COUNSEL: J. H. Stamp and R. Lionel Edwards for the Commissioners of Inland Revenue.

Christie K.C. and Hillaby for the plaintiffs.

Jopling and Blackett-Ord for the first, second and third defendants, beneficiaries under the will.

Elverston for the fourth defendant, another beneficiary.

 

SOLICITORS: Solicitors for the plaintiffs: Wild, Collins & Crosse.

Solicitors for the first, second and third defendants: Behrend (R. H.), Kendall, Price & Francis.

Solicitors for the fourth defendant: Elvy Robb & Co.

Solicitors for the fifth defendant: Solicitor of Inland Revenue.

 

JUDGE: HARMAN J.

 

DATE: 1948 July 6, 7, 21.

 

 

Cur. adv. vult.

 

July 21. HARMAN J. read the following judgment.

 

The first question which arises is whether proceedings of this nature are available to the subject against the Crown. Estate duty was created by the Finance Act, 1894, and under that Act certain machinery was set up for determining questions between the subject and the Crown; thus under s. 10 an appeal was provided from a decision of the commissioners to the High Court, and under rules made in 1895 such proceedings must be taken by way of petition in the Queen’s Remembrancer’s department. The Act of 1894 was considerably altered by the Finance (1909-10) Act, 1910, and under s. 33 of that Act further machinery for deciding questions was provided, the procedure being again by petition. So far as I am aware, before the year 1933 questions of liability to estate duty between the Crown and the subject were always decided either under the before-mentioned machinery or on English information of the Attorney-General. It was, however, realized that it would be extremely convenient if questions of this sort could be decided by a less cumbrous procedure than petition or information, and accordingly there was included in the Administration of Justice (Miscellaneous Provisions) Act, 1933, a section 3 providing for the determination by the High Court in a summary way of such questions of liability. The section [*25] provided for Rules of Court; none have ever been made, but ever since the passing of that Act the procedure by originating summons under Or. 54A, r. 1A, has been frequently resorted to and has proved convenient and efficient. To such summonses the Attorney-General or the commissioners are made defendants. It is admitted that that section has no application here because (to adopt the language of the section) no “claim has been made by the Crown,” nor is any claim apprehended in respect of “duties which have or are alleged to have become chargeable” by reason of the death of any person. Mrs. Asher is still alive.

 

The plaintiffs, nevertheless, allege that there is a general right in the subject to oblige the Crown to become a defendant to proceedings by way of originating summons not provided for by any statute, and that in fact a remedy of this sort has always been open ever since the year 1894, though never before resorted to. This is a bold claim, and I do not accept it. The summary procedure by way of originating summons is not, in my judgment (unless under the Crown Proceedings Act, 1947, with which I will deal in a moment), available against the Crown for the determination of a question of liability to estate duty except in so far as is provided by the section of the Act of 1933 already cited. There may have been cases, for aught I know, where the Crown has been willing to accede to the request of the subject to submit to the jurisdiction of the court for the purpose of deciding such a question of liability, but I do not think that the Crown can be obliged to take this course, and indeed it would often be highly inconvenient that the Crown should be made a defendant to proceedings of a domestic character between beneficiaries under a will or settlement simply because the result of the answer to one of the questions might be supposed to affect some question of liability to estate duty, or for that matter to income tax. The plaintiffs justify this claim on the authority of Dyson v. Attorney-General (1), where the Court of Appeal held that a declaratory judgment under Or. 25, r. 5, could be made against the Attorney-General. Those, however, were proceedings by writ, and in my judgment the decision in that case does not apply to the summary procedure by originating summons. Farwell L.J. in that case pointed out(2) that when the interests of the Crown were only indirectly affected, the old courts of equity, whether the Court of Chancery or the Court of Exchequer, did make declaratory orders which affected the rights of the Crown. Whether the

 

(1) [1911] 1 K. B. 410.

 

(2) Ibid. 421. [*26]

 

plaintiffs would have been in a better position if they had started the present proceedings by writ I need not determine, but as at present advised it seems to me that there would have been very great difficulties in their way in framing a claim that could not be struck out in limine. Moreover, the making of a declaration in such proceedings was always a matter of discretion (see Smeeton v. Attorney-General (1)). The Attorney-General is, of course, frequently added as a defendant to originating summonses which raise questions where charitable bequests or donations are or may be involved, but these are not, in my judgment, a precedent for the present purpose. In charity cases the Attorney-General is joined to represent the Crown as parens patriæ and to enable him to intervene for the protection of charities, and to assist the court. No question of the liability of the subject to tax is involved. The Crown is concerned in a fiduciary capacity.

