COURT OF APPEAL.
B e f o r e :
LORD JUSTICE DENNING,
LORD JUSTICE MORRIS.
| THE KING
|- v -
|NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL
ex PARTE SHAW.
Official Shorthandwriters, Ltd., 2, New Square, Lincoln's Inn, London, W.C.2,
and Room 392, Royal Courts of Justice, Strand, London, W.C.2.
(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).
The Respondents, the Northumberland Compensation Appeal
tribunal, were not represented.
Crown Copyright ©
LORD JUSTICE SINGLETON: Mr Thomas 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 Authority (the Gosforth Urban District Council) 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 Authority,
Mr Shaw then moved for an Order of Certiorari to remove into the King's Bench Division the decision 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 Authority were Respondents. Counsel appearing for the compensating Authority 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 an Order of Certiorari could not be 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 was no error on the face of the record. It was said that the Court could only look 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 "as clear 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 mould add to his judgment, but having regard to the argument before us and to the authorities cited it is right that I should express my views.
"The writ of certiorari is a very old and high 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 certified 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 it 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 of Health."
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 Henden, reported in 5 Modern Reports at page 417, was a settlement case,
"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 criminal 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 been made within its jurisdiction. If that is the whole object, there can be no difference for this purpose between civil orders and criminal convictions, except in so far as differences 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 for detecting error on the record in one case, which in another 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 Walsall Overseers v. London and North Western Railway 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 end 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 error could accordingly be quashed. It is to be observed on this 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 been acted 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 exceeded its own, and for that very reason it is bound not to interfere in what has 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."
"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 detection. The face of the record 'spoke' no longer: it was the inscrutable face of a sphinx."
Lord Sumner shows how, and why, certiorari fell into disuse in the case of convictions before Magistrates; yet there was no alteration in the law as to certiorari. Thus it appears to me that in a case such as the one before this Court certiorari will lie if there be error on the face of the proceedings. The Attorney-General relied on the decision of the Court of Appeal in The Racecourse Betting Control Board v. Secretary for Air, reported in 1944 1 Chancery at page 144. Unfortunately, neither the Nat Bell case nor the Walsall case, reported in 4 Appeal Cases at page 30, was cited when The, Racecourse Betting Control Board case was before the Court, The reasons given for the decision appear to me to be in conflict with the views of the Lord Chancellor, Lord Cairns, and Lord Penzance in the Walsall case, and of Lord Sumner in the Nat Bell case, though it may be that the judgment could have bean affirmed on other grounds. The decision of the Tribunal was a "speaking order" in the sense in which that terms has been used. The court is entitled to examine it, and if there be error on the face of it, to quash it - "not to substitute another order in its place, but to remove that order out of the way, as one which should not be used to the detriment of any of the subjects of Her Majesty", as Lord Cairns said at page 39 in the Walsall case.
The second submission of the Attorney-General places the Court in some difficulty. Before the Divisional Court it was common ground that there was error on the face of the decision given by the Tribunal; indeed, it was admitted by Mr Ashworth that that was the position, though he claimed that it was not the sort of error for which certiorari would lie, his contention being that certiorari in the case of a Tribunal such as this went only to defect of jurisdiction. In those circumstances, I do not think that the Appellants ought to be allowed to take in the Court of Appeal the point that there is no error apparent in the face of the decision; there was no mistake or misunderstanding. None the less, the point was taken, and the actual position was not apparent to us until Mr Gardiner read some portions of the transcript of the hearing before the Divisional Court, though Mr Lyell informed us earlier that the point was not argued.
