Lord Denning in Perspective
Gilbert Kodilinye*

Lord Denning - The Judge and the Law
Edited by J. L. Jowell & J. P. W. B. McAuslan

[London: Sweet & Maxwell, 1984. xxxv & 486 pp. Hardback £25.00]

This volume of essays is perceived by the editors as an assessment of Lord
Denning's contribution to the development of English Law during his 38 years on
the Bench. Legal scholars in the United Kingdom have traditionally been
preoccupied with the exposition and analysis of legal principles and, unlike their
North American counterparts, have generally shown little interest in assessing the
contributions made by individual judges to the development of the law. The
editors express the hope that this book will set a new trend, and that other authors
will be encouraged to produce similar volumes on other distinguished and
long-serving judges of our time. In the present volume, a team of prominent
academic lawyers has surveyed Lord Denning's judgments in the fields of
Contract, Tort, Equity and Trusts, Family Law, Land, Planning and Housing
Law, Administrative Law and Labour Law, and there are additional chapters on
Lord Denning's approach to Human Rights, his role as Jurist and his influence on
Commonwealth Law.

It would be impossible in a review of normal length to comment in any detail
upon every area covered by this volume. It is proposed, therefore, to look at four
'core' areas in which Lord Denning's influence has made the greatest impact,
namely Contract, Tort, Equity and Trusts and Land Law.

The Chapter on Contract and Tort is contributed by Professor P. S. Atiyah. He
points out that any survey of Lord Denning's contribution in this area will initially
require an account of the development of the common law throughout the whole
period since the end of the Second World War. It is indeed astonishing how many
fundamental principles of Contract and Tort have been moulded by Lord
Denning, and it needed a book of this nature to remind all concerned of the
vastness of his influence. The author further emphasises that a survey of Lord
Denning's judgments in Contract and Tort will serve to dispel the popular belief
that His Lordship's decisions were constantly rejected by his brethren on the

"'Lecturer in Law, University of Birmingham

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Bench or overturned on appeal. On the contrary, in the majority of cases his views
were either followed from the outset or, though initially viewed with suspicion,
were eventually vindicated through the judicial process or by legislation.

Starting with the Law of Contract, Lord Denning's imprint can be seen in every
area. His best-known contribution is undoubtedly the development of the
principle of promissory estoppel which he first enunciated in Central London
Property Trost Ltd. v. High Trees House Ltd .. I Professor Atiyah emphasises that Lord
Denning never regarded promissory estoppel as being a reliance-based doctrine,
but a promise-based one. It was sufficient that the promise was intended to be
acted upon and had in fact been acted upon, and there was no need to show that
the promisee had acted to his detriment. Another major contribution was the
doctrine of fundamental breach which Lord Denning used for many years in his
role as champion of the consumer. This may be cited as an example of a "holding
operation" which Lord Denning has frequently conducted pending statutory
intervention - in this case the Hire Purchase Acts of 1964-1965 and the Unfair
Contract Terms Act 1977. In offer and acceptance it was Lord Denning who, in
Entores Ltd. v. Miles Far East Corporation,2 established the rule that, in determining
the time and place of acceptance of an offer, communication of acceptance by telex
was to be equated with communication inter praesentes and not with postal ones. In
another context, that of a council tenant seeking to enforce an alleged agreement
for the sale of a council house against a local authority, Lord Denning was able to
find a concluded contract on seemingly flimsy grounds, but the decision was
overruled by the House of Lords (Gibson v. Manchester City Council). 3

This case is an example of the kind of approach for which Lord Denning has
often been criticised. It seems that in his determination to support a political policy
- that of giving council tenants the right to purchase the freeholds of properties let
to them - he was quite ready to ignore the fact that in this case the prospective
purchaser had not secured mortgage finance. To hold the contract binding in such
circumstances was detrimental both to the council and to the purchaser.

