Can a trusts lawyer butt in? The great man's record here was very mixed: Re Gulbenkian was rightly overruled by the HL; Vandervell v IRC (No 2) makes no sense at all; Re Weston's ST is dubious though indisputably patriotic; the new model constructive trust in Binions v Evans, Hussey v Palmer, and Eves v Eves is now very out of fashion in England but may strike Australian and Canadian lawyers more favourably; the squashing of Appleton in Pettitt now looks less definitive in the light of Stack v Dowden; Re Tuck's was quite sensible; and while the others in the CA and the HL disagreed with him in Chapman v Chapman he won the argument when Parliament enacted the Variation of Trusts Act 1958. But most of the Chancery lawyers I've ever spoken to think he was a loose cannon. CM

Professor Charles Mitchell

School of Law

King's College London

Strand

London WC2R 2LS

tel: 020 7848 2290

fax: 020 7848 2465

-----Original Message-----

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: 27 November 2008 17:06

To: Andrew Burrows

Cc: Jason Neyers; Hedley, Steve; obligations@uwo.ca

Subject: Re: Denning

I have no doubt that Denning was one of a handful of truly great judges.

He combined an enormous depth of knowledge of the law with originality of thinking. Added to that that he was a great writer too, and he was singular indeed. Like Cardozo, it is probably because of the clarity of his writing that he will continue to be read long after we are all dead.

Students like Denning because of his image as a rebel. The picture of him as the champion of justice and the little man fighting the stuffed shirts in the House of Lords was a powerful one. When we compare Denning with some of his contemporaries, Viscount Simonds for example, he was both a better lawyer and far more likeable. In the 60s and 70s the House of Lords was not made up of judges of the calibre we have today (and have had for the last 20 years). The likes of Lord Reid were the exception. At the time therefore, Denning was an important, indeed giant, figure.

But.

As the years have gone by, it now seems clear that he was much less significant in the development of the law than he would have been thought to be in the 1970s.

So, in contract virtually all of his innovations can now safely be forgotten about. His attempt to expand the doctrine of frustration to cases of uncontemplated turns of events: rejected by the House of Lords.

The separate legal doctrine of fundamental breach: rejected by the House of Lords. The category of 'equitable mistake': rejected by the Court of Appeal. His novel approach to offer and acceptance: rejected by the House of Lords. His attempt to explain away the doctrine of privity of contract at common law: rejected by the House of Lords.

In the law of torts the record is better, but some of the reasoning in, say, Spartan Steel, or Nettleship v Weston doesn't really withstand scrutiny. Feeble 'policy based' reasoning of the worst sort. Dutton v Bognor Regis was just awful.

Within unjust enrichment he probably comes out best, no doubt because he was familiar with US developments. Greenwood v Bennett is one of my favourite cases.

The better students grow to be annoyed with Denning. So, in High Trees they can see that it just won't do to say that promissory estoppel was "not considered" in Foakes. They can work out that the principle Denning was creating wasn't really to be found in Hughes v Metropolitan Rly as he claimed. Once they have read Copper v Phibbs they can tell that it doesn't really stand for the proposition Denning claimed it did in Solle v Butcher. They grow impatient when Denning dismisses the argument of counsel in Magee v Penine Insurance, that the case was indistinguishable from the (great) decision in Bell v Lever Bros, with the statement that "I do not propose today to go through the speeches in that case. They have given enough trouble to commentators already." They begin to suspect that Denning wasn't always playing the game by the rules, which is what law is all about.

As an icon of the law, Denning's position is secure. There will never again be someone who serves so long as a judge (a good thing some might say). The sheer volume of cases he decided means that his decisions will stand as the foundation for many of our rules. However, it may be that he appeared to be a giant at the time because of the relative height of those around him, and we can now see that his record was not unblemished.

Rob

> Lord Denning has always provoked controversy but my own view

> (contrary, as I understand it to Jason and to Rob Stevens' aside in

> his recent inaugural lecture) is that, in the realm of the law of

> obligations, he was one of the truly great English judges of the twentieth century.