The decision of the Tribunal in the first paragraph gives the Tribunal's determination of Mr Shaw's service with the Hospital Board as from the 7th October, 1936, to the 31st March, 1949. In the third paragraph it sets out the compensating Authority's contention that the compensation payable should be limited to the actual dates of service, that is, service with the Board from the 7th October, 1936, to the 31st March, 1949. The Tribunal, in the fourth paragraph, agrees that the only service to be taken into account is that between the 7th October, 1936, and the 31st March, 1949, that is, service with the Hospital Board. It does not set out the contentions put forward on behalf of Mr Shaw, but it is, I think, clear that he was asking for other service to be taken into account, and the decision of the Tribunal is that the only service to be taken into account is his service with the Hospital Board. Regulation 2 contains a definition of "service" from which it is clear that there are many types of service which may have to be considered in arriving at the amount of compensation to be awarded. If the Tribunal by its decision says: "We are only going to consider the actual dates of service with the Hospital Board", there is, I think, error on the face of the decision - and that is what the Tribunal has done. It may be that my view is coloured by that which happened in the Divisional Court and by the judgment of the Lord Chief Justice, which begins by reciting the facts in regard to Mr Shaw, and the admission of Counsel who appeared for the compensating Authority.
If I had felt doubt about the matter I should have been inclined to accede to Mr Gardiner's suggestion that we should look at the decision of the compensating Authority for, as he put it, it is not easy to see the precise point of the determination of an appeal without seeing the Order appealed from.
In General Medical Council v. Spackman, reported in 1943 Appeal Cases at page 627, affidavit evidence was received without objection. True, the question before the Court went to "natural justice", but it might have been said to depend on the true construction of Section 29 of the Medical Act, 1858.
I base my opinion that there is error on the face of the decision on the terms of the decision itself; it is a "speaking order"; read alongside the Regulations it shows that the Tribunal declined to consider any service other than service with the Hospital Board. I would add that the point is not open to the Appellants, having regard to the course taken before the Divisional Court; otherwise there would be no finality.
The appeal fails. If it had succeeded Mr Shaw would have been deprived of some part of the compensation for loss of office to which he is entitled under the Regulations, and to which everyone now agrees that he is entitled.
There was no way other than this by which the mistake could be rectified. The Attorney-General pointed out the undesirability of the Court interfering with the decisions of Tribunals set up by Parliament. I agree with him that the Divisional Court cannot extend its powers; it can only act according to the well recognised rules. It is equally important that the Court should not hesitate to act to prevent an injustice being done if the remedy sought is within the scope of its powers. Much time has been expended in recent years in considering whether in particular circumstances certiorari, or prohibition, will lie. A great deal of it could be saved. The Regulations under the National Health Service Act, 1946, are of great complexity. The interpretation of them is left to the Tribunal; there is no provision for an appeal to the Courts. That position arises frequently nowadays. I most earnestly wish that in such cases where difficult questions of law, and of interpretation, must arise that there should be given some right of appeal. Perhaps the most convenient form is that adopted in Section 37 of the National Insurance (Industrial Injuries) Act, 1946, under which any question of law arising in connection with the determination of certain questions may, if the Minister thinks fit, be referred to the decision of the High Court, and any person aggrieved by the decision of the Minister on any question of law not so referred may appeal from that decision to the High Court. And there is provision in subsection (5) that the decision of the High Court shall be final, a provision which may be thought desirable in such cases. After all, it is the function of the Courts to determine questions of law. Tribunals are sometimes given an unduly difficult task; there must be a feeling of dissatisfaction if it is recognised that a decision of a Tribunal is wrong in law and yet there is no power to correct it; in other words, if there is no right to have the opinion of the Court. I am satisfied that the course I have suggested would result in a saving of time, and of expense, and would be for the public good.
LORD JUSTICE DENNING: The question in this case is whether the Court of King's Bench can intervene to correct the decision of a statutory Tribunal which is erroneous in point of law. No one has ever doubted that the Court of King's Bench can intervene to prevent a statutory Tribunal from exceeding the jurisdiction which Parliament has conferred upon it; but it is quite another thing to say that the King's Bench can intervene when a Tribunal makes a mistake of law. A Tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction. If it does so, can the King's Bench intervene?
