Re Royal Institution of Chartered Surveyors' Application
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE RALPH GIBSON,LORD JUSTICE STOCKER |
| Judgment Date | 28 February 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0228-2 |
| Date | 28 February 1986 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0207 |
[1986] EWCA Civ J0228-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
ON APPEAL FROM THE RESTRICTIVE PRACTICES COURT
(Mr. Justice McNeill)
Royal Courts of Justice
Lord Justice May
Lord Justice Ralph Gibson
and
Lord Justice Stocker
86/0207
MR. JEREMY F. LEVER, Q.C. and MR. CHRISTOPHER W. BELLAMY (instructed by Messrs Linklaters & Paines) appeared on behalf of the Appellant/Applicant.
MR. FRANCIS M. FERRIS, Q.C. and MR. DAVID K.R. OLIVER (instructed by The Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
This is an appeal from the determination of three points of law by Mr. Justice McNeill on 25th July 1984. This litigation has a long history which is set out helpfully and fully in the learned judge's judgment. I propose to summarise matters as much as I can.
After the making of the Restrictive Trade Practices (Services) Order 1976 ( S.I. 1976 No. 98) pursuant to the Fair Trading Act 1973 and the passing of the Restrictive Trade Practices Act 1976, each of which brought services within the ambit of the Restrictive Trade Practices legislation, the Royal Institution of Chartered Surveyors (RICS) felt itself in a difficulty whether or not it should register its Charter, bye-laws and regulations as particulars under that legislation. There was a three month time limit. On the one hand, the combined effect of section 13 and of the First Schedule to the 1976 Act appeared to exclude surveyors from the obligation to register. On the other hand, there was a question whether all the services provided by members of the Institution fell within the exempting definition in paragraph 12 of Schedule 1. In the event the RICS decided to register its particulars on what has been called "a fail-safe basis", that is to say without making any admissions but to avoid any statutory penalty if in the events such registration was in law required.
Thereafter, in December 1978, the RICS applied to the Restrictive Practices Court for an order under section 26 of the 1976 Act that the register should be rectified by the removal from it of the documents which had been registered. As will be seen, it is the original Notice of Application dated 21st December 1978 that is, in its amended and then re-amended form, which was before the learned judge below and has now been before us.
On 11th November 1980 the Director General of Fair Trading applied by notice to strike out or stay the application by the RICS. His application was heard by the court in February 1981. The RICS were given leave at the hearing to amend their notice to seek rectification of the register either by removal from it or by variation by the particulars "consequent upon the decision of the Court on the issues" then raised. The judgment of the court was given on 20th March 1981. It is sufficient for present purposes to say that the court dismissed the Director General's application on the basis that upon each of the issues then raised by the RICS that the latter had at least an arguable case.
Then in the light of certain observations made by the court upon various unargued points and of certain other observations on points which had been in dispute but did not fall directly for decision, the RICS effectively re-formulated its case for the purposes of the present application. A further incentive to do this was the decision of this court in Fisher v. The Director General of Fair Trading [1982] I.C.R. 81. The re-amended grounds for the Institution's application are:
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(1)(a) The said documents do not constitute or contain any agreement to which section 11 of the Act applies. In particular the said documents do not constitute or contain any multi-lateral agreement under which restrictions are accepted between two or more parties.
(b) Without prejudice to the generality of the foregoing, the said documents do not constitute or contain an agreement for the constitution of the Institution, and accordingly section 16 of the Act, and in particular section 16(3) and (4) thereof does not apply.
The points raised on the re-amended application, for which leave was given on 16th December 1983, were not argued at the earlier hearing because when granting leave to re-amend the learned judge ordered certain preliminary questions of law to be decided and they form the subject of this appeal.
