NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb00235.x |
| Published date | 01 April 1952 |
| Date | 01 April 1952 |
NOTES
OF
CASES
CERTIORAI~I
AND
SPEAKING
ORDERS
THE
important decision of the Divisional Court in
R.
v.
North-
umberland Compensation Appeal Tribunal,
e@
p.
Shaw
[1051] 1
K.B.
711,
in which it held that certiorari would issue to quash the
decision of a statutory tribunal where error of law appeared on the
face of the record, has been afirmcd by the Court
of
Appeal
([1052]
1
T.L.R.
161).
The case was noted in
14
M0d.L.R.
207,
but the
judgment of Denning
L.J.
in the Court of Appeal raises some
interesting points and calls for further comment.
In the Court of Appeal it was again contended
€or
the tribunal
that certiorari did not lie
to
quash the decision of a statutory
tribunal for a patent error of law unless the error went to
jurisdiction. All members of the court rejected this contention.
Singleton and Morris
L.
JJ.
substantially repeated the reasoning. of
Lord Goddard
C.J.
in the court below. The jurisdiction of the
King’s Bench Division in this matter is supervisory, not appellate,
since a court is limited to quashing the order and cannot substitute
its own order for that of the tribunal. (In describing the court
in the earlier note as exercising “what is in effect an appellate
jurisdiction
)’
the writer was guilty of a lamentable malapropism.)
Denning
L.J.
sought to establish that there were precedents for
the present decision, and cited cases concerning the Commissioners
of
Sewers and auditors’ certificates. But the Commissioners
of
Sewers had been made a court of record by statute; and auditors’
certificates were removed by a statutory certiorari, which was,
unlike common law certiorari, generally trcated as being a method
of appeal.
It
seems probable that this is the first English case in
which common law certiorari has issued to a body other than a
court
strict0
semu
for
error of law on the face of the record.’
That the decision is a sound one can hardly be doubted. In many
cases the courts have held that the other grounds on which certiorari
will issue to quash the decisions of inferior courts apply,
mutatis
inutandis,
to administrative tribunals. Why should they make
an exception in this instance? To impute
to
Parliament, when
it
provided for the establishment of an administrative tribunal, an
intention that the tribunal should be immune from a supervisory
jurisdiction that had fallen into oblivion, is to display more
ingenuity than persuasiveness. In any event Parliament can, by
the use’of apt words, exclude the jurisdiction of the courts. And
whilst
it
is conceivable that the present decision may discourage
1
There
is a
recent Canadian preiedent:
John
East
Iron
Works, Ltd.
v.
Labour
217
Relations Board
of
Saskatchewan
[1949]
3
D.L.R.
51.
218
THE MODERN
LAW
REVIEW
V~L.
15
some tribunals from giving written reasons
for
their decisions in
future,a such a possibility is obviously not one that should weigh
with a court in determining the scope of certiorari.
It
was also contended
for
the tribunal that, although
it
had
erred, the error did not appear on the face
of
the record. Singleton
and Morris
L.JJ.
held that this submission was not open to the
tribunal, since
it
had conceded before the court below that the
error was apparent on the record. Singleton
L.J.
held, moreover,
that the error did appear on the record; Morris
L.J.
expressed
doubts on this point. Denning
L.J.
took a different view, and
considered the submission at some' length. Following the cases
on orders and convictions by justices, he held that the record of a
tribunal must contain the document initiating the proceedings, the
pleadings (if any) and the adjudication, though it need not include
the evidence
or
the reasonsfor the decision. Here the record was
incomplete in that, although
it
included the reasons for the decision,
it
did
not include the claim originally lodged with the compensation
authority
or
their order or the notice
of
appeal to the tribunal.
The court had power to order the record to be completed. How-
ev&, this was unnecessary, because
it
had been openly admitted
that the decision was erroneous. He was
"
clearly of opinion that
an error admitted openly in the face
of
the court can be corrected
by certiorari as well as an error that appears on the face of the
record
)'
(at
172).
It
was a general rule that the courts could not
take cognizance of errors
of
law that were not apparent on the
record, but the parties could overcome this difficulty by consent,
either by agreeing that the question should be argued and deter-
mined as
if
it
had been expressed in the order
(R.
v.
Essex
(Inhabitants)
(1702)
4
T.R.