There is a formidable argument against any intervention on the part of the King's Bench at all. The statutory Tribunals, like this one here, are often made the judges both of fact and law, with no appeal to the High Court. If, then, the King's Bench should interfere when a Tribunal makes a mistake of law, the King's Bench may well be said to be exceeding its own jurisdiction. It would be usurping to itself an appellate jurisdiction which has not been given to it. The answer to this argument, however, is that the Court of King's Bench has an inherent jurisdiction to control all inferior Tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior Tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the Tribunal which, on the face of it, offends against the law. The King's Bench does not substitute its own views for those of the Tribunal, as a Court of Appeal would do. It leaves it to the Tribunal to hear the case again, and in a proper case may command it to do so. When the King's Bench exercises its control over Tribunals in this way, it is not usurping a jurisdiction which does not belong to it. It is only exercising a jurisdiction which it has always had.
The origin of this controlling power was the Writ of Certiorari which the King commanded the Judges of any inferior Court of Record to certify the record of any matter in their Court with all things touching the same, and to send it to the King's Court to be examined. The wording of the Writ was for many centuries as follows, being originally in Latin and afterwards in English:
"We being willing for certain reasons that all and singular orders made by you (as is said) be sent by you before us, do command that you do send forthwith before us all and singular the said orders with all things touching the same, as fully and perfectly as they have been made by you and now remain in your custody or power, together with this our Writ, that we may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done."
I would pause for a moment to notice the amplitude of this Writ. The record of the inferior Court is to be sent up so that the King's Bench may cause to be done thereon "what of right and according to the law and custom of England" ought to be done. The width of these words is only matched by the width of the words used by the great Masters of the law in speaking of certiorari. Thus Joseph Chitty in his book on practice written in 1833, Volume 1, page 353; said:
"As an essential mode of exercising a control over all inferior Courts, the Court of King's Bench has a most extensive power to bring before it their proceedings and fully to inform itself upon every subject essential to decide upon the propriety of the proceedings below. This is effected by a writ called certiorari. The writ issues in civil as well as criminal cases . . ."
Thus such a writ was ordered to be issued to the judge of an inferior jurisdiction to return and certify the practice of his Court." (See Williams v. Bagot, reported in Volume 4 of Dowling & Ryland's Reports at page 315, and Volume 3 of Barnewall & Cresswell at page 772.) Ninety years later Lord Sumner used words of equal width: The supervision by certiorari "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." (See Rex v. Nat Bell Liquors Ltd., reported in 1922 Appeal Gases at page 156.)
Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law; and several learned Judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdiction. I have looked into the history of the matter, and find that the old cases fully support all that the Lord Chief Justice says. Until about 100 years ago, certiorari was regularly used to correct errors of law on the face of the record. It is only within the last century that it has fallen into disuse, and that is only because there has, until recently, been little occasion for its exercise. Now, with the advent of many new Tribunals, and the plain need for supervision over them, recourse must once again be had to this well tried means of control. I will endeavour to show how the Writ of Certiorari was used in former times, so that we can take advantage of the experience of the past to help us in the problems of the present.
Let me start with convictions by Magistrates in summary proceedings under Acts of Parliament. Ever since the days of Lord Holt, the Court of King's Bench has been extremely strict to see that all was in order. Everything necessary to support the conviction had to appear on the face of the record. The conviction had to recite the information in its precise terms. It had to set out the evidence of each witness as nearly as possible in his actual words. It had to state the adjudication with complete certainty. It had to show that the case was brought within the terms of the Act of Parliament creating the offence. If there was any defect in point of form, or any error in point of law, appearing on the face of the record, the conviction would be moved into the King's Bench by certiorari and quashed. Nothing could be supplied by argument or intendment. The principles on which the Court acted will be found well stated by Chief Justice Lord Holt in Rex v. Chandler (1703), reported in 1 Salkeld's Reports at page 378, 1 D. & Ray at page 581, by Mr Justice Bayley and Mr Justice Holroyd in Rex. v. Dayman (1819), reported in 1 Chitty Reports at page 147. An entertaining illustration will be found in Regina v. Barnaby (1704), reported in 1 Salkeld's Reports at page 181, and specimen convictions in 1 Chitty's Reports at page 158, and in Rex v. March, reported in 4 D. & Ray at page 260, where the conviction was drawn up by Counsel on both sides so as to raise the point of law.
