BOOK REVIEWS • REVUE BIBLIOGRAPHIQUE 243

Denning: The Due Process of Law , The R t Hon. Lord

Denning, M.R., London: Butterworths, 1980. Pp. 263. $30.00 (cloth).

It has been said th at ju d g es are the g uardians o f the gate o f o rd e re d

society;1 to them belongs the o nerous office o f en su rin g that the
principles o f rig h t dealing according to law are p u rsu e d by private
citizens tow ards each o th er, and tow ards the state and, m ost crucial o f
all, by the State tow ards private citizens. T o them also, on at least o n e o f
the received interp retations, belong two fu rth e r tasks: that o f ensuring
th at the various practical constitutive elem ents o f the legal process are
kept clear and p u re so th at parties may proceed safely and
expeditiously, and th at o f en su rin g that when parties do proceed the
rem edies available are consonant with the d em an d s o f the age and with
those o f ju stice and equity. It is these last two facets o f the judicial office
— g u ard ian sh ip o f the effective and equitable operation o f the legal
process — th at is the subject m atter o f L ord D en n in g ’s latest collection
o f essays, Due Process of Law.

Due Process o f Law , the second o fferin g by the M aster o f the Rolls in
as m any years, is not, as the title m ight lead one to expect, an
exam ination o f the rules o f procedure. T hese, we are told, are fa r too
dull. R ather, in p u rsu it o f his subject-m atter L ord D enning chooses a
m o re im m ediate and readily accessible m edium : the law in which
persons co unt. “So I tell you about the cylinder o f laughing gas; and the
ju d g e who talked to m uch; and the ship which sank w ithout a trace; and
th e wife w ho was d ese rted .”2 T h e orientation th ro u g h o u t is upon the
practical, not upon the bookish subjects tau g h t in the Law Schools o f
Universities. T h e style, tone and o m n ip resen t note o f self-justification
with which all this is served u p will be fam iliar to readers o f last year’s
The Discipline of Law .3 Also fam iliar will be the them atic thread: that
principles o f law d em an d a pragm atic and teleological interp retatio n , an
in terp retatio n which takes into account consequences involving questions
o f equity, social developm ent and the com m on good. It is not surprising
th at the a u th o r wishes both books to be considered as com panion
volumes.

T h e topics chosen fo r inclusion in Due Process of Law are

d eterm in e d , L ord D enning tells us, by his own familiarity with them .
“. . . I have tried to do — w hat the cobbler should do — to stick to his
last — to those topics o f which I have m ost experience.”4 T h e book is
'See H anbury, H. and D. Yardley, English Courts o f Law (Oxford: O xford University Press. 1979), at 126;
see also Perelinan, C. H., Justice New York: Random House, 1967), at 4.

2Denning. at vi.

’London: Butterworths, 1979; see also, (1980) 29 U. V.B.L.J. 275-8.

*Sufna, footnote 2.
244 U.N.B. LAW JO U R N A L • REVUE DE D R O IT U.N.-B.

com prised o f eight essays. T h e topics canvassed are: contem pt o f court;

inquiries into conduct; arrest and search; the M areva injunction;
im m igration law; family law; the d eserted wife’s equity; and the wife’s
sh are in the hom e. T his practically orien ted grab-bag — each o f the
essays, we are told, contains a lesson o f practical im portance — divides
into two groups. T h e first five essays deal, broadly speaking, with the
fair and effective w orking o f the m achinery o f the legal process, while
the latter th ree deal with recent developm ents in the field o f family law,
focusing particularly on Lord D enning’s contributions to m atrim onial
p ro p erty law. T h ro u g h o u t both groups, however, th ere is one unifying
central them e: viz. that the ju d g e as the guardian o f the gate o f o rd e red
society should have sufficient latitude to shape the law in accordance
with the exigencies o f the times and the dem ands o f justice.
For L ord D enning developm ent o f this them e within the context o f
the first g ro u p o f essays is co-extensive with providing an explanation o f
the p h rase d u e process’. In the preface we read: “. . . by d u e process I
m ean the m easures authorized by the law so as to keep the stream s o f
justice p u re: to see that trials are fairly conducted; that arrests and
searches are p ro p erly m ade; that lawful rem edies are readily available;
an d that unnecessary delays are elim inated.”5 T h e Modus operandi used
will be readily recognized by those conversant with The Discipline of Law.
Each essay o p ens with the presentation o f a problem that has faced the
English jud iciary since the Second W orld W ar and proceeds with an
exposition o f the m an n er in which that problem has been solved or
attem p ted to be solved. As is to be expected in a work o f general
interest, em phasis everyw here is not so m uch upon scholarly m inutae
but ra th e r upo n a broad brush presentation o f the central notion that
the genius o f the com m on law lies in its ability to provide fair solutions
to novel and changing dem ands.
An apt instance o f the evolutionary genius o f the com m on law is
fo u n d in the grow th o f the M areva injunction. Until 1975 th ere was no
p ro c ed u re in English Law w hereby a cred ito r before ju d g m e n t could
m ake application fo r an o rd e r restraining his d e b to r from rem oving
p ro p erty outside the jurisdiction o r otherw ise dealing with it. T his
lacuna, which did not exist in eith er civil legal systems o r Am erican Law,
gave wide scope to the sophisticated o r absconding debtor, particularly
u n d e r m o d ern conditions o f banking and travel. T h e re was a clear and
perceived n eed to fill the gap and, as Lord D enning relates the story, he
and his colleagues in the C o u rt o f A ppeal were ready to m eet the
challenge. T h e result was the introduction into English Law o f a
p ro c ed u re sim ilar to the saisie conservatoire o f F rench Law. T h e key
decisions were Nippon Yusen Kaisha v. Karagcorgis 6 and Mareva v.
International Bulkcarriers,1 and both decisions, despite a rebuke from the
slbid., at v.

