R v Northumberland Compensation Appeal Tribunal, ex parte Shaw

JurisdictionEngland & Wales
Date1951
Year1951
CourtKing's Bench Division
[DIVISIONAL COURT] REX v. NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL; Ex parte SHAW. 1950 Dec. 12, 13, 14. Lord Goddard, C.J., Hilbery and Parker, JJ.

Certiorari - Extent of remedy - Whether confined to matters of jurisdiction - Inferior tribunal - Order bad in law on its face - “Speaking order” - Court's jurisdiction to interfere.

The Divisional Court has jurisdiction to quash by certiorari the decision of an inferior tribunal where the latter has embodied the reasons for its decision in its order — has made a “speaking order” – and those reasons are bad in law. Certiorari is not a remedy which can be granted only where an inferior tribunal has acted without or in excess of its jurisdiction.

Racecourse Betting Control Board v. Secretary of State for Air [1944] Ch. 114, not followed.

Walsall Overseers v. London and North Western Railway Co. (1878) 4 App. Cas. 30, and Rex v. Nat Bell Liquors Ld. [1922] 2 A. C. 128, applied.

Where a decision of the Court of Appeal is inconsistent with a earlier decision of the House of Lords which was not cited to the Court of Appeal it is the duty of the Divisional Court to follow the decision of the House of Lords.

Young v. Bristol Aeroplane Co. Ld. [1944] K. B. 718, applied.

APPLICATION for an order of certiorari.

The applicant Thomas Shaw sought an order of certiorari for the quashing of a decision reached by the respondents, the Northumberland Compensation Appeal Tribunal, on June 14, 1950, dismissing an appeal by the applicant against an award to him of compensation for loss of his employment as clerk to the West Northumberland Joint Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948.

The applicant, who was clerk to Gosforth Urban District Council, was also appointed clerk to the West Northumberland Joint Hospital Board on October 7, 1936, and held that appointment until March 31, 1949, when the employment ceased in consequence of the passing of the National Health Service Act, 1946.

The urban district council awarded the applicant compensation for the loss of his employment as clerk to the board on the basis of his service from October 7, 1936, to March 31, 1949, viz., 63l. a year until 1961 and 33l. a year in respect of his accrued pension rights thereafter. He contended that the whole of his local government service should have been taken into account, and so appealed from that award to the tribunal. The tribunal had the function of determining the compensation payable to, among others, officers of hospital boards who lost their employment by reason of the transfer of hospitals to the Minister of Health under the National Health Service Act, 1946.

On June 14, 1950, the tribunal dismissed that appeal by an award or determination which was set out in a document which stated the facts, the contentions of the council and how they arrived at the sums awarded by them, and that the tribunal agreed with those figures.

The applicant made the present application to the Divisional Court on the ground that the tribunal were in error in computing the compensation to which he was entitled on the basis of his service only as an officer of the board. He also sought an order of mandamus directing the tribunal to hear and determine his application according to law.

It was conceded on behalf of the urban district council that the figure of 33l. a year in respect of accrued pension rights was wrong, and the court held that the compensation of 63l. a year until 1961 was also wrongly calculated under the regulations of 1948. It was necessary in calculating that compensation, as the applicant contended, to take into account his entire local government service.

This case is reported only on the question whether, that being so, the court had jurisdiction to quash the award of the tribunal or to order the tribunal to make a new award on the proper basis.

Maurice Lyell for the applicant. The award of the tribunal was wrong on its face. The applicant is entitled to an order of certiorari quashing the decision of the tribunal, and to an order of mandamus directed to them ordering them to make a proper award.

J. P. Ashworth for the tribunal. The applicant is not entitled to an order of mandamus because the tribunal have not declined jurisdiction: Rex v. Licensing Authority for Goods Vehicles for the Metropolitan Area; Ex parte B. E. Barrett Ld.F1. They have exercised their jurisdiction although they have done so wrongly. There can be no question of mandamus issuing unless and until their decision is set aside, and then it will issue only if they then decline to exercise their jurisdiction and to make another award.

As regards the question of certiorari it is the established practice of the court that certiorari will issue only where an inferior court has acted without jurisdiction or has exceeded its jurisdiction. In Rex v. Paddington and St. Marylebone Rent Tribunal; Ex parte Bell London and Provincial Properties Ld.F2, Sir Valentine Holmes arguedF3 that a tribunal “had chosen to make what had been called by the House of Lords ‘speaking orders’, and had given in their decision reasons which were clearly wrong in law, and certiorari would accordingly lie to quash the orders: see Racecourse Betting Control Board v. Secretary of State for AirF4; Rex v. Nat Bell Liquors Ld.F5; Halsbury's Laws of England, 2nd ed., vol. 9, p. 888, para. 1493”. But the court did not then give any decision on that pointF6.

It is quite clear from Racecourse Betting Control Board v. Secretary of State for AirF4, that certiorari will not lie on the ground merely that an inferior court have made an error of law, even though that error be apparent on the face of the record. [Counsel referred to Rex v. Paddington and St. Marylebone Furnished Houses Rent Tribunal; Ex parte Kendal Hotels Ld.F7.]