The preliminary questions which the learned judge formulated for decision were as follows:
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(a) Whether the supplemental Charter of the applicant dated the 9th March, 1973 and the Bye-Laws scheduled thereto (each as subsequently amended or allowed by the Privy Council) together with the regulations made thereunder constitute or contain a multilateral agreement (within the meaning of the Restrictive Trade Practices Act 1976) between the members for the time being of the RICS and, if so,
(b)(i) Whether the agreement is one to which, by reason of the fact that the RICS is constituted by Royal Charter and/or by reason of the operation of the doctrine of Crown immunity the provisions of the said Act do not apply; and if the provisions of the said Act are capable of applying to such an agreement,
(ii) Whether the agreement is an agreement for the constitution of the RICS within the meaning of section 16 of the said Act.
The learned judge answered the first and third of such questions in the affirmative and the second question in the negative. By this appeal the RICS seeks to have each of those three answers reversed.
The necessary brief history of the Institution can start with the Royal Charter of 1881 which was granted under the Royal prerogative. Supplemental Charters under the prerogative were granted in 1921 and 1973. Amendments to the original Charter and the supplemental Charter of 1921 were allowed in 1930, 1938, 1947, 1960, 1968 and 1969, but no alteration material for the purposes of this judgment was then made. In 1973 the original Charter and the 1921 supplemental Charter were amended and consolidated. It is therefore the Supplemental Charter of 1973 which is effectively the instrument upon which the Institution is presently constituted and the material instrument for the purposes of these proceedings. The objects of the Institution are set out in clause 3 of the 1973 Supplemental Charter which, in so far as is presently material, reads:
"The objects of the Institution shall be to secure the advancement and facilitate the acquisition of that knowledge which constitutes the profession of a surveyor, namely the arts, sciences and practice of [various aspects of the profession which are then particularised but need not be repeated herein].
The power to make Bye-Laws is to be found in clause 17:
"The Institution may from time to time by Special Resolution make new Bye-Laws in any manner which is not inconsistent with the express provisions of this our Supplemental Charter. But no new Bye-Law and no repeal, alteration or addition of or to the Bye-Laws shall take effect until it has been submitted to and allowed by the Lords of our Most Honourable Privy Council of which approval a certificate under the hand of the Clerk of our said Council shall be conclusive evidence."
Clause 18 of the Supplemental Charter contains the power to make regulations:
"Subject to the provisions of this our Supplemental Charter and to the Bye-laws the General Council shall have power from time to time to make Regulations for the administration of the affairs of the Institution, for the regulation of members' professional conduct and discipline or for the purpose of carrying any Bye-Law into effect and may at any time and from time to time repeal, alter or add to the Regulations for the time being in force."
The power to amend the Supplemental Charter is in Clause 20:
"The Institution may from time to time by special resolution repeal, alter or add to this our Supplemental Charter and such repeal, alteration or addition shall when allowed by us, our heirs successors in Council have effect so that this our Supplemental Charter shall have thence forward continue and operate as though it had been originally granted and made accordingly. This provision shall apply to this our Supplemental Charter as repealed, altered or added to in manner aforesaid. Our Royal Will and Pleasure is that this our Supplemental Charter shall ever be construed benevolently and in every case most favourably to the Institution and the promotion of the objects of this our Supplemental Charter."
In so far as membership of the Institution is concerned, regulations have been made and forms of application for this have been prescribed. The forms of application for election as a Fellow or as a Professional Associate each contain a section—Form C—requiring the applicant to promise to abide by the Charter and Bye-laws as they exist or as they may be altered, amended or enlarged.
Turning now to the relevant law, section 1 of the Restrictive Trade Practices Act, 1976 provides that every agreement to which the Act applies by virtue of inter alia an order under section 11 is subject to registration under the Act. The central phrase in the first of the preliminary questions of law which we have to decide is "multilateral agreement". Although this phrase assumes importance in the principal authorities on the points which arise in this case, it is not itself to be found in the 1976 Act.
Section 11 of the Act is in these terms:
"(1) The Secretary of State may by statutory instrument make an order in respect of a class of services described in the order…..and direct that this Act shall...
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