3PLR – WILKINSON V. BARKING CORPORATION.
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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WILKINSON
V.
BARKING CORPORATION.
COURT OF APPEAL
1948 FEB. 25, 26; MAR. 15
CITATIONS
[1948] 1 K.B. 721
BEFORE THEIR LORDSHIPS:
SCOTT, BUCKNILL AND ASQUITH L.JJ
REPRESENTATION
Malone K.C. and Rodger Winn for the plaintiff
Harold Williams K.C. for the defendants
Solicitors for the plaintiff: Kingsford, Dorman & Co., for Hatten, Asplin, Jewers & Glenny, Barking.
Solicitors for the defendants: Sharpe, Pritchard & Co., for E. R. Farr, Barking.
MAIN ISSUES
GOVERNMENT AND ADMINISTRATIVE LAW:- Local government – Employee of local authority – Superannuation – Rights of employee –
EMPLOYMENT AND LABOUR LAW:- Statutory tribunal to determine – Action brought by employee – Unconditional appearance by defendants –
PRACTICE AND PROCEDURE:- Plea that action not maintainable – Preliminary issue – Jurisdiction of statutory tribunal in case of ex-employee – Local Government Superannuation Act, 1937 (1 Edw. 8 and 1 Geo. 6, c. 68), s. 35.
SUMMARY OF FACTS AND JUDGMENT
By s. 35 of the Local Government Act, 1937 “Any question concerning the rights and liabilities of an employee of a local authority … shall be decided in the first instance by the authority concerned, and if the employee is dissatisfied with any such decision … shall be determined by the Minister, and the Minister’s
determination shall be final :..”
The plaintiff, who had been refused a superannuation allowance by a local authority by which he had been employed, brought an action against the authority claiming a declaration that he was entitled to an annual superannuation allowance pursuant to the provisions of s. 8, sub-s. 1 (a) of the Local Government Superannuation Act, 1937. The defendants entered an unconditional appearance to the writ and by their defence pleaded, inter alia, that pursuant to s. 35 of the Act any question as to the plaintiff’s right to superannuation was required to be determined by the Minister of Health in the event of the plaintiff being dissatisfied with the decision of the local authority, and that the plaintiff therefore had no cause of action.
It was contended for the plaintiff:
(1.) that the defendants having entered an unconditional appearance to the writ could not demur to the jurisdiction of the court to entertain the action, and, alternatively
(2.) that on the language of s. 35 “an employee” therein meant an employee who was still in the employment of a local authority and that the plaintiff, having ceased to be in such employment, was entitled to maintain the action.
Held
(1.) That Parliament having in s. 35 appointed a specific tribunal for dealing with the rights and liabilities of the employees of a local authority no act of the parties could create in the court a jurisdiction which Parliament had vested exclusively in some other body and the defendants therefore, by entering an unconditional appearance could not submit to, so as to make effective, a jurisdiction which did not exist, and
(2.) That s. 35 was not confined to cases in which an employee was still in the employment of a local authority and that the plaintiff’s rights must be determined in the first instance by the authority and, on appeal, by the Minister.
Decision of Morris J. [1947] K. B. 821 affirmed.
APPEAL from Morris J.
MAIN JUDGMENT
The following statement of facts is taken substantially from the judgment of ASQUITH L.J.
