Triefus & Company Ltd v Post Office

JurisdictionEngland & Wales
JudgeLORD JUSTICE HODSON,LORD JUSTICE PARKER
Judgment Date10 May 1957
Judgment citation (vLex)[1957] EWCA Civ J0510-1
CourtCourt of Appeal
Date10 May 1957

[1957] EWCA Civ J0510-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Hodson,

Lord Justice Parker and

Lord Justice Ormsrod.

Triefus & Company Limited,
Appellants
and
the Post office
Respondent.

Sir FRANK SOSKICE. Q.C. and Mr ANTHONY ORIPRS (instructed by Messrs Chamberlain &, Co.) appeared on behalf of the Appellants,

Mr MELFORD STEVENSON. Q.C., Mr PATRICK O'CONNORN and Mr R.LI. BREW (instructed by the Solicitor to the Post office) appeared on behalf of the Respondent.

LORD JUSTICE HODSON
1

: This is an appeal from a Judgment of Mr Justice Gorman dated the 2nd October, 1956, by which he dismissed the claim of the Plaintiff Company against the Post Office. The Plaintiff claimed in contract and in tort against the Post Office in respect of the loss of two registered postal packets. One packet was posted on the 29th April, 1953, and contained diamonds worth £3,380 odd, and the other was posted on the 22nd June, 1953, at the same post office in London, containing diamonds worth £17,998 odd. The post office accepted the packets, and a certificate of posting in the ordinary form was given. The packets were to be sent to New Zealand. The form of the certificate of posting has on the back, under the heading "Overseas"; "Registration in the international service is not a system of insurance. Compensation is not paid for loss or damage of contents as distinct from loss of the entire packet, and the payment made in no circumstances exceeds £2. 18s. Od. Packets sent to many countries abroad can be insured against loss or damage of contents".

2

The claim so far as it is based in tort, a claim arising from the negligence of the Defendant - I need not go into the particulars of the negligence which is alleged; trouble arose from a dishonest servant of the Post Office - is not proceeded with, because it is recognised that having regard to the language of the Crown Proceedings Act, 1947, the claim in tort will not lie; but the claim in contract was pressed and was dealt with very shortly by the learned Judge, having regard to the way in which the matter went. The pleading was, in contract, to the effect that the Defendant, in accepting the packets, had agreed (and I quote the material particulars) "to use care and diligence in and about the carriage and transmission, to employ in connection with the carriage and transmission only adequate post officers, and to carry and transmit the packets and each of them by an efficient and appropriate system". The Post Office, by their Defence, denied that there was any contract made between the Defendant and the Plaintiffs with regard to either of the postal packets, and in particular that there was any contractual intention in the transaction. Further, the Defendant relied upon the provisions of tie Post Office Act, 1908, and the Regulations made thereunder, to which I shall have to refer.

3

When the matter came before the learned Judge, Counsel then appearing for the Plaintiff took the course that on the agreed facts, which I think I have sufficiently stated, he was prepared to accept the position that, upon a submission of no case by the Defendant, in law he could not succeed, having regard to some old decisions of the Court of King's Bench which were binding upon Mr Justice Gorman. He thereupon allowed, without argument, the matter to be determined against him and the action to be dismissed. In this Court those decisions are no doubt open to review, one a decision of 1701 and one a decision of 1778, decisions which have stood for a long time. In accordance with well-recognised practice, discussed by the House of Lords in ( Bourne v. Keene 1919 Appeal Case, page 815), where the authorities upon the non-disturbance of decisions of long standing were reviewed, it was said by the Lord Chancellor, Lord Birkenhead, at page 857; "If there were, in fact, an unbroken line of ties dating back 300 years, then it would have been a matter for grave discussion whether this House, in accordance with well recognized principles, would consent to break that chain'. These two anthorities to which is hall refer have stood for a very long time, and no-one has hitherto, until now, made any attempt to allege that in circumstances such as these a contract could be said to exist between the Post Office and the person who entrusts to the care of the Post Office a letter of package. The postion in this Court is that Sir Frank Soskise, on behalf of the Plaintiff, has taken a point which I think was not taken below, that the authorities, although they contain language which is adverse to this claim, are not in any event valid, because the learned Judges, in expressing their views about the contractual aspect of this matter, were doing so merely obiter, because in each of the decisions the claim was framed in case and therefore the question of contract did not directly rise for decision have listened to the argument on that basic and for my part, I think that that is correct, that the observations upon contract were obiter and not directed to the matters raised upon the pleadings. Notwithstanding that, the law as laid down in those cases (in the second case very clearly by that great Judge Lord Mansfield) has been accepted from that day to this, from 1778 till now, and the statutes which he h-d to consider were in pari material with the Post Office Acts in force to-day. That in force to-day is the Act of 1953', that which w-s in force at the relevant date so far as these proceedings are concerned is the most Office Act of 19. In ray judgment, what he said in 1778 is appropriate to-day an: is entitled to the highest possible respect.

4

The first case, Lane v. Cotton, decision of the Court of King's Bench, followed upon the first Port Office Act of 1660, which recited the existence of post offices aid established the office of Postmaster-General and fixed the rates for carrying letters. Upon that statute, the position was considered by Sir John Holt, Chief Justice, and Justices Turton, Powys and Gould in the earlier case of Lane v. Cotton. To which I need not, I think, refer in detail. The three Judges other than the Chief Justice were of opinion, although the matter was not raised on the pleadings, that there was no contract. The Lord Chief Justice was a dissenting Judge. I will read only an extract from the Judgment of Mr Justice Gould at page 648 in Lord Raymond's Reports, Volume 1: If anything can support this action, it must be a contract; expressed or implied; but here is neither the one nor the other".

5

The nest matter to which I need refer is the subsequent statute which was passed in the reign of Queen Anne, in 1710, which dealt with the larger duties of the Post Office which existed at that time and increased the rates payable. I should say in passing that it is clear from the language of those' old statutes that the Postmaster-General had a monopoly in the carriage of letters and packages for the Crown. I think it is also clear tint he was in a position to enter into contracts and he had a monopoly, for example, of providing horses, which would involve entering into contracts with persons who had horses for hire. But the case to which I think I should refer, which contains the important Judgment of Lord Mansfield, is the case of Whitfield v. Lord Despencer, which is reported in the Reports of Mr Henry Cowper, Volume 2, at page 754. The matter was argued twice, and it is not plain from the report who were the other Judges who sat with lord Mansfield, but they were clearly of the same opinion as Lord wansfield. This action was, as I have said, on the case, and the hed-note is; Case does not lie against the Postmaster-General, for a bank note stolen by one of the sorters out of a letter delivered into the post-office'1. In the course of his Judgment, Lord Mansfield referred to the earlier case of Lane v. Cotton, and in particular to the dissenting Judgment of Lord Chief Justice Holt, at page 765. He said". "The ground of Lord Chief Justice Holt's opinion in that case is founded upon comparing the situation of the postmaster to that of a common carrier, or the master of a ship taking goods on board for freight. Now, with all deference to so great an opinion, the comparison between a postmaster and a carrier, or the master of a ship, seems to me to hold in no particular whatsoever. The postmaster has no hire, enters into no contract, carries on no merchandise or commerce. But the post-office is a branch of revenue, and a branch of police, created by an Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and...

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