Lord Denning MR is perhaps the best known English judge of the 20th century. He stands out for his unusual style of writing. His judgments are written in short sentences and simple English language. His reasoning is expressed with clarity and in a colourful way. Lord Denning also stands out for his impact on the Law of the country and for his approach to key legal issues. His style and approach unsurprisingly were subjected to criticism.
His decisions were often called unorthodox and controversial, leading law to uncertainty and unpredictability. Professor R. Hassen, in a 1986 book review stated: "The attempts made over the years to thrust greatness on Lord Denning fail. From 1970 until his retirement in 1982, I do not think he deserved even to be called a good judge"1 Despite the criticism no one can deny that Lord Denning's efforts-whether successful or not- had a great impact on English Law in the 20th century.
Lord Devlin, said that Denning's secret was the fact that "he opens the doors to the law above the law"2. He was said to be "the protector of the weak from abuse by the mighty"3 His ideology was unique, he was 'blending' the law with fairness and his moral and political beliefs because with this combination, in his opinion, justice can be found. Likewise, the way he approached the doctrine of precedents commensurate with this ideology. He said: "Let it not be thought from this course that I am against the Doctrine of Precedent…..
All that I am against is its too strict application…… My plea is simply to keep the path to justice clear of obstruction which impede it"4 . Lord Denning was never opposite to the opinion that the statutory involvement is necessary on the subject matter of this essay. However his view was that the statutes do not settle the law with any certainty. The broad principles underlying the "statutes are clear enough, but the detailed application of them gives much work to the lawyers"5.
His main aim was that "neither side could use the statutes or other reasons to take advantage of the other"6 This was quite obvious from his early cases such as Eyre v. Johnson7 and Duke of Westminster v. Swinton8. This essay will examine Lord Denning's impact on the law of property and in particular as regards residential occupation. One aspect of Lord Denning's innovating role in the field of residential occupation was expressed in cases related to contractual licences. In order to realise his impact it is necessary to go through the cases in a chronological sequence.
The House of Lords in King v David Allen & Sons, Billposting Ltd9 found that the contract between the licensor and the licensee whereby the licensee was licensed to affix posters on the licensor's wall created personal rights between the parties alone and therefore, the licensor's tenant was not bound by the license. This case was a barrier to any proposition that contractual license might be considered as an interest in land. Lord Denning however was given the chance in Errington v Errington and Woods10 to find a way to challenge this position.
The facts were that a father bought a house and permitted his son and daughter-in-law to stay there provided they pay the mortgage instalments. After the father's death his widow wanted to evict the daughter-in-law. The court found that the son and daughter-in-law were not tenants but contractual licensees. Lord Denning found that as long as they paid the instalments their license was irrevocable and he added there was an "infusion" of equity which gave to the contractual licenses " a force of their own and cannot be revoked in breach of contract. "
This makes these licenses equitable interests in land and "Neither the licensor nor anyone who claims through him can disregard the contract except a purchaser for value without notice". 12 This judgment of Lord Denning received criticism as being in conflict with the provisions of The Law of Property Act 192513 which prohibits the creation of new interests in land. Criticism was also advanced on the ground that it does not reconcile with the King's decision and because by accepting contractual licences as interests in land the process of transferring land would be more complex and perilous than it should be.
The matter of whether a contractual license is a proprietary right was again examined in Binions v Evans14. In this case however Lord Denning gave a dissenting judgment but remained in line with his Errington approach. Binions, the landlord, bought a house from the Tredegar Estate. He new, that there was a special arrangement, whereby Mrs. Evans, a widow whose husband had been an employee of the Tredegar till his death , could live there for the rest of her life, rent free.
That was the reason Binions paid a reduced price for the house. However, later Binions decided to turn Mrs Evans out, saying that she was a tenant at will and he could determine the tenancy. The other two judges found that the conveyance to Binions, for a reduced price created a life interest in favour of Mrs Evans which resulted in her becoming a life tenant under the Settled Land Act 1925 and that Binions took the land subject to that interest. Lord Denning did not want to go that far.
Instead, in his descending judgment, found that Mrs Evans had an irrevocable contractual license which gave her an equitable interest in the land, not any sort of tenant. Alternatively he recognised in the facts a constructive trust under which her license would be protected. The path opened by Lord Denning was followed by other judges as well although some of them , as for example in Re Sharpe15, felt uneasy as they considered that the field of contractual licenses and equitable interest arising there from was not fully explored.
Ashburn Anstalt v. Arnold and Another16 in 1989 put Lord Denning's approach to the test. Errington and Binions were reviewed and it was found that the actual decisions were correct . However it was said that their finding that the contractual licences are binding on all potential purchasers except those who had no notice of their existence was per incuriam and wrong. Errington was therefore reduced into an estoppel case. Ashburn Anstalt also considered the issue of the constructive trust found by Lord Denning in the Binions.
It was decided that a constructive trust should be imposed but only when the purchaser expressly undertakes to give effect to a certain interest. One therefore might argue that Lord Denning's efforts and exploration went in vain however it seems that they contributed to the enactment of s1(1) of the Contracts (Rights of Third Parties) Act 1999 which solves problems like Binions and one may not call for the constructive trust approach any more.