 

I must next consider whether the position in this respect has been altered by the Crown Proceedings Act, 1947. It is to be observed that s. 3 of the Administration of Justice (Miscellaneous Provisions) Act, 1933, already referred to, has not been repealed by the Act of 1947, which does repeal other sections in the same Act. It is, therefore, clear that the procedure already referred to for the decision of estate duty claims is not abolished, and s. 1 of the Act of 1947 which refers to proceedings under any statutory provision repealed by the Act, does not apply. Section 13 of the Crown Proceedings Act, 1947, provides that all civil proceedings against the Crown “shall be instituted and proceeded with in accordance with Rules of Court.” Section 23 (2.) provides that any reference in the Act to civil proceedings against the Crown “shall be construed as a reference to .... (b) .... proceedings for the obtaining of any relief which, if this Act had not been passed, might have been obtained by an action against the Attorney-General.” By R. S. C. Or. 1A, r. 1 (a): “The Rules of the Supreme Court shall, so far as may be, apply to all civil proceedings against the Crown instituted in the High Court on or after the 1st January, 1948,” and (b): “Such civil proceedings as aforesaid shall, so far as may be, take the same form as civil proceedings between subjects, and shall, if no special form is applicable, take the form of an action commenced by writ”(2). At an early stage of the hearing both

 

(1) [1920] 1 Ch. 85.

 

(2) Order 1A was added by the Rules of the Supreme Court (Crown Proceedings), 1947 (St. R. & O. 1947, No. 2530 L/33). [*27]

 

parties appearing before me disclaimed the notion that this Act had anything to do with the present proceedings, but Mr. Christie for the plaintiffs later resiled from that view. In my judgment he was right, and the effect of the sections and the rules to which I have referred is to make the procedure by originating summons available to the subject against the Crown in any case where it would be available between subject and subject. I must, therefore, consider whether question 3 of the summons is one that comes within the Rules of Court, for procedure by way of originating summons being a creature of statute can only be resorted to in cases provided for by the rules. The plaintiffs allege that question 3 of the originating summons is justified either by R. S. C. Or. 54A, r. 1A, or by Or. 55, r. 3.

 

As to the first of these the plaintiffs must be persons claiming a “legal or equitable right,” such right depending upon a question of construction of a statute. In my judgment the plaintiffs are not here claiming any legal or equitable right, for no claim for duty at present exists. The plaintiffs are merely asking the court to assume that hereafter, when Mrs. Asher dies, they may acquire such a right. Moreover the statutes to be considered - that is to say, s. 8 of the Finance Act, 1894, and s. 43 of the Finance Act, 1940, may not be in existence at the relevant date. This rule, therefore, does not help the plaintiffs. As to Or. 55, r. 3, that clearly justifies the taking out of a summons in respect of questions 1 and 2 and the joinder of the defendants other than the Crown; but on turning to Or. 55, r. 5, to find who are the persons to be served, I do not find that the Crown comes into any of the categories set out in the rule. It is true that the commissioners have alleged that their present view is that a claim may hereafter arise, but no present claim has been make, nor has any right or interest yet arisen in the Crown which is sought to be effected. The case of In re Clay. Clay v. Booth. In re A Deed of Indemnity (1) shows that there was no jurisdiction to make a declaratory order in a case where the defendant had put forward no present claim. Moreover the decision in In re King. Mellor v. South Australian Land Mortgage and Agency Co. (2) shows that a person not a beneficiary under a trust cannot be brought before the court on an originating summons for the purpose of deciding a future contingent claim where the alleged claimant has not asserted any right presently enforceable either at law or in equity.

 

(1) [1919] 1 Ch. 66.

 

(2) [1907] 1 Ch. 72. [*28]

 

It was urged by the plaintiffs that a question of this sort ought to be left to be decided at the hearing and not dealt with by an interlocutory order, but I do not feel the force of this. The point could be taken as a preliminary point at the hearing, but there is no object in leaving it undecided now that it has been raised and argued. Moreover, the case of In re Davies. Davies v. Davies (1) shows that the court favours the taking of such a point at an early stage, and indeed, may penalize a defendant who fails to do so.

 

I am of opinion that the commissioners have been improperly joined and ought to be struck out.

 

Order made to strike out the Commissioners of Inland Revenue as defendants.

 

Leave to appeal.

 

(1) (1888) 38 Ch. D. 210.