Roberts v Hopwood

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Carson,Lord Wrenbury,Lord Sumner,Lord Atkinson,Lord Buckmaster,.
Judgment Date03 Apr 1925
Judgment citation (vLex)[1925] UKHL J0403-2

[1925] UKHL J0403-2

House of Lords

Lord Buckmaster.

Lord Atkinson.

Lord Sumner.

Lord Wrenbury.

Lord Carson.

Arthur Carson Roberts
and
Robert John Hopwood and Others.

After hearing Counsel as well on Tuesday the 24th, and Friday the 27th, days of February last, as on Monday the 2d day of March last, upon the Petition and Appeal of Arthur Carson Roberts, of the Ministry of Health, Whitehall, in the City of Westminster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 24th of June 1924, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Robert John Hopwood, Susan Lawrence, John Scurr, David Morgan Adams, Albert Baker, Joseph Henry Banks, Thomas John Blacketer, George Joseph Cressall, Nellie Cressall, Albert Edward Easteal, Albert Victor Farr, Benjamin Fleming, Thomas John Good way, Walter Henry Green, Joseph Arthur Hammond, James Joseph Heales, John Hegarty, Peter Hubbart, James Horatio Jones, Christopher John Kelly, Thomas Edwin Kelly, Charles William Key, George Lansbury, Edgar Isaac Lansbury, Jennie Mackay, Jane Ann March, Samuel March, John Edward Oakes, Joseph Thomas O'Callaghan, Alfred Partridge, Charles Petherick, Herbert Walter Rawlings, James John Rugless, Josiah Russell, Julia Scurr, Henry William Sloman, Charles Edwin Sumner, Christopher Edward Williams and John Thomas Wooster, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 24th day of June 1924, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Order of the King's Bench Division of the High Court of Justice, of the 21st day of November 1923, thereby Reversed, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Carson .

My Lords,

1

In the course of the arguments in this case, and, indeed, afterwards, I felt inclined to concur with the opinion of Lord Justice Scrutton in the Court of Appeal, which he shortly summarises in the following passage:—

"I came to the conclusion that for that year, and I limited my conclusions to that year, though the figures are near the line where interference should take place, I cannot find that they have reached it. The question is not whether I should have sanctioned these wages. I probably should not. Or whether the auditor or the Whitley Council would have sanctioned these wages. It is for the Poplar Borough Council to fix these wages, which are not to be interfered with unless they are so excessive as to pass the reasonable limits of discretion in a representative body."

2

I can find nothing, however, in the reasoning of the Lord Justice which is at variance with the propositions as I understand them which your Lordships have laid down.

3

I was also impressed by the reasoning to be found in the judgment of Lord Justice Atkin, where he said, as regards the principle on which limitation should be based on the words of the Metropolis Management Act of 1852, viz.:—

"The answer, I think, is to be found in the restriction—the Council must act in good faith, they must determine the amount of wages as wages in an existing industrial system, they must not fix the amount as a dole or as a bribe, or with any indirect object other than that of fairly remunerating the servant."

4

And then he added :—

"In this case bad faith is not alleged by the auditor or found by the Divisional Court. Indeed, it is stated in the judgment below that it is admitted that the Council exercise their discretion honestly."

5

Upon a further consideration of the case on both these points, I do not feel confident they can be supported. As regards the question of the exorbitant or excessive nature of the payments made, it seems to me that that is not the only question which we have to determine to see whether the rates paid (to quote Lord Justice Scrutton) "are near the line where interference should take place." As Lord Buckmaster has pointed out, in the joint affidavit of members of the Borough Council, para. 9, it is stated as follows:—

"The Council did not and does not take the view that wages paid should exclusively relate to the cost of living. They have, from time to time, carefully considered the question of the wages and are of opinion, as a matter of policy, that a public authority should be a model employer and that a minimum rate of 4 l, is the least wage which ought to be paid to an adult having regard to the efficiency of their workpeople, &c."