591
and later cases)
or
by agreeing
that affidavits be entered disclosing the points
of
law that had
been decided by the tribunal. This course was taken only
if
no one
objected. Recent cases showed that the practice still continued.
It
is respectfully submitted that Denning
L.J.'s
statement of
the law is too wide. There is not sufficient authority to support
a
general proposition that by consent
of
the parties affidavit evidence
or
admissions in the face of the court may properly be used to
disclose errors of law that are not apparent on the record of
a
tribunal. Whilst
it
is true that in several old rating cases affidavits
were admitted to disclose latent errors of law, in
a
number
of
well-
known cases the courts have held that they are not admissible
except
to
show excess
or
want of jurisdiction, breach
of
the rules
of natural justice
or
fraud. Nowhere, it seems, has
it
been held
that consent
of
the parties renders extrinsic evidence admissible for
any other purpose in certiorari proceedings.
In
the cases cited by
2
See the reply givcn by the Minister
of
Local Government and Planning
to
a
xarliamenttuy questioner
who
suggested that rent tribunals be advised
to
issue
orders in cases
of
difficulty:
447
H.C.Deb. 1732-1733 (May
8
speaking
1951).
APUIL
1962
NOTES
OF
CASES
219
Denning
L.J.
the point of admissibility was not argued, and they
cannot be regarded as having established an autkioritative exception
to the general rule. Legal principles have sometimes been tem-
porarily forgotten
or
ignored in other branches of the law until the
true principle has been re-affirmed by the
court^.^
The two cases
cited by' Denning
L.J.
as exemplifying a modern practice of
enlarging the jurisdiction
04
the courts by consent are inconclusive
:
one must be treated as anomalou~,~ and in the other the main
purpose for which affidavits were admitted was to show that the
tribunal had failed to observe the rules of natural justice5-an
allegation that can undoubtedly be established by evidence dehors
the record.6
Nevertheless, a strong case can be made for introducing a limited
exception to the general rule. The
''
records
')
of administrative
tribunals are not to be compared too closely with the formal records
of courts
strict0
sensu.
Thus, the High Court of Australia has held
'
that
a
statutory tribunal that is under no duty to keep a formal
record need not recite in its orders the facts that invest
it
with
jurisdiction. Where a statutory tribunal has made a speaking order,
from which it is apparent that the tribunal has probably erred in
law, but which is not wholly intelligime' because
of
the omission
of the preliminary recitals
or
the contentions of the parties, there
is no reason of principle why extrinsic evidence and admissions in
the face of the court should not be used to remove the cause of
ambiguity.
S.
A.
DE
SMITE.
STATUTORY
INTERPRETATION
INTERPRETATION
is always a difficult art, and in the interpretation of
statutes the task is not made easier by the phraseology of the main
canons.
It
is easy to say that
if
the words of the statute are clear
then nothing can be added
or
taken away, but that if they are not
it
is possible to look at the mischief and find a necessary implication
in the words of the statute. Yet what is clarity to one is obscurity
to another. What is necessary implication to one is unwarranted
interpolation to another. To say that is merely to repeat common-
places and although therefore the decision of the House
of
Lords
in
Magor
and
St.
Mellons
R.
D.
C.
v.
Newprt
Corporation
[1951]
2
All
E.R.
889,
may not deserve fame as bringing out new principles
of .interpretation
it
does at least merit notice as an admirable
illustration of the conflict inherent in the old. The facts of the
J
Seo,
e.g.,
the practice condemned
in
Adam
v.
Naylor "461
A.C.
543.
J
R.
v.
West
Rading
of
Yorkshire
JJ.,
ez
p.
Broadbent [1910] 2
K.B.
199;
see
also
R.
v.
Shann,
ibid.,
418;
R.
v.
Walton,
ez
p.
Dutton
(1911) 76
J.P.
558.
6
G.M.C.
v.
Spackrnan [1943]
A.C.
627.
Cf.,
however, the observations
of
Singleton
L.J.
on
this case (at
166).
*
R.
v.
Wandsworth
JJ.,
ez
p.
Read
[1942]
1
K.B.
981.
7
R.
v.
Connell,
ex
p.
Hetton
Bellbird
Collieries,
Ltd.
(1044) 69
C.L.R.
407.
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