Dear Andrew:

If the HL adopts the equitable estoppel doctrine from Australia (as explained by Robertson) or something similar to s. 90 (as explained by Seavey) would Denning have been proven wrong or right? We would have estoppel as a cause of action (something he said was not permissible in Combe) and one that was limited to detrimental reliance (which was not his view at all). What score would you give him if that happened?

Does subsequent incorporation of one of Denning's rules in a statute mean that he was right? It seems equally open to the interpretation that he was wrong since the legislature might have enacted the rule since they thought it impermissible for a judge to do so (ie, a decision more political than judicial). Now I realize that some of these statutes might be in the nature of a civil code (stating the rules of justice as between individuals) but not all of them mentioned in these flurries of posts are of this character.  Just a thought.

What do members of the board think of Viscount Simonds? I know that Rob thinks that Denning dwarfs him but the few decisions of his that I have read I liked.

Have a great weekend all,

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 

Andrew Burrows wrote:

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

> 


> 
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It just gets better and better ...


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> 

“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.


> 


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“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.


> 


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“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?


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“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.” 


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Jurists in glass houses ...


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“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///


> 
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> 
*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.


> 


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“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?


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“…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?


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“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?


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/Steve Hedley/


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/UCC/


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------------------------------------------------------------------------

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*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