> While clearly not considering himself to be boxed in by a rigid

> approach to precedent, and while regarding it as legitimate for the

> courts to develop the law rather than leaving it to the Legislature,

> my own perception is that he had a healthy respect for past decisions

> and almost invariably thought it necessary to move the law forward by

> careful reference to them. His vision for the right and legally

> principled way forward for the common law was extraordinary. In

> contract one thinks, eg, of his attempts to move the law forward on

> privity (had he been upheld we would not have needed the Contracts

> (Rights of Third

> Parties) Act 1999; his striking down of unfair exclusion clauses (in

> advance of UCTA 1977); and his landmark judgments (in eg Jarvis) on

> mental distress damages. Personally I also think he was right (and

> will in time be proved to be so) in High Trees and other promissory

> estoppel cases and (more arguably) in Solle v Butcher on common

> mistake (are we really content with the law as laid down in The Great

> Peace?). In tort, his dissenting judgment in Candler Crane was later

> vindicated in Hedley Byrne; in Sparham -Souter he tried to develop

> discoverability as a starting point for limitation ten years before

> the Latent Damage Act 1986; and it was he who clarified the law on

> seat belt contributory negligence and on interest in personal injury

> cases. In the law of unjust enrichment he was years ahead of his time

> in arguing in Nelson v Larholt for a fusion of common law and

> equitable rules on the receipt of money paid without authority and in

> Larner in 1949 he applied an approach to restitution of mistaken

> payments that only came to be accepted as the true approach over 40

> years later.Add to all this his unique and brilliant written style and

> I think that in this area of the law we are much the poorer without him.

> Andrew Burrows

>

>

> Jason Neyers wrote:

>> I guess we will have to agree to disagree since no one else really

>> seems interested. BTW, when I wrote that "I am free" that does not

>> mean that I do the things indicated merely that one is able to do

>> them in a way a judge is not. So I think that some of my statements

>> about law can still be trusted.

>>

>> ----- Original Message -----

>> From: "Hedley, Steve" <S.Hedley@ucc.ie>

>> Date: Thursday, November 27, 2008 3:35 am

>> Subject: RE: Denning

>> To: obligations@uwo.ca

>>

>> >

>>

>>

>> >

>> >

>> >

>>

>>

>> >

>>

>>

>> >

>>

>> It just gets better and better ...

>>

>>

>> >

>>

>>

>> >

>>

>> "I am free to disagree, ignore and refuse to follow any case I want

>> in my writing or to be biased against people in my writing because of

>> their views of the law ..."

>>

>>

>> >

>>

>> Believe me, I'd noticed. But the sticky point is that, while ignoring

>> the cases and venting your bias as you say, you still claim to be

>> stating the law! You are entirely free to give your opinion of what

>> the law should say - but your claim that it is already the law cuts

>> no ice.

>>

>>

>> >

>>

>>

>> >

>>

>> "If I were an intermediate appellate judge or trial judge

>> (far-fetched I know) I couldn't and wouldn't refuse to follow a

>> Supreme Court of Canada case because of non-conformity with

>> corrective justice. I would point out the cases flaws but say I was bound."

>>

>>

>> >

>>

>> So you agree that someone who is obliged to state the law accurately

>> must respect precedent. (A point which applies to both judge and

>> jurist, no?) It follows, doesn't it, that someone who ignores

>> precedent has ceased to expound the law? And that their claim to be

>> describing the law should not be given much credence? If your point

>> about the judicial oath means that you don't feel obliged to state

>> the law accurately, then give us a reason to listen to any statements

>> of law you make.

>>

>>

>> >

>>

>>

>> >

>>

>> "I also think that you get the claims of CJ theorists spectacularly

>> wrong. The claim is not that CJ is being imported from the outside

>> but that private law is CJ--that CJ is immanent in the private law in

>> its structure and most basic concepts."

>>

>>

>> >

>>

>> I'm well aware of what (some) corrective theorists claim. (Actually,

>> many of them are more reasonable.) You have said nothing to render

>> this extreme claim believable. And as you have made very clear, the

>> claim involves intellectual devices (such as ignoring precedent)

>> which you loudly condemn in others. The claim is starkly implausible.

>> If after a lifetime in court Denning's intuitions are still "imported

>> from the outside", then how precisely is your own view "immanent" in

>> the law? Which has a more solid basis in the law and legal practice?

>> Which is more likely to stem from an understanding of how the legal

>> system actually works? Which is more likely to respect the legitimate

>> interests of litigants, rather than an abstract political philosophy

>> written for another era?

>>

>>

>> >

>>

>>

>> >

>>

>> "Some of the mistakes or mis-descriptions of the cases he gave were

>> so egregous that it is hard not to conclude that they were purposeful

>> if Denning was intelligent as it appears he was."

>>

>>

>> >

>>

>> Jurists in glass houses ...

