Howell v Falmouth Boat Construction Company Ltd

JurisdictionEngland & Wales
JudgeLord Simonds,Lord Normand,Lord Oaksey,Lord Radcliffe,Lord Tucker
Judgment Date20 June 1951
Judgment citation (vLex)[1951] UKHL J0620-2
Date20 June 1951
CourtHouse of Lords

[1951] UKHL J0620-2

House of Lords

Lord Simonds

Lord Normand

Lord Oaksey

Lord Radcliffe

Lord Tucker

Howell
and
Falmouth Boat Construction Limited.

Upon Report from the Appellate Committee, to whom was referred the Cause Howell against Falmouth Boat Construction Limited, that the Committee had heard Counsel as well on Tuesday the 4th, as on Wednesday the 5th, days of April last, upon the Petition and Appeal of Stephen Naylor Howell, of Red Leaf Cottage, Whitchurch, in the County of Hants, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 10th of February 1950, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order 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 Falmouth Boat Construction Limited, 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 Order of His Majesty's Court of Appeal, of the 10th day of February 1950, complained of in the said Appeal, be, and the same is hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Simonds

My Lords,

1

I have had the privilege of reading the opinion of my noble and learned friend Lord Normand which is about to be read and I propose only to make some observations on the law applicable to the facts as stated by him.

2

The substantial question is whether the plea raised by the Appellant, that the work, in respect of which the Respondents' claim was made, was illegal in that they had no licence from the Admiralty to carry it out, is a valid plea. The plea is founded upon the general proposition that "what is done in contravention of the provisions of an Act of Parliament cannot be made the subject matter of action." These are the words used by Lord Ellenborough C.J. in Langton v. Hughes 1 M. & S. 593 and they have been cited with approval by the highest authority. I have no doubt that they are equally applicable to what is done in contravention of a Regulation lawfully made under the authority of an Act of Parliament and to an Order lawfully made under the authority of such a Regulation. That which is prohibited cannot lawfully be done whether the prohibition is contained in Act or Regulation or Order, and if it cannot lawfully be done it cannot be the subject of a claim enforceable at law.

3

How then is this plea met by the Respondents? They say in the first place that the assumption of illegality is not well founded and that the Appellant is wrong in his contention that upon the true construction of the relevant Act, Regulation and Order it was necessary that a licence in writing should be granted by the competent authority before they began or completed the work. This question I will examine later, for I would first deal with the reasons why in the opinion of Denning, L.J. the plea fails. The learned Lord Justice gave two reasons. He was prepared to assume that the original Order of 1940 postulated a licence in writing but nevertheless thought that in the circumstances the Court should presume (applying the maxim omnia praesumuntur rite esse acta), that it had been varied so as to enable oral permission to be given. Your Lordships were told that this contention had not been debated at the Bar and that the Appellant's counsel had no opportunity of dealing with it. He was able, given the opportunity, to satisfy the House that no such varying Order had in fact been made, citing in particular Statutory Instrument 1949 No. 1766 which would in its terms be inconsistent with such an Order. In the circumstances the Respondents' counsel did not rely on this reason.

4

The second reason given by the learned Lord Justice was based upon the same assumption as the first and upon the further assumption that a varying Order ought not to be presumed. He described the principle that he invoked as of particular importance in these days when the officers of Government Departments are given much authority by orders and circulars which are not available to the public. I will state this principle in his own words:

"Whenever Government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which he is concerned, he is entitled to rely on their having the authority which they assume. He does not know and cannot be expected to know the limits of their authority and he ought not to suffer if they exceed it. That was the principle which I applied in Robertson v. Minister of Pensions [1949] 1 K.B. 227 and it is applicable in this case also."

5

My Lords, I know of no such principle in our law nor was any authority for it cited. The illegality of an act is the same whether or not the actor has been misled by an assumption of authority on the part of a Government officer however high or low in the hierarchy. I do not doubt that in criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence, and in any case it would have a bearing on the sentence to be imposed. But that is not the question. The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way but that does not justify a different answer being given.

6

I am therefore of opinion that the order of the Court of Appeal cannot be sustained for the reasons given by Lord Justice Denning, but I am nevertheless of opinion that this appeal should be dismissed for the reasons to be given by the noble and learned Lord who follows me, with which I am in full agreement, and I will add only a few words.

7

I have come to the conclusion that upon the true construction of the relevant order the word "licence" means "licence in writing". If, having given the matter the best consideration I could, I remained in doubt, I should think it proper to apply to this case also the principle applied in Berriman's case [1946] A.C. 278. In that case Lord Porter reasserted the rule (I use his own words) that "where a statute imposes a penalty … and the obligation in respect of which the penalty is imposed is expressed in ambiguous terms, the more lenient construction of the section should be adopted so that the penalty may not be incurred in a doubtful case." Lord Macmillan said that "where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language." I ventured to sum up the rule in the phrase that a man should not be put in peril on an ambiguity. I regard it as of particular importance that this rule should be observed, whether the statutory prescription refers to the invasion of copyright or to the system of working in a factory or (as here) to the repair of ships in a shipyard. Perhaps it is of peculiar importance where the prescription is contained not in Acts of Parliament or even in Regulations but in Orders which are not easily accessible to the public. But in order that this principle may be invoked there must be an ambiguity, and, as I have said, though I have felt the force of the argument to the contrary, I have come to the clear conclusion that the licence which the Order postulates is a licence in writing.

8

But that does not conclude the matter. For I see no reason why in the circumstances of this case the licence in writing should not cover work already done under the oral sanction of the proper authority as well as work to be done in the future. Upon this part of the case I do not wish to add anything to what my noble and learned friend will say. In my opinion the appeal should be dismissed with costs.

Lord Normand

My Lords,

9

The action was brought by the Plaintiffs and Respondents to recover the sum of £4,371 11s. 7d., the balance alleged to be due for work done and materials supplied for the repair and alteration of the Appellant's vessel M.L. 229. In his original...

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1 books & journal articles
  • Public Law Representations and Substantive Legitimate Expectations
    • United Kingdom
    • The Modern Law Review No. 64-1, January 2001
    • 1 January 2001
    ...vHulkin, unreported but cited in Minister of Agriculture andFisheries vMatthews [1950] 1 KB 148, 154.60 [1949] 1 KB 227.61 ibid, 232.62 [1951] AC 837.63 n 69 above and in the Court of Appeal in Howell vFalmouth Boat Construction Co [1950] 2 KB 16,where Denning held that an applicant should ......

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