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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> National Telephone Co. Ltd v. Postmaster-General [1913] UKHL 532 (04 July 1913)
URL: http://www.bailii.org/uk/cases/UKHL/1913/51SLR0532.html
Cite as: [1913] UKHL 532, 51 ScotLR 532
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SCOTTISH_SLR_House_of_Lords
Page: 532↓
House of Lords
(Before the
v.
(On Appeal From the Court of Appeal In England.)
Subject_Jurisdiction — Appeal — Railway and Canal Commission — Railway and Canal Traffic Act 1888 (51 and 52 Vict. cap. 25), sec. 17 — Telegraph (Arbitration) Act 1909 (9 Edw. VII, cap. 20), secs. 1 and 2.
Facts:
By the Telegraph (Arbitration) Act 1909, sec. 1, questions arising under any agreement with the Postmaster-General relative to telegraphs or telephones may be referred for settlement to the Railway and Canal Commissioners.
Held that such a reference is to the Commissioners not as arbiters but as a court of record. Consequently there is a right of appeal from the Commission to the Court of Appeal upon questions of law.
Judgment of the Court of Appeal ([1913], 2 K.B. 614) affirmed.
Held, further, that the general right of appeal to the House of Lords given by the Appellate Jurisdiction Act 1876, sec. 3, is not taken away by the provisions of the Railway and Canal Traffic Act 1888, sec. 17, sub-sec. 5, that appeal shall only lie to the Court of Appeal.
Their Lordships dismissed this appeal without calling upon the respondent. Their written reasons for the judgment, from which the facts appear, were afterwards delivered as follows:—
A difference having arisen under the agreement, the Commission at the request of the parties sat and determined it, and fixed the value of the assets in question. The respondent appealed to the Court of Appeal on certain points included in this decision. Before the appeal was opened the appellants took the objection that the Court of Appeal had no jurisdiction to entertain it. The majority of the Court of Appeal, consisting of the Master of the Rolls and Kennedy, L.J., held that there was jurisdiction. Buckley, L. J., dissented.
The ground of the objection was that the Commission had jurisdiction only by virtue of the agreement and of the Telegraph Arbitration Act 1909, and not under the Regulation of Railways Act 1873, as amended by the Railway and Canal Traffic Act 1888, neither of which Acts by itself applied to the case. The 17th section of the Act of 1888 gives a right of appeal to the Court of Appeal excepting where the questions are of fact or of locus standi, but it is said that the Telegraph Arbitration Act enables a reference to the Commission, not as the court of record established under the two general Acts I have referred to, but as a body of arbitrators from whom there is no appeal.
Section 17, sub-section 5, takes away the ordinary right of appeal to this House from decisions of the Court of Appeal in cases of appeal to it from the Commissioners, and the Attorney-General contended that in consequence the appeal now brought in this House was incompetent. I am of opinion that this preliminary objection fails. The real question is whether the judgment of the Court of Appeal was a nullity, and not whether that Court erred in a proceeding competent under section 17 of the Act of 1888. I think that in such a case there is nothing to take away the general right of appeal to the House of Lords conferred by section 3 of the Appellate Jurisdiction Act of 1876.
The substantial question in the case turns on the construction of the Telegraph Arbitration Act of 1909. That Act provides by section 1 that any difference of a kind which includes the present case shall, if
Page: 533↓
If the reference is one on the same footing as a reference under the general Acts—that is, a reference to the Commission as a court of record with a right of appeal expressly provided—this is decisive against the points raised in the argument for the appellants, and I find nothing in the Act of 1909 to cut down the effect of the words at the end of section 1, which appear to me to provide for a reference to the Commission in its usual capacity. When a question is stated to be referred to an established court without more, it in my opinion imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches. It is said that if this be so the first part of section 2 was superfluous. I do not think so. The initial words of that section appear to me to have been put there by the draftsman in order to lay a foundation for the proviso under which certain cases may be heard by two Commissioners. The proviso is a sufficient reason for the words being inserted, and there is to my mind no justification for reading them as introduced for the purpose of cutting down the natural meaning of the language of section 1.
Upon these grounds I arrive, after hearing the argument, at the conclusion that the appeal ought to be dismissed.
