University of Huddersfield Repository Curley, Sean Lord Denning: Towards a theory of adjudication. An examination of the judicial decision making process of Lord Denning and his creation and use of the interstitial spaces within the law and legal process to assist in the exercise of his discretion and an examination of those factors which influenced that discretion. Original Citation Curley, Sean (2016) Lord Denning: Towards a theory of adjudication. An examination of the judicial decision making process of Lord Denning and his creation and use of the interstitial spaces within the law and legal process to assist in the exercise of his discretion and an examination of those factors which influenced that discretion. Doctoral thesis, University of Huddersfield. This version is available at http://eprints.hud.ac.uk/id/eprint/29101/ The University Repository is a digital collection of the research output of the University, available on Open Access. 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An examination of the judicial decision making process of Lord Denning and his creation and use of the interstitial spaces within the law and legal process to assist in the exercise of his discretion and an examination of those factors which influenced that discretion. Sean Raymond Curley A thesis submitted to the University of Huddersfield in partial fulfilment of the requirements for the degree of Doctor of Philosophy June 2016 Copyright Statement The author of this thesis (including any appendices and/or schedules to this thesis) owns any copyright in it (the “Copyright”) and he has given The University of Huddersfield the right to use such Copyright for any administrative, promotional, educational and/or teaching purposes. ii. Copies of this thesis, either in full or in extracts, may be made only in accordance with the regulations of the University Library. Details of these regulations may be obtained from the Librarian. This page must form part of any such copies made. iii. The ownership of any patents, designs, trade marks and any and all other intellectual property rights except for the Copyright (the “Intellectual Property Rights”) and any reproductions of copyright works, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property Rights and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property Rights and/or Reproductions. 2 Acknowledgements I must acknowledge the considerable assistance I have received during the gestation of this thesis from numerous colleagues in the Business School. In particular, Professor Chris Cowton for his continual encouragement, Joanne Battye for her help and suggestions on layout and typography and other colleagues in the Law School for helping me create the space needed for this work. I owe a particular debt of gratitude to my main supervisor Paul Richards for his unfailing patience and his extremely helpful and insightful guidance. I have adopted his many suggestions for improvement but as always the responsibility for error is mine alone. 3 Table of Contents Page No Copyright Statement 2 Acknowledgements 3 Contents 4 Abstract 6 Chapter 1 Introduction and Biography 7 Thesis 7 Background 7 Research Scope 13 Biography 14 Methodology 14 Expected Outcome 17 Chapter 2 Biography and Influences 18 Chapter 3 Denning’s Approach to The Judicial Process and a theory of Adjudication 51 Chapter 4 Gillian Ward – Legitimate Discretion or Manifest Injustice? 80 Chapter 5 Broome v Cassell and Co Ltd and Another, In Defence of the Navy 99 Chapter 6 Candler v Crane Christmas and Co, a Vindication 131 4 Chapter 7 165 Thesis 165 Conclusion 166 Creating the Space 166 Legitimacy 166 Coda 175 Finis 176 Bibliography Books 177 Articles 184 Cases 188 Appendices Law Reports Appendix 1 Gillian Ward v Bradford Corporation Appendix 2 Broome v Cassell and Co and Another (in Court of Appeal ) Appendix 3 Candler v Crane, Christmas and Co 5 Abstract This is an investigation into the methods and techniques used by Lord Denning in pursuit of his notion of doing justice to the case in front of him. The thesis examines Denning’s upbringing and biography to attempt to identify incidents and influences on his character which may have shown themselves in his later judicial career. The thesis then examines his judicial style and philosophy to attempt to isolate a theory of adjudication which accounts for some of his decisions. The theory of the interstitial spaces within the law wherein judges are entitled to exercise their discretion in coming to judgement is examined. This is then set against Denning’s actions in three cases which are examined at length to analyse his methods of obtaining the space to exercise his discretion and then the way he actually exercised that discretion is examined and analysed. There is in analysis of the legitimacy of each of these exercises of discretion and the legacy of each of them (if any). The conclusion pulls all these threads together and expounds a theory of adjudication that may fit these decisions and his judicial style and then analyses this theory against the background of modern jurisprudential thought. 6 Chapter 1 Introduction and Thesis Thesis it is generally accepted that judges are entitled to exercise discretion where existing law does not provide an appropriate answer for the case currently in front of them, because the case is in that interstitial space between established precedent and/or statute law. Lord Denning, on many occasions during his judicial career, exercised his discretion. There are several questions to be answered. In the first case was he operating within the interstitial spaces that are recognised as a legitimate arena for judicial discretion or did he extend this beyond what is legitimate. Secondly if he did so extend, how far was this and his subsequent exercise of his discretion coloured by and influenced by those events in his early life and education which contributed to his overall philosophy. Thirdly, did the overall exercise of his discretion, taking into account all these factors, fall within any recognisable school of jurisprudential thought; in particular was Denning, as a judicial activist also a legal positivist or are there also elements of the natural lawyer there? The final question is whether the answers to all of the above result in Denning’s legacy in the law being positive or overall was he a negative influence. Background Lord Denning was one of the twentieth century’s most famous judges; from the 1950s through to his death in 1999 he was probably one of the few, if not the only judge that the average man in the street could name. After his death, one of his successors described him as the best known and best loved judge in our history1. For this reason alone he would be a worthy object of study but his influence and contribution go a lot deeper than this. Denning lived to be over 100 years old, having been born in January 1899 and dying in March 1999 and therefore lived through the most tumultuous century in history. The 20th Century saw great changes in the law and the pace of change was accelerating throughout the century. The purpose of this study is to analyse Denning’s contribution to what the law has now become but more importantly to understand what influences and philosophy combined to produce the seminal judgements that occur throughout Denning’s 1 Lord Bingham of Cornhill , The Times 18th June 1999 7 judicial career. It is the how and why of judges decisions that are perhaps the most important part of any study of the judiciary. Denning was prolific and to some extent idiosyncratic in his judicial output and this coupled with his somewhat unusual background for a 20th century English judge means that an analysis of his judicial style and more importantly his judicial philosophy will lead to a better understanding of not just his particular judgements but the development of judicial reasoning subsequent to his career. As will be seen, in some ways, an analysis such as set out above, is somewhat assisted to a greater or lesser extent by his own writings both on his own judgements and his views on the process of judging. Also of course, during his career he attracted comment, both complimentary and adverse, from various judges who were above him in the hierarchy at any given time. Denning was, in many ways, considered to be a maverick in that he would go out of his way to avoid a precedent if it interfered with what he considered to be justice in a particular case. He claimed to eschew traditional jurisprudence and championed the judge as the sole arbiter of the law and the only person able to do justice in the particular claim before the court.