The plaintiff, G. H. Wilkinson, entered the service of the defendant corporation as a park superintendent in 1934. On December 17, 1945 he purported to resign on the ground of ill-health. On January 15, 1945 the medical officer of health for Barking certified that the plaintiff was “incapable of discharging efficiently the duties of his employment by reason of permanent ill-health or infirmity of mind or body,” the formula employed in s. 8, sub-s. 1 (a) of the Local Government Superannuation Act, 1937(1). Meanwhile the district auditor had investigated the plaintiff’s accounts
and on March 6, 1946 surcharged him in respect of sums amounting to 16l. 15s. 5d. on the ground that they had, improperly, not been brought into account. On March 27, 1946 the defendant corporation, ignoring the plaintiff’s notice of
resignation wrote him a letter in which they said that after considering the accounts in the light of the audit, it had been decided that he was to take one month’s notice, and to receive no more than a refund of his superannuation contributions without interest, instead of the full benefits to which he would have been entitled if s. 8, sub-s. 1 (a) had applied without qualification. On July 31, 1946 the plaintiff issued a writ and, on the same day, a statement of claim in which he asked for a declaration that on ceasing to be employed by the defendants on December 17, 1945 he was entitled to receive from them an annual superannuation allowance under the provisions of s. 8, sub-s. 1 (a) of the Local Government Superannuation
(1) Local Government Superannuation Act, 1937, s. 8, sub-s. 1: “Subject to the provisions of this Act, a contributory employee of an employing authority shall be entitled on ceasing to be employed by them, to receive an annual superannuation allowance if he either –
(a) has completed ten years’ service and is incapable of
discharging efficiently the duties of his employment by reason of permanent ill-health or infirmity of mind or body; …”
Section 35: “Any question concerning the rights or liabilities of an employee of a local authority, or of a person claiming to be treated as such an employee, under any of the provisions of Part 1. or this Part of this Act, or any regulations made under this Act, shall be decided in the first instance by the authority concerned, and if the employee is dissatisfied with any such decision or with the authority’s
failure to come to a decision, shall be determined by the Minister, and the Minister’s determination shall be final : Provided that the Minister may at any stage of the proceedings on the reference to him, and shall, if so directed by the High Court, state in the form of a special case for the opinion of the High Court any question of law arising in those proceedings.”
Act, 1937, with the provisions of which he had complied.
In their defence the defendants alleged that the plaintiff had not resigned his appointment but had been dismissed in consequence of an offence of a fraudulent character or of grave misconduct and had thereby, pursuant to the provisions of s. 24 of the Act, forfeited all right to a superannuation allowance.
Paragraph 6 of the defence was in the following terms: “The defendants will rely on s. 35 of the Local Government Superannuation Act, 1937 and will contend that by virtue of the said section any question as to the plaintiff’s right to an annual
superannuation allowance under Part 1 of the said Act is required to be determined by the Minister of Health and that the plaintiff has no cause of action.” On February 21, 1947 an order was made by the master in chambers by consent of both parties that the issue raised in para. 6 of the defence be set down for hearing and disposed of before the trial pursuant to Or. 25, r. 2. It was contended on behalf of the
plaintiff on the trial of the issue (1.) that the defendants, having entered an unconditional appearance to the writ, had submitted to the jurisdiction of the court and could not, therefore, rely on the provisions of s. 35 and, alternatively, (2.) that the plaintiff’s claim did not fall within the section because at the material time he was not an employee of the defendants, but an ex-employee.
Morris J. decided against both the above contentions and gave judgment for the defendants. The plaintiff appealed.
Malone K.C. and Rodger Winn for the plaintiff. (The arguments submitted by them fully appear from the judgment of Asquith L.J.)
Harold Williams K.C. for the defendants was not called on to argue.
MAIN JUDGMENT
March 15. The following judgments were delivered.
SCOTT L.J.:-
I will ask Asquith L.J. to read the first judgment.
ASQUITH L.J.:-
I am authorized by Bucknill L.J. to say that he concurs in the judgment I am about to read. The issue of fraud or no fraud raised by the defendants in their defence has no direct bearing on the present appeal and is only relevant indirectly in its possible bearing on the date as at which the plaintiff must be taken to have ceased to be an employee of the defendants. Whether it was December 17, 1945 or April 27, 1946 is a factor which, on one limb of the appellants’ argument, is material, but on the view I take of the case, immaterial. The only paragraph in the defence which in my view requires to be considered is para. 6. It was obvious that if the defendants could establish that paragraph of their defence, there was an end of the plaintiff’s case. It is not, therefore, surprising that on February 21, 1947, an order was made by the master in chambers by consent of both parties that “the issue raised in para. 6 of the defence in this action be set down for hearing and disposed of before the trial pursuant to Or. 25, r. 2.”
