Contract and Tort after Denning

My brief is to discuss the ways in which English Contract and Tort law might develop in the rest of the century. 1 The time is propitious for such a review since of the four great figures who have done so much to shape the development of Contract and Tort law since the war Lord Denning, Lord Diplock, Lord Reid and Lord Wilberforce, three have recently departed from the courts, Lord Denning and Wilberforce by retirement and Lord Diplock, alas, by death. This permits, and perhaps requires, a pause for reflection and regrouping. If an attempt to answer the question is rash, the posing of the question itself makes some assumptions which are not self evident. To foretell the future assumes that progress will have at least a significant rational element. One of our greatest livinghistorians, A.J. P. Taylor, has often argued that on the whole things happen by accident and are not the product of determinist trends. It is difficult not to feel that there is at least a significant accidental element in the development of common law through the process of deciding cases. In a sense the law is at the mercy of litigants since if no litigant brings a question before the courts and in particular if no appellant brings it before the House of Lords, developments which are possible may be held up for generations. For instance it seems probable that if some suitable case with appropriate facts had come before the House of Lords in the seventies, they would have taken the opportunity to abolish or at least seriously to qualifYthe doctrine of privity of contract. Even when cases do come before the Lords, much may tum on accidents of timing. So it is plausible to speculate that if the La Pintada3 case had come before the House of Lords befOre the Law Commission had recommended the abolition of the general rule that interest was not payable on debts in the absence of agreement, their Lordships might have