In several other areas of Contract Law Lord Denning has been profoundly
influential. In particular, he has sought to loosen many of the traditional bonds
which tended to inhibit growth and he has introduced a much-needed flexibility.
Some of these innovations have already become established principles; others have
yet to be accepted. Instances discussed by Professor Atiyah include: the partial
integration of the law of misrepresentation, warranties and negligence (Esso
Petroleum Co. Ltd. v. Mardon};4 the Court's power to imply "reasonable" terms into
a contract (Liverpool City Council v. Irwin};5 the concept of inequality of bargaining
power (Lloyd's Bank Ltd. v. Bund)~;6 the equitable power to set aside a contract

1. [1947] 1 K.B. 1301.
2. [1955] 2 QB. 327.
3. [1978] I W.L.R. 520; [1979J I W.L.R. 294.
4. [1976] QB. 801.
5. [19761 QB. 319.
6. [1975J QB. 326.

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entered into under a fundamental mistake (Solle v. Butcher);7 and the Court's
power to award damages for mental upset and inconvenience Garois v. Swan's
Tours Ltd.). 8

In Tort, being a more fluid area than contract, Lord Denning has had greater
scope to develop his public policy ideas, and his influence has been far-reaching.
Negligence has always been His Lordship's particular fOrte, and many of his most
memorable diaa are to be found in negligence cases. Perhaps his greatest
contribution in this area was his famous dissenting judgment in Candler v. Crane
Christmas C5 Co.,9 which was so triumphantly vindicated 13 years later in Hedley
Byrne C5 Co. v. Heller C5 Partners, 10 though the expansive approach to liability for
negligent misstatements taken by him in Candler contrasts oddly with the
restrictive one which he later took, in Spartan Steel C5Alloys Ltd. v. Martin C5 Co.
Ltd., II with respect to recovery for other forms of purely economic loss. Another
notable success for Lord Denning was his decision in Dutton v. Bognor Regis
U.D.C., 12 which opened the door for claims by house purchasers against negligent
local authority building inspectors and which was followed by the House of Lords
in Anns v. Merton London Borough.13 The latter case is ~lso significant in that it
finally put the seal of approval on Lord Denning's view - which judges had for a
long time rejected - that liability in negligence actions ultimately depends upon
public policy, and it serves as an example of what Professor Atiyah describes as
"Lord Denning blazing the trail and the House of Lords subsequently giving their
approva1." 14

Lord Denning's statements of principle in Tort cases have not always met with
approval and he has lost a number of important struggles which he had carried on
with his customary zea1. For instance, he failed to overturn the well established
rule that the employer's duty to fence under the Factories Act 1961 and its
predecessor of 1937 was a duty to keep workers out and not the machinery in, so
that a workman could not claim in respect of injuries suffered when a piece of the
unfenced machinery escaped and struck him.15

Again, Lord Denning's attempt to introduce a "family car" principle in
vicarious liability cases was rebuffed by the House of Lords in Morgans v.
Launchbury 16 (though, it may be noted, not because the House disapproved of the
principle but because their Lordships felt that any change in the law should be
brought about by Parliament, after due investigation and deliberation, and not by
the judiciary). And a third example of lack of success by Lord Denning is to be

7. [1950] 1 K.B. 671.
8. [1973] 1 QB. 233.
9. [1951] 2 K.B. 164.

10. [1964] A.C. 465.
11. [1973] QB. 27.
12. [1972] 1 QB. 373.
13. [1978] A.C. 728.
14. At p. 61.
15. Close v. Steel Co. of Wales [1962] A.C. 367.
16. [1973] A.C. 127.

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found in Cassell v. Broome f5 Co. Ltd.,17 where he was sternly rebuked by the
House of Lords for refusing, in the Court of Appeal, to follow the rules relating to
exemplary damages which had been laid down by the House in Rookes v. Barnard, 18
an action on Lord Denning's part which the House regarded as unconstitutional.

In his concluding remarks, Professor Atiyah suggests that Lord Denning's
innovations have proved more successful in Contract and Tort than in other fields
and this may be due at least to two factors. First, since legislation has not intruded
in this area to any great degree, Lord Denning has been able to "give full rein to
his policy - orientations without having to contend with the often different policy
of Parliament." 19 Secondly, in both Contract and Tort Lord Denning has been
"fundamentally in sympathy with the underlying trends in the law", 20 for instance
the trend towards giving greater protection to the consumer in Contract and the
basic ideal that parties who are at fault should be required to pay compensation in
Tort.