[PARKER, J. The term “speaking order” appears to have originated in Walsall Overseers v. London and North Western Ry. Co.F8. Does that case not show that certiorari will issue if the record of an inferior court is bad on its face?]

[LORD GODDARD, C.J. It appears that that case was not cited to the Court of Appeal in Racecourse Betting Control Board v. Secretary of State for AirF9.]

It is conceded that the Walsall caseF8, was not cited in the later cases. But the Divisional Court has long adopted the practice that it will interfere with decisions of inferior tribunals only if they have misconducted themselves or exceeded their jurisdiction, and that it will not interfere even in the case of a manifest error of law on the face of an order of the inferior tribunal. It is conceded that the order of the tribunal in the present case was a “speaking” order. The issue before the House of Lords in the Walsall caseF8, was of a limited nature.

[LORD GODDARD, C.J., referred to Riceslip Parish v. Henden ParishF10.]

[Counsel referred to Rex v. Nat Bell Liquors Ld.F11, and Rex v. Minister of HealthF12.]

[With regard to the question of mandamus counsel referred also to Rex v. Port of London Authority; Ex parte Kynoch Ld.F13; Reg. v. CothamF14 and Rex v. Monmouthshire JusticesF15.]

Harold Williams, K.C., and Mattar for the district council. On the question whether certiorari is available the attention of the court must be drawn to Rex v. Westminster Assessment Committee; Ex parte Junior Carlton ClubF16, and Rex v. Westminster Assessment Committee; Ex parte St. James' Court Estate Ld.F17.

Lyell in reply. The remedy of certiorari has fallen into disuse except in cases where a tribunal has exceeded its jurisdiction only because the Summary Jurisdiction Act, 1848, took away all possibility of certiorari being directed to courts of summary jurisdiction for error on the face of the record: see per Lord Penzance in Walsall Overseers v. London and North Western Ry. Co.F18. That decision of the House of Lords remains good law and is relied on. It is conceded that if Racecourse Betting Control Board v. Secretary of State for AirF19, was rightly decided certiorari will not issue. But the Walsall caseF20, was not cited to the Court of Appeal in the latter case. The Divisional Court is bound to follow the decision of the House of Lords: see Young v. Bristol Aeroplane Co. Ld.F21

Dec. 14. LORD GODDARD, C.J., delivered the following judgment:— In this case a point of the very greatest importance, and one which has necessitated the examination of a large number of cases and consideration of the principles which apply to the doctrine of certiorari, has been argued. Certiorari, as has often been pointed out in this court, is a remedy of a very special character. In most cases it is moved and granted on questions as to whether or not an inferior court or tribunal has jurisdiction. It never goes to a superior court, but an order of certiorari will be made where it is shown that an inferior court has either no jurisdiction in a particular matter or has exceeded its jurisdiction. The object of the old writ of certiorari, which has now been replaced by an order of certiorari — that is merely a procedural change — was to call up into this court the proceedings of and the order which had been made in the lower court in order that they should be examined.

Certiorari did not issue, or seldom issued, to a court of record. In former days the procedure in that case was by writ of error, and where a writ of error was granted the whole record was brought up to the Court of King's Bench and that court would examine the record and would only decide for the applicant if error appeared upon the record. It was for that reason that a writ of error was such an unsatisfactory remedy in a criminal case. Only the record was brought up. That record consisted of the commission of assize — showing the appointment of the judges, the holding of the court, the precepts of the sheriffs, the names of the grand jurors, and the finding of the indictment — a record of the petty jurors, any special plea that might have been...

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4 books & journal articles
  • Agreement for Costs on a Contingency Basis
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-5, October 1999
    • 1 October 1999
    ...so' in the context of criminal proceedings. Inthelightof the observations of Lord Goddard CJ in R v NorthumberlandCAT,expShaw [1951] 1 KB 711,thecourt had on this occasion no optionbuttofollow what was said inSwanv LawSocietyin preference towhatwas saidin the Thai case, evenifthe doctrine o......
  • Agreement for Costs on a Contingency Basis
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-5, October 1999
    • 1 October 1999
    ...so' in the context of criminal proceedings. Inthelightof the observations of Lord Goddard CJ in R v NorthumberlandCAT,expShaw [1951] 1 KB 711,thecourt had on this occasion no optionbuttofollow what was said inSwanv LawSocietyin preference towhatwas saidin the Thai case, evenifthe doctrine o......
  • When to Query Summons as Vexatious
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-5, October 1999
    • 1 October 1999
    ...so' in the context of criminal proceedings. Inthelightof the observations of Lord Goddard CJ in R v NorthumberlandCAT,expShaw [1951] 1 KB 711,thecourt had on this occasion no optionbuttofollow what was said inSwanv LawSocietyin preference towhatwas saidin the Thai case, evenifthe doctrine o......
  • When to Query Summons as Vexatious
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-5, October 1999
    • 1 October 1999
    ...so' in the context of criminal proceedings. Inthelightof the observations of Lord Goddard CJ in R v NorthumberlandCAT,expShaw [1951] 1 KB 711,thecourt had on this occasion no optionbuttofollow what was said inSwanv LawSocietyin preference towhatwas saidin the Thai case, evenifthe doctrine o......

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