Hill v Archbold

JurisdictionEngland & Wales
Judgment Date16 June 1967
Judgment citation (vLex)[1967] EWCA Civ J0616-2
Date16 June 1967
CourtCourt of Appeal (Civil Division)

[1967] EWCA Civ J0616-2


The Master of the Rolls (Lord Denning)

Lord Justice Danckwerts and

Lord Justice Winn

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From Mr Justice Mackenna

THE APPELLANT appeared in person.

MR OWEN STABLE, Q.C. and MR J.M. RANKIN (instructed by Mr Kenneth Wormald) appeared as Counsel for the Respondent.


Mr Hill is a school teacher in North London. He has been for many years a member of the National Union of Teachers. In spite of its name, it is not a Trade Union., properly so called. He brings this action against the treasurer of the union claiming that they have no right to use their funds in paying certain legal costs.


On the 10th October, 1964, Mr Hill issued a circular letter to the County Associations of the "Union. He made accusations against the General Secretary of the Union, Sir Ronald Gould, and the Secretary of the Salaries and Superannuation Committee, Dr. Barnes. He accused them of telling lies. The union itself took the matter up. They took the opinion of counsel. He advised that the statements made by Mr Hill in the circular were defamatory both of Sir Ronald Gould and Dr. Barnes and were unjustified and actionable. The union resolved that legal assistance be given to Sir Ronald and Dr. Barnes, as employees of the union, in any action that they should take against Mr Hill. Such legal assistance was to be given by an outside firm of solicitors.


Thereupon Sir Ronald Gould and Dr. Barnes brought libel actions against Mr Hill complaining of his accusation in the circular. Those actions were tried before Mr Justice Milmo and a jury. The jury found in favour of Mr Hill. Sir Ronald Gould and Dr. Barnes appealed to this Court. This Court upheld the decision in favour of Mr Hill. Mr. Hill did not ask for any costs.


In bringing those actions, Sir Ronald Gould and Dr. Barnes incurred considerable costs to their own solicitors. The union propose that those costs should be paid by the union out of its funds. Mr Hill claims that that should not be allowed. He says that he is a member of the union and that he ought not to be made, even indirectly to a small extent, to contribute to those costs. It would be unjust, he says, and against the spirit of the findings of the jury if he were now made to contribute towards thecosts of Sir Ronald Could and Dr. Barnes.


Mr Hill puts his case in two ways: First, he says that it is unlawful for the union to support the litigation, because it is the offence or wrong of maintenance. Secondly, he says that it is not within the powers of the union to pay these costs. It is ultra vires.


Maintenance is a very ancient offence. It was a crime, and also a civil wrong, officiously to intermeddle in another man's lawsuit. It was at one time carried so far that no man could help another by paying his costs. In 1797 Lord Lough borough, Lord Chancellor, said that "every person must bring his suit upon his own bottom and at his own expense", see Wallis v. Duke of Portland (1797) 3 Vesey Junior at p. 502. There were exceptions when a person had a valuable interest in the result of the suit itself or an interest arising from the connexion of the parties, e.g. as master and servant, see Bradlaugh v. Newdegate (1883) 11 Queen's Bench Division at p. 11. But these exceptions were never very clearly defined. In particular the exception of master and servant was most obscure. That appears in Professor Winfield's book on "Abuse of Legal Procedure" at pp. 34 to 39.


I do not think it useful today to trace the origins of maintenance. The modem law is not to be rested on those old notions. It is to be found in the judgment of Mr Justice Danckwerts, as he then was, in Martell v. Consett Iron Co. Limited., 1955, I Chancery, p. 363. He asked the rhetorical question (at p. 382): "How can such a doctrine founded upon considerations of public policy become at some point frozen into immutable respectability so as to be no longer capable of alteration?" A person is still guilty of maintenance if he supports litigation in which he has no legitimate concern without just cause or excuse. But the bounds of "legitimate concern" have been widened: and "just cause or excuse" has been readily found.