Lord Denning's work in the area of Equity and Trusts is discussed by Mr D. J.
Hayton. Here again the impact of Lord Denning has been considerable, but his
judgments have, in general, been less well received than those in Contract and
Tort. In a sense, the Chancery judge is in a most uncomfortable position. On the
one hand, he must remind himself that the doctrines of Equity are "progressive,
refined and improved",2J that courts of Equity are invested with many broad
discretionary powers, and that the underlying philosophy of Equity is that justice
should be done between the parties. On the other hand, he must be aware that
much of Equity lies within the boundaries of Property Law, and that conveyancers,
landowners and all other persons who have interests in property require a high
degree of certainty in the law, and that for such persons well settled and clearly
defined principles are infinitely preferable to vague, flexible concepts. Many
commentators take the view that Lord Denning was too ready to sacrifice certainty
in the law in order to reach what he believed to be a fair solution in the instant
case, and in so doing he had not only ridden roughshod over many well established
principles, but actually confused and muddled the law by attempting to formulate
new principles when it was not strictly necessary for the case in hand. Mr Hayton
discusses Lord Denning's decisions in a wide variety of topics, starting with 'the
deserted wife's equity'. This was a major doctrinal innovation of Lord Denning,
whereby a wife was invested with an equitable interest in the matrimonial home
which would prevail against successors in title of the husband with notice of her
status. The principle was decisively rejected by the House of Lords in National
Pmvincial Bank Ltd. v. Ainsworth,22 on the ground that the wife's right to occupy
was personal to her and it would be unfair to the husband's creditors if those rights

17. [1972] A.C. 1027.
18. [1964] A.C. 1129.
19. At p. 76.
20. At p. 77.
21. Re Hal/etl's Estate (1880) 13 Ch. D. 696, 710 per Sir George Jessel, M.R..
22. [1965] A.C. 1175.

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LORD DENNING IN PERSPECTIVE

were to prevail against his trustee in bankruptcy. In the Matrimonial Homes Act
1967 Parliament attempted a compromise between the two positions and provided
that a spouse, whether deserted or not, could protect her or his interest in the
matrimonial home by registering a Class F Land Change which would be good
against the whole world except the other spouse's trustee in bankruptcy.

Other important contributions of Lord Denning in the field of Equity are the
development of the Mareva injunction (which enables the court on an ex parte
application to freeze the assets of a foreign - and in some circumstances a locally
resident - defendant) and the Anton Piller order (which enables a plaintiff to
inspect and seize documents and articles specified in the order, and which has
proved to be a useful weapon against vendors of pirate cassettes and against record
bootleggers). Still in the area of equitable remedies, Lord Denning has always
been hostile to the House of Lords decision in American Cyanamid Co. v. Ethicon
Ltd.,23 which purported to remove the long-established requirement that in an
application for an interlocutory injunction, the plaintiff must show a strong prima
facie case. Mr Hayton points out that, by ingenious manipulation of certain diaa in
American Cyanamid, Lord Denning and other judges have been able to pay
lip-service to that decision whilst in effect deciding cases in the same way as they
would have been decided pre-Cyanamid. In the author's view, the Cyanamid
principles are too "artificial and elaborate for pragmatic judges to be controlled by
them." 24 And in the very different area of discretionary trusts, it was Lord
Denning who first expressed the view that the test for certainty of objects should
be assimilated to the test in mere powers, and his view was eventually accepted by
the House of Lords in the landmark case of McPhail v. Daulton. 25

It is perhaps in the areas of licences, constructive trusts and family property that
Lord Denning's decisions have provoked the most controversy and where he is
most open to the charge of having 'muddied the waters'. Certainly, the practitioner
or the academic who seeks clear-cut and logical principles is likely to be overcome
by a sense offrustration when confronted with many of Lord Denning's judgments
in this area.

For instance, Lord Denning would impose a constructive trust "wherever
justice and good conscience require it", since the concept is "a liberal process,
founded on large principles of equity, to be applied in cases where the defendant
cannot conscientiously keep ... property for himself alone, but ought to allow
another to have the property or a share in it." 26 Lord Denning has readily sought
to impose a "constructive trust of the new model" in cohabitation cases, where the
house is purchased by the man, his cohabitee not contributing towards the
purchase price and not therefore acquiring any equitable interest in the property
under traditional principles. According to His Lordship in such cases the

23. [1975] A.C. 396.
24. At p. 99.
25. [1971] A.C. 424.
26. Hussey v. Palmer [1972] 1 W.L.R. 1286, 1289.