The result of all this strictness, however, was that many convictions were quashed for defects of form and not of substance. The Legislature therefore intervened in 1848 to make the record of a conviction much more simple. Instead of a detailed speaking record, there was provided an unspeaking common form, which rarely disclosed any error. Thenceforward there was not so much room for certiorari in the case of convictions, but the fundamental principles remained untouched. (See Rex v. Nat Bell Liquors Ltd.. reported in 1922 2 Appeal Cases at page 159, per Lord Sumner.)
Next I will turn to the Orders of Justices in civil matters. The Court of King's Bench was never so strict about these as it was about convictions. It did not require a detailed speaking record to be sent up to them. The record had to contain everything necessary to show that the Justices had jurisdiction to deal with the matter, and it had to set out their adjudication; but it was not necessary to set out either the evidence or the reasons. If a point of law arose, however, on which either party desired the ruling of the King's Bench, he could ask the Justices to make a speaking order, that is, to make a special entry upon the record of the reasons for their judgment. The Justices were not bound to do this, but they usually did so if they entertained a doubt about the point. When their reasons thus appeared on the record, the Court of King's Bench would on certiorari inquire into their correctness, and if the reasons were wrong, would quash the decision. Sometimes the Justices would find the facts and state them specially as part of the record so as to enable the Court of King's Bench to say whether their judgment on those facts was in law right or wrong. It was then known as a Case Stated, and the King's Bench would again on certiorari determine whether the decision was correct or not. The principles on which the Court acted will be found well stated by Chief Justice Holt in Rex v. Inhabitants of Audly (1701) reported in 2 Salkeld's Reports at page 528, and The Parish of Ricelip v. The Parish of Henden, reported in 5 Modern Reports at page 417, and in the argument before Chief Justice Abbott and his colleagues in Rex v. Justices of Devon (1819), reported in 1 Chitty Reports at page 34, and by Lord Cairns in Walsall Overseers v. London and North Eastern Railway, reported in 4 Appeal Cases at pages 39 to 42. Interesting illustrations will be found in R. v. Dobbyn, reported in 2 Salkeld's Reports at page 474, R. v. London, reported in 3 Salkeld's Reports at page 261, Ditton's case, reported in 2 Salkeld's Reports at page 490, Talbury v. Foster, reported in 2 Salkeld's Reports at page 475. The procedure in these cases was, however, simplified in 1857 when the Legislature intervened to enable Justices to state a Case for the opinion of the Court without the record being removed by a Writ of Certiorari, (See Section 10 of the Summary Jurisdiction Act, 1857.) Thenceforward there was not so much room for certiorari in the case of Orders of Justices, but again the fundamental principles remained untouched.
