Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE KARMINSKI |
| Judgment Date | 09 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0609-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 1971 |
[1971] EWCA Civ J0609-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by Boal Quay Wharfingers Limited from judgment of Mr. Justice Ackner on 15th March, 1971.
The Master of the Rolls (Lord Denning)
Lord Justice Salmon and
Lord Justice Karminski
In the Matter of the Docks and Harbour Boards Act, 1966
and
In the Matter of the Arbitration Act, 1950
and
In the Matter of an Arbitration
Mr. CHRISTOPHER STAUGHTON, Q.C., and Mr. LEGH-JONES (instructed by Messrs. Linklaters & Paines) appeared on behalf of the Appellants, Claimants in the arbitration, Boal Quay Wharfingers Limited.
Mr. ESYR LEWIS, Q.C., and Mr. F. MARR-JOHNSON (instructed by Messrs. Rees & Freres) appeared on behalf of the Respondents, The King's Lynn Conservancy Board.
Boal Quay Wharfingers Ltd. are a subsidiary of Fisons, the big group dealing in fertilisers and agricultural products. They have until quite recently, owned a quay in the port of King's Lynn. It is called Boal Quay. At that quay they have handled goods coming in and out for the Fisons Group. They have handled some goods for other concerns. But it is comparatively little. The figures for the years 1965 and 1966 show that they handled some 200,000 tons for Fisons and only 12,000 tons for other concerns. There were big variations from week to week. In some weeks the quay might handle 3,000 to 4,000 tons. In other weeks nothing. And various figures in between. Such variations meant that they might need many men in one week, no men in other weeks, and different numbers in different weeks. They met these needs by employing men on a casual basis. That was for years the position in other English ports as well as King's Lynn. It was a most unsatisfactory system. It gave rise to hardship for the men and to much unrest among them.
Many attempts have been made to remedy the evils attaching to casual labour. During the last war a scheme was initiated by which the National Dock Labour Board kept a register of employers and of dock workers. The workers, when not at work, were paid a guaranteed minimum wage, called a "stand-by wage". This was provided by means of a levy on employers. That scheme was not altogether successful. So in 1966 Parliament made another effort. It determined to end casual labour altogether. All dock workers were to become permanent workers employed by one or other of the firms using the port. For this purpose Parliament passed the Docks and Harbours Act, 1966.
Under the 1966 Act there was a licensing authority for each port. (For King's Lynn the licensing authority was the King'sLynn Conservancy Board.) Every employer of labour who wished to use the port had to be licensed by the licensing authority. The licensing authority, on issuing the licence, could specify in it the number of dock workers whom the employer was to employ. It was the duty of the licensing authority to secure that all the dock workers in the port were employed as permanent workers by one or more of the employers, see section 5(4) of the Act. In many ports there was a surplus of port workers, (There was in King's Lynn. There were 200 port workers, and only 150 were needed,) The licensing authority were entitled to impose conditions to meet the position. Even though an employer only wanted, say, five men as permanent workers, nevertheless, the licensing authority could, by means of conditions, insist on his employing thirteen men. This seems a strange provision — to insist on an employer employing more men than he needed — but Parliament thought that it was the best way of meeting the problem. The surplus would, of course, be reduced as men retired or gave up the work: and eventually the surplus would be eliminated. It might be thought that, if an employer was compelled to employ more men than he needed, he would get compensation from some one or other. But that is not so. If the licensing authority granted a licence subject to conditions, then, no matter how onerous the conditions, the employer gets no compensation. An employer is only entitled to compensation if his application for a licence is refused — see section 13 of the Act: but he gets no compensation if his application is granted, subject to conditions. It was so held by Mr. Justice Baker in Limb v. British Docks Board (1971) 1 W. L. R. 311. If an employer is granted a licence but finds the conditions too onerous, he may wind up his business or cease to use the port. But he gets no compensation on that account. He only gets compensation if hisapplication is refused.
