Not blind before the law

Lord Denning died in march; it was six weeks after his 100th birthday. His impact on the construction industry was enormous. At the commemorative service last month, he was described by Lord Bingham, Chief Justice of England and Wales, as "the best-known and best-loved judge in the whole of our history".

Goodness knows it would be impossible here to go into all the building, civil engineering and arbitration cases he influenced. But have you noticed how often contractors' and readers' letters mention cash flow? Well, it was Denning who said in the 1971 case of Dawneys vs FG Minter: "There must be cash flow in the building trade. It is the very life-blood of the enterprise."

He explained the plight of the subcontractor, who has to spend on materials and labour: "He is out of pocket; probably has an overdraft at the bank. He cannot go on unless he is paid for what he does. The main contractor is in a like position. He has to pay his men and buy his materials. He has to pay his subcontractors. He has to have cash from the employer, otherwise he will not be able to carry on. So once the architect gives his certificate, they must be honoured all down the line."

I suspect that most of you would share the views expressed and feel confident that Denning had a grasp of your needs. Not all of his colleagues, by the way, supported his approach, and the House of Lords disapproved of the principle he voiced in Dawneys.

In the Thanksgiving address, the Lord Chief Justice remarked that in the cases Denning decided, two chords are dominant.

The first is fairness: fairness in the treatment of the citizen by the state, of the litigant by the judge, of the applicant by the tribunal, of the customer by the supplier, of the patient by the hospital, of the person injured by a careless statement or act.

“Justice should be blind to favour or prejudice, but clear to see which way lies the truth,”

Lord Denning

The second chord is freedom: freedom of the press, of the person, of mind and conscience; freedom from government interference, freedom under the law.

Whether supported by higher courts or not, Denning's judgments are a delight to read. One sad story began: "It was bluebell time in Kent … ". Another favourite was about Harry Hook, a market trader in Barnsley. He was caught having a pee in a side-street, so the council took his licence away. The case went all the way to Denning, then Master of the Rolls. He reinstated Harry; the punishment was excessive. He was looking to use the law –not by its logic but by its common sense.

Not for Denning the trappings of legal jargon. He wrote and talked in plain English for everyone to understand. And if he spied the hand of the lopsided in contract documents or gobbledegook in government or local authority bumph, he would fasten on to whether the author was being unfair. Denning heartily approved of another senior judge's remark: "The contract is so one-sided that I am surprised to find it written on both sides of the paper."

He could use words to paint a picture of his theorising. In an important arbitration case (he became an honorary member of the Chartered Institute of Arbitrators), he said: "When I was young, a sandwich-man wearing a top-hat used to parade outside these courts, proclaiming 'arbitrate, don't litigate'. It was very good advice, so long as arbitrations were conducted speedily."

That case, too, was overruled by the Lords. When Denning retired in 1982, Private Eye published a cartoon of two barristers reading the headline "Denning to retire", with one of them saying: "I expect the House of Lords will overrule his decision." His wife Joan once stole the show at a dinner by telling the guests how he had shown her a judgment he was going to give. "I told him I thought he was coming out the wrong way. He said: 'Oh do you?' And wrote a judgment the other way." It was upheld by the Lords.