Barnard v National Dock Labour Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 31 March 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0331-6 |
| Docket Number | 1950 B. No. 2906 |
| Court | Court of Appeal |
| Date | 31 March 1953 |
[1953] EWCA Civ J0331-6
Lord Justice Singleton
Lord Justice Denning, and
Lord Justice Romer
Barnard and Others
In The Supreme Court of Judicature
Court of Appeal
Counsel for the Appellants: MR J. PLATTS MILLS, instructed by Messrs Harold Miller & Fraser.
Counsel for the First Respondents, the National Dock Labour Board: MR GILBERT PAULL, Q.C., and MR HAROLD BROWN, instructed by Mr G. Grinling Harris.
Counsel for the Second Respondents, Silvertown Services, Ltd.: MR W.K. CARTER, Q.C., and MR GEOFFREY LANE, instructed by Messrs Linklaters & Paines.
This case was before Mr Justice McNair in July of last year. When the case was being opened on behalf of the Plaintiffs, and when some two days had elapsed, it was seen that there was a preliminary point taken by the Defendants, and that was dealt with first. The learned Judge gave his judgment on the 7th July in regard to that preliminary point, and his decision upon that was in favour of the Plaintiffs. The action proceeded, and the evidence before the Judge occupied some six days, and there was considerable argument. His decision was in favour of the Defendants. This appeal made on behalf of the Plaintiffs has occupied the Court for parts of six days.
I think I can best state the position by reference to the Statement of Claim. Paragraph 1 is in these terms: "The Plaintiffs and each of them are journeymen lightermen and members of the Watermen, Lightermen, Tugmen and Bargemen's Union and were registered dock workers at all material times under the Dock Workers (Regulation of Employment) Scheme 1947 made pursuant to the Dock Workers (Regulation of Employment) Act 1946 and were at all material times in the employment of the first or of the second Defendants or of both of them."
Paragraph 2: "The first Defendants are the National Board established under the said Scheme and the second Defendants are registered employers under the said Scheme and members of the Association of Master Lightermen and Barge Owners (Port of London), and were habitually concerned with the providing of barges or other craft and of services for the unloading of sugar in bulk or otherwise in the Port of London."
Paragraph 6: "On or about the 14th April 1950 the Defendants and each of them wrongfully, and in breachof the above agreements" — the agreements as to terms of service — "purported to order the Plaintiffs and each of them, to report after 8 a.m. at Silvertown to tow down with empty craft and to attend at the S.S. Baron Renfrew lying in the port of London at or near Williams Jetty, Dagonham, Essex at 2 p.m. there to take over the unloading and to continue unloading bulk raw sugar and to load the into lighters until 10 p.m. and on or about the 15th April 1950 being a Saturday to do the same after 12 midday and until 2 p.m. Thereupon the Plaintiffs and each of them declined to carry out the purported orders." Indeed, the Plaintiffs contended that the orders which were given to they were not lawful or proper orders in that they were not in accordance with their terms of employment, and they refused to obey them.
Paragraph 7: "On the 14th April 1950 the second Defendants by letter of that date reported to the first Defendants that the Plaintiffs" (naming the first six) "had refused to obey the purported order as above act out and by letter dated 15th April 1950 the second Defendants reported to the first Defendants that the Plaintiffs Barnard, Cast, Osborn and Pinson had refused to obey the purported order given on the 15th April 1950 as above set out."
Paragraph 9: "Thereupon the first Defendants by letter dated 19th April 1950 advised the Plaintiffs and each of them that they had been reported by the second Defendants as above set out and required the Plaintiffs and each of them if they should so desire, to submit the explanation of their action and, pursuant to the practice and rules of the first Defendants in investigating such reports as those above mentioned advised the Plaintiffs and each of them that such explanations wouldbe considered by the first Defendants if the some were sent to the first Defendants within the first three days after the sold 19th April 1950."
Paragraph 11: "The Plaintiffs and each of them submitted their explanations within the said time but the first Defendants failed to wait until the expiration of the said three days and wrongfully and in breach of their said practice and rules and of the said Scheme pretended to investigate the above mentioned report and wrongfully, and in breach of their said practice and rules, and in breach of the said Scheme, on or before 22nd April 1950 ordered that the Plaintiffs and each of them should be suspended without pay for seven days, and pursuant to the said orders the Plaintiffs were so suspended and deprived of their said pay at an average of Nine pounds three shillings and sixponoc for seven days for each of the Plaintiffs. Thereafter the Defendants and each of them wrongfully removed the names of the Plaintiffs from the Register of Dockworkers under the said Scheme."
When the action was in its early stages, that is, during the opening on the 7th or 8th July, it had become apparent from documents discovered at a late stage that there was another point which was open to the Plaintiffs, and paragraph 11 was amended in this way: "Further the pretended suspension was illegal, ultra virus and invalid, as it was made by the London Port Manager and not by the Local Board as required by the said Scheme, paragraphs 15 and 16."
The Plaintiffs claimed declarations to which I shall refer a little later.
Towards the end of July Mr Justice McNair intimated that his judgment would be in favour of theDefendants, and he gave his judgment on the 3rd October in favour of both Defendants. He was of opinion that neither of the orders given was unlawful, and that neither of them involved the working by the Plaintiffs of unreasonable hours.
