NOTES OF CASES
| Published date | 01 May 1963 |
| Date | 01 May 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00716.x |
NOTES
OF
CASES
HALF
A
YARD ONWARD
SELDOM do unreserved judgments given on an interlocutory appeal
stand out as landmarks in legal history.
It
may be prudent, there-
fore, to postpone one’s assessment
of
the importance of the Court of
Appeal’s decision in
Punton
v.
Ministry
of
Pensions and National
Insurance
*
till the substantive issues are finally determined. But
already
it
seems likely that the glacier-like advance of the declara-
tory judgment in public law has been resumed.
Under
R.S.C.,
Ord. 548,
r.
la,
a person claiming a legal right,
entitlement to which depends
on
a question of statutory construc-
tion, may apply to
a
single judge by originating summons
for
the
determination of the question and a declaration as to the right
claimed. The relationship between the procedure by way
of
originating summons and the bringing of an action for
a
declaration under Order 25,
r.
5, remains somewhat obscure, but in
many types of situations they are undoubtedly alternative modes
of
proceeding. The applicant in the present case was
a
semi-skilled
worker who had been thrown out of work as a result
of
a demarca-
tion dispute between two craft unions. He was refused unemploy-
ment benefit on the ground that he was
‘‘
a
person
. . .
directly
interested in the trade dispute which caused the stoppage of
work.”
*
He appealed unsuccessfully first to a local appeal tribunal
and then
to
the National Insurance Commissioner. The Commis-
sioner’s decisions are expressed to be final and are not subject to
appeal to the courts; they may, however, be impugned before a
Divisional Court
of
the Queen’s Bench Division upon an application
for certiorari to quash
for
error
of
law
on
the face of the record.
Instead of moving for certiorari the applicant took out an origina-
ting summons in that Division, seeking
a
determination
of
the dis-
puted point of construction in
his
own favour and a declaration
that he was entitled to unemployment benefit; the summons made
no
reference to the Commissioner’s decision and was accompanied
by affidavits setting out a version
of
the facts of the case conflicting
with those found by the Commissioner. In following this course the
applicant was presumably trying to enlarge the scope of judicial
inquiry beyond the issues that could be raised
on
an application
for
certiorari.
Master Jacob struck out the summons on the grounds that the
proceedings were unreasonable and vexatious. The claimant was
1
[1963] 1
W.L.R.
186;
also reported
[1963] 1
All
E.R.
276.
2
National Insurance Act,
1946,
8.
13 (1).
He
would,
however, become
entitled to national assistance.
297
VOL.
26
11
298
THE
MODEEN
LAW
REVIEW
VOL.
26
seeking a declaration inconsistent with a binding award which had
not been mentioned in the summons and which had been made by
a person who would not be brought before the court.
If,
more-
over, the court were to make such a declaration there would be two
valid but conflicting decisions by two properly constituted tri-
bunals, and the Commissioner had no power to rescind his own
award. The court had no jurisdiction to proceed in such a
manner.8 An appeal against the master3 order was dismissed by
Melford Stevenson
J.,
who emphasised that the applicant was
inviting the court to perform tasks already discharged by the
Commissioner.
Before the Court of Appeal, counsel for the applicant refrained
from relying on the affidavits, accepted the Commissioner’s findings
of fact and asked only for a declaration of the meaning of the
words
‘(
directly interested
.
. .
”
The court held that even as
so
amended the summons would be improperly framed, but allowed
the appeal subject to an amendment making it clear that what was
sought was a declaration whether the Commissioner, on the facts
found by him, had come to a correct determination in point
of
law.
Costs were awarded against the applicant.
That the courts had jurisdiction to make a declaration that a
determination of the Commissioner was bad in law was conceded by
counsel for the Ministry before the Court
of
Appeal. This sig-
nificant concession (possibly made as a gesture of reasonableness
while a number of other procedural objections were being urged)
could not, of course, confer upon the court a jurisdiction that it
did not already possess. Not unexpectedly, Lord Denning M.R.
took the opportunity to reaffirm in substance views on the broad
scope of the declaratory jurisdiction which he had expressed in a
number of cases,‘ and on this occasion Upjohn
L.J.
was still more
explicit. Against this background of concession and iteration
Diplock
L.J.’s
cautiously worded judgment is revealing for what
it
does not say. In his lordship’s view an application to have pro-
ceedings struck out as vexatious was not an appropriate procedure
for examining
“
difficult and doubtful questions of law.” But he
would not necessarily assent, without
“
further careful examina-
tion,” to the proposition that a declaration was an alternative
remedy wherever certiorari would lie. Its availability might depend
on the statutory terms in which jurisdiction was conferred on the
inferior tribunal and upon the statutory effect of its decision. In
other words, in
his
view
an
arguable point of law had been raised
which called for further proceedings on an amended summons.
8
The master’s reason8 are not
fully
reported
in
the
All England Reports.
4
In
Lee
v.
Showmen’s Guild
of
Great Britain
[1952]
2
Q.B.
329
at
p.
346;
Barnard
v.
National Dock Labour Board
[1953]
2
Q.B.
at
pp.
41-44;
Taylor
v.
National Assistance Board
[1967]
P.
101
at
p.
111,
and
Pyz
Granite
Go.
v.
Ministry
of
Housing and Local Gooernment
[1958] 1
Q.B.
654
at
p.
571.
See
8180
Freedom under the Low,
p.
126.
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