From: Hedley, Steve <S.Hedley@ucc.ie>
To: obligations@uwo.ca
Date: 26/11/2008 19:56:45 UTC
Subject: RE: Denning

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 19th 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.