Celebrating a judge who left his mark on construction
Apparently, when asked to identify a living artist, the best most of us can do is to name Rolf Harris. Would we fare any better if called upon to name a living judge? The judiciary do hit the headlines from time to time, but usually for the wrong reasons. Although the offending words of their misguided judgments (or the salacious details of their nocturnal escapades) may be discussed, Harry Enfield-style, in public houses across the country, their names are quickly forgotten. Lawyers who are household names, such as Cherie Blair and Lord Irving, do not do much judging, so who is the century's most famous judge? Here are a few clues:
he was born in the shadow of a new century and, on the eve of the new millennium, celebrated his 100th birthday
he was author of the report on the Profumo affair which, much like the Kenneth Starr report, was an overnight best seller
he presided over the Court of Appeal as Master of the Rolls for 20 years before retiring in l982, aged 83
there is hardly an area of law which has not been touched, modified or, even created by him
his judgments are renowned for their clarity, accessibility and use of very short sentences
he approached each case on its merits and resisted temptation to be bound by precedent, with results that the legal profession found 'surprising'.
You may not follow the trend set by Canadian law students of wearing T-shirts bearing his face over the word 'equity', but by now you probably recognise Lord Denning , who died last week.
So prolific was his work that a glance at only two early volumes of the Building Law Reports revealed three of his judgments on construction matters which shaped the law of tort, contract and professional negligence. For example, in Dutton v Bognor Regis udc (l971), Denning described the unhappy plight of Mrs Dutton and her subsiding house:
'In Bognor Regis years ago, there was a rubbish tip. It was filled in and the ground made up. You would not have known there had ever been a tip there.
'Mrs Dutton went against the Bognor Regis Council. She alleged that the building inspector was negligent in passing the foundations.
'Never before has an action of this kind been brought before our courts.
'Mrs Dutton has suffered a grievous loss. The house fell down without any fault of hers. She is in no position to bear the loss: who in justice ought to? Those who are responsible. Who are they? In the first place the builder . . . in the second place the council'.
And so the scene was set for the House of Lords to decide Anns v Merton along similar lines and generate a whole new era of tortious liability which was to endure for a decade and a half.
Lord Denning dealt with designers' obligations in design-and-build contracts in Greaves v Baynham Meikle (l975) in similar style, and in Philips v Ward (l965) he defined recoverable damages in surveyors' negligence cases as the diminution in value rather than the cost of repair.
Although he described himself as 'too decrepit' to attend his own birthday celebrations, he did not lose his sense of justice, nor his sense of humour. A colleague in chambers recently successfully represented the residents of a Hampshire village in their fight to prevent the council from reclassifying a bridle path as a road. Lord Denning sent her an autographed portrait 'with admiration for her skill and courage' and signed it 'Tom Denning, aged 951/2'.