbury-based solicitor for Lloyd’s Bank once told me that the facts as found by the judge were quite a long way distant from those described by Lord Denning in the Court of Appeal.

[5] R v Barnsley Metropolitan Borough Council ex p Hook [1976] 1 WLR 1052.

[6] Bremer Vulkan v South Indian Shipping [1981] AC 909.

[7] Squibb United Kingdom Staff Association v Certification Officer [1979] 1 WLR 523.

[8] Jim Mortimer, a well-known trade union leader and later the chairman of the Labour Party, was chairman of ACAS at the time, and I remember him describing to me with horror the multiplicity of different trade unions with whom London Transport had to bargain during his days in charge of industrial relations there, each ready to down tools if denied a favour granted to one of their competitors.

[9] UKAPE v ACAS [1981] AC 374.

[10] After he had become Lord Chancellor, I reminded Derry Irvine that I had won on each of the three occasions when we had been on opposite sides at the Bar. “Bang go your chances of promotion”, commented his excellent private secretary Jenny Rowe when I told her afterwards. Things did not, however, operate quite like that! The other case was National Westminster bank Ltd v Barclays Bank International Ltd [1975] QB 654, in which Mr Justice Kerr, not sitting in the Commercial Court, ruled that a banker who paid out on a cheque by special clearance did not thereby make a representation to the payee that the cheque was a valid instrument.

[11] [1980] 1 WLR 142.

[12] In fact, Leslie Brooke and Johnny Crow, published by Warne’s in 1982, was restricted to the story of my grandfather’s life. He had been one of the five great artists of children’s books in late Victorian and Edwardian England – the others being Randolph Caldecott, Walter Crane, Kate Greenaway and Beatrix Potter.

3 thoughts on “Lord Denning and I: (3) The Final Years

  1. Pingback: Lord Denning and I: (3) The Final Years — Henry Brooke – Bermuda Legal

  2. Phil

    Thankyou so much for this series of posts. I don’t think I’d ever heard a reference to Lord Denning until he was in his late 70s – and as a result I’ve hardly ever heard his name used without some expression of disapproval or disavowal. I certainly had no idea how significant a figure he’d been. I’m glad you’ve given the younger as well as the older Denning his due.

    Like

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

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