This new approach means that we must look afresh at the previous cases. In particular at two cases on which Mr Hill relies. The first is Oram v. Hutt, 1914, 1 Chancery, p. 98. In that case a man had slandered the general secretary of a trade union, accusing him of misconduct in the affairs of the union. The executive committee of the trade union authorised the general secretary to sue for slander and agreed to indemnify him against the costs. The general secretary won. He got judgment for £1,000 and costs. But the defendant could not pay anything. So the trade union paid the costs incurred by the general secretary. One of the members of the union then sued the trustees of the union claiming that the payments were illegal. It was held by this Court consisting of Lord Parker of Waddington, Lord Sumner and Mr Justice Warrington that the payment was obnoxious to the law of maintenance. They ordered the general secretary to repay the money.


It might be possible to distinguish that case from the present one on the narrow ground that the general secretary in that case was not the servant of the trade union, whereas in the present case Sir Ronald Gould and Dr. Barnes were servants of the union and were paid by them.


I do not think it right to take such a narrow point of distinction. It is now over fifty years since Oram v. Hutt was decided. I prefer to say plainly that Oram v. Hutt is no longer good law. Much maintenance is considered justifiable today which would in 1914 have been considered obnoxious. Most of the actions in our Courts are supported by some association or other, or by the State itself. Very few litigants bring suits, or defend them, at their own expense. Most claims by workmen against their employers are paid for by a trade union. Most defences of motorists are paid for by insurance companies. This is perfectly justifiable and is accepted by everyone as lawful, provided always that the one who supports the litigation, if it fails, pays the costs of the other side. It is the universalexperience in this Court that if a trade union or an insurance company supports a case and fails, it pays the costs of the other side. In the light of this experience, I am satisfied that if Oram v. Hutt were to come before us today, we should hold that the union had a legitimate interest in the suit and were quite justified in maintaining it: remembering that if the suit had failed, the union would have paid the costs.


The second case is Baker v. Jones, 1954, 1 Weekly Law Reports, p. 1005. Libel actions had been brought against some of the officers of the Weightlifters' Association. The actions arose out of the work of the association. The association paid £100 to assist the officers in their defence. The case was decided on the interpretation of the rules. But Mr Justice Lynskey expressed the opinion, based on Oram v. Hutt, that it was the tort or crime of maintenance. Seeing that Oram v. Hutt would be decided differently, I think that these observations of Mr Justice Lynskey were erroneous.


I put aside those two cases as no longer valid and turn to the present case. The National Union of Teachers were most concerned and interested in this suit. Sir Ronald Gould and Dr. Barnes were two of their most highly trusted officers. The letters which they wrote, to which Mr Hill took exception, were all written in the course of their employment by the Union. If the accusations made by Mr Hill were justified, they were not fit to be servants of the Union. That was the very contentions Mr Hill in the litigation. He said there words rendered them unfit to hold office and to continue in the employment of the Union. In this situation it was a most proper case for the Union to support this litigation. I know they failed. But that does not mean that the Union were not right in taking the matter up, as they did, at the outset. I do not think that the Union were guilty of maintenance or any wrongdoing in supporting this suit and agreeing to pay the costs of Sir Ronald Gould and Dr. Barnes.


The other point is whether the payment of the costs is permitted by the rules of the Union. Mr Hill has pointed out, and it is admitted, that there is no specific provision in these rules to authorise the payment. Nevertheless, all associations have power to do everything which is fairly incidental to achieving their objects. For instance, this very Union has power to employ and pay officials, although there is nothing specific on the point. They can pay them pensions and do everything which a good employer would do for his servants, even though the rules say nothing about it. So also it seems to me that when a servant is involved in litigation which a rises out of his work with the Union, it is within the power of the Union to help him in his litigation. Just as much as if the servant of a Company, while driving the Company's car, is involved in an accident, I should have thought that the Company could support him in his litigation, although the rules say nothing about it.


One question which troubled the Judge below was that there is a special rule, No. 46, dealing with the...

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