During the hearing of this appeal — on the fourth day of it — Mr Platts Mills accepted this finding of the learned Judge, and intimated that he did not propose further to argue that the orders given were unlawful, and he agreed that the appeal as against the Second Defendants, Silvertown Services, Ltd., should be dismissed with costs. Thus the foundation of the Plaintiffs' claim went. In view of the course adopted by Mr Platts Mills, I do not propose to say anything further on the nature of the orders given, but I shall confine myself to the other points in the case.
I need hardly say that the question as to whether the orders were proper orders or not was one of some difficulty. I think it is a matter for regret that the legality of the orders was questioned, but I have no doubt that those who refused to obey them thought they had good ground for doing so. I hope that in future disputes of this kind can be avoided, for there is no question about this, that the turn-round of a ship bringing sugar from one of the British Dependencies is of importance to the life of the nation, and disputes of this kind ought to be avoided as far as is possible.
The appeal continued against the judgment in favour of the National Dock Labour Board. The case put against them was that the suspension of the Plaintiffs was unlawful and irregular in that the Local Board, the body charged with the duty of considering cases of a disciplinary nature, had not in fact considered theircases, and also that action had been taken before the time for the explanations of the Plaintiffs had expired.
It was admitted by Mr Paull for the first Defendants that notices of suspension had been sent before the time within which explanations were called for had run, but he contended that the Plaintiffs could not now complain of that, as they had appealed to the Appeal Tribunal and had thereby waived any irregularity. He further submitted that the Local Board had authority to delegate to the Port Manager (who was the Secretary of the First Defendants) the duty of dealing with cases of discipline, and that they had properly done so. He relied upon the plea in Paragraph 12 (A) of the Defence of the National Dock Labour Board, which was by way of amendment. "These Defendants will contend that unless and until the decisions of the Appeal Tribunal are set aside by Certiorari proceedings, the decisions of such Appeal Tribunal are binding in and upon all persons affected thereby and that this Honourable Court has no jurisdiction to enquire into any of the matters sot out in the Re-amended Statement of Claim."
The point raised by Paragraph 12 (A) of the Defence of the First Defendants was the one which was dealt with as a preliminary point by Mr Justice McNair, who hold that the plea did not avail the Defendants, The learned Judge, having considered the authorities, said: "All that I say at this stage is that this preliminary plea to the jurisdiction foils, and the action must proceed."
I think it is desirable that I should first state the facts as far as is necessary for consideration of the points which remain.
The Plaintiffs were all registered dock workers,and the Second Defendants were reconstruct employers, On the 16th June, 1947, there was made by the Minister of Labour and National Service the Dock Workers (Regulation of Employment) Order, 1947, Statutory Rules and Orders No. 1189 of 1947. The Order was made under Section 2 of the Dock Workers (Regulation of Employment) Act, 1946, and it applies as from the 28th June, 1947, in respect of all ports set out in Appendix 1 of the Order, of which the Port of London is one.
The Order sets out in Clause 1 (2) that: "The objects of the Scheme are to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock...
To continue reading
Request your trial
- Ibrahim b Mohamad v Ketua Polis Daerah Johor Bahru & 3 Ors
- Karpal Singh; Tengku Jaffar bin Tengku Ahmad
- Board of Architects; Lim Ko and Another
-
Salijah bte Ab Lateh v Mohd Irwan Abdullah
...sought to be implied were lesser than the powers which had actually been granted to it: at [14].] Barnard v National Dock Labour Board [1953] 2 QB 18 (distd) Muhd Munir v Noor Hidah [1990] 2 SLR (R) 348; [1990] SLR 999 (folld) Rahimah bte Hussan v Zaine bin Yusoff [1995] 1 SLR (R) 239; [199......
-
Action
...20. (2) “It has been erroneously believed that declarations are a form of equitable relief – See Barnard v. National Dock Labour Board (1953) 2 Q.B. 18, 31. The history of the declaratory action shows that they are not – Chapman v. Michaelson (1909) 1 Ch. 238 – See generally on this Zamir: ......
-
Natural Justice and Disciplinary Cases in Britain and France
...des faits incrimints.” Rec. D., 1913, p. 739. CASES UNITED KINGDOM Bagg’s Case (1616) 11 Co. Rep. 93 Barnard v. NationalDock LabourBoard, [1953] 2 QB 18 Board of Education v. Rice, [1911] AC 179 Breen v. AmalgamatedEngineering Union, [1917] 1 All ER 1148 (CA) Brighton Corporation v. Parry (......
-
Procedure and Remedies in Judicial Review: A Malaysian Perspective
...litigation – was the tendency of the courts to classify actions fordeclaration and injunctions as private law proceedings and to apply to2[1953] 2 QB 18.3[1983] 2 AC 237.4See Rules of the Supreme Court 1977. These were put on a statutory footing by theSupreme Court Act 1981.5[1956] 1 All ER......
-
GOVT. OF GONGOLA STATE V. TUKUR.
...All N.L.R. 50 (Pt. 2) 47. 10.F. Afuwape & Ors. v. E.A. Shodipe & Ors. (1957) 2 F.S.C. 62 at 64. 11.Bemard v. National Dock Labour Board (1953) 2 Q.B. 18 at 41. 12. Blackman v. Fysh (1892) 3 Ch. at 217. Tayo Oyetibo Esq. (with him Ndubuisi Agelu Esq., E.D. Audu Esq. (Director Civil Litigatio......