3rd February 2023
Yesterday on this blog there was a quick post on the Tate Modern privacy/nuisance case – and I am delighted that I have now been commissioned by Prospect magazine to do an online in-depth analysis of this fascinating case about the clash of public spaces and private rights.
The point of the quick post yesterday was not to offer any considered view on the Tate Modern case (on which I actually have not formed a view) but to point to a conspicuous absence in the judgment.
It was odd that the famous speech of the former Master of the Rolls Lord Denning in the 1977 nuisance case of Miller v Jackson was not mentioned, and nor indeed was Denning himself, given this is one of the most famous speeches in the history of English law.
That speech begins as follows (and I have broken out the sentences):
“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 seventy years.
“They tend it well.
“The wicket area is well rolled and mown.
“The outfield is kept short.
“It has a good club-house for the players and seats for the onlookers.
“The village team play there on Saturdays and Sundays.
“They belong to a league, competing with the neighbouring villages.
“On other evenings after work they practice while the light lasts.
“Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore.
“He has issued an injunction to stop them.
“He has done it at the instance of a newcomer who is no lover of cricket.
“This newcomer has built, or has had built for him, 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.
“But now this adjoining field has been turned into a housing estate.
“The newcomer bought one of the houses on the edge of the cricket ground.
“No doubt the open space was a selling point.
“Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house.
“His wife has got so upset about it that they always go out at weekends.
“They do not go into the garden when cricket is being played.
“They say that this is intolerable.
“So they asked the Judge to stop the cricket being played.
“And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear.
“The cricket ground will be turned to some other use.
“I expect for more houses or a factory.
“The young men will turn to other things instead of cricket.
“The whole village will be much the poorer.
“And all this because of a newcomer who has just bought a house there next to the cricket ground.”
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The leading legal commentator Joshua Rozenberg agreed about this conspicuous absence on Twitter:
The always-interesting @davidallengreen has written an astute parody of a Denning judgment cited by the Supreme Court yesterday: https://t.co/DKt0u0uTla Wish I'd thought of that.
As he says, nobody mentions Denning now. It's almost as if that would weaken the authority cited.
— Joshua Rozenberg (@JoshuaRozenberg) February 2, 2023
*
In the post yesterday I mentioned that I was not a fan of Lord Denning as an appeal judge, though I conceded that one cannot deny his quality as a wordsmith.
(Please note that this adverse view is not about Denning as a person, about whom I have no idea, but about the content and style of his judgments.)
One day I may write a fuller account of this adverse view, but in essence I hold this view for three reasons.
First, it seems to me that Denning’s judgments are often triumphs of form – indeed of rhetoric – over legal substance.
(Indeed, when I once read many of Denning’s judgments in succession, it felt as if he was even sometimes the prisoner, and not the master, of his style of giving judgments.)
Second, his freestyle use of law and equity created a great deal of needless uncertainty in areas of law where certainty is important, especially at appellate level.
(And the usual argument that this was for achieving justice in individual cases really goes to his deftness as a legal rhetorician: for it is difficult when reading his judgments not to sympathise with the party Denning wanted to win – “of course” they should win.)
And third, it is because his rhetorically impressive judgments often cloaked a very illiberal approach to the law and the rights of individuals.
For example there is his notorious 1980 speech in the civil claim brought by the then-imprisoned (and later rightly exonerated) Birmingham Six.
Here I will quote from that speech more fully than usual, so that you can see hos slow rhetorical build-up (and I have again broken out the sentences):
“In this case at the “trial within a trial” there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily.
“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.
“At the trial the same evidence about violence and threats was given all over again before the jury.
“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.
“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.
“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.
“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.
“It will take weeks and weeks.
“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.
“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.
“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.
“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .
“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.
“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.
“Whichever it is, the actions should be stopped.”
*
Denning’s exercise in legal rhetoric is strikingly similar in style to his famous introduction to the 1977 case of Miller v Jackson.
But instead of the readers clapping and cheering, as most will do with the Miller v Jackson introduction, the only decent response to this Birmingham Six passage is disgust.
And this is why one should be wary of rhetoric in legal judgments – and indeed it is why we should be at our most vigilant when we find ourselves nodding-along with a rousing passage in any judgment – whether by Lord Denning or by any other judge.
Of course: judgments should be plain and succinct and comprehensible to non-lawyers.
But judges should leave the tools of persuasion to the advocates.
For if the judge has got the law right and the facts right, there is no need for the judge to also employ rhetorical devices so as to get you to nod-along with what they have decided.
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The response to:
“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.”
Should be “yes, exactly”, not “It cannot be right that these actions should go any further.”
That he could not see that in his own rhetoric lay the reason for not ending the case indeed shows, as you say that “he was even sometimes the prisoner, and not the master, of his style of giving judgments.”
It is very interesting and satisfying to be reminded of the 1980 speech – I had thought it part of the judgement. I have never forgotten it and consider it one of the blackest marks on Britain’s postwar record and emblematic of something having gone deeply wrong. It cast so much into doubt.
Isn’t the striking aspect, despite the rhetoric, that in the end nothing is in fact cloaked? If one is trying to follow carefully, one is simply appalled, as DAG says, and staggered that this could be said by a senior judge in court on such an important question.
By speech, I mean it is one of the judges’ speeches in the judgment.
