The King v Northumberland Compensation Appeal Tribunal ex parte Shaw

JurisdictionEngland & Wales
Judgment Date19 December 1951
Judgment citation (vLex)[1951] EWCA Civ J1219-4
Date19 December 1951
CourtCourt of Appeal
The King
Northumberland Compensation Appeal Tribunal ex Parte Shaw

[1951] EWCA Civ J1219-4


Lord Justice Singleton

Lord Justice Denning and

Lord Justice Morris

In The Supreme Court of Judicature

Court of Appeal

Counsel for the Appellants: THE ATTORNEY-GENERAL (Sir Lionel Heald, K.C., M.P.), MR J.P. ASHWORTH, and MR H.A.P. FISHER (instructed by the Solicitor, Ministry of Health.)

Counsel for the Applicant. Mr Shaw: MR GERALD GARDINER, K.C., and MR M.L. LYELL (instructed by Mr Gwylum T. John). and Respondents, the Northumberland Compensation Appeal Tribunal, were not represented.


Mr Themas Shaw was formerly Clerk to the West Northumberland Joint Hospital Board. He lost that office, and the loss of it was attributable to the passing of the National Health Service Act, 1946. Accordingly he claimed compensation under Regulation 10 of the National Health Service (Transfer of Officers and Compensation) Regulations, 1948.


The compensating Autherity (the Gosforth Urban District Counsel) did not award compensation on the scale to which he considered that he was entitled under the Regulations and the Schedule thereto, and he caused the matter to be referred to the Tribunal under Regulation 12. The Tribunal is the Compensation Appeal Tribunal having jurisdiction for the County of Northumberland. The Tribunal upheld the decision of the compensating Autherity.


Mr Shaw then moved for an Order of Certiorari to remove into the King's Bench Division the decision s of the Tribunal with a view to its being quashed. The ground of the Application was that the decision was erroneous on the face thereof in that the Tribunal wholly disregarded the provisions of the Regulations.


The Divisional Court on the 14th December, 1950, acceded to the motion, and ordered that the decision be quashed. The Tribunal appeals to this Court against the Order of the Divisional Court. Before that Court both the Tribunal and the compensating Autherity were Respondents. Counsel appearing for the compensating Autherity admitted that the decision of the body he represented was wrong in law, and he took virtually no part in the proceedings; it should be added that it was not contended on behalf of the Tribunal that the decision was right. The argument put forward was that certiorari did not lie.


Before this Court the submission of the Attorney-General on behalf of the Tribunal was twofold: (1) That anOrder of Certiorari could not he granted in respect of a decision of a Tribunal of this nature on the ground of error on the face of the record; and (2) that, in any event, there gas no error on the face of the record. It was said that the Court could only loot at the decision itself, and that that did not disclose any error on the face of it. Though the Attorney-General admitted that a mistake had been made, he submitted that the decision could not be enquired into by any Court.


On the first point the Lord Chief Justice gave a judgment which the Attorney-General described as 'fee dear and as forcible as any judgment could be." I find myself in complete agreement with the reasoning of the Lord Chief Justice, and there is little that I would add to his judgment, but having regard to the argument before us and to the autherities cited it is right that I should express my views.


I now come to the case of Rex v. The London County Council, reported in 1931 2 K.B., at page 215, and at page 233 Lord Justice Scrutton said: "The writ of certiorari is a very old and nigh prerogative writ drawn up for the purpose of enabling the Court of King's Bench to control the action of inferior Courts and to make it certain that they shall not exceed their jurisdiction; and therefore the writ of certiorari is intended to bring into the High Court the decision of the inferior tribunal, in order that the High Court may be oertifled whether the decision is within the jurisdiction of the inferior Court. There has been a great deal of discussion and a large number of cases extending the meaning of Court'. It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that t has to decide on evidence between a proposal and an Opposition; and it is not necessary to be strictly a Court;if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari; and I do not discuss the nature of the writ, because very elaborate discussions of it will be found in the recent cases of Rex v. Electricity Commissioners and Rex v. Minister Health."


