Fawdry & Company v Murfitt (Lord Chancellor intervening)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,Lord Justice Sedley,Lord Justice Ward |
| Judgment Date | 14 May 2002 |
| Neutral Citation | [2002] EWCA Civ 643 |
| Docket Number | Case No: A2/2001/0347 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2002 |
[2002] EWCA Civ 643
Lord Justice Ward
Lord Justice Sedley and
Lady Justice Hale
Case No: A2/2001/0347
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PORTSMOUTH DISTRICT REGISTRY
Royal Courts of Justice
Strand,
London, WC2A 2LL
Nicholas Isaac (instructed by Fawdry & Co) for the Appellant
The Respondent was not present or represented
Philip Sales (instructed by Treasury Solicitor) for the Interested Party
This is the claimant's appeal against the dismissal of his claim by Her Honour Judge Linda Davies, sitting in Portsmouth, on 26 January 2001. The claim was brought in the Queen's Bench Division of the High Court. Judge Davies is authorised to sit as a Judge of the Family Division of the High Court and in the Technology and Construction Court (TCC) but she is not authorised (colloquially 'ticketed') to sit as a Judge of the Queen's Bench Division. The sole issue in this appeal is whether she had jurisdiction to hear this case. The successful defendant has played no part in the appeal, but with the Court's permission, the Lord Chancellor's Department has intervened and filed evidence of the circumstances in which Judge Davies came to hear it.
Facts
The appellant is a firm owned by Mr Colin Slinn who acted in person until the matter reached this Court. The firm brought proceedings in the High Court to recover fees allegedly due for consultancy work done for the defendant. The total claimed was £19,340. Such a claim would normally be transferred to the county court but had apparently remained in the High Court because the claimant wished to be able to enforce the judgment in Jersey.
It was listed for trial on Friday 26 January 2001 in the Southampton District Registry before His Honour Judge Thompson QC. Judge Thompson does have authority to try Queen's Bench Division cases (and the Presiding Judge of the Western Circuit, Mr Justice Toulson, had earlier decided that it be allocated to him). However, two urgent matters were also listed before him that Friday and therefore on Thursday 25 October, the day before the hearing, he informed Mrs O'Callaghan, the Winchester group diary manager, that he would not have sufficient time to hear this case.
Mrs O'Callaghan discovered that Judge Davies would be available to hear it in Portsmouth. She was aware that Judge Davies was not authorised to hear Queen's Bench cases but was authorised to sit in the Technology and Construction Court. She faxed a memo to Mr Justice Toulson asking for his approval for the case to be 'released' to Judge Davies 'who is ticketed to hear TCC matters'. He telephoned Mrs O'Callaghan about 4.00 pm and told her to do so. Mr Justice Toulson was also aware that Judge Davies did not have a Queen's Bench 'ticket'. He has since said that he considered that his instruction amounted to an order to transfer the case to the TCC list so that Judge Davies could try it. No order was ever drawn up to that effect. The order made by Judge Davies is stated to have been made in the High Court of Justice, Queen's Bench Division, Portsmouth District Registry.
The parties were immediately informed of the transfer to Portsmouth but not of any transfer to the TCC. Mr Slinn says that he enquired on arrival at court next morning whether Judge Davies was authorised to hear the case. Soon after the hearing began, Judge Davies observed as follows:
"The matter is in the High Court, as I understand it, because that is the only basis upon which any judgment could be enforced in Jersey, and otherwise it would not be in the High Court. It comes before me, sitting as a High Court judge today, it being released—having been released to me for the purpose of this hearing."
Ultimately, the Judge decided that although the claimant had undoubtedly done a considerable amount of work for the defendant, it had not been proved that this was done under an agreement that it be paid for rather than as a favour to a friend. She therefore dismissed the claim with costs summarily assessed at £1976.90. The following Monday, 29 January, Mr Slinn set about investigating her authority to hear the case and discovered that she did not have a general Queen's Bench 'ticket'. He also gained the impression in conversation with Mrs O'Callaghan that it was His Honour Judge Thompson who had released the case to her. Although that impression was corrected in her letter of 6 February, no mention was made of any transfer to the TCC. The first he heard of this was in a letter dated 25 July 2001 from an official in the Lord Chancellor's Department in response to inquiries made by the Civil Appeals Office. In those circumstances it is scarcely surprising that Mr Slinn is puzzled as to what actually took place and questions its validity.