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cohabitee is entitled to a share in the house by virtue of the time and effort she puts
into looking after the house and caring for her man and any children of the union.
Quite apart from the uncertainty and unpredictability which so wide a principle
generates, as Mr Hayton points out Lord Denning's approach in the cohabitation
cases cannot be reconciled with the firm view taken by the House of Lords in
Gissingv. Gissini7 that the court cannot impose a constructive trust unless there is
evidence of a common intention that the claimant should acquire an interest in the
home. Moreover, the imposition of a constructive trust has serious implications for
third parties, whether they be purchasers, donees or creditors, for the beneficiary
has the right to trace the property into the hands of any person other than a bona
fide purchaser for value without notice, and he or she has priority to recover his full
share in the property before the general creditors of the constructive trustee.

An even more controversial use of the constructive trust concept by Lord
Denning occurred in Binions v. Evans, 28 where he held that if P contracts with V to
purchase property from V expressly subject to T's contractual licence, then after
the purchase P holds the property on constructive trust for T, since it would be
unconscionable for P to ignore T's rights. Such a proposition runs counter to the
well established principle that a contractual licence does not bind third parties and
seems to be a complete misuse of the constructive trust concept. Mr Hayton
rightly suggests that such a fundamental change in the law is best left for
Parliament, which could provide for the registration of contractual licences as land
charges.

Finally, Lord Denning has sought to widen the scope of proprietary estoppel by
suggesting that it is not necessary for the claimant to have expended money on the
property or otherwise to have acted to his detriment. This is clearly contrary to a
long line of cases following from Fry J.'s classic exposition of proprietary estoppel
in Willmott v. Barber,29 and there is no legal justification for it. It must be admitted,
however, that the broad flexible discretion which Lord Denning advocates in both
proprietary and promissory estoppel cases has found favour with some judges, and
he may ultimately be correct in his assessment that "all these various estoppel
principles can now be seen to merge into one general principle shorn oflimitations
[that] when the parties to a transaction proceed on the basis of an underlying
assumption ... on which they have conducted the dealings between them, neither
of them will be allowed to go back on that assumption when it would be unjust or
unfair to allow him to do SO.,,30

In a most comprehensive Chapter entitled "Land, Planning and Housing",
Professor McAuslan points out that Lord Denning has been in the forefront of the
movement of Land Law, since the end of the Second World War, from a system
concerned with private relations between two parties - as envisaged in the 1925

27. [19711 A.C. 886.
28. [1972] Ch. 359.
29. (1880) 15 Ch. D. 96.
30. Amalgamated Illvestmet1t alld Property Co. Ltd. v. Texas lrllemat;ollal Barlk LId. [1982] QB. 84, 122.

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LORD DENNING IN PERSPECTIVE

legislation - to a largely public system in which the law is concerned with such
matters as housing and rent control, the use and development of land and the
rights and duties of owners, occupiers and dealers in land. The author suggests
that, in recent years at least, Lord Denning's judgments in this area became
infused with his political and moral beliefs and, in particular, His Lordship
appears to have evolved a doctrine of abuse of rights. The themes of balance,
responsibility and prevention of abuse of rights became more pronounced in Lord
Denning's judgments after his return to the Court of Appeal as Master of the Rolls
in 1962. For instance, he dealt with abuse by landlords in Luganda v. Seroice Hotels
Ltd.31 and Drane v. Evangelou,32 both cases in which landlords were guilty of
harassment against their tenants. In Lord Denning's view, there was no difficulty
in granting injunctions and exemplary damages in such cases since the landlords
were challenging not so much the tenants' rights as the role and power of the
judicial process. Examples of so-called abuses by tenants are Bickel v. Duke of
Westminster3 and Central Estates Belgravia Ltd. v. Woolgar,34 in which Lord
Denning prevented tenants from "taking advantage of' the Leasehold Reform Act
1967. In checking what he perceived as abuses of rights, Lord Denning paid scant
regard to the convenience of conveyancers and, as 'has often been pointed out, was
prepared to strain legal rules to their limits in order to do justice in the individual
case. Indeed, he once admitted that "I prefer to see that justice is done; and let the
conveyancers look after themselves." 35 An admirable sentiment, to be sure, but
hardly calculated to ensure that Lord Denning's more maverick decisions will
become established precedents.