So far I have considered only the convictions or Orders of Justices, which were by far the most numerous cases in which certiorari was used. I now come to the Orders of statutory Tribunals. The Court of King's Bench has from very early times exercised control over the Orders of statutory Tribunals, just as it has done over the Orders of Justices. The earliest instances that I have found are the Orders of the Commissioners of Sewers, who were set up by Statute in 1832 to see to the repairs of sea walls and so forth. The Court of King's Bench used on certiorari to quash the Orders of the Commissioners for errors on the face of them, such as when they failed to set out the facts necessary to show that they had jurisdiction in the matter, or when they contained some error in point of law. It is recorded that on one celebrated occasion the Commissioners refused to obey a certiorari issued out of the King's Bench, and for this the whole body of them were "laid by the heels." The control thus exercised over the Commissioners of Sewers was used by Chief Justice Lord Holt as a precedent to control by certiorari the Orders of any Tribunal set up by Parliament, such as the College of Physicians and the Commissioners for the repair of Cardiff Bridge. Since that time it has never been doubted that certiorari will lie to any statutory Tribunal. It was suggested before us on behalf of the Crown that, in the case of these statutory Tribunals, the Court of King's Bench only interfered by certiorari to keep them within their jurisdiction, and not to correct their errors of law. There are, however, many cases in the books where certiorari was used to correct errors of law on the face of the record. A striking instance was where the Commissioners of Sewers imposed an excessive fine, and it was quashed by the Court of King's Bench on the ground that in law their fines ought to be reasonable. Other instances are the numerous cases where certiorari was used to determine the validity of a sewer's rate imposed by the Commissioners of Sewers. There are several cases where an auditor's certificate has been quashed for error of law on the face of it. And I have no doubt that many more instances could be found throughout the books. The principles on which the Court acted in the case of the Commissioners of Sewers will be found set out in Cummins v. Marsan, reported in March's Reports at page 196, Callis on Sewers, Fourth Edition (1823), pages 203 and 204, and 342 to 344, and Chitty's Practice, Volume II, at page 370. The decisions of Lord Holt are Greenwelt v. Burwell, reported in 1 Salkeld's Reports at page 144, 1 Lloyd & Ray, page 454 to 469, the case of Cardiff Bridge, reported in 1 Salkeld's Reports at page 156, 1 Lloyd & Ray at page 580. A case of an auditor's certificate is Regina v. White, reported in 11 Queen's Bench Division at page 309, 14 Queen's Bench Division at page 358,
Leaving now the statutory Tribunals, I turn to the awards of arbitrators. The Court of King's Bench never interfered by certiorari with the award of an arbitrator, because it was a private Tribunal and not subject to the prerogative writs. If the Award was not made a rule of Court, the only bourse available to an aggrieved party was to resist an action on the Award or to file a bill in equity. If the Award was made a rule of Court, a motion could be made to the Court to set it aside for misconduct of the arbitrator on the ground that it was procured by corruption or other undue means. (See the Statute 9 and 10 William III, Chapter 15.) At one time an Award could not be upset on the ground of error of law by the arbitrator, because that could not be said to be misconduct or undue means; but ultimately it was hold in Kent v. Elstob, reported in 3 East's Reports at page 13, that an Award could be set aside for error of law on the face of it. This was regretted by Mr Justice Williams in Hodgkinson v. Fernie, reported in 3 Common Bench, New Series, at page 189, but is now well established. This remedy by motion to set aside is, however, confined to arbitrators. It does not extend to statutory Tribunals. (See The Racecourse Betting Control Board v. Secretary for Air, reported in 1944 Chancery at page 114. I look upon that decision as merely a decision as to the scope of the remedy of setting aside on motion. It is not a decision on substantive law. It does not take away or diminish the inherent jurisdiction of the Court of King's Bench to interfere by certiorari.
It will have been seen that throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the Tribunal for a permanent memorial and testimony of their proceedings. (See Blackstone's Reports, Volume III, at page 24.) But it must be noted that, whenever there was any question as to what should, or should not be, included in the record of any Tribunal, the Court of King's Bench used to determine it. It did it in this way: When the Tribunal sent their record to the King's Bench in answer to the Writ of Certiorari, this return was examined, and if it was defective or incomplete, it was quashed. (See Apsley's case reported in Style's Reports at page 85, R. v. Livermore, reported in Salkeld's Reports at page 146, Ashley's case, reported in Salkeld's Reports at page 479, or, alternatively, the Tribunal might be ordered to complete it. Williams v. Bagot (1824), reported in Volume 4 of Bowling & Ryland's Reports at page 315, Rex v. Warneford, reported in 5 Dowling & Ryland's Reports at page 489, (1825). It appears that the Court of King's Bench always insisted that the record should contain, or recite, the document or Information which initiated the proceedings and thus gave the Tribunal its jurisdiction; and also the document which contained their adjudication. Thus in the old days the record sent up by the Justices had, in the case of a conviction, to recite the information in its precise terms; and in the case of an Order which had been decided by Quarter Sessions by way of appeal, the record had to set out the Order appealed from. (See 2 Salkeld's Reports, page 479.) The record had also to set out the adjudication, but it was never necessary to set out the reasons (see South v. Cadbury, reported in 2 Salkeld's Reports, at page 607) nor the evidence, save in the case of convictions. Following these cases, I think the record must contain at least the document which initiates the proceedings, the Pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the Tribunal chooses to incorporate them. If the Tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.
