Punton v Ministry of Pensions and National Insurance (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date19 December 1963
Judgment citation (vLex)[1963] EWCA Civ J1219-4
Date19 December 1963

[1963] EWCA Civ J1219-4

In The Supreme Court of Judicature

Court of Appeal

(From: Mr. Justice Phillimore - Middlesex)


Lord Justice Sellers

Lord Justice Danckwerts And

Lord Justice Davies

In the Matter of the National Insurance Act 1946
In the Matter of the Determination of Questions arising under Section 13 (1) of the National Insurance Act 1946
Eric Edward Punton and James Charles Croxford
Ministry of Pensions and National Insurance

Mr. R.H. FORREST, Q.C. and Mr. F.B. PURCHAS (instructed by Messrs. Rowley, Ashworth & Co.) appeared on behalf of the Appellants (Plaintiffs).

The ATTORNEY-GENERAL (SIR JOHN HOBSON, Q.C., M.P.), The Hon. J.R. CUMMING-BRUCE and Miss J.G.COCHRANE (instructed by The Solicitor, Ministry of Pensions and National Insurance) appeared on behalf of the Respondents (Defendants).


This appeal by the Ministry of Pensions and National Insurance has been concerned mainly with procedure, involving the question of the jurisdiction of the High Court, but it is said to be a test action of the merits of the plaintiffs' respective claims to unemployment benefit. All the matters in dispute were carefully and fully considered by Mr. Justice Phillimore, from whose judgment this appeal comes. As the judgment was not regarded as wholly acceptable by either party 811 the matters in controversy have been raised again before this court. The plaintiffs have pursued two different types of proceedings consecutively and independently, as the second proceedings, those now under review, do not appear to me to affect or control the previous proceedings, certainly not directly. At the outset some complication has arisen because the Court of Appeal in the course of interlocutory proceedings expressed some views on the jurisdiction of the High Court in respect of the present proceedings by wa; of declaration and the appellants submit that this present court is precluded from considering that issue again and is bound by the opinions then expressed.


I refer to the judgment for the details of the facts giving rise to the claims and of the successive steps which have been taken by the plaintiffs to obtain the redress they claim, I therefore only extract a brief outline of them


Both the plaintiffs were employed as platers',helpers in the shipyard of Cammell, Laird & Co. Ltd. at Birkenhead. In 1961 a dispute arose with regard to the allocation and division of work because of a change of practice of the employers. It was the practice for each plate to be prepared separately by the platers (assisted by helpers such as the plaintiffs) and it was then taken on to the ship under construction or repair where the shipwrights secured it in its appropriate place on the ship. The changed practice was for the platers to prepare or assemble several plates before they were passed on to the ship and the shipwrights. Questions arose over this prefabrication, the shipwrights claimingthat the joining together of the plates was their work even though done on ahore. An acute dispute arose between the Boilermakers' Union, of which the platers were members, and the Shipwrights' Union on behalf of their members. Strikes occurred and both the plaintiffs, though not members of either of these two Unions of skilled craftsmen (they being semi-skilled workmen were in another Union) were put out of employment. Punton lost five weeks' work and Croxford eleven weeks. Their claims for unemploymert benefit during these periods respectively under the National Insurance Act, 1946, were disallowed by the insurance officer, whcaerefusal of benefit was upheld by the local tribunal. An appeal was taken to the National Insurance Commissioner who, after a full hearing of evidence and argument, decided against both the claimants on the 20th September, 1961, in a reasoned written decision.