In this survey Professor McAuslan also observes that Lord Denning showed
clearly where his personal preferences lay, and, like the Lord Chancellors of old,
infused his decisions with his own individual sense of 'right' and 'wrong'. For
instance, he obviously had great sympathy for elderly widows (Binions v. Evans)36
and admiration for the game of cricket (Miller v. Jackson),37 with a corresponding
dislike of estate agents (Dennis Reed Ltd. v. Goody),38 recalcitrant local councillors
(Asher v. Secretary of State for the Environment} 39 and caravan site owners (James v.
Minister of Housing and Local Government}.40 A more objectionable aspect of His
Lordship's personal preferences is his occasional insensitivity towards 'foreigners',
which is perhaps a manifestation not so much of xenophobia as of an obsessive
attachment to what he sees as purely 'English' qualitites. Offending phrases
mentioned by the author include "a large Greek Cypriot was barring the

31. [1969] 2 Ch. 209.
32. [1978] 1 W.L.R. 455.
33. [1976] 3 W.L.R. 805.
34. [1971] 3 All E.R. 647.
35. Brikom It/vestments Ltd. v. Carr [1979] 2 All E.R. 753, 760.
36. [1972] Ch. 359.
37. [1977] QB. 966.
38. [1950] 2 K.B. 277.
39. [1974] Ch. 208.
40. [1965] 3 All E.R. 602.

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entrance",41 and "the tenant Mr McCall comes from Dominica in the West
Indies; he has been here for 17 years." 42In dealing with a number of cases arising
under the Housing (Homeless Persons) Act 1977, Lord Denning showed little
sympathy for 'foreign' claimants and seemed to take the view that in seeking the
assistance of the courts in order to secure council housing, such claimants were
abusing their privileges. Choice epithets include "an advancing tide",43 a
"coloured woman,,44 and "true born Englishmen".45 Professor McAuslan
suggests that behind Lord Denning's judgments in such cases lies the notion of
the deserving and the undeserving poor, the former of whom are exercising their
rights (e.g., council house tenants seeking to purchase their council houses from
local authorities) and the latter (e.g., homeless foreigners or council tenants
complaining of breaches of duty on the part of local authorities) seeking to abuse
their rights. The author regrets that these cases have done "little to enhance Lord
Denning's reputation for seeking the just solution." 46

Lord Denning's judgments in planning cases are influenced by his concern for
traditional rights and customs in respect of land and by his desire to preserve the
beauty of the countryside, as exemplified by his hostility towards caravan site
owners and industrial development. On a more technical level, Professor
McAuslan points out that, unlike several other judges, Lord Denning adjusted
quickly to the new approach to land use control under which the traditional
concepts of nuisance, trespass, waste, easements and restrictive covenants were
downgraded in favour of statutory control in the form of planning permissions,
enforcement notices and the like. But he emphasises that although Lord Denning
accepted the new statutory regime, he was able to engraft on to it a framework of
principles based upon the same notions of balance and prevention of abuse of
rights which he had applied in private law cases, and that "in the guise of setting
what appeared to be reasonable limits to the discretion of public authorities [he
substituted] a wide judicial discretion for a wide administrative discretion.,,47

In conclusion, there is no doubt that this volume of essays will be most
welcomed by academic lawyers, research students and those undergraduates to
whom the literature of the law is more than mere examination fodder. It is a truly
original conception, and it is a tribute to the authors that they have been able to
present such a lucid, substantial and penetrating account of the work of arguably
the greatest judge of this century. One can only echo the wish of the editors that
this work will inspire others to produce commentaries of a similarly high standard
and that such ventures will receive the support which they undoubtedly deserve.

41. Dralle v. EvaPlgelou [1978J 2 All E.R. 437, 439.
42. McCall v. Abelesz [1976] QB. 585, 591.
43. De Falco v. Crawley D.C. [1980J QB. 460, 472.
44. R. v. Slough B. c., ex p. EaliPlgL.B. C. [1981] I All E.R. 601, 611.
45. De Falco v. Crawley D.C., supra n. 43, at p. 473.
46. At p. 203.
47. At p. 178.

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