The preliminary issue accordingly which Morris J. had to determine was in the nature of a demurrer.
He had to decide whether, if all the facts alleged in the statement of claim were proved, s. 35 would, nevertheless, apply to the claim and defeat it.
The learned judge answered this question in the affirmative. The argument for the plaintiff before him, as before this court, fell into two limbs. The plaintiff submitted (1.) that it was not open to the defendants to contend that by reason of s. 35 Parliament had withdrawn 7claims such as the plaintiff’s from the jurisdiction of the
ordinary law courts by providing, as the sole means for their settlement, the machinery prescribed in s. 35, because the defendants had submitted to the jurisdiction of the court by entering an unconditional appearance. The defendants, it was argued, should have moved to set aside the writ, with a conditional appearance, or, under Or. 12, r. 30, without it. (2.) Alternatively, that the plaintiff’s claim in the present case did not fall within s. 35 because he was not at the material time an “employee” within the meaning of the opening words of the section, but an ex-employee.
The learned judge pronounced against both of these contentions and I think he was right. The first can be dealt with shortly. It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others. As the House of Lords ruled in Pasmore v. Oswaldtwistle U.D.C.
(per Lord Halsbury): “The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law.”
(1) [1898] A. C. 387, 394.
Before this court the principle laid down in this passage was not seriously challenged. What was said for the plaintiff was that even though s. 35 of the Act of 1937 deprives the ordinary law courts of jurisdiction in the case of claims or questions covered by the section, yet the defendants, by entering an unconditional appearance to the writ, had submitted to the jurisdiction of those courts and could not be heard to challenge it. One corollary of this argument, if it were sound, would be that the House of Lords decided Pasmore v. Oswaldtwistle wrongly, since there is no suggestion that an unconditional appearance was not entered in that case, or that any steps were taken to set aside the writ, yet the House had no hesitation in saying to the plaintiff-appellants, “you have no remedy in the courts of law: your
only remedy is to make a complaint to the Local Government Board.” The real
answer to the plaintiff’s contention under this head can be put in several
ways: No act of the parties can create in the courts a jurisdiction which
Parliament has said shall vest, not in the courts, but exclusively in some other body.
Nor again can a party submit to, so as to make effective, a jurisdiction which does not exist: which is perhaps another way of saying the same thing. The argument we are here rejecting seems to be based on a confusion between two distinct kinds of jurisdiction: The Supreme Court may, by statute, lack jurisdiction to deal with a particular matter – in this case matters including superannuation claims under s.
8 – but it has jurisdiction to decide whether or not it has jurisdiction to deal with such matters. By entering an unconditional appearance, a litigant submits to the second of these jurisdictions (which exists), but not to the first (which does not). We are not here concerned with irregularity in the service or issue of the writ
which raises other considerations which are here quite out of place. I think the argument for the plaintiff under this head quite impossible to sustain, and leading counsel for the plaintiff, when fairly confronted with the difficulties in his way, did not press it.
There remains the contention that the plaintiff was not at the material time an “employee” within s. 35.
(1) [1898] A. C. 387, 394.
An “employee ” it is said, is a person who is employed, not a person who was employed, but whose employment has ceased. The material time, with
reference to which “is” and “was” in the argument must be construed, must be, we were told, the time when the question of the claimant’s rights is raised. Mr. Rodger Winn in an interesting argument urged that if a subject was to be deprived of his normal right of access to the King’s courts by statute, this can only be done by plain words and that any ambiguity should be resolved in favour of a construction which left the courts open to him, and he cited in support of his argument well known passages from the judgment of Scrutton J. in In re The Vexatious Actions Act, 1896, In re Boaler (1), and of Avory J. in Chester v. Bateson (2).
