Lord Denning - genius or git?

TheVan

Personally I'm going for genius!

Amazotheamazing

Genius, though a worrying number of his landmark decisions have been over-ruled.

Thirdfox

Gotta love cricket!!!!

Also one of the only judges to have written an autobiography of his life... interesting read!

maidhc

Thirdfox wrote:

Also one of the only judges to have written an autobiography of his life... interesting read!

I think Ronan Keane is writing one. He said he was going to start it last year anyway...

My favourite decision:

"In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . . [h]e has done it at the instance of a newcomer who is no lover of cricket.
This newcomer has built . . . a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket."

-Miller v. Jackson (1977) Q.B. 966, 976

(see http://www.legalhumour.com/denning.asp)

besty

I would also tend to agree with genius. Well, entertaining at very least!

Mortmain

I teeter on genius - there is no doubt that the man was immensely intellegent and inventive in the ways he devised to arrive at what was deemed to be the just result but, and this is my major reservation, taking into account the nature of the common law system and the emphasis placed on precedent, his approach can have the effect of rendering the law quite uncertain. That said, it depends on which you value most - the percieved right result in a given case for those within the legal system, or certainty for the majority outside it.

hullaballoo

Haha! Great username for this forum. I hope you have a good long tenure on boards.ie!

Mr_Roger_Bongos

He's no WILBERFORCE! *Claim and opinion based solely on coolness of name.

Thirdfox

How about Judge Law? (I think he was an English Law Lord)

dermot_sheehan

Mr_Roger_Bongos wrote:

He's no WILBERFORCE! *Claim and opinion based solely on coolness of name.

Were Lord Justice Judge http://en.wikipedia.org/wiki/Lord_Justice_Judge ever demoted to serve as a county court judge, he'd be addressed as Judge Judge.

Mr_Roger_Bongos

Was in land law today and heard a decision from

JUSTICE SLADE! Surely this has to be the most rocking judge name ever.

Mental Image -
Judge Slade takes the bench, sits back in his chair, puts his dirty boots up on the table, and pulls out a killer guitar and starts playing wicked licks (quietly) while listening to evidence!

But back on topic - yeh denning, he wasn't bad.

maidhc

I name the computers on my home network after English Judges, so far:

Atkin,
Asquith,
Denning,
Hailsham, and
Wilberforce,

The server is called Registrar

Thirdfox

Why no Irish judges?

Our man in Havana

Slightly OT, What are the correct titles to use when addressing Irish judges?

hullaballoo

It's "Name J" eg Barron J or Denham J.

The only other ones are "P" for the president of the HC (currently Finnegan P) and "CJ" for the Chief Justice.

Our man in Havana

what would you call them if you were addressing them in court?

hullaballoo

"Judge Barron", "Judge Finnegan" and "Judge" whatever the Chief justice's name is.

Only if you refer to them outside of there presence do you refer to them as "Mr Justice Barron", "Mr Justice Finnegan, President of the High Court/President of the High Court Mr Justice Finnegan" or "Chief Justice X".

Our man in Havana

Thanks

Thirdfox

I thought you called them "My Lord"? In America aren't judges addressed as "My Honour"?

hullaballoo

"Your Honour" in America.

"My Lord" is convention for the court-room when they are the presiding judge and the court is in session all right. If you're in a room full of judges at a seminar, you don't call them "My Lord". It's all about formalities, we learned about it in constitutional law in first year. That, and it's the type of thing I just know.

skyhighflyer

I seem to remember having the opportunity (I think the OP was involved here as well) to ask Lord Hoffman the same question at the Moot Court final between UCD and Trinity a few weeks ago.

He said that the man was indeed a great judge but also seemed to imply that he could sometimes make it up as he went along.

Of course, I didn't know Denning LJ died at the age of 99, so asking Lord Hoffman did he know him in a judicial capacity was probably a mistake :eek:

padser

Great thread,

Mortmain wrote:

I teeter on genius - there is no doubt that the man was immensely intellegent and inventive in the ways he devised to arrive at what was deemed to be the just result but, and this is my major reservation, taking into account the nature of the common law system and the emphasis placed on precedent, his approach can have the effect of rendering the law quite uncertain. That said, it depends on which you value most - the percieved right result in a given case for those within the legal system, or certainty for the majority outside it.

I think this post really hit the nial on the head. Its all about whether your in favour of justice and equity, or legal certainty.

Do you want each case decided on an almost case by case basis, with little or no regard for precedent (leading often to more equitable outcomes) or do you want to leave legislating to the legislature?

Do you want judges bound to follow rules that do not fit the case in front of them, or do you want new laws being thought up for every case?

I actually think that in Ireland we have got the best of both worlds, we had access to Dennings groundbreaking rulings, and his undoubted legal genius, but were not bound to follow him as the English courts were.

All in all I think he was probably more genius then git, but I would worry about any future judge trying to take up his mantle, because someone without his intelligence could certainly do more harm then good if trying to emulate him.

TheVan

skyhighflyer wrote:

I seem to remember having the opportunity (I think the OP was involved here as well) to ask Lord Hoffman the same question at the Moot Court final between UCD and Trinity a few weeks ago.