Where the provisions of any general or special Act passed before or after the statute of 1873 authorised or required that a difference between a railway company and a canal company should be referred to arbitration, section 8 provided that that difference should, on the application of one party to the dispute, be, with the consent of the Commissioners, referred to them for their decision in lieu of arbitration. The Commissioners were thus bound to deal with a question such as a complaint of undue preference brought before them presumably by a party aggrieved, whether they liked it or not. They had no power to refuse to do so. Under the eighth section they, if they so consented, were bound to decide a difference brought before them at the instance of one of the parties, and it might be against the will of the other.
By the ninth section any difference to which a railway company or a canal company was a party might, on the application of both the parties to the dispute, be referred to the Commissioners for their decision provided they consented to that course. This last is obviously what has been described in argument quite rightly as a purely consensual arbitration.
The Commission had the further power in proceedings under either of these two sections 8 and 9 to state a case, if they should think fit, on any other question which in their opinion was a question of law for the opinion of a superior court. They had no option of the kind here given in proceedings under sections 6, 11, 12, and 13. In these latter instances they were bound to state a case if required. The important point, however, to consider is that this mode of access to a superior court of law was provided under the terms mentioned in each and every of the several classes of proceedings with which the Commissioners had to deal and in which they had to adjudicate.
By the eighth section of the Act of 1888 all the powers vested in or capable of being exercised by the Railway Commissioners under the Act of 1873 are vested in the new Commissioners appointed by the former statute, and I think there can be no doubt that from the passing of that statute the new Commissioners had full jurisdiction to entertain and decide each of the several classes of cases mentioned in sections 6 to 8 and 9 of the Act of 1873; and, moreover, that under section 17 of the Act of 1888 an appeal not dealing with a question of fact or locus standi would lie from their decision in each of those classes of cases. But section 9 of the Act of 1873 deals with consensual arbitration and nothing else. In no case could the Commissioners be arbitrators to whom the parties had by consent referred their differences more absolutely than they are under this section, and yet while so acting they are so far treated as a court of law that an appeal lay from them, as of right, to the Court of Appeal. The fact that the Commissioners are selected by the agreement of the parties to decide, and are not bound to act, is not then in my view at all crucial, and does not determine the question whether the matter referred to them is to be dealt with by them in their character of a court of law or purely in their character of arbitrator.
Somewhat similar considerations apply to section 18 of the Act of 1888. It does not seem to be open to doubt that the three Commissioners could commit for contempt of court arising in a proceeding under section 9 of the Act of 1873.
The parties in the present case have
Page: 534↓
The decision of the Court of Appeal was therefore in my opinion right, and should be upheld, and this appeal be dismissed with costs.
By an indenture dated the 8th August 1905 it was agreed that His Majesty's Postmaster-General should buy, and the National Telephone Company should sell, the plant, land, buildings, business, and stores of the latter. It was provided by section 4, subsection 4, that all matters of difference as to values should be determined by arbitration. And then by section 15 it was stipulated as follows—“That all questions and matters of difference referred to arbitration by or under this agreement shall be referred to the Railway and Canal Commission if that body shall be authorised to entertain the same.” It was further provided that in the event of the Commission not being so authorised, “the provisions of the Arbitration Act 1889 shall apply to the determination of such questions.”
The event—of the Railway and Canal Commission being authorised to entertain such a reference—took place by the passing of the Act of the 20th October 1909. [Telegraph (Arbitration) Act 1909.] By section 1 of that Act it was provided that any difference such as has arisen “shall, if the parties to such difference have before the passing of this Act agreed or hereafter agree to such reference, be referred to the Railway and Canal Commission, and that Commission shall determine the same.”
As to the proceedings before the Railway and Canal Commission on such a reference, there were provisions made that in the discretion of the Commission, and if both parties agree, the two appointed Commissioners shall hear and determine any matter of difference or question. The parties have not so agreed.
The second point of procedure was that the Commission was given a discretion as to costs. No question arises as to that.
Beyond these two small points the provision of section 2 of the Act of 1909 was absolute that all proceedings covered by the statute and referred to the Railway and Canal Commission “shall be conducted by the Commissioners in the same manner as any other proceeding is conducted by them under the Railway and Canal Traffic Acts.”
It appears to me that in those circumstances the Railway and Canal Commission was by the combined operations of the agreement and the special Act of Parliament fully and entirely charged with the settlement of differences arising under the indenture between the parties. I think that it was also so to this special extent, that when it became possessed of the cause so referred, that cause fell to be determined according to the rules and methods of the ordinary procedure of the Commission, and it became subject to all the provisions of the Acts 1873 and 1888, including those as to appeal.