6

That paragraph appears to show that they were acting upon a policy which claimed entirely to disregard the sharp decline in the cost of living and the nature of the labour that had to be paid for. That being so, I find a difficulty in supporting the conclusions arrived at by Lord Justice Scrutton, as I think that not merely the excessive wages paid, but the reasons on which the Council claimed to assesss them have to be taken into consideration if we are to deal with the realities of the problem. As regards the reasons already referred to, of Lord Justice Atkin, I am inclined to think, upon further consideration, that the admission that bad faith is not alleged or that the Council exercised their discretion honestly has been misapplied. I do not myself know what these expressions are meant to cover, but, having regard to the statements made in para. 14 of the affidavit of the auditor that the Council, in the exercise of their statutory powers, had not paid due regard to the interests of the ratepayers, whose funds they administered, had imposed unreasonable charges upon these funds and made payments which were far in excess of those necessary to obtain the services of those required and to maintain a high standard of efficiency, and which were thus, in reality, gifts to their employees in addition to remuneration for their services, I find it difficult to come to a conclusion that the admissions referred to meant anything more than that the Council honestly thought they were entitled to take the course they did, and in my opinion it was open to the auditor, upon coming to the conclusions as stated in his affidavit, to draw the inference that the Board were not engaged in merely fixing a rate of wages, but were affected by considerations which could not be held to come within the ambit of the discretion entrusted to them.

7

My Lords, having regard to the great unanimity as to principles which has prevailed in all the judgments, both in the Court of First Instance and the Court of Appeal, and in the judgments just delivered by your Lordships, with which I in the main agree, I do not find it possible, notwithstanding the doubts I have felt, to dissent from the opinion expressed by the noble Lord on the Woolsack.

Lord Wrenbury .

My Lords,

8

The Metropolitan Borough of Popular is a statutory body in whom is vested a statutory discretion expressed by the following words in the Metropolis Management Act, 1855, s. 62.

9

They "shall respectively appoint or employ or continue for the purposes of this Act and may remove at pleasure such clerks treasurers and surveyors and such other officers and servants as may be necessary and may allow to such clerks treasurers surveyors officers and servants respectively such salaries and wages as the board or vestry may think fit."

10

The Council of the Borough during the year in review paid certain wages to their employees. The question in the appeal is not whether they had a discretion as to the wages they should pay— they certainly had; it is not whether in the exercise of that discretion if exercised within the statutory limits and upon legitimate grounds, they are to be controlled by the Court or by this House—they certainly are not. It is not alleged that the Council acted mala fide, neither is it alleged that they were guilty of negligence or misconduct. The question is as to what were the limits of their statutory discretion—whether they exceeded those limits and whether they acted wholly upon grounds which they were entitled to regard. The accounts of the Borough Council are by statute to be audited by a statutory auditor. His powers and duties are defined by s. 247 of the Public Health Act, 1875. By s. 247, subs. (7), it is enacted that—

"Any auditor acting in pursuance of this section shall disallow every item of account contrary to law and surcharge the same on the person making or authorising the making of the illegal payment and shall charge against any person accounting the amount of any deficiency or loss incurred by the negligence or misconduct of that person or of any sum which ought to have been but is not brought into account by that person. …"

11

The statutory auditor in this case surcharged a sum of 5,000 l. upon certain named members of the Council. The Divisional Court were of opinion that the surcharge was right. The Court of Appeal by a majority reversed that decision. The statutory auditor appeals.

12

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  • Public Trusts
    • United Kingdom
    • The Modern Law Review Nbr. 69-4, July 2006
    • 1 July 2006
    ...6 6;Fennell vEastHam Corporation [1926] 1 Ch 6 41.114 RvRoberts, ex p Scur r [1924]1 KB 514 (DC);[1924] 2 KB 695(CA); RobertsvHopwoo d [1925] AC 578.John Barratt529rThe Modern LawReview Limited 2006(2006) 69(4)MLR [d1] by wayof margin, and disallowed anything paidover that amount.’115Coun-c......

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