>>

>>

>> >

>>

>>

>> >

>>

>> "If not following binding precedents as an intermediate judge or

>> favoring one group of litigants over another (as you pointed out he

>> did) is not an example of bad faith judging what is? What in the

>> ordinary meaning of the words is bad faith judging or is there no

>> such thing?"

>>

>>

>> >

>>

>> Well, if you want, we could have a serious conversation about how

>> judges should act in developing the law for the world in which we

>> live - I'm game. But I expect you'll just claim that anything other

>> than wholesale application of corrective justice is unacceptable - as usual.

>>

>>

>> >

>>

>>

>> >

>>

>> /Steve Hedley

>> > UCC///

>>

>>

>> >

>> >

>>

>> >

>>

>> >

>> ---------------------------------------------------------------------

>> ---

>>

>> >

>>

>> >

>> *From:* Jason Neyers [mailto:jneyers@uwo.ca]

>> > *Sent:* Wed 26/11/2008 21:36

>> > *To:* Hedley, Steve; obligations@uwo.ca

>> > *Subject:* Re: Denning

>> >

>> >

>>

>> > Steve:

>> >

>> > The key difference between CJ theorists and a judge is that a judge

>> takes an oath to "do right to all manner of people after the laws ...

>> of this Realm without fear or favour, affection or ill will". A CJ

>> theorist doesn't take that oath. I am free to disagree, ignore and

>> refuse to follow any case I want in my writing or to be biased

>> against people in my writing because of their views of the law

>> whereas a judge is not. If he or she habitually does so, they may be

>> sanctioned or removed from office (at least in Canada).

>> >

>> > If a CJ theorist was appointed to be a judge their obligations

>> > would

>> change because of the oath. So if I were an intermediate appellate

>> judge or trial judge (far-fetched I know) I couldn't and wouldn't

>> refuse to follow a Supreme Court of Canada case because of

>> non-conformity with corrective justice. I would point out the cases

>> flaws but say I was bound.

>> >

>> > I also think that you get the claims of CJ theorists spectacularly

>> wrong. The claim is not that CJ is being imported from the outside

>> but that private law is CJ--that CJ is immanent in the private law in

>> its structure and most basic concepts. I know you do not buy this

>> view but that is the claim. That was not my impression of Lord

>> Denning's claim in the extra-juridical texts I have read of his.

>> Therefore, a judge deciding cases on CJ grounds at the ultimate

>> appellate level could in all honesty say that they were dispensing

>> justice after the laws even if they were over-ruling a case.

>> >

>> > In my defence, Denning himself was in many instances very clear as

>> > to

>> the reasons why he was doing what he was doing so that no speculation

>> on my part is necessary. Additionally, some of the mistakes or

>> mis-descriptions of the cases he gave were so egregous that it is

>> hard not to conclude that they were purposeful if Denning was

>> intelligent as it appears he was.

>> >

>> > If not following binding precedents as an intermediate judge or

>> favoring one group of litigants over another (as you pointed out he

>> did) is not an example of bad faith judging what is? What in the

>> ordinary meaning of the words is bad faith judging or is there no

>> such thing?

>> >

>> >

>> Jason Neyers

>> > Associate Professor of Law &

>> > Cassels Brock LLP Faculty Fellow in Contract Law Faculty of Law

>> > University of Western Ontario N6A 3K7

>> > (519) 661-2111 x. 88435

>>

>> >

>> > Hedley, Steve wrote:

>> >

>>>

>>> >

>>>

>>> >

>>>

>>> >

>>>

>>> I find it very hard to make sense of this.

>>>

>>>

>>> >

>>>

>>> Much of it consists of some rather doubtful guesses as to Denning's

>>> motivations and thought-processes, which can only remain in the

>>> realm of speculation.

>>>

>>>

>>> >

>>>

>>> Even more of it is internally inconsistent. Denning is criticised

>>> both for indifference to results - "it is corrosive when judges

>>> start claiming that the law is no better than flipping a coin" - and

>>> also for caring too much - "A judge judging in good faith should be

>>> indifferent to the results ... which is not the sense that you get

>>> from Denning's judgments". At least one of those criticisms must be

>>> wrong.

>>>

>>>

>>> >

>>>

>>> The other criticisms are rather general-purpose, and could be made

>>> of almost any view. For example, as an exercise, read them as

>>> criticisms of those who espouse corrective justice. Surely it could

>>> equally be said of those theorists that:

>>>

>>>

>>> >

>>>

>>> 1. They come to the cases with an "agenda" from outside the law, and

>>> are "guided by [their] sense of what was right and wrong

>>> extra-juridically to which [they] would make the law conform".

