Ferrier v Scottish Milk Marketing Board
| Jurisdiction | England & Wales |
| Judge | Lord Blanesburgh,Lord Atkin,Lord Macmillan,Lord Maugham,Lord Thankerton,. |
| Judgment Date | 16 July 1936 |
| Judgment citation (vLex) | [1936] UKHL J0716-1 |
| Docket Number | No. 7. |
| Court | House of Lords |
| Date | 16 July 1936 |
[1936] UKHL J0716-1
House of Lords
Lord Blanesburgh.
Lord Atkin.
Lord Thankerton.
Lord Macmillan.
Lord Maughan.
After hearing Counsel, as well on Friday the 15th, as on Monday the 18th, days of May last, upon the Petition and Appeal of William Ferrier, Burnhouse, Piershill, Edinburgh, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 30th of May 1935, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Scottish Milk Marketing Board, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 30th day of May 1935, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction that the Defender should be assoilzied from the crave of the Initial Writ as laid, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Sheriff Court and in the Court of Session, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
I have had the privilege of reading the Opinion which has been prepared by my noble and learned friend Lord Thankerton and which he is about to pronounce. I agree entirely with the conclusion at which my noble and learned friend has arrived, and with the reasons which he gives in support of it.
My Lords,
I have had the advantage of reading the opinion about to be delivered by my noble and learned friend Lord Thankerton with which I agree: and only add a few words of my own, to state an additional reason for the conclusion to allow the appeal at which I believe all your Lordships have arrived. The fallacy as I venture to think it in the reasoning of the majority of the learned judges in Barron's case is not unfamiliar. They have found in the Act and scheme a central purpose, equality of price between milk producers, and have adapted their construction of the words of the scheme to carry out this object. My Lords, this Procrustean method has the almost inevitable result of stretching the meaning of words to fit the bed so constructed. For my part I share the doubt expressed by the late Lord Murray, whose loss to judicature lawyers both in England and Scotland deplore, as to whether either the Act or the scheme aimed at equality between all producers. There appear to be excellent reasons why at any rate some of the two classes of produce retailers and producers of certified milk might claim that they control their own market and are in no way dependent upon or assisted by the existence of a Milk Marketing Board. But leaving this aside the question always must be what do the relevant words mean. I cannot bring myself to think that the words "to recover a contribution necessary to cover the costs of operating the scheme" include a contribution for the purpose admitted in the fourth condescendence and answer in the present case. "Costs of operating the scheme" in ordinary language must mean expenditure or liability which if not recouped would fall upon the Board: they cannot include in my opinion sums which represent no expenditure or liability of anyone but which are levied upon all milk producers for the sole purpose of increasing a fund to be distributed amongst some of the producers. They are not costs of obtaining a fund but levies to increase the fund. I find myself in agreement with the judgment of the late Lord Murray on this point. I adopt the motion suggested by my noble and learned friend.
My Lords,
The only provision of the Scottish Milk Marketing Scheme on which the Respondents can rely as empowering them to make any levy on the Appellant is to be found in Section 24 (2). They are thereby authorised to recover from the Appellant such contribution as they may from time to time consider necessary "to cover the cost of operating the scheme," such contribution to be assessed in the prescribed manner. It is maintained by the Respondents that these words entitle them to exact from the Appellant a contribution towards making up the difference between the price obtained by the Respondents for milk sold by them in the manufacturing market and the price which would have been obtained for it in the liquid market, or in other words to exact what may be described as a compensatory levy from the Appellant.
If this was the intention of the framers of the scheme I cannot conceive of a less straightforward way of expressing it. No doubt it is possible to disengage from the complexities which under the scheme beset those who deal in what used to be called milk but which we must now call "the regulated product," a general conception of equalising the price ultimately to be obtained by all who have milk to sell, but imposts upon the subject cannot be imposed by inference. It is a sound and well-recognised principle that "a taxing statute must impose a charge in clear terms or fail, since it is to be construed contra proferentem" (Levene v. Inland Revenue Commissioners, [1928] A.C. 217, per Viscount Sumner at p. 228). The levy which the Respondents seek to impose upon the Appellant is none the less a tax because it is part of a scheme intended for his economic benefit.
The critical words in the present case—"the costs of operating the scheme"—are in my opinion quite inapt to cover the compensatory levy which the Appellant challenges. That the Respondents obtain a lower price for milk sold for manufacturing purposes than is obtained for milk sold in the liquid market is doubtless the case. But this is an incident of the scheme, not a "cost" of operating it. They have not incurred any "cost" by selling milk in the manufacturing market. There has been no disbursement on their part. At most it can only be said that they have received a less return for the milk of which they have so disposed than they would have received if they had disposed of it in the liquid market. But I cannot find any justification, least of all in what is in effect a taxing statute, for...
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