[DIVISIONAL COURT]

REX v. NORTHUMBERLAND COMPENSATION APPEAL

TRIBUNAL; Ex parte SHAW.

Certiorari - Extent of remedy - Whether confined to matters of jurisdiction - Inferior tribunal - Order bad in law on its face - "Speaking order" - Court's jurisdiction to interfere.

The Divisional Court has jurisdiction to quash by certiorari the decision of an inferior tribunal where the latter has embodied the reasons for its decision in its order - has made a "speaking order" - and those reasons are bad in law. Certiorari is not a remedy which can be granted only where an inferior tribunal has acted without or in excess of its jurisdiction.

Racecourse Betting Control Board v. Secretary of State for Air [1944] Ch. 114, not followed.

Walsall Overseers v. London and North Western Railway Co. (1878) 4 App. Cas. 30, and Rex v. Nat Bell Liquors Ld. [1922] 2 A. C. 128, applied.

Where a decision of the Court of Appeal is inconsistent with a earlier decision of the House of Lords which was not cited to the Court of Appeal it is the duty of the Divisional Court to follow the decision of the House of Lords.

Young v. Bristol Aeroplane Co. Ld. [1944] K. B. 718, applied.

APPLICATION for an order of certiorari.

The applicant Thomas Shaw sought an order of certiorari for the quashing of a decision reached by the respondents, the Northumberland Compensation Appeal Tribunal, on June 14, 1950, dismissing an appeal by the applicant against an award to him of compensation