Jones v Department of Employment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE SLADE,MR. JUSTICE CAULFIELD |
| Judgment Date | 26 November 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1126-2 |
| Docket Number | 87/1198 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 1987 |
[1987] EWCA Civ J1126-2
Lord Justice Slade
Lord Justice Glidewell
Mr. Justice Caulfield
87/1198
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE OXFORD COUNTY COURT
(MR. RECORDER STEMBRIDGE)
Royal Courts of Justice
MR. JOHN LAWS (instructed "by the Solicitor to the Department of Health and Social Security) appeared for the Appellant (Defendant).
MR. ALEXANDER HILL-SMITH (instructed by Messrs. Linnells, Oxford) appeared for the Respondent (Plaintiff).
The plaintiff, Mr. Martin Jones, was employed from October 1977 as the managing director of a company. In May 1984 his employers required him to resign from his employment, which he did. He ceased work on 29th June 1984.
On 17th July 1984 Mr. Jones made a claim for unemployment benefit. On 5th October 1984 that claim was disallowed by an adjudication officer. The plaintiff appealed, as he was entitled to do, to the Social Security Appeal Tribunal. On 25th June 1985 his appeal was allowed and he was paid unemployment benefit backdated to 17th July 1984.
On 3rd March 1986 the plaintiff commenced these proceedings in the Oxford County Court, claiming damages for loss allegedly caused by the negligence of the defendants, the Department of Employment, and of their employee the adjudication officer. Put shortly, the allegations made are that the adjudication officer was negligent in reaching his decision to disallow unemployment benefit, and that the Department was itself negligent in failing to review that decision once further evidence had been put before it by solicitors for the plaintiff in a letter dated 29th October 1984. The amounts claimed are £701.50, being the amount of the plaintiff's legal fees for the conduct of his appeal to the tribunal, £65 for personal expenses and unqualified "aggravated damages in respect of the worry, distress, anxiety and inconvenience caused to" the plaintiff.
On 28th April 1986 the defendants applied to strike out the proceedings as disclosing no cause of action under Order 13 Rule 5 of the County Court Rules 1981. On 18th July 1986 Mr. Recorder Stembridge refused that application. The defendants now appeal against his decision.
The appeal is based on four grounds which are conveniently summarised in the skeleton argument submitted to us by Mr. Laws. They are in substance:
(1) section 117 of the Social Security Act 1975 excludes any right of action at common law for alleged negligence in the making of a decision by an adjudication officer;
(2) an adjudication officer owes no duty at common law to a person whose claim he is considering, the breach of which would found an action for negligence;
(3) the adjudication officer's functions are of a judicial character, and the Department is therefore protected from suit by section 2(5) of the Crown Proceedings Act 1947;
(4) the Recorder asked himself whether the pleaded facts arguably disclosed a cause of action; this was the wrong question; he should have asked whether those facts did disclose a cause of action.
The last ground was not contained in the grounds of appeal as originally filed, but we gave leave to make the necessary amendment.
Before this court heard the substance of the appeal, we considered and ruled upon an objection taken by Mr. Hill-Smith on behalf of Mr. Jones to the first two grounds of appeal set out above. His objection was that neither of these points was raised in the court below or, if either was raised, it was in such muted terms that it found no part in the judgment of the Recorder.
It is clear from the Recorder's judgment that, in his view, the major, if not the sole, point upon which he had to make his decision was whether the adjudicator's function was of a judicial character, so as either to come within section 2(5) of the Crown Proceedings Act 1947 or to be subject to an alleged immunity at common law of persons acting in a judicial capacity. It was on this ground that he gave his decision in favour of Mr. Jones.
In an affidavit sworn on behalf of the Department Mr. David John Huggins referred shortly to the first two points upon which Mr. Laws bases his appeal. At paragraph 2 Mr. Huggins said:
"I would submit to this Honourable Court that in relation to the determination of and entitlement to Unemployment Benefit this Court has no jurisdiction since such matters can only be determined by an Adjudication Officer, a Social Security Appeal Tribunal, a Social Security Commissioner (known collectively as 'the statutory authorities') and the Court of Appeal as described in more detail elsewhere in this affidavit."
