Sunday, April 2, 2000		Article

The Lord of the Court
By Balram Gupta

ALFRED Thompson Denning was born on January 23, 1899. He died on March 5, 1999. One wished, he could go on. He played his innings for ten decades. He was the most well-known Judge.

Lord Denning was a brilliant student. He was fond of Mathematics and English literature. He did not like teaching. While he was a student, he went to the court, and sat in the public gallery and heard the arguments. He felt, he would like to be a barrister. He took it seriousl, and. Joined Lincoln’s Inn. The final Bar examination was in June, 1923. He started his education in Sept., 1922. He wanted to see law in action. Early education helped him in his Bar examination. He got top marks.

It took a few years for him to establish himself in the legal profession. Denning wrote in The Family Story: "In those days it was usual for the young barrister in chambers to spend the first few years ‘briefless’. Many gave up and turned to other occupation."

This is true even to-day, in fact, more. Speaking of himself, Denning said: "After about seven years, my name used to appear in the Law Reports or occasionally in The Times. That was the only legitimate form of advertising allowed to a member of the Bar."

In 1944, Denning was knighted and appointed a judge of the High Court of Justice. And thus his judicial career began. He advanced rapidly. Four years later in 1948, he became Lord Justice of Appeal and Privy Councillor. In 1957, he came to the highest Court: House of Lords, the ultimate. He of his own choice came back to the Court of Appeal in 1962 as Master of the Rolls. One wonders why Denning, having found a place in the highest court decided to move a step down? It was a well thought out move.

He began considering which court could play a more effective role? The annual output of House of Lords was a lot less when compared with that of Court of Appeal. Moreover, the House of Lords at that time was bound by its own decisions. Therefore, the Lords were not in a position to contribute much to the growth of law.

Lord Denning continued as the Master of Rolls till September 29, 1982. His Judicial innings stretched from 1944 to 1982, that is 38 years.

The title of Master of Rolls is a highly misleading one. As if Lord Denning was the Master of the Rolls-Royce company. The office of Master of Rolls goes back to the year 1290. The Court of Appeal has four divisions. The Master is the President. He presides the Civil Division and controls the flow of work to the others. Therefore, in that capacity he had many an opportunity to mould and re-mould laws. It is only in some cases appeals go to the House of Lords. He did not like the Judges leaving the task of moulding and shaping laws to the Parliament or to the Law Commissions.

Lord Denning was opposed to the system prevalent in the USA. They go by short hearings. Half-an-hour at the most for each side. The presiding judge switches on the red light. Indicating, the time is up. Denning reveals that there was great pressure on him to adopt the US system. He resisted. He felt that that was not the best to reach the goal of Justice. Moreover, oral hearing is a two-way-traffic. Written brief is one-way. Natural Justice demands two-way interaction. This kind of interaction brings out the best.

Lord Denning spoke and wrote based upon his experiences. He believed that "a Judge should not ask questions too soon: nor too many. He should let the advocate open the case in his own way. Not interrupting him until a convenient moment arrives. . . . One thing a Judge must never do. He must never lose his temper. However sorely tried. Nor must he be sarcastic to counsel or to witness. Never discourteous. He may, indeed must, reprove counsel or witness when the occasion calls for it. Firmly and calmly".

The writing of Judgement is an art. A Judge is known by his Judgements. He speaks through his Judgements.

A situation often arises. How to stop an advocate who goes on too long. According to Denning, the recipe is to sit quite and say nothing. Let him run down. Show no interest in what he is saying. Once you show any interest, he will start off again.

Lord Denning’s style of writing was his own. He communicated effectively. In short sentences. Sometimes two words. Sometimes only one. But most appropriate. Befitting the occasion. His presentation was unvarnished. He did not waste words. His writings (whether judgements or others) are refreshing. They are not merely stuffed with ‘legal details’. They speak of his love for literature. Shakespeare seems to be his part of daily vocabulary. His judgements are pieces of literature. His writings reflect what Samuel Wesley has recommended: "Style is the dress of thought, a modest dress, neat, but not gaudy, will true critics please."

From 1979 to 1984 (at the age of eighty plus), Denning produced six books — The Discipline of Law, The Due Process of Law, The Family Story, What Next in the Law, The Closing Chapter and Landmarks in the Law ( a book a year). What an evidence of the fact that old minds are full of grey matter. Reservoirs of wisdom. They speak of Denning-in-action.

All this does not mean that he was flawless. As if he never faultered. His valedictory judgement was most controversial. It concerned the Sikhs in the United Kingdom. It relates to a school-going boy who was refused admission to a Birmingham school. Why? Because he wore turban and long hair. There were other Sikh students in the same school. They did not support a turban. It was ruled by Lord Denning that the boy had not been rejected because he was a Sikh. He found that there was no racial discrimination. The ruling meant that it was the turban that was rejected. A peculiar situation. In UK, a turbaned man can be a judge but a turbaned boy cannot be admitted to a school. Denning’s ruling was reversed by the House of Lords.

Even his book — What Next In The Law created a storm in the United Kingdom. The publishers had to withdraw 10,000 copies because it had passages like: "The English are no longer a homogenous race. They are White and Black, coloured and brown. They no longer share the same standards of conduct. Some of them come from countries where bribery and graft are accepted as an integral part of life: and where stealing is a virtue so long as you are not found out."

It is a question of judicial propriety. Should a sitting judge, through his writings and speeches, demonstrate his views in this manner? Will it not prejudice his judicial decisions? Different societies of lawyers raised their voice. The Observer, The Times and Daily Mirror did not lack behind. Indeed a great Judge erred greatly.

This incident brought Denning at his best.He bowed to public opinion, realised his mistake and announced his exit. He withdrew the controversial passage from the book. One may argue, was he not entitled to his views? Yes, he was. But a Judge has certain restraints. After this public exposure of his views, would a coloured man go to his Court hoping for fair, just and impartial treatment?And yet Denning had done more for the Black people than any other Judge. Justice is not only to be don, it must also appear to have been done. This is the foundation of Justice. It was very dear to Denning. That is why he did not wish to make a dent in this foundation.

The circumstances in which Lord Denning bid farewell were not too happy. This in itself should not cloud the fact that he was matchless. His scholarship, dynamism, understanding, thoroughness and boldness were all sui generis.

I wish to be excused for striking a personal note. Twenty-two years back (1978) when I was in Cambridge, Prof H.W.R. Wade asked, "Have you been to Denning’s Court? I said, "No." I was told that I had been missing free entertainment.

Just the next day, I made it a point to be in his court. The grand old man was in action. It was a feast to watch him. The court was full of life.

Lord Denning was a legal genius. A judicial laureate. His reign was glorious. Often spectacular. One may sum up Denning with little tinkering of Shakespearian couplet:

He was a Judge;
Take him for all in all;
The like of him you will never see again.