On Judges and Judging Judges

Judging is one of the most difficult of human activities. A judge needs knowledge and wisdom. Knowledge comes with study and wisdom sometimes comes with experience. Judges have to understand the culture of the place where they judge and work within that culture, but they must also understand the prejudices and ignorance of the culture and be independent enough to ignore those features of the culture. Judges must also be aware that for many cases there is a political agenda; they must ignore that agenda and apply the law, having first sifted through the evidence to discover the facts.

These qualities that judges need are not apparent in many people. Sometimes a judge will be biased, or ignorant or lacking in understanding. The law is complex, manipulable and irrational at times and judges are just as capable of twisting the law to suit their prejudices as lawyers are.

Judges have to balance operating the technical law with doing what is right. Society expects judges to do what is right and apply the law and often this is impossible because politicians in legislatures enact laws that are not right. Legislatures expect judges to enforce all laws, in the supreme belief that laws enacted by legislatures authorsied to enact laws by a democratic process must be right and must be enforced, and there are judges who agree with this and will enforce a law that even if they consider hat enforcement will create injustice.

But good judges do not enforce bad laws. They can avoid enforcing bad laws if they have courage; sometimes they can find the rationale for not enforcing a bad law in an overriding law, such as a constitution or a treaty on human rights or a finding of the common law. Such judges today are rather rare.

In 1974 the certificate issued to me on being admitted to the rolls of solicitors was signed by the Master of the Rolls, Lord Denning. He was criticised by some lawyers because of his tendency to do what he thought was right, rather than doing what the law said was right. He started on famous judgment with the words

D. & C. Builders Ltd are a little company. “D” stands for Donaldson, a decorator, “C” for Casey, a plumber. They are jobbing builders. The defendant has a shop where he sells builders’ materials.

In the spring of 1964 the defendant employed the plaintiffs to do work at his premises, 218. Brick Lane. The plaintiffs did the work and rendered accounts in May and June, which came to £746 13s. 1d. altogether. The defendant paid £250 on account. In addition the plaintiffs made an allowance of £14 off the bill. So in July, 1964, there was owing to the plaintiffs the sum of £482 13s. 1d. At this stage there was no dispute as to the work done. But the defendant did not pay.

On 31st August, 1964, the plaintiffs wrote asking the defendant to pay the remainder of the bill. He did not reply. On 19th October, 1964, they wrote again, pointing out that the “outstanding account of £480 is well overdue.” Still the defendant did not reply. He did not write or telephone for more than three weeks. Then on Friday, 13th November , 1964, the defendant was ill with influenza. His wife telephoned the plaintiffs. She spoke to Casey. She began to make complaints about the work: and then said: “My husband will offer you £300 in settlement. That is all you’ll get. It is to be in satisfaction.”Mr Casey said he would have to discuss it with Mr Donaldson. The two of them talked it over. Their company was in desperate financial straits. If they did not have the £300, they would be in a state of bankruptcy. So they decided to accept the £300 and see what they could do about the rest afterwards. Thereupon Mr Donaldson telephoned to the defendant’s wife. He said to her: “£300 Will not even clear our commitments on the job. We will accept £300 and give you a year to find the balance.” She said: “No, we will never have enough money to pay the balance. £300 is better than nothing.” He said: “We have no choice but to accept.” She said: “Would you like the money by cash or by cheque. If it is cash, you can have it on Monday. If by cheque, you can have it tomorrow (Saturday).

On Saturday, 14th November 1964, Mr Casey went to collect the money. He took with him a receipt prepared on the company’s paper with the simple words: “Received the sum of £300 from Mr. Rees.” She gave him a cheque for £300 and asked for a receipt. She insisted that the words “in completion of the account” be added. Mr Casey did as she asked. He added the words to the receipt. So she had the clean receipt: “Received the sum of £300 from Mr. Rees in completion of the account. Paid, M. Casey.” Mr Casey gave in evidence his reason for giving it: “If I did not have the £300 the company would have gone bankrupt. The only reason we took it was to save the company. She knew the position we were in.

The plaintiffs were so worried about their position that they went to their solicitors. Within a few days, on 23rd November, 1964, the solicitors wrote complaining that the defendant had “extricated a receipt of some sort or other ” from them. They said they were treating the £300 as a payment on account. On 28th November, 1964, the defendant replied alleging bad workmanship. He also set up the receipt which Mr Casey gave to his wife, adding: “I assure you she had no gun on her.” The plaintiffs brought this action for the balance. The defendant set up a defence of bad workmanship and also that there was a binding settlement. The question of settlement was tried as a preliminary issue.

This judgment was a model of clarity; it reached the surprising result that having signed a receipt in full and final satisfaction, the little company could still sue the the balance. Lord Denning created a doctrine of promissory estoppel, which did justice to the parties in the dispute.

It is impossible to find a modern judgment that is so clear, so fair and so brave. You can read the whole case at http://www.bailii.org/ew/cases/EWCA/Civ/1965/3.html. The legal logical may be a little contrived but the result was fair and just and ultimately that is the most important thing about judging.

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