By section 5, sub-section 3, of the latter statute it is provided that not less than three Commissioners shall attend at the hearing of any case, and the ex officio Commissioner shall preside, and his opinion upon any question which in the opinion of the Commissioners is a question of law shall prevail. I am of opinion that this item of procedure also applies to the case in hand. It does not appear to me doubtful that a question of law having arisen, the provisions of section 17, sub-section 2, of the Statute of 1888 also apply—namely, “save as otherwise provided by this Act” (that is to say, saving questions of fact and locus standi), “an appeal shall lie from the Commissioners to a superior Court of Appeal.”
In the general case, when a court of record, which the Railway and Canal Commission is by the Act of 1888, sec. 2, becomes
Page: 535↓
The argument is that the Railway and Canal Commission only became possessed of the reference as arbitrators privately agreed to by the parties. It would of course have been open under the indenture for the parties to put such limits upon the powers of their arbitrator—namely, the Commission thus selected—or to settle the points of finality or procedure which they agreed to be specially observed, and it would have been open to Parliament to permit the Commission to act within such limits. But where these things have not been done the court of record must follow its own and its authorised lines. It does not in my opinion matter whether you call the Railway and Canal Commission a statutory commission or an arbitral tribunal. The result is the same. I do not hesitate in adopting the language of Lord M'Laren in North-Eastern Railway Company v. North British Railway Company (10 R. &. C., Tr. C. 82, 112) when that learned Judge said—“Whether this is arbitration or jurisdictiont here lies, in my view, an appeal under section 17 of this Act of 1888, because it is not said that an appeal shall lie from a legal decision of the Commissioners or that an appeal shall lie under certain conditions, but that ‘save as otherwise provided by this Act an appeal shall lie from the Commissioners,’ that is, from every act of the Commissioners done under statutory authority save as otherwise provided.”
It being thus determined that the judgment of the Court of Appeal in sustaining the competency of an appeal from the Railway Commission to it is a sound judgment, and it being agreed that if this is so the opinion of the Court of Appeal upon the merits will be final, the other point suggested by the learned Attorney-General with reference to the impossibility of an appeal to this House does not arise.
The business assigned to the Commission initially related exclusively to matters affecting railway companies or canal companies, but the suitability of a commission consisting partly of legal and partly of lay elements has shown itself so markedly that from time to time the Legislature has assigned to it other matters, in some cases making the consent of all parties a condition-precedent to the jurisdiction of the Commission in the matter, and in other cases enabling the Commission to entertain it on the application of one of the parties.-
The present case relates to the valuation of the plant, &c., of the National Telephone Company, Limited, taken over by the Post Office under the provisions of an agreement dated the 2nd February 1905 (modified by a supplemental agreement dated the 8th August 1905) for the purchase of the plant, property, and assets of the company.
By the Statute 9 Edw. VII, cap. 20, sec. 1, it was enacted as follows—[ Bis Lordship read the section].
It is common ground that the present dispute comes within this section, and that the parties thereto have agreed to its being referred to the Railway and Canal Commission, and therefore that the above section is operative.
To gain a clear notion of the point which your Lordships are asked to decide, it will be necessary to refer shortly to the course of the litigation. After a protracted hearing the Railway and Canal Commission gave their decision, fixing the amount to be paid by the Postmaster-General. From that decision the Postmaster-General appealed to the Court of Appeal upon certain points of law, and on the appeal coming on for hearing, a preliminary objection was taken on behalf of the National Telephone Company that the Commissioners in hearing and deciding the matter in dispute were acting as arbitrators only and not as a court, and that consequently there was no appeal from their decision. The Court of Appeal, by a majority, decided that they were competent to entertain the appeal, and from that decision the present appeal is brought.
The sole question therefore for decision is whether the Railway and Canal Commission, when acting under the powers of the section quoted above, are acting as a court. To my mind the language of the section leaves no room for doubt on this point. The matter is referred to “The Railway and Canal Commission,” i.e., to a well-known court named by its statutory name. In such a case the prima facie and natural meaning of the language used is that it is referred to the court as such, and anyone who would maintain that the true meaning is that it is referred to the existing personnel of the court as arbitrators merely has to face so strong a presumption in favour of the ordinary meaning of the language that in order to succeed in his contention he must show that other portions of the enactment relating thereto establish beyond all reasonable doubt that his contention is correct.