I agree with your criticisms of Denning’s rhetoric and with your analysis of the 1980 judgment. But I cannot resist adding a personal recollection. As a sixth-former on a school trip to London in the early 1960’s, I was privileged to sit next to Lord Denning at lunch in one of the Inns. His advice to me, which I didn’t follow, was not to read law at university. As he pointed out, he had not done so (he read mathematics) and it had done him no harm. It’s worth taking a look at the Wikipedia entry, particularly the section on his early life, which is really remarkable.
Thank you – and I am careful not to make any ad hominem criticisms.
Whenever Lord Denning comes up, my mind goes to Peake v Automotive Products Ltd, a 1977 judgement in which Denning used a purposive interpretation to claim the Sex Discrimination Act hadn’t intended to abolish chivalry.
If ever there was a case of a judge missing the point of the law and just doing what he wanted to do rathet than following parliament.
I agree, except that I think your conclusion takes things a step too far. I think all court judgments, and indeed government decisions like the ones I used to help draft for a living, are unavoidably exercises in persuasion. The law is pretty analytical, but that doesn’t mean that there is objective truth in the law. So anyone who is going to sit down and declare what the law is must be engaging in persuasion.
Of course, whether you want to say that that involves “rhetorical devices” is another matter. I suspect rhetorical devices is one of those irregular verbs. Other people use rhetorical devices, you yourself only write persuasively.
I spent a morning once at the Court of Appeal watching Lord Denning demolish a smooth talking and no doubt expensive barrister while buttressing the argument of a non smooth talking and no doubt cheap one. He wore his wig right at the back of his head and spoke with a strong Hampshire accent. A bit like Churchill in that he was in many ways heroic and had deeply unpalatable views about a number of issues.
Best viewed as a campaigner who found himself sitting in the Court of Appeal [after deciding he wasn’t winning enough in the House of Lords I seem to recollect] by a quirk of fortune rather than design.
for many of us, tom was a hero of our youth
legal considerations apart, his hampshire accent was a delight
This strikes me as rather similar to the Jeffrey Archer libel trial, where the judge (Bernard Caulfield) appealed to the jury on the spurious grounds that Archer’s wife was ‘fragrant’ and could leave no need for a prostitute. Archer was, of course, later jailed for perjury.
Jonathan Price has already made my point far more elegantly than I would have managed, so I won’t add to it.
On the broader topic, I wonder if the notion of Equity is, itself, the most problematic thing with Denning; it was many years after my law degree that I found out that Scots Law simply doesn’t recognise Equity as a concept. (When I say “found out” I mean, of course, that I was gently corrected by a Glaswegian lawyer – when I say “gently corrected”… well, you get the picture).
I wonder if you would like to write a piece on law without Equity – I find it rather refreshing – Scots Law constructs perfectly workable trusts without creating artificial splits between Equitable and Legal ownership and Denning’s flights of fancy would, at least, be constrained by existing law.
Actually, I suspect they might not have been but I still like the idea of doing away with Equity and just saying that all judgments are, by definition, equitable.
Ah yes. Denning.
I wonder whether his name did come up in the Tate discussion and that it was this judgement that lead the court to decide not to mention his name.
That wonderful line about the “appalling vista” will be remembered for a long time.
I agree, it would be interesting to know which cases were mentioned in argument at all three levels, what if any parts were quoted, and how the barristers’ arguments developed.
The relevant case – Miller v Jackson – is mentioned six times by in the Supreme Court judgment, but just once by the Court of Appeal, para 99 – https://www.bailii.org/ew/cases/EWCA/Civ/2020/104.html – and not at all by Mann J in the High Court – https://www.bailii.org/ew/cases/EWHC/Ch/2019/246.html
And none of these judgments mentions Denning by name.
But it seems the Supreme Court is not entirely averse to quoting Denning when his decisions are relevant: for example, see these two fairly recent cases:
* https://www.bailii.org/uk/cases/UKSC/2023/3.html
* https://www.bailii.org/uk/cases/UKSC/2022/27.html
Your second example at the end, the 2022 case (Guest) has a quotable bit (para 24):
The case is memorable for Lord Denning’s robust but perhaps less than fully reasoned affirmation that proprietary estoppel can be used as a cause of action. At p 187 he said: […]
Academic writers have been puzzling over that explanation ever since but it has stood the test of time.
Perhaps Lord Denning was not so keen on a literal reading of black letter law. A bit boring.
Thinking about the logical process we might feel judges are taking a selection from a smorgasbord of past cases and present statutes, unscrambling as best they can and coming up with what looks like logic. But the process is not entirely black and white. Another lawyer might very well remember some other obscure case that paints a different picture and a different selection from the feast on offer.
Anyway, we have a recent example of black letter law to amuse us. The OFGEM/burgling gaspersons brouhaha. Well handled this will provide ample amusement well into 2024.
I’m not a lawyer not legal historian and know little about Lord Denning’s other judgements but I couldn’t agree more about his appalling take on the Birmingham Six case, and referred to it myself in my own blog post “Why Juries should give reasons for verdicts”.
In that post I aver that to avoid the investigation of possible miscarriages of justice in order to protect the confidence in the justice system would be akin to denying the existence of plane crashes rather than investigate the causes in order to protect confidence in the air industry.
“We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would be satisfied… It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.”