The next question which arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it is granted on the ground of error of law on the fade of the record, affidavit evidence is not, as a rule, admissible, for the simple reason that the error must appear on the record itself. (See Rex v. Nat Bell Liquors Ltd. reported in 1922 Appeal Cases at page 156,) Affidavits were, however, always admissible to shew that the record was incomplete, as for instance, that a conviction omitted the evidence of one of the witnesses. (See Chitty's Practice, Volume II, page 222, note (d)) or did not set out the fact that the Justices had refused to hear a competent witness for the defence (see R. v. Avon, reported in 2 Chitty's Reports, at page 137) whereupon the Court would either order the record to be completed, or it might quash the conviction at once.
Notwithstanding the strictness of the rule that the error of law must appear on the face of the record, the parties could always by agreement overcome this difficulty. If they both desired a ruling of the Court of King's Bench on a point of law which had been decided by the Tribunal, but which had not been entered on the record, the parties could agree that the question should be argued and determined as if it were expressed in the Order. The first case I have found in which this was done was in 1792, Rex v. Essex (1792) 4 T.R. at page 591, but thereafter it was quite common. It became a regular practice for parties to supplement the record by affidavits disclosing the points of law that had been decided by the Tribunal. This course was only taken if no one objected. It seems to have been adopted by litigants as a convenient alternative to asking the Tribunal to make a speaking Order. Thus, in the numerous cases on the validity of a sewer's rate, it was the regular course of proceeding for affidavits to be lodged stating the objections in law to the rate; and the case was decided on the objections stated in the affidavits. (See for instance, Rex v. Tower Hamlets, reported in 9 Barnewall & Cresswell at page 517, 1 Barnewall & Alderson at page 232.) Recent cases such as Rex v. Yorkshire Justices, reported in 1910 2 K.B. at page 192; General Medical Council v. Spackman, reported in 1943 Appeal cases at page 627, show that the practice continues today. The explanation of all these cases is, I think, that the affidavits are treated by consent as if they were part of the record and make it into a speaking Order.
Apart from these consent cases, it is often a very nice question whether an error which does not appear on the record is one which goes to jurisdiction or is only an error of law within the jurisdiction. If it goes to jurisdiction, affidavits are admissible, but otherwise not. I do not venture on a discussion of what does, or does not, go to jurisdiction, because it does not arise in this case.
Nor do I venture on a discussion of the cases where Parliament.has intervened to restrict the use of certiorari except to say that those restrictions can often be overcome by consent. (See Rex v. Dickenson, reported in 7 Ellis & Blackburn at page 83,) No such restriction appears in this case.
We have here a simple case of error of law by a Tribunal, an error which they frankly acknowledge. It is an error which deprives Mr Shaw of the compensation to which he is by law entitled. So long as the erroneous decision stands, the compensating Authority dare not pay Mr Shaw the money to which he is entitled lest the auditor should surcharge them. It would be quite intolerable if in such case there were no means of correcting the error. The authorities to which I have referred amply show that the King's Bench can correct it by certiarari. It is true that the record which has been sent up to the Court does not distinctly disclose the error, but that is only because the record itself is incomplete. The Tribunal has sent up its decision, but it has not sent up the claim lodged with the compensating Authority or the Order made by them on it or the Notice of Appeal to the Tribunal. Those documents would, I think, properly be part of the record. They would, I understand, have disclosed the error. If it had been necessary, the Court could have ordered the record to be completed. But that is unnecessary, having regard to the fact that it was admitted in open Court by all concerned that the decision was erroneous, I am clearly of opinion that an error admitted openly in the face of the Court can be corrected by certiorari as well as an error that appears on the face of the record. The decision must be quashed, and the Tribunal will then be able to hear the case again and give the correct decision.