There is no doubt that the Tribunal is an inferior Court within the meaning of these words as explained by Lord Justice Scrutton. That was not in dispute


Error on the face of the proceedings has always been recognised as one of the grounds for the issue of an Order of Certiorari. I can find no authority for saying that in this respect there is any distinction to be drawn between proceedings of a criminal nature and civil proceedings. The Parish of Ricelip v. The Parish of Hendon, reported in 5 Modern Reports at page 417, was a settlement case.


In Rox v. Nat Bell Liquors, Ltd., reported in 1922 2 Appeal Cases at page 155, an appeal before the Privy Council, Lord Sumner at pages 154 to 156 said: "There is no reason to suppose that, if there were any difference in the rules as to the examination of the evidence below on certiorari before a superior Court, it would be a difference in favour of examining it in orindnal matters, when it would not be examined in civil matters, but, truly speaking, the whole theory of certiorari shows that no such difference exists. The object is to examine the proceedings in the inferior Court to see whether its order has boon made within its jurisdiction. If that is the wholr object, there can be no Qifferenoo for this purpose between civil orders and oriminal convictions, execpt in so far as differcnces in the form of the record of the inferior Court's determination or in the statute law relating to the matter may give an opportunity or detecting error on the record in one case, which inanother would not have been apparent to the superior Court, and therefore would not have been available as a reason for quashing the proceedings. In this connection reliance was placed on a passage in the opinion of Lord Cairns in WalsallOverseers v. Londonand North Western Bailway Company. The question for decision there was simply whether or not the Court of Appeal had jurisdiction to entertain an appeal from an order of the Court of Queen's Bench, discharging a rule nisi for a certiorari to quash an order of Quarter Sessions in a rating matter. Lord Cairns, speaking of certiorari generally, said: 'If there was upon the face of the order of the Court of Quarter Sessions anything which showed that that order was erroneous, the Court of Queen's Bench might be asked to have the order brought into it, and look at the order, and view it upon the face of it, and if the Court found error upon the face of it, to put an and to its existence by quashing it.' He then turned to the kind of order under discussion, and after stating how much in that matter, both of fact and of law, the Sessions were bound to set out on the face of their order, he proceeded to point out that the statement of what had led to the decision of the Court made the order 'not an unspeaking or unintelligible order', but a speaking one, and an order which on certiorari could be criticised as one which told its own story, and which for errer could accordingly be quashed. It is to be observed on tale passage, that the key of the question is the amount of material stated or to be stated on the record returned and brought into the superior Court. If justices state more than they are bound to state, it may, so to speak, be used against them, and out of their own mouths they may be condemned, but there is no suggestion that, apart from questions of jurisdiction, a party may state further matters to the Court, either by new affidavits or by producing anything, that is not on or part of the record. So strictly has this beenacted on, that documents returned by the inferior Court along with its record, for example, the information, have been excluded by the superior Court from its consideration. That the superior Court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Court has not exoeeded its own, and for that very reason it is bound not to interfere in what hae been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise."


Then Lord Sumner said further at page 159 of the report: " Reg, v. Bolton. undoubtedly, is a landmark in the history of certiorari, for it summarises in an impeccable form the principles of its application under the regime created by what are called Jervis's Acts, but it did not change, nor did those Acts change the general law. When the Summary Jurisdiction Act provided, as the sufficient record of all summary convictions, a common form, which did not include any statement of the evidence for the conviction, it did not stint the jurisdiction of the Queen' s Bench, or alter the actual law of certiorari. What it did was to disarm its exercise. The effect was not to make that which had been error, error no linger, but to remove nearly all opportunity for its demotion. The face of the record 'spoke' no longer; it "as the inscrutable face of a sphinx."


Lord Sumner shows how, and why, certio...

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    • Sage Federal Law Review No. 29-3, September 2001
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    ...error but will issue for error of law on the face of the record: R vNorthumberland Compensation Appeal Tribunal; ex parte Shaw [1952] KB 338.117 See Airo-Farulla, above n 12, 551.118 See Craig v South Australia (1995) 184 CLR 163, 177-178; Coal and Allied Operations Pty Ltd vAustralian Indu......
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