The Gazette 1980

GAZETTE

DECEMBER 1980

The "

High Trees' case

was considered by Kenny J., in

Cullen v Cullen

when he stated:

"It seems to be that the principle stated by Denning

J. in

Central London Property Trust Ltd. v High

Trees House Ltd.

and affirmed by the same Judge

when he was a Lord Justice of Appeal in

Lyle —

Meller v Lewis & Co. (Westminster) Ltd.,

applies

to this aspect of the case . . . If I had jurisdiction to

make an order I would do so, but I do not think I

have".

A way out of the problem was however found by

Kenny J., in Section 52 of the Registration of Title Act

1891. Kenny J., in the High Court, in the case of

Revenue Commissioners v Moroney

further applied the

doctrine of promissory estoppel and found support for his

conclusion in the "revival" of the doctrine by Denning J.

(as he then was) in 'High Trees'. In this context, Wylie in

his book, 'Irish Land Law',

offers an interesting

observation on the development of equity in the Irish

Courts. He states that most of the instances (in the

development of equity) have occurred in England and

have rarely been followed in Ireland.

"This is not necessarily to be taken to mean that

Irish Judges have taken a different view from their

English brethern; the fact is, that in most instances,

cases have not arisen in Ireland putting the matter

at issue".

Matrimonial Law

Denning cites the developments in the area of

matrimonial law as examples of how the judges have

evolved new principles to meet the new situation. After

the Lords' rejection of the concept of the deserted wife's

equity,

he applied the concept of the trust to give the

wife a share in the family home. Denning describes the

use of the trust concept as "one of the most fruitful trees

in the orchard of English law". The trust concept was

adopted and applied by him in

Falconer v Falconer.

The same trust concept was applied by Kenny J. in

Conway v Conway

in the case of a wife making

payments towards the purchase of a house or the

repayment of mortgage instalments when the house is in

the sole name of the husband. In Conway's case, Kenny

J. held that the husband became a trustee for the wife of a

share in the house and the size of it depended on the

amount of the contributions which she had made towards

the purchase or the repayment of the mortgage.

Denning played a vital part in the recent important

decision of the House of Lords in the conjoined cases of

Williams & Glyn's Bank Ltd., v Boland and Williams &

Glyn's Bank Ltd., v Brown.

Denning held in the Court

of Appeal that a wife who contributed to the purchase of

a house, but who was not registered as a joint owner, had

an equitable interest which affected the legal estate and

that anyone lending on the security of the matrimonial

home ought to realise that a wife might have a share in it.

The House of Lords affirmed the decision of the Court of

Appeal as it affected the wives and held, in the

circumstances of the cases, that the wives had an

'overriding interest' binding on a mortgage.

Judicial Law maker

Denning rejoiced in the role of law maker. Most judges

rarely stress their law making powers. It has been said

that their creativity is hidden behind a "screen of analogy

or precedent". In the context of'judicial creativity', one is

reminded of Austin's observation when deriding the

theory that Natural Law was always part of English Law.

He called it:

"the childish fiction employed by our judges that

judiciary or common law is not made by them, but

is a miraculous something made by nobody,

existing I suppose from eternity, and merely

declared from time to time by the judges".

Denning was of the opinion that judges do make laws.

A.G. v Butterworth

on contempt of court and the

question of a witness obtaining redress in a civil court for

damages if he had been damnified by victimisation or

intimidation, Denning said:

"It may be that there is no authority to be found in

the books, but, if this be so, all

can say is that the

sooner we make one the better".

Denning was at his most "alarmingly" inventive in the

case of

Dutton v Bognor Regis Urban District CouncilP

Denning described the case as "one of the most important

of modern times". Builders in Bognor Regis built a house

on a "rubbish tip", but the house had no proper

foundation. It was too thin. The Council's surveyor

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