Notes of Cases
| Date | 01 July 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01040.x |
| Published date | 01 July 1964 |
NOTES
OF
CASES
HALF
AN
INCH
ONWARD
IN
an earlier note it was suggested that before one assessed the
importance of the Court of Appeal’s decision in
Punton
v.
Ministry
of
Pensions and National Insurance
*
it
might be prudent to wait
until the substantive issues arising in the case had been iinally
resolved. Prudence has been justitled by the outcome,
for
in
the
second
Punton
case
a
a differently constituted Court of Appeal took
a significantly narrower view of the jurisdiction of the courts to
award declarations to persons aggrieved by the erroneous decisions
of statutory tribunals.
The proceedings, which had been instituted by originating sum-
mons under Order
64A,
rule
1A
(now Order
5,
rule
4),
were an
attempt to impugn a determination by the National Insurance
Commissioner to the effect that certain semi-skilled workers, who had
been thrown out of work as a result of a demarcation dispute
between members of unions to which they did not belong, were
persons
‘$
directly interested
”
in
a trade dispute and were therefore
disentitled from receiving unemployment benefit.
On
a summons
to strike out the proceedings as vexatious, the Court of Appeal held,
in the first
Punton
case, that the originating summons could
properly be amended by expressing the question in the form
‘‘
Whether
on
the facts found by the Commissioner, the Commis-
sioner came to the correct decision in point
of
law.” Lord Denning
M.R.
and Upjohn
L.J.
expressed the view, moreover, that the
courts had jurisdiction to declare the decision of a statutory tribunal
to be wrong in law, even though the error committed by the tribunal
did not go to the tribunal’s jurisdiction.
After hearing argument
on
the substantive issues in
Punton (No.
I),
Phillimore
J.
held4 (i) that he had jurisdiction to award the
declaration sought, but (ii) that he was not satisfied that the Com-
missioner had erred in law and (iii) that in any event he would be
disinclined to exercise his discretion in favour of the plaintiffs, since
the Commissioner’s decision
on
a question of mixed law and fact
was one
on
which opinions could well differ and
it
was undesirable
for
the courts to intervene in this way in the administration
of
a
scheme designed to give speedy decisions
on
claims
for
unemploy-
ment benefit. The Court of Appeal agreed with Phillimore
J.’s
1
(1963)
26
M.L.R. 297.
2
[1963]
1
W.L.R. 166; [1963]
1
All
E.R.
276.
3
Punton
v.
Minist~y
of
Pensions
and National
Insurance
(No.
2)
[1964]
1
4
[1963]
1
W.h.k
. 1176; [1963]
2
All
E.R.
693.
W.L.R. 226. 19641
1
All
E.R.
446.
458
JULY
1964,
NOTES
OF
CASES
459
observations on points (ii) and (iii), but disagreed with his finding
that the courts had jurisdiction
to
award a declaration in such
circumstances.
A
detailed statutory code has been provided for the
determination of national insurance questions. Parliament had
abstained from conferring any right of appeal to the courts from the
Commissioner’s decisions. They could indeed be challenged by
means of an application for certiorari to quash for error of law
on
the face of the record, but here
no
application
for
certiorari had been
made and the time for applying had expired. There were situations
in which a declaration could be obtained as an alternative remedy
to certiorari; but
a
declaration that a decision of the Commissioner
made within his jurisdiction was wrong in law would be ineffectual,
since
it
would leave his original determination undisturbed.
If
such
a declaration were to be made, there would be two inconsistent but
binding decisions
on
the same issues between the same parties.
There was
no
means whereby the Commissioner’s determination
could be revoked,
nor
was there any machinery whereby unemploy-
ment benefit could lawfully be paid to the plaintiffs out of the
National Insurance Fund. The case was indistinguishable from
Healey
v.
Minister
of
He~lth,~
and the court had
no
jurisdiction to
award declaratory relief in those circumstances.e
Nevertheless,
it
would be unwise to conclude that in
no
circum-
stances will the courts now assert jurisdiction to declare a decision
made by a statutory tribunal within its jurisdiction to be erroneous
in law. Quite apart from the broad dicta offered by
Lord
Denning
M.R.
in
a
number of cases, and by Upjohn
L.J.
and Phillimore
J.
in the two
Punton
cases, we now have remarks made by Sellers
L.J.
in delivering the leading judgment in
Punton (No.
a).
He
observed that a declaration may be more advantageous than
certiorari
“
where an authoritative statement of the law by the
High Court will serve to undermine a decision
or
order
so
that it
need not be complied with and could not in the light of the
pronouncement of the law be successfully enforced,”
or
where a
person wishes to ascertain the extent of his statutory liabilities
(as in the
Pyx Granite
case).(( And in distinguishing
Taylor
v.
National Assistance Board
(which had been relied
on
by the
appellants) from the present case he noted that there the Board
had had power to amend its own decisions.1°
It
is
conceivable,
therefore, that
if
the Commissioner had been empowered to rescind
his own determinations the Court of Appeal would not have dis-
claimed jurisdiction to grant the declaration sought but would have
confined itself to refusing a declaration in its discretion.
5
[1965]
1
Q.B.
221.
8
See
further,
Note
(1963) 26
M.L.R.
297
at
pp.
299300.
7
[1964]
1
W.L.R. 226
at
pp. 236237.
8
[1960]
A.C.
260.
9
[1956]
P.
470
(in
the
court
of
first
instance).
10
[1964]
1
W.L.R. 226
at
p.
238.
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