I will proceed to examine the grounds on which it is suggested that your Lordships ought to hold that it is to the Commissioners sitting as arbitrators and not the court that the statute proposes to refer the matter in dispute.
In the first place, attention was called to the short title of the Act, namely, the Telegraph (Arbitration) Act 1909, and it was urged that this gave countenance to the contention that the reference was merely on arbitration. With regard to this I adhere to the opinion which I expressed in my judgment in the case of Vacher & Sons v. London Society of Compositors (1913 A C 107, 128, 50 S.L.R. 649), namely, that while it is admissible to use the full title of an Act to throw light upon its purport and scope, it is not
Page: 536↓
In the second place, it was suggested that the fact that the statute requires the parties to consent to the Commission deciding upon the matter indicated that the proceeding was of the nature of an arbitration. I am wholly unable to understand the meaning or relevancy of this. The consent of the parties is no doubt a condition-precedent, but if that condition-precedent is satisfied its existence can have no effect on the nature or consequences of the reference.
But the main contention on behalf of the appellants was based upon the language of sec. 2 of the Telegraph (Arbitration) Act 1909. In asmuch as this constituted the bulk of the argument addressed to us on behalf of the appellants I will quote the section in full—[ His Lordship read the section].
It was contended, in the first place, that if the reference is to the Court as a court, it was unnecessary to say that the proceedings should be conducted by the Commission in the ordinary way. The conclusive answer to this is that the object of the section was to provide that in certain respects the ordinary mode of proceeding would be departed from. There are two obvious methods of drafting a clause providing for this. In the one form you provide that the order of the proceedings shall be the same as usual with the exception of the specific points which are to be altered. In the other form you provide for the procedure on these specific points, and add that in other respects the order of proceeding shall not be altered. Which of the two shall be chosen is a matter of the fancy of the draftsman, and no legitimate conclusions as to the construction of the provision can be drawn from his choice.
Lastly, it was contended that if it had been a reference to the Court as a court it would have been unnecessary to enact that “any order of the Commission on any such difference or question shall be enforceable as any other order of the Commission.” I do not trouble myself to decide whether or not the specific provision was necessary or not. It may well be that the draftsman thought that the decisions of the Commissioners on some of the very varied matters which could be referred to them under the powers given by the Act might have peculiarities of nature and effect which might raise a doubt as to whether the award could be treated and enforced in the same way as others made by the Commission in the course of its ordinary work, and that therefore it was better to insert a specific provision to the above effect. But whether that was the reason of his inserting the provision or not, there is nothing in the provision itself which is in the slightest degree inconsistent with the Commission acting as a court, and therefore it fails entirely to rebut the strong prima facie presumption to which I have referred above.
For these reasons I am of opinion that the reference was to the Court as such, and that accordingly the general provisions as to appeal from that Court apply to the decision in the present case. It follows, therefore, that this appeal should be dismissed with costs.
The Railway and Canal Commission is a court of record having jurisdiction under the Regulation of Railways Act 1873 and the Railway and Canal Traffic Act 1888. In matters of difference within section 8 of the former Act its jurisdiction can be invoked by any party to the difference. In matters of difference within section 9 of the same Act its jurisdiction can be invoked only with the consent of both parties. Under the 17th section of the Act of 1888 there is in every case a right of appeal from its decision unless such right (as in the case of questions of fact or locus standi) is expressly negatived.
When by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.
The only question is whether section 2 of the Telegraph (Arbitration) Act 1909 contains anything to modify what would be otherwise the effect of section 1. Possibly section 2 contains provisions which, if section 1 has the effect above indicated, might have been omitted. But those provisions may be readily explained as having been inserted ex abundanti cautelâ, or as having been introduced with a view to the particular modification in the procedure of the Court which that section undoubtedly contemplates. It does not appear to be consonant with sound principles of construction to cut down the plain meaning and effect of one section of an Act because, if this meaning and effect be given to the section, certain provisions of another section might be otiose. I agree that this appeal fails.
Their Lordships dismissed the appeal with expenses.
Counsel for the Appellants— Sir A. Cripps, K.C.— Danckwerts, K.C.— H. H. Gaine. Agent— William E. Hart.
Counsel for the Respondents— Sir R. Isaacs, K.C.(Attorney-General)— Sir J. Simon, K.C. (Solicitor-General)— Buckmaster, K.C.— W. G. S. Schwabe— G. A. H. Branson. Agent—Solicitor to the Post Office.