Divisional Court Cases
| DOI | 10.1177/002201835101500104 |
| Published date | 01 January 1951 |
| Date | 01 January 1951 |
| Subject Matter | Article |
Divisional Court Cases
ALLEGED BIAS OF
JUSTICES'
CLERK
R. v. Lower Munsloio Justices :ex parte Pudge
ALL concerned with
the
administration of justice in this
country
are familiar with Lord
Hewart's
well known
dictum
that
it
is "of fundamental importance
that
justice
should
not
only be done
but
should manifestly be seen
to
be done".
iR.
v. Sussex
JI
:ex parte McCarthy (1924)
1
K.B.
at
459).
The
application of this principle has been carried
to
considerable length
and
has been
extended
to
cases where
there
is no reasonable probability
that
justice in fact was
not
done as is shown
by
the
subsequent case of R. v. Essex
JI
:ex parte Perkins (1927, 2
K.B.
475).
In
that
case a
lady
consulted asolicitor who was clerk to justices
with
reference
to
the
proposed execution of a separation deed.
She was interviewed
by
the
solicitor's clerk who made a
brief
written
report of
the
matter
to
his principal. Some
time
later
the
woman concerned took proceedings for
maintenance in
the
court
to which
the
solicitor was clerk.
The
husband, who was aware
that
the
solicitor
had
acted
for his wife, appeared in person
and
amaintenance order
was made against him. On
an
application for certiorari to
quash
the
order
the
Court
stated
that
they
were satisfied
that
the
solicitor personally
had
no recollection of his firm
having been instructed
by
the
wife
but
nevertheless quashed
the
order because
the
presence of
the
solicitor as advising
the
justices
had
given
the
appearance
that
justice was
not
being done. There are, however, limits
to
the
application
of this principle
and
in particular
the
Court will
not
infer
that
an
appearance of injustice is
lent
to
the
proceedings
merely because
the
clerk to
the
magistrates
has
been
concerned in a prior transaction relating
to
the
matter
in
dispute, he
not
having acted either personally or
through
an employee for either of
the
parties to
the
dispute. This
62
DIVISIONAL COURT CASES 53
is shown
by
the
above case (1950, 2
A.E.R.
756) when an
application was made for an order of certiorari
to
quash a
decision of
the
Lower Munslow Division of
the
Shropshire
justices dismissing an application for possession of a cottage
under
the
Small Tenements Recovery Act, 1838.
In
this case leave was obtained to apply for an order of
certiorari on
an
affidavit
the
substance of which
was-
(1)
That
the
justices' clerk
had
personal knowledge of
material facts in
the
case;
(2)
That
in
the
course of
the
hearing he appeared to
communicate these facts to
the
justices;
(3)
That
the
justices appeared to
act
on this inform-
ation.
The chairman of
the
bench arid
the
clerk filed affi-
davits from which
it
appeared
that
the
clerk's firm
had
acted for
the
vendor of
property
which included
the
cottage,
the
subject of
the
proceedings before
the
justices,
and
that
in
the
course of requisitions on title
the
vendor's solicitors
had
stated
that
this cottage was
the
subject of a yearly
tenancy. The case as presented before
the
justices was
that
the
tenancy of
the
cottage was a weekly one
and
that
aweek's notice to quit
had
been given.
The
tenant
gave
evidence
that
the
tenancy was from year to year and
produced receipts for
rent
which corroborated him.
At
this stage
the
justices' clerk informed
the
magistrates
that
the
evidence given
by
the
tenant
appeared
to
show
that
the
tenancy was
not
a weekly one. The magistrates
at
once
announced their decision dismissing
the
application
and
did
not
invite
the
applicant's advocate either
to
cross-
examine
the
tenant
or to address them. After
the
magis-
trates
had
announced their decision
the
clerk
told
them
that
he
had
acted for
the
vendor
and
so knew
that
their
decision was correct. No affidavit was filed contradicting
the
affidavits
by
the
chairman
and
the
clerk. On
the
25th
and
26th ]u1y, 1950,
the
application for certiorari was
heard
by
aDivisional Court consisting of
Lord
Goddard
C.]., Byrne
and
Finnemore JJ. who refused
the
application.
Lord
Goddard pointed
out
that
the
allegations con-
tained in
the
applicant's affidavit
purported
to disclose
matters
which
not
only wou1d have afforded ground for
quashing
the
justices' determination
but
wou1d,
if
sub-
stantiated,
have
led
to
astrong recommendation
that
the
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