He argued indeed that “employee” in its ordinary plain meaning was unambiguous and meant a person who is not a person who was employed. But if, contrary to his contention, it were ambiguous, his client should have the benefit of such ambiguity. He pointed out that whereas the term used in s. 8 was “contributory employee,” that in s. 35 is “employee” simpliciter, and that the two are separately defined, the first in s. 3, the second in s. 40. He conceded that according to the definition of the term contained in s. 3, a person can remain a “contributory employee” after he has ceased to be actually employed; a necessary concession because according to s. 8, sub-s. 1 (a) a “contributory employee” only becomes entitled to receive a superannuation allowance “on ceasing to be employed” by the employing authority.
But he said that the same did not apply to “employee” as used in s. 35, and this
for several reasons. He pointed to the use of the present tense in the definition of “employee” in s. 40, which is as follows:
’employee’ means an employee whether permanent or temporary, but does not include a person whose employment is of a casual nature.”
He relied on the undoubted fact that Part 1 of the Act confers “rights” on many persons other than “contributory employees,” and argued that “employees” in s. 35 must be taken to refer to such other persons only: and he put in an analysis in a tabular form of all the other passages in which the term “employee” was used in the Act, in only two of which (if in any) it could, he suggested, mean an ex-employee.
(1) [1915] 1 K. B. 21, 36.; (2) [1920] 1 K. B. 829, 836.
These arguments, though most attractively presented, have not convinced me. I think, in the first place, that there is nothing in the separate definitions of “employee” and “contributory employee” to repel the natural assumption that the first class is a genus comprising the second as a species, or that if a “contributory employee” can continue to retain his character as such after actual employment has terminated, an “employee” cannot do the same. To hold the contrary would be to limit the operation of the machinery of s. 35 quite arbitrarily to questions concerning the rights of persons under Part 1 other than those claiming superannuation allowances, which last claimants are perhaps the most important body of persons asserting rights under that part of the Act. Again, the result of the construction contended for would be that if a person’s employment terminated say on the tenth of a month, and a question concerning his rights under Part 1 of the Act arose on the ninth, when he was still in employment, he would as regards the settlement of his claim, be “cribbed, cabined and confined” by the machinery of s. 35; whereas if the question arose on the eleventh or twelfth, he would be free as air to resort to the ordinary courts of law. This seems on the face of it a senseless form of discrimination, particularly as persons claiming superannuation allowances do not generally begin to raise questions about their rights until they have been superannuated. If I do not deal in detail with the other contentions advanced under this head, it is not because they have not been carefully weighed. I am clearly of opinion that they are invalid. This is one of the increasing number of Acts in which an interested party – first the local authority, and then on appeal the Minister – is made judge in his own cause. It is none the less the duty of the court to construe and administer its provisions, and I feel little doubt as to its true construction. The appeal must in my view be dismissed.
SCOTT L.J.
I agree with my brethren, that the appeal must be dismissed because of the provisions of s. 35 but I feel bound for myself to draw attention to certain legal consequences of that section which become apparent on its correct interpretation but may, as it seems to me, have escaped the attention of Parliament when passing that clause. Under it, the employing local authority is made the court of first instance to decide the issue whether it is itself guilty of a violation of the claimant’s right to the superannuation benefit, claimed by him under s. 8. As the Act both creates the right and confers the remedy, it follows on ordinary principles of statute interpretation that no independent right of action is created. But the remedy conferred makes it almost a contradiction in terms to call it a remedy for the violation of a right. Except for the opening; words “Subject to the provisions of this Act,” s. 8 purports to create an absolute right in the employee and to impose on the employing authority a duty, correlative to that right, of an equally unqualified and absolute nature to pay the superannuation allowance. The issue on a disputed claim
is therefore one of right not of discretion. Section 35 is no doubt a “provision” within s. 8, qualifying that right, and its first provision is to subject the duty to pay to the jurisdiction, not of a court, not of a lay tribunal, not even of an impartial third party, but of the debtor himself! That is barely consistent with s. 8 and almost converts its right into a mere discretionary privilege. At any rate the local authority is made, purely and simply, “a judge in its own cause.” It is true that a so-called appeal is allowed to the aggrieved employee from the decision of that far from impartial judge, but to what court? To the Minister! And the section contains no provision as to how, when or where the Minister is to decide. He would be acting with perfect legality if on receiving from the appellant employee a notice of appeal, he asked the two parties for their written statements of their respective cases, and if, after receiving them and perhaps reading them, he wrote to each of them a letter dismissing the appeal without stating any reasons. Even if certiorari would lie to bring up his decision on the ground, for example, that he had not read the
papers, the section provides no means by which the aggrieved applicant
could interrogate the Minister on that head, or find out if he had read them. It is true that the Minister is given power, and may be ordered by the High Court, to state a case but only on “a question of law arising in the proceedings.” But the only
issue may well be, and in most cases will be, one of fact, for example under s. 24 which was cited to us and is in these terms: “A contributory employee who is dismissed or resigns, or otherwise ceases to hold his employment, in consequence of an offence of a fraudulent character or of grave misconduct shall forfeit all claim to any rights under this part of this Act in respect of his previous service.”