LORD JUSTICE MORRIS: The Respondent Mr Thomas Shaw was formerly the Clerk to the West Northumberland Joint Hospital Board. Consequent upon the passing of the National Health Service Act, 1946, he suffered the loss of such employment. Being aggrieved by the amount of the compensation awarded to him by the Gosforth Urban District Council (who were the Compensating Authority) he referred the matter to the Tribunal designated by the National Health Service (Transfer of Offices and Compensation) Regulations, 1948. It became the duty of the Tribunal to consider the matter so referred "in accordance with the provisions of" the Regulations and to "determine accordingly whether any and if so what compensation ought to be awarded to the Claimant." (See Clause 12 of the Regulations.) The Tribunal was obliged to determine the matter in accordance with the provisions of the Regulations. It is manifest therefore that the Tribunal was bound by the definition of "Service" contained in the Regulations.
After the Tribunal made its decision the Divisional Court were moved on behalf of Mr Shaw for an Order of Certiorari to remove the decision into the High Court. The Respondents to the motion were the Tribunal and the Gosforth Urban District Council. The Divisional Court ordered that the decision be removed and then quashed. From that Order the Gosforth Urban District Council do not appeal. The Tribunal appeals, and does so on two grounds. Firstly, it is submitted that certiorari does not lie against the Tribunal on the basis of error of law appearing on the face of the decision. Secondly, it is submitted that error of law does not appear on the face of the decision.
In my judgment the second submission is not open to the Tribunal. It was conceded before the Divisional Court that the decision of the Tribunal was a "speaking order", and that error was apparent on the face of it. The matter proceeded before the Divisional Court on that basis. There was, in my view, scope for argument as to whether (if the metaphor of a "speaking order" is adopted) the decision "spoke" its error of law. While the mere admission of Counsel cannot convert a document into something different from what it is, I consider that as in the present case those appearing for Mr Shaw desired to press before the Divisional Court a submission that the decision "spoke" its error, and as this submission was acceded to and was conceded on behalf of the Tribunal it would not now be fitting to allow on appeal the reclaiming of that which was jettisoned. I entertain no laments for this result, inasmuch as though it was sought to be argued on appeal that the face of the decision was not sufficiently self revealing, yet it was expressly admitted that in fact the decision was only reached by treading the paths of legal error.
The appeal really resolves itself into the question whether certiorari lies in a case where the decision of an inferior Court or Tribunal manifestly reveals legal error. That an Order of Certiorari will go to the Respondent Tribunal does not admit of doubt. The Tribunal is an inferior Court in the sense discussed by Lord Justice Scrutton in his judgment in Rex v. The London County Council Ex parte The Entertainments Protection Association, Ltd., (1931 2 K.B., pages 215, 233), and by Lord Justice Atkin (as he then was) in his judgment in Rex v. Electricity Commissioners (1924 1 K.B., pages 171, 205.) In the former of the two cases just referred to Lord Justice Scrutton spoke of the Writ of Certiorari as 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, In the other case Lord Justice Atkin said that the controlling jurisdiction of the Kings Bench Division was exercised when the inferior Court acted in excess of their legal authority. But in neither passage was there more than a broad and general description of the nature of the Writ, I do not read the judgments as embarking upon or as intending to lay down an exhaustive or delimiting definition of the scope of, or the occasions for the issuing of, the Writ.