Although within a period of six months that decision could have been challenged by the claimants by certiorari proceedings no such steps were taken. On the 28th March, 1962, the plaintiffs issued an originating summons under the Rules of the Supreme Court Order 54a Rule 1 (a.) in the Queen's Bench Division. In effect it asked the court to determine by way of declaration the very matter which had been the subject of investigation and decision under the provisions of the National Insurance Act for dealing with claims and appeals. At the instance of the Ministry of Pensions and National Insurance a summons was taken out to strike out the originating summons on the grounds that -it was unreasonable and vexatious and that the court had no jurisdiction to determine the questions set out in the originating summons or to grant the declarations sought. Master Jacob struck out the originating summons and his decision was affirmed by Mr. Justice llelford Stevenson on the 30th July, 1962. The plaintiffs appealed to the Court of Appeal and the appeal was heard on the 27th and 28th November, 1962 (1963 Weekly Law Reports page 186). The learned Master of the Rolls said: "It was, on the face of it, an application asking the High Court to rehear the whole matter, facts and all and that should not be allowed, especially seeing that theCommissioner's decision is by the statute made 'final' "and the Court of Appeal would, as the matter stood, have upheld the judge's order to strike out. But the court allowed the plaintiffs to amend the originating summons by substituting the question, and restricting the summons to that issue, "Whether on the facts found by the Commissioner, the Commissioner came to the correct decision in point of law". That question, I apprehend, would have been the precise issue if proceedings had been taken by way of certiorari and a decision could have been obtained in such proceedings which, if favourable to the claimants, would have resulted in the Commissioner's decision being quashed and of no effect. In that case an appeal would still have been pending and the quashed award could, and would no doubt in practice, have been replaced by a new order of the Commissioner which would have given an effective award to the claimants on which they could have recovered benefit.


The Court of Appeal held that the amendment put the summons in order and allowed the appeal, the plaintiffs being ordered to pay the costs. In arriving at that conclusion Lord Denning, Master of the Rolls, and Lord Justice Upjohn (as he then was) expressed views in favour of the originating summons for a declaration being a suitable mode of procedure) and indicating that the High Court had jurisdiction to hear it and adjudicate. Lord Justice Diplock, however, said that an application to the summary jurisdiction of the court to strike out proceedings was not an appropriate procedure for examination of difficult and doubtful questions of law and I think it is clear that he had the question of the jurisdiction of the court in mind.


Mr. Justice Phillimore, having found that the High Court had jurisdiction, said that irrespective of his own view he thought the opinions of the Court of Appeal on the hearing of the summons had concluded for him the question of jurisdiction and we were pressed by Mr. Forrest for the appellants to take the same view. If it was concluded for the learned judge it was concluded also for us. The Court of Appeal did not expressly mention their discretion, though it might be said that the majority revealed howthey would have exercised it. Mr. Justice Philllmore accepted that it was open to him in his discretion not to entertain the summons even though he had jurisdiction to do so and in his discretion refused the declarations asked for.


On the whole I cannot say that the Court of Appeal in November, 1962, has already decided this issue finally and in such a way that it could not be raised and decided in the trial. The Court allowed the plaintiffs' appeal and, as I would interpret it, allowed the case to go for trial on the issues which had been raised of jurisdiction, discretion in accepting or refusing jurisdiction if it exists, and on the issue of law which was said to have been wrongly decided by the Commissioner, if the court was held to have power to decide it. As Mr. Justice Philllmore did not exercise in favour of the plaintiffs the discretion he held he had, the question of jurisdiction as far as these claims are concerned is academic for I can see no reason for disturbing the learned judge's discretion if he had one and therefore the claim for a declaration must fail.


But we have been invited by both parties to express our views on the jurisdiction point. I do this with reluctance for the reason I have indicated and with deference because I would take a different view from that indicated, perhaps only provisionally, by Lord Denning, Master of the Rolls, and Lord Justice Upjohn when the matter was before them. I would not seek to attenuate the advantages of the originating summons for a declaration which have been expressed from time to time. The court should not fetter itself in the exercise of a valuable jurisdiction and one might too readily be persuaded to hold, as learned counsel for the appellants urged that we should hold, that the High Court had jurisdiction in this case even if we uphold the learned judge's decision not to exercise it. The argument on. jurisdiction on behalf of the Ministry is clearly set out in the judgment of Mr. Justice Philllmore and is in substance the argument advanced to this court. It was submitted that the National Insurance Act, 1946, and the Regulations made thereunder establish a complete code foradministering unemployed benefits and for deciding all claims arising under the Act and that the Legislature has given exclusive Jurisdiction to those bodies set up to determine disputes and has revealed the clear intention of Parliament that the National Insurance Commissioner or the Deputy...

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