>>> Indeed, they are quite open about this, and rely heavily on

>>> Aristotle, who knew many things, but was necessarily ignorant of

>>> common law.

>>>

>>>

>>> >

>>>

>>> 2. They are less-than-respectful of precedent. Corrective justice is

>>> treated as the criterion for whether decisions are right, and cases

>>> inconsistent with it are condemned as wrong. Discussion of binding

>>> precedent is rare in that connection, presumably on the ground that

>>> a case which requires a wrong result must itself also be wrong. (An

>>> argument that not even Denning dared use, I think, though he came

>>> close at times.)

>>>

>>>

>>> >

>>>

>>> 3. They deliberately seek out issues that allow them to promote and

>>> defend their views. Well, obviously. And why not?

>>>

>>>

>>> >

>>>

>>> 4. They give no sense that they are constrained by law, unless we

>>> mean a law that fits in with their preconceptions of what the law

>>> should be. The frequent judicial references to public policy, and

>>> other remarks inconsistent with corrective justice, are not taken as

>>> evidence against the theory, but are condemned as judicial

>>> delinquency. In short, the corrective justice theorists only feel

>>> constrained by the law when they agree with it - rather like

>>> Denning, in fact.

>>>

>>>

>>> >

>>>

>>> If you feel, as do I, that none of these points invalidates

>>> corrective justice, then I cannot see why they invalidate Denning's

>>> contribution to the common law.

>>>

>>>

>>> >

>>>

>>> As to "good faith", the term is plainly not being used here in any

>>> ordinary sense (and presumably Jason means to refer to Steven

>>> Burton, not Heyman). "Good faith" is used in many senses, and

>>> without further explanation the charge is quite close to

>>> meaninglessness. I remain in the dark as to what Denning is really being accused of.

>>>

>>>

>>> >

>>>

>>> I therefore do not feel that Jason's views have yet received their

>>> most complete articulation.

>>>

>>>

>>> >

>>>

>>>

>>> >

>>>

>>> /Steve Hedley

>>> > UCC/

>>>

>>>

>>>

>>>

>>> >

>>>

>>> >

>>> >

>>> --------------------------------------------------------------------

>>> ----

>>>

>>> > *From:* Jason Neyers [mailto:jneyers@uwo.ca]

>>> > *Sent:* Wed 26/11/2008 16:00

>>> > *To:* Hedley, Steve

>>> > *Cc:* obligations@uwo.ca

>>> > *Subject:* ODG: Denning

>>> >

>>> >

>>>

>>> >

>>> > Maybe I was a little over the top but I just cannot see why some

>>> people hold Denning in such high esteem as a paragon of the judge.

>>> My reading of Denning is that he decided who should win and then

>>> tried to support that result by whatever means necessary. If the law

>>> was against him he would just ignore it or say that was law this is

>>> equity (see eg, Sole v Butcher) even to the point of ignoring House

>>> of Lords decisions (see some of his spinning of the privity cases or

>>> of /Heilbut Symons/) or deciding that they were per incuriam and

>>> should not be followed (starting something of a constitutional

>>> crisis, if I remember correctly). His intuitions were not guided by

>>> the law and then refined by cases that counsel found, as is usual,

>>> but rather guided by his sense of what was right and wrong

>>> extra-juridically to which he would make the law conform (I do

>>> believe that he said something to that effect in one of his

>>> autobiographies; what would a moral and right thinking Englishman

>>> do). He had an agenda which I think is born out by the fact that he

>>> left the HL to go back to the CA so that he could further it. Judges

>>> shouldn't be fighting battles (as Steve wrote). I might be wrong,

>>> but I also recall reading that as MR he deliberately assigned

>>> himself to cases to protect his previous decisions (I think /D & C

>>> Builders/ is an example, if I remember correctly). I never had the

>>> sense that Denning feels he is constrained by the law at all (see

>>> his comments in /Spartan Steel/)--rather he was its master rather

>>> than the converse (the converse being what Birks thought was a

>>> requirement of the rule of law). A judge judging in good faith

>>> should be indifferent to the results (and I would say its effects

>>> more controversially) (which is not the sense that you get from

>>> Denning's judgments) and should feel that his reasoning process is

>>> constrained by the law (which is not the sense that you get from

>>> Denning's judgments). I believe that Heyman makes these some of the

>>> requirements of good faith judging in his interesting book (entitled

>>> /Judging in Good Faith)/. I also think it is corrosive when judges

>>> start claiming that the law is no better than flipping a coin (as I

>>> believe Denning claimed once or twice) or are visibly seen to be

>>> taking sides (consumers over businessmen to use Steve's example). I

>>> therefore don't think my claim about good faith is merely a

>>> jurisprudential point.