It is apparent that, on the introduction of this licensing system it would be necessary for the licensing authority to consider all the applications together: for they would have to allocate the workers amongst the various applicants, so that every man should be employed by some employer or other. So the statute, when it was passed in August 1966, provided for all the initial applications to be made in advance before the licensing system actually came into force, see section 1(1), 3(2), 6(1) of the Act. That is what happened at King's Lynn. There were some 200 port workers to be found permanent work. Some thirteen employers applied for licences. They did so in December 1966. The biggest employer was the British Transport Docks Undertaking. They applied for a licence for 120 for general work so as to enable them to handle any cargoes coming to the port. The East Coast Steam Ship Co. Limited. did general stevedoring work. They applied for a licence for three men for general work for all cargoes. Boal Quay Wharfingers Limited. applied for a licence for five men for general work for all cargoes. All the other employers restricted their applications to their own particular work. They applied for licences for four or five men, as the case may be, for their own cargoes, and nobody else's.
When the licensing authority at King's Lynn came to consider the applications, they found that they had more men available than the employers had applied for. They decided to give the particular employers (who wanted men only for their own cargoes) the number of men they asked for, that is, four or five, as the case may be. But they made the general employers (who wanted men for all cargoes) take on more men than they had applied for. They allocated to the British Transport Docks Board 141 men insteadof the 120 they had applied for. They allocated to the East Coast Steam Ship Co. Limited. 13 men instead of the 3 they had applied for. They allocated to the Boal Quay Wharfingers Limited. 13 men instead of the 5 they had applied for. The reason for making it 13 was because 13 is a full gang.
On 3rd August, 1967, the licensing authority wrote to the employers, saying that they proposed to issue licences subject to conditions as to numbers and cargoes on the lines I have mentioned. In particular, the proposed licence for Boal Quay Wharfingers Limited. was subject to the conditions that they employed 13 men without restricting the cargoes to be handled by them.
On 11th August, 1967, the Dock Labour Board for the ports in the Wash wrote to Boal Quay Wharfingers Limited. asking for the names of the 13 men whom they were going to employ as permanent workers. Boal Quay Wharfingers Limited. did not like this. They appealed to the Minister, as they were entitled to do under section 7 of the Act. The East Coast Steam Ship Co. appealed also. The Minister thereupon called in all the applications, the was entitled to do under section 8(2)(b) of the Act. That was obviously right because all the men had to be allocated to one employer or another: and, if one employer succeeded in taking less, it meant that another employer would have to take more. The Minister, having called in all the applications, appointed an Inspector, Mr. Proud feet, to hold an inquiry.
On 1st and 2nd November, 1967, Mr. Proudfoot held an inquiry at King's Lynn. By this time two of the applicants, the Boal Quay Wharfingers Limited. and The East Coast Steam Ship Co. Limited., had decided to close down their businesses at the port. So they should not be employing the 13 men each which had been allocated to them. That meant that 26 men had to be placed elsewhere. But the two companies acted differently. The BoalQuay Wharfingers Company withdrew their application for a licence: whereas the East Coast Steam Ship Co. did not. The question now arises: Are the Boal Quay Wharfingers Company entitled to compensation? The East Coast Steam Ship Company are not before us.
The section which provides for compensation is section 13 of the 1966 Act. It says:
"…… If an application for a licence……… is refused, the applicant shall be entitled to receive from the Licensing Authority compensation in respect of (a) any diminition in the value of the assets of his dock business."
Section 18 says that the licensing authority can recover the amount by means of a levy imposed on the employers holding licences. The levy is proportionate to the gross wages paid by the various employers to their port workers. So it means, in effect, that the employers who get a licence pay compensation to those employers who are refused a licence.
The licensing authority say that the application of the Boal Quay Wharfingers Company was not refused. It was, they say withdrawn at the inquiry. I must, therefore, say what happened to them: and contrast it with what happened with regard to the East Coast Steam Ship Company. But, before doing so, I must tell of what had happened since the application in December 1966.
In March 1967 Fisons decided to give up their factory near King's Lynn, and this would mean giving up the Boal Quay Wharfingers Company. They entered into negotiations to sell the quay to the big grain firm of Rank/Hovis/McDougal. In June 1967...
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