Issues in this appeal
I have found the researches and arguments of counsel, Mr Sales for the Lord Chancellor's Department and Mr Isaac for the appellant, both interesting and instructive. They have identified three issues:
(1) What in fact happened on 25 January and was it effective to give Judge Davies authority to hear the case? This depends upon whether there was an effective transfer to the TCC and whether the undoubted breaches of the rules which took place were fatal to her jurisdiction.
(2) If she did not have jurisdiction, was her sitting rescued by the common law doctrine of de facto authority?
(3) If it was so rescued, is this sufficient to comply with the requirement that the court be 'established by law' for the purpose of Article 6 of the European Convention on Human Rights?
Did the Judge have authority to hear the case?
In recent years, especially following the Woolf reforms and the Civil Procedure Rules, there has been increasing integration between the different courts in the civil justice system. Nevertheless, the High Court and the county courts are still separate courts, constituted under different statutes, with different judges appointed in different ways and under different terms of appointment. While High Court judges automatically have jurisdiction in the county courts (by virtue of section 5(3) of the County Courts Act 1984), the same is not true in reverse. There are two provisions in the Supreme Court Act 1981 under which circuit judges may be given power to exercise the jurisdiction of the High Court: section 9 is headed 'Assistance for transaction of judicial business of Supreme Court' and section 68 is headed 'Exercise of High Court jurisdiction otherwise than by judges of that court'.
Section 9(1) provides as follows:
"A person within any entry in column 1 of the following Table may … at any time, at the request of the appropriate authority, act—(a) as a judge of a relevant court specified in the request; or (b) if the request relates to a particular division of a relevant court so specified, as a judge of that court in that division."
Column 1 is headed 'Judge or ex-judge' and includes 'A circuit judge' at item 5. Column 2 is headed 'Where competent to act on request' and against item 5 says 'The High Court and the Court of Appeal'. By section 9(2)(b) the 'appropriate authority' to make the request for a circuit judge to sit in the High Court is the Lord Chancellor. By section 9(3)(b) it is the duty of a circuit judge to comply with such a request. There is nothing to suggest that such a request cannot be made ad hoc or orally. In practice, however, the Lord Chancellor, after consultation with the senior judiciary, appoints individual circuit judges as 'section 9 judges' to sit in one or more divisions of the High Court. He has not delegated this function to the Presiding Judges. Hence there is no suggestion that Mr Justice Toulson could have requested Judge Davies to sit under section 9. What might have happened had Mrs O'Callaghan instead contacted the Judicial Appointments Branch of the Lord Chancellor's Department one can only speculate, but it seems unlikely that they would have been able to respond favourably in such a short space of time. It follows that the only way in which Mr Justice Toulson could have given Judge Davies authority to hear this case was by transferring it to the TCC list.
The Technology and Construction Court is not a separate court constituted by statute. It is the modern name, adopted in 1998, for that part of the business of the High Court which was done by Official Referees. The Judicature Acts 1873–75 created 'Official Referees of the Supreme Court of Justice' to whom any question could be referred for trial if it involved prolonged investigation of documents or accounts or any scientific or local investigation. Initially they could not give judgment or make orders as to costs, but in the Judicature Act 1884 they were given power to give a judgment, make orders for costs and exercise all the powers of the High Court in a case referred to them. When the office of circuit judge was created in the Courts Act 1971 it was provided that in future Official Referees' business would be dealt with by such circuit judges as the Lord Chancellor should determine.
The present legislative provision is contained in section 68(1) of the Supreme Court Act 1981:
"Provision may be made by rules of court as to the cases in which the jurisdiction of the High Court may be exercised by—(a) such Circuit judges, deputy Circuit judges or Recorders as the Lord Chancellor may from time to time nominate to deal with official referees' business."
That provision was formerly made under the Rules of the Supreme Court, Ord 36. Official Referees' business included any...
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