>>> >

>>> > So is it wrong to claim that he was not judging in good faith? As

>>> > a

>>> former clerk let me assure you that most appellate judges I have

>>> come in contact with do not behave the same way.

>>> >

>>> > Others may feel differently but the more I learn about Denning,

>>> > the

>>> less I respect him as a judge. None these failings can be overcome

>>> by his good points of being an anti-dote to stuffiness or a

>>> excellent writer (both of which seem true enough). I am of course

>>> open to be persuaded that I am wrong and of course would be

>>> interested in why Louis Joseph finds this hurtful.

>>> >

>>> > Cheers,

>>> >

>>> Jason Neyers

>>> > Associate Professor of Law &

>>> > Cassels Brock LLP Faculty Fellow in Contract Law Faculty of Law

>>> > University of Western Ontario N6A 3K7

>>> > (519) 661-2111 x. 88435

>>>

>>> >

>>> > Hedley, Steve wrote:

>>> >

>>>>

>>>> >

>>>> >

>>>> >

>>>>

>>>> >

>>>>

>>>> I appreciate that it's traditional to have a Christmas punch-up on

>>>> either ODG or RDG, though I think Jason is being a bit blatant in

>>>> starting this one.

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>> "Denning was a menace" - Some think so - others think he was a

>>>> welcome antidote to the stuffiness that pervaded the English courts

>>>> in his time. Of course, stating it in such vague and emotive terms

>>>> makes it very hard to have a rational debate about it. If Jason

>>>> wants to come out with a more precise and meaningful statement, we

>>>> can see what we think about it.

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>> "He did not judge in good faith" - this would be a serious

>>>> accusation indeed, if it meant anything. I suspect however that

>>>> Jason has some jurisprudential point in mind, rather than anything

>>>> which most people would call an issue of good or bad faith. We just

>>>> have to accept that we differ on many fundamental points. I am

>>>> several light-years away from Jason's assumptions about law, but

>>>> wouldn't dream of saying that this made his utterances "bad faith".

>>>> What on earth can Jason has in mind, that such strong language is

>>>> called for?

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>> "...and is therefore corrosive of the rule of law". Denning's general

>>>> judicial style was simply a throw-back to the typical style of a

>>>> century earlier, made more effective by the fact that he was a good

>>>> prose stylist as well as an able lawyer. If that is "corrosive of

>>>> the rule of law", then presumably the rule of law had already been

>>>> thoroughly corroded in the late 19^th century. Or does Jason have

>>>> something more specific in mind?

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>> "As Robert noted in his inargural most of Denning's damage to the

>>>> law of contract has largely been undone thankfully." I've not seen

>>>> Robert's inaugural yet. If this refers to Denning's attempt to

>>>> increase protection for consumers, I would say that the problem of

>>>> the old law was the failure to distinguish sufficiently between

>>>> consumer and business transactions - a battle which Denning won,

>>>> though the result is now expressed in statute rather than in case

>>>> law. But what is the issue?

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>> /Steve Hedley/

>>>>

>>>>

>>>> >

>>>>

>>>> /UCC/

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>> >

>>>>

>>>> >

>>>> -------------------------------------------------------------------

>>>> -----

>>>>

>>>> >

>>>>

>>>> >

>>>>

>>>> *From:* Jason Neyers [mailto:jneyers@uwo.ca]

>>>> > *Sent:* 26 November 2008 13:26

>>>> > *To:* Louis Joseph

>>>> > *Cc:* obligations@uwo.ca

>>>> > *Subject:* Re: RE: ODG: Roffey Bros

>>>>

>>>>

>>>>

>>>> >

>>>>

>>>>

>>>> >

>>>>

>>>> And that's why Denning was a menace. He did not judge in good faith

>>>> and is therefore corrosive of the rule of law. As Robert noted in

>>>> his inargural most of Denning's damage to the law of contract has

>>>> largely been undone thankfully.

>>>> >

>>>> >

>>>> >

>>>>

>>>>

>>>

>>

>>

>>

>> --

>> Jason Neyers

>> Associate Professor of Law &

>> Cassels Brock LLP Faculty Fellow in Contract Law Faculty of Law

>> University of Western Ontario N6A 3K7

>> (519) 661-2111 x. 88435

>>

>

>

>

--

Robert Stevens

Professor of Commercial Law

University College London