Cases were cited in argument before us which showed that in times past certiorari lay where Justices recorded decisions which were on the face of them bad in law. It was said, however, that this was not shown to have been the practice in the case of non-judicial Tribunals. But there is no warrant for the view that the controlling power exercised by certiorari over inferior Courts varies according to the description of, or the composition of, the inferior Court, Once the body concerned is properly to be described as an inferior Court in the sense in which this expression is now well understood, then, subject to any statutory provision, an Order of Certiorari will issue on any of the grounds recognised by law. It was further said that though these grounds were formerly wide enough to include cases where decisions were, on the face of them, bad in law there has in recent years been a contraction, with the result that certiorari no longer lies for such reason. It is said that this basis for the exercise of the controlling power has fallen into abeyance. I can find no justification for this contention. The Speeches in the House of Lords in Walsall Overseers v. London & North Western Railway Company ( 4 A.C., page 30) demonstrated that if that which was stated upon the face of an Order of an inferior Court showed that the Order was erroneous in law, then the Court could be removed by certiorari and its existence could be ended by quashing. The Walsall case was in 1878. No reason was suggested in argument why it should be held that in the subsequent period (a brief one in comparison to the antiquity of the Writ) the efficacy of certiorari should be diminished or why it should lose part of its virtue and strength.
In Kydd v. Liverpool Watch Committee (1907 2 K.B., page 591) Lord Justice Fletcher Moulton at page 603 said in reference to cases when Courts of Quarter Sessions had prior to 1879 given their decisions in the form of a Special Case for the opinion of the superior Courts:
"The Court of quarter sessions in such cases chose to embody the material and grounds of its decision in the decision itself. Any error in law in the decision became thereby an error on the face of the record and therefore cognizable by the superior courts should the record be brought up before them by the ordinary writ of certiorari. It was not as a Court of Appeal that the superior court sat when considering such special cases; it sat in the exercise of its ordinary jurisdiction to quash decisions of inferior courts when those decisions were on the face of them bad in law."
The survey of the law by Lord Sumner in the year 1922 in the case of The King v. Nat Bell Liquors Ltd. (1922 2 A.C., page 128) lends no countenance to the view urged on behalf of the Appellants, but on the contrary negatives it.
In my judgment the law, as laid down in the House of Lords in the Walsall case must take precedence over any observations made in the case of The Racecourse Betting Control Board v. Secretary for Air (1944 Chancery Division, page 114) which may be in conflict.
It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an Order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an Order or decision or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an Order or decision, and then by quashing it.
A consideration of the authorities leads me to the same result as that reached by the Divisional Court, and I find myself in full agreement both with the conclusion and the reasoning of the Judgment there delivered.
LORD JUSTICE SINGLETON: Yes, the appeal will be dismissed with costs. It follows, does it not, that in the case of the Application for an Order of Mandamus there will be no Order, having regard to the undertaking which was given. Is that right?
LORD JUSTICE SINGLETON: We have considered that -- we thought you might ask for leave — and we think you ought not to have leave. We think if you desire to raise this matter in the House of Lords it ought to be in a case which is clearer, and where the complications arising in this case do not take place. That is only one reason why we do not think you ought to have leave.
MR ASHWORTH: If your Lordship pleases. In the circumstances, I do not think it would be right for me to press the argument. Your Lordships have not heard me about it, but in view of what your Lordship has said I do not feel I ought to press it.
LORD JUSTICE SINGLETON: We have considered it. It is an important case, but we think there ought to be a clearer case for you to take to the House of Lords, On the whole, we do pot think there ought to be leave in any case. If you wish to obtain leave you must ask elsewhere.
MR ASHWORTH: If your Lordship pleases. May I just say that, of course, I fully accept that in this case, but supposing there were another case where it might be the Law Officers would wish to go further, the fact that we have not pressed the argument for leave to appeal here will not be in any way taken against us.
LORD JUSTICE SINGLETON: At the end of the argument on the Application for a Writ of Certiorari it was said the Tribunal would carry out the Order of this Court, and there would be no need for an Order of Mandamus. That position is clear between you, is it?