Such an issue involves a question of character on which a wrong decision
may ruin a man for life. On any issue of fact, for instance, as to whether the local authority had a good defence under s. 24, there is no appeal even by case stated. This state of affairs is not consonant with British justice or the rule of law on which British democracy depends for its very existence.
These comments upon the statute itself have a rather lurid light thrown on them by the pleadings. The action was brought for a declaration only, endorsed on the writ and repeated in the statement of claim.
The only facts relevant to that claim were those sufficient to bring it within s. 8, sub. S. 1 (a) quoted in the judgment of my brethren. They are two: (1.) more than ten years’ service from July, 1934;
(2.) incapacity, as there defined, at the time when, after the expiration of the ten years the employee’s ability to do his work is thereby brought to an end. The cessation of capacity is the material fact. No condition is imposed by the section about notice of resignation to, or its acceptance by, the local authority.
The pleadings unfortunately have confused the true issue. The statement of claim, para. 3, alleges a tender of resignation – a harmless but irrelevant allegation which was not “a material fact” for the purpose of Or. 19, r. 4. Paragraph 4 is worse. It would have been relevant in an action for damages for wrongful dismissal, but had no place in this action. It merely confuses the issue. The defence quite properly
admits the plaintiff’s absence from duty from September 26, 1945, onwards
by reason of neurosis, but then introduces an allegation that he was dismissed on March 27, 1946 as a result of a report to the district auditor for “an offence of a fraudulent character and grave misconduct,” which deprived him of his right
to any superannuation allowance under Part II of the Act. The plea that the plaintiff had been surcharged by the district auditor of the Ministry of Health, obviously meant that the surcharge was in connexion with the alleged fraud within s. 24. This court had occasion recently in the case of In re Dickson(1) to consider certain aspects of the procedure before a district auditor in regard to a surcharge under s. 228 of the Local Government Act, 1933. It does not give a surcharged person anything like the protection of an accused person in a criminal court or of a defendant in a civil court.
None the less the probability is obvious that the Minister of Health would tend to act on his district auditor’s surcharge without further inquiry, especially as the superannuation claimant has no right of appearance or representation before him under s. 35 of the Superannuation Act of 1937. Almost the only really material plea in the defence is para. 6, which raises the question of demurrer – and even that fails to attribute to the Minister his proper jurisdiction under s. 35, namely that only of an appellate tribunal. But the erroneous and irrelevant pleadings in this action serve to illustrate the great danger to the real freedom before the law of all local government servants which is created by s. 35. Wherever a charge of fraud or other “grave misconduct” is made under s. 24 against one by his employing authority, however unjustified the charge may be, the only vindication of his good name open to him is such investigation as the Minister may make, or after he has been deprived of his superannuation allowance on that ground, an action in the courts for damages for wrongful dismissal; and there presumably the local authority could plead res judicata against him! I have felt bound to call attention to these aspects of the existing legislation for consideration by the appropriate authority, because they only become apparent on a critical examination of the section.
(1) [1948] 1 All E. R. 713.
In spite of these grave considerations, s. 35, I agree, compels the court to dismiss the appeal.
Appeal dismissed.