Mr. Huggins then set out the relevant legislation, including the wording of section 117(1) of the 1975 Act. Nevertheless, as I have said, the Recorder paid no attention to these points and it seems clear that there was little, if any, argument about them before him.
Mr. Hill-Smith based his objection on the long standing practice derived from the decision of the House of Lords in Smith v. Baker (1891) A.C. 325. In his speech in that case Lord Halsbury L.C. said at page 333:
"My Lords, this was an action originally tried in the county court, and it is very important to bear in mind that only a limited appeal is allowed by law in actions so tried. There is no power to review the decision of fact arrived at in the county court by any other tribunal than the county court itself. A matter of law can be made the subject of appeal, but then only when the point has been raised at the trial before the learned judge. That question was decided in Rhodes v. Liverpool Commercial Investment Company (2). In Seymour v. Coulson (3) the principle was affirmed that the point of law must be taken; and finally in Clarkson v. Musgrave (4), where all the cases were reviewed, it was established (and I think has been accepted ever since) that the raising of the point of law at the trial is a condition precedent to any appeal from the decision of the county court.
My Lords, I think there are good reasons for the enactment which has so limited an appeal, and in truth even where written pleadings render such precautions as the statute has enforced in the county court less necessary, the same precaution has been constantly enforced where applications for a new trial have been made in the Superior Courts. It is obvious that it would be unjust to one of the parties if the other could lie by and afterwards, having failed on the contention that he in fact set up, be permitted to rely on some other point not suggested at the trial, but which if it had been suggested might have been answered by evidence: see McDougall v. Knight (5)."
Lord Herschell said at page 358:
"My Lords, the first argument addressed to your Lordships by the learned counsel for the appellant was that it was not competent for the respondents to raise the objection that there was no evidence of negligence, no such point having been made in the County Court. In support of this proposition he cited the case of Clarkson v. Musgrave (3), which is a distinct authority to that effect. The learned counsel for the respondents did not impeach the authority of that decision, or invite your Lordship to overrule it. I see no reason to think the decision was erroneous. It would, in my opinion, be very mischievous if an appeal from a decision of a county court could be sustained on the ground that there was no evidence to go to the jury when that point had not been raised before the county court judge."
Lords Watson and Morris expressed opinions to the same effect.
In UD T v. Bycroft (1954) 1 W.L.R. 1345 in this court, Sir Raymond Evershed M.R. said at pages 1350–1351:
"I agree, of course, that the general issue of the validity of the agreement and whether any invalidity affected the right of the holder of the promissory note to sue upon it has been raised by the amended pleading, but I have myself come to the conclusion that, although within the scope of the general issue, this was such a new way of putting the plaintiffs' case as to amount to a new point within the meaning of that formula, as it has been used and applied in these courts ever since Smith v. Baker & Sons in 1891. I make no attempt to define 'a new point' for this purpose or to declare what are its characteristics. I think it is perhaps a matter in the end of common sense in the light of all the circumstances of a particular case, but in the present case I am satisfied that this way of putting the case is a new point of law. I rest my conclusion perhaps most strongly upon this consideration, that the judgment, extracts from which I have read, seems to me to be in no way whatever related to it; indeed, it seems to me to have proceeded upon a basis which was absolutely inconsistent with the way in which Mr. Lyell now puts his case.
As a matter of principle, the Court of Appeal has always been strict in applying the rule that an appellant from a county court, unless the other party consents, cannot be allowed in this court to raise a new point of law not raised below. After all the county court is intended to serve litigants of relatively small means, and it is not in accordance with the public interest that a party, who has fought a case in a county court and been defeated, should then come to this court and raise in this court a new point, and put his case in an entirely different way as a matter of law and so make the other party, hitherto successful, litigate the matter again at the risk of having to pay the costs not only below but in this court."
Finally, in Oscroft v. Benabo (1967) 1 W.L.R. 1087, again a decision of this court, Willmer L.J. said at pages 1091–2:
"As...
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