R v Industrial Injuries Commissioner.ex parte Amalgamated Engineering Union (No. 2)
|England & Wales
|THE MASTER OF THE ROILS,LORD JUSTICE SALMON,THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES
|18 November 1965
| EWCA Civ J1117-2
|Judgment citation (vLex)
| EWCA Civ J1118-1
|18 November 1965
|Court of Appeal
 EWCA Civ J1117-2
The Master Of The Roils
Lord. Justice Davies and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
From the Divisional Court Queen's Bench Division
MR PETER IAIN, Q. C. and MR S. WALDMAN (instructed by Messrs W. H. Thompson) appeared as Counsel for the Appellant.
MR NIGEL BRIDGE (instructed by The Solicitor, Ministry of Pensions and National Insurance) appeared as Counsel for the Respondent.
This is a preliminary point as to the jurisdiction of this Court. On the 15th October, 1965, the Amalgamated Engineering Union applied to the Divisional Court for leave to apply for an order of certiorari to bring up and quash a decision of the Industrial Injuries Commissioner on the ground that it was erroneous in point of law on its face. The Divisional Court refused leave. A few days later, on 20th October, the Union renewed their application before this Court. We granted leave to apply for the order.
Now Mr Bridge for the Ministry says that when leave has been panted by the Court of Appeal, the hearing of the actual application should not be by the Court of Appeal, but it should go back to the Divisional Court for the hearing. He refers to Order 59, Rule 5, which says: "When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made by notice of motion to a Divisional Court of the Queen's Bench Division". Mr Bridge submits that on the wording of the rule, the application must go to the Divisional Court. It is the inevitable result of the rule. But he has to admit that the practice of the Court over the years has been entirely contrary to his submission.
This procedure (thereby there must be an application for leave to apply for an order of certiorari) first came in under Section 10 of the Administration of Justice ( Miscellaneous Provisions) Act of 1958. Since that time, when the Court of Appeal gives leave, the practice always has been for the Court of Appeal itself to hear the application. In Mr Griffiths' book on the Practice of the Courts, which was published in 1947, it says at page 324: "Where an ex parte application has been refused by the Divisional Court, an application for a similar purpose could be made to the Court of Appeal ex parte……If the Court of Appeal grant the application the procedure is the same as if the Divisional Court had granted the application, except that the motion is entered, not at the Crown Office, butin Room 136" — that is, the Court of Appeal Room — "and comes en for hearing before the Court of Appeal". In the edition of Halsbury which came out in 1955 in an article on Crown Proceedings, for which the present Lord Chief Justice was responsible, there is a note in Volume XI at page 71 which says: "Where leave is granted by the Court of Appeal after refusal by a Divisional Court, the motion or summons is entered for hearing and is heard by the Court of Appeal, which can make any order on the application which the Divisional Court could have made". In 1957 we had the case of , , where that very procedure was adopted. The Divisional Court refused leave. This Court granted leave and itself determined the application: see 1957, 1 All England Reports, page 799, paragraph (I). That in my experience has always been the practice in cases of this kind. It has never been challenged until today, when Mr Bridge challenges it.
It seems to me that Order 59, rule 5, applies only to cases where the Divisional Court itself has granted leave. The rules do not deal with the position where the Court of Appeal has granted leave. In those circumstances we may have resort to Section 32 of the 1925 Judicature Act, which says that: "The jurisdiction vested in the High Court and the Court of Appeal shall be exercised in the manner provided….by rules of Court, 2nd where no special provision is contained….in rules of Court with reference thereto, any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which it might have been exercised by the Court to which it formerly appertained". In the years before 1938 under the procedure which then applied, the position would have been that the Court of Appeal on granting a rule, or on granting leave, as the case Maybe, would itself have heard the case — see . So we should hear it now.
I am greatly influenced by the practice of the Courts over "the years. In a matter such as this, the opinion and practice of the profession certainly makes law.
I would add this. If the Divisional Court had gone through the full procedure of giving leave to apply for an order of certiorari, and then had heard the other side, and ultimately refused to grant the order, there would clearly have been an appeal to this Court on the whole matter. In the present instance they have taken a short cut. They thought there was no need to hear the other side at all. So they refused leave at once. It would be absurd for us to send it back to them to hear a case they thought so plain. It is much better for us to hear it straight away.
I think the preliminary objection is not well-founded and the Court should go on and hear the application.
LORD JUSTICE DAVIES: I agree. So far as concerns the practice before the change of the law in 1938, a convenient though short statement is to be found in the 10th volume of the 1st Edition of Halsbury's Laws of England, paragraph 368, on page 189, which reads as follows: "The refusal of the King's Bench Division to grant a rule nisi for the writ of certiorari, or the discharge by that Court of the rule nisi after argument, is an 'order' which in matters not criminal may be appealed against". The practice in those days is well illustrated by the case of , . There the Divisional Court had refused a rule nisi. On appeal, the rule was granted by this Court and this Court went on to hear argument on the rule, which as a matter of history was in that particular case discharged. It nay be — I know not — that a possible reason for the exercise by the Court of Appeal before 1938 of that jurisdiction was the fact that, if this Court granted the rule, only this Court could discharge it. However that may be, that was the practice.
When the law was changed in 1938, the change was dueto a desire that the procedure with regard to what previously had been known as the prerogative writs should be simplified. It may be that the wording of the present rule (which I observe is also the wording of the rule which is to come into force next year) was perhaps not selected with the present point in view, put I am bound to say that to alter the previous practice and to Make it necessary for an applicant for what is now leave to move for as order of certiorari, having failed in the Divisional Court, to come to this Court and, having obtained leave here, to go bade again to the Divisional Court, which ex hypothesi considered that he had no arguable case, would certainly not be a simplification of the procedure at all but would be an added complication.
For those reasons, in addition to what has been said by my Lord, I agree that we have jurisdiction to hear this appeal.
I entirely agree. I think that if one were construing Order 59, rule 5 in vacuo, there would be a great deal to be said for accepting the argument which has been put forward by Mr Bridge. But these rules must be construed in the light of the practice which existed for years before they cane into force. As my Lord, Lord Justice Davies had said, the rules were intended to simplify that practice and make it more convenient. It would be a pity if we were obliged to construe them so as to make that practice, even in one respect, more cumbersome and expensive. Formerly if a rule nisi were refused by the Divisional Court and there was a successful appeal to the Court of Appeal, the respondents came to show cause why the rule should not be made absolute to this Court and not to the Divisional Court. That practice was obviously convenient because all the relevant material would have been before the Divisional Court at the time of the refusal of the rule nisi. In refusing the rule nisi, the Divisional Court were in effect saying: "There is so little in this that it is not necessary to call upon the respondents to show cause". The practicealso saved the expense of an additional hearing before the Divisional Court prior to an appeal to this Court. Exactly the same sort of considerations apply now as then. The Divisional Court in the present case considered that the material before it did not even call for a reply from the other side and therefore they refused leave to apply for an order of certiorari. It is true that in form this Court when it granted leave was not hearing an appeal: it was merely hearing an application for leave to apply. Nevertheless the Divisional Court has in reality passed judgment on the merits of the case once already.
I think we should read the rules in the light of those considerations and that practice and come to the conclusion that the present rules do not provide for the situation that has now arisen and that accordingly there is jurisdiction in this Court to hear the case under Section 32 of the Judicature Act 1925. Any other view would obviously be a grave inconvenience and add expense to the parties. It would also clearly be a waste of the Divisional Court's time for it to be obliged to reconsider a matter upon which it had already in effect pronounced judgment.
I accordingly agree that the preliminary point fails.
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