•[1975] 1 W.L.R. 1093 (Eng. C.A.).

7[1975] 2 Lloyd’s Rep. 509 (Eng. C.A.).

BOOK REVIEWS • REVUE BIBLIOGRAPHIQUE 245

H ouse o f L ords in The Siskina 8 for the ostensible usurpation by the

C o u rt o f A ppeal o f the legislative process, rem ain good law.

A fu rth e r and m ore widely discussed instance o f the com m on law’s

evolutionary capacity is the subject o f L ord D enning’s final g ro u p o f
essays; viz. recent developm ents in the field o f family law and in
p articu lar in the area o f m atrim onial pro p erty law. T h e story- o f
em ancipation is briefly sum m arized, as is the grow th o f an equitable
principle o f co-ow nership o f all m atrim onial assets. L ord D enning’s
survey includes a review o f both case law and legislation, b u t he leaves
little d o u b t as to which he considers prior. It is developm ent in case law,
we are told, which led the way and which p re p a re d the g ro u n d fo r the
work o f Lady Sum m erskill and the th ird R eport o f the English Law
Com mission on Family Property. In deed L ord D enning’s claim is
stronger. It is ju d g es who led the way. It is to them that we owe these
recent developm ents, for in essential respects it has been they, by which
we are to u n d erstan d particularly the ju d g es o f the C o u rt o f A ppeal,
who have been the pioneers.

By now it should be clear that Lord D enning’s view o f the role o f

the ju d iciary in law reform is in essence an activist one. He states his
position in the preface in a passage which, though lengthy, deserves to
be cited in full:

Many proposals have been made by us in the Court o f Appeal. T im e and

again we bave ventured out on a new line: only to be rebuffed by the House
o f Lords. On the ground that the legislature — advised by this body or that
— can see all round; whereas the judges see only one side. This I dispute.
T h e jud ges have better sight and longer sight than those other bodies:
especially in the practical working o f the law and in the safe-guarding o f
individual freedom . And when it is said that some other body should first
investigate and report I ask: “How long, O Lord (Chancellor), how long?"9

T his passage m ight be characterized as vintage Lord D enning;

certainly it perfectly em bodies the judicial fram e o f m ind that has been
the source o f constant annoyance to constitutional traditionalists and
those o f m ore conservative learning. C ertainly, too, if carried to its
u tterm ost it would lead to a considerable m elding o f the constitutional
functions exercised by the judiciary and the legislature, functions which
all students o f M ontesquieu know' are best kept separate and distinct
from on e an o th er. But m ust we say that ju d g es are to play a role in
shaping legal principles? And as legislation, as opposed to litigation, the
only acceptable m ethod o f law reform ? L ord D enning’s answ er to these
questions is clear and unm istakeable.

Delineation o f the p ro p e r function o f the judiciary in o rd e re d

society, to re tu rn to the point from which we began, is a thorny and
•[1979] A.C. 210 (H.L.).

•Denning, at v-vi.
246 U.N.B. LA W JO U R N A L • REVUE DE D R O IT U.N.-B.

p erh ap s unresolvable question. Some place fo r judicial creativity seems

inevitable in any instance w here a ju d g e has to decide betw een two
com peting tenable argum ents; a ju d g m e n t is not a c o m p u ter p rin t out.
B ut w h eth er it is desirable to go all the way with L ord D e n n in g s view o f
judicial activism, given present ill-defined m ethods o f choosing the
judiciary, seems d o u btful. L ord D enning’s own thirty-six year ca ree r on
the English Bench has been a rem arkable one, and o n e w ell-chronicled
by him self. It is best to leave to history the final verdict on both it and
his own peculiar b ran d o f creative law-making.

CHRISTOPHER P. CURRAN*

*B.A., M.A., (Memorial University of Newfoundland), LL.B. (U.N.B.), M em ber o f the Newfoundland
Bar.

Canadian Mortgage Practice Reporter , Gerald s. Fields

and Bernard Gersham (editors-in-chief), Toronto: Richard DeBoo,
1979. 2 Vols. $225.00 (loose-leaf service).

With the proliferation o f re p o rtin g services reaching the C anadian

legal m arket, the C.anadian Mortgage Practice Reporter would at first glance
a p p e a r to be a priority acquisition for those solicitors engaged in
m ortgage financing. T he title itself would lead one to such a conclusion.
However, it m ight be advisable to consider the adage, “never judge a
book by its cover” an d indeed m ore so w here the initial cost alone
m erely reflects a highly inflationary econom y.

T h e first question one m ight ask is w hether this two volum e series
does, in fact, relate to the practice o f m ortgage law in C anada? Secondly,
to what p art o f the C anadian m arket is the R ep o rter series directed?
T h e questions in them selves m ight a p p e ar trite, if not the inauguration
o f an overly critical review, yet ultim ately the p ractitioner will have to be
the sole judge.

T h e first volum e o f the “R ep o rter” contains the editorial

com m entary, conveniently divided according to topic followed by form s,
p reced en ts an d check lists. Volum e II will eventually contain the
relevant statutes and regulations for both the provincial and federal
jurisdictions. Accordingly, it may be convenient to look at each volum e
separately.