Unfortunately that wasn't me...you may be thinking of Easygainer. I plan on getting involved next year and applying some Denning style arguments to my cases!

Sangre

padser wrote:

Do you want each case decided on an almost case by case basis, with little or no regard for precedent (leading often to more equitable outcomes) or do you want to leave legislating to the legislature?

The problem with approaches like Denning is even if they seem like the right answer for the case doesn't make them equitable because you've just applied a new law retroactively on the plaintiff.

Take High Tree House where Denning basically established promissory estoppel. The plaintiff lost their case despite only relying on their strict legal rights. Denning created a principle and applied it retrospectively on the plaintiff which is against fundamental principles of law.

Of course you could argue the unequitable rescinding of the promise nullified this but does this kind of system really promote equity and justice? How can an unpredictable system without certainty lead to fairness?

Of course there are jurisprudential authors like Dworkian who argue he isn't creating new law but merely applying principles and policies to find the law...but thats a whole other story!

Mortmain

“Even if you do get Parliament to pass a statute, you will still have many of the same problems. I hope that the judges of the future will do as the judges used to do in times past: they should develop the law according to the needs of the times. They should be among the bold spirits. They should not be timorous souls feebly saying ‘It is for Parliament, not for us’” – Lord Denning “What next in the Law” Quoted in: A. Terry, “Unfair Competition and the Misappropriation of a competitors Trade Values” (1988) 51 MLR 296.


- Just a proper judge i reckon.

padser

Mortmain wrote:

They should be among the bold spirits. They should not be timorous souls feebly saying ‘It is for Parliament, not for us’” – Lord Denning

Thats exactly the potential problem I feel with Lord Denning like approaches being followed.

As a general rule it is for parliment (or the dáil) and not for judges to make new laws.

Also as I previously said I would have serious reservations about all but the most far sighted, and inteligent members of the judiciary attempting it.

Sangre: its a fair point, however in most of the cases, like in High trees the P had absued the rule that was struck down or changed, meaning they had little moral claim to equitable treatment.

Mortmain

padser wrote:

Thats exactly the potential problem I feel with Lord Denning like approaches being followed.

As a general rule it is for parliment (or the dáil) and not for judges to make new laws.

Also as I previously said I would have serious reservations about all but the most far sighted, and inteligent members of the judiciary attempting it.

Sangre: its a fair point, however in most of the cases, like in High trees the P had absued the rule that was struck down or changed, meaning they had little moral claim to equitable treatment.

Padser, I'm in agreement with you hence my first post. But the thing is this, when i got to thinking more on the issue, i found it more and more difficult to accept that a judge should refuse to right a wrong when to do so would be arguably within his remit. I can see the huge problem with enacting new judge made law, and Sangre raises an excellent point regarding retroactivity but what if there were a middle ground which could be utilised whilst waiting for the lumbering behemoth that is parliament to get it's ass in gear. What would you say to this:

“The increasing recognition by Parliament of the need for more rigorous standards of commercial honesty is a factor which should not be overlooked by a judge confronted by the choice whether or not to extend by analogy to the circumstances in which it has not previously been applied, a principle which has been applied in previous cases where the circumstances, though different, had some features in common with those of the case which he has to decide.” – per Lord Diplock Warnink (Erven) BV v J Townsend & Sons Ltd. [1979] AC 731 at 743.

maidhc

padser wrote:

Also as I previously said I would have serious reservations about all but the most far sighted, and inteligent members of the judiciary attempting it.

I suspect the average intelligence of the Judiciary is far higher than that of members of the houses of the Oireachtas, but I digress.

A judiciary which defers too much to parliament is in danger of becoming defunct and meaningless. Without a electorate, they often are well placed to make difficult decisions, where those decisions are wrong/or "unsuitable" it isnt exactly difficult for the oireachtas to change matters. E.g. Leontjava in the HC versus the Immigration Act 2004. (BTW i think the SC decision in leontjava was an appaling decision, surely the least we can expect of the oireachtas is the make acts in the proper form...)

Sangre

England seen to function fine with a supreme Parliment.

TalkISCheap

Parliamentary supremacy is really the only way to go in order to maintain a functioning democracy. Without elected judges (which i agree by the way is a good idea, as maidhc has said) the will of the people can only be properly carried out if the judiciary keep to "interpretation" and try not to make up entirely new law...

Otherwise you end up with the legislature having to fight stubborn judges by drafting and re-drafting pieces of legislation in order to make sure that their intentions are fully understood (or plain can't be "differentiated" and "interpreted" into oblivion) and not actually concentrating on making new law.

Seperation of powers must have some benefit, having survived in some form for this many years... Although arguably the Americans manage this better than us, and they have elected judges.

maidhc

Sangre wrote:

England seen to function fine with a supreme Parliment.

Does it? I think having a written constitution and a strong tradition of judicial review will ultimately lead to healther decisions, and certainly is of assistance in keeping the "tyranny of the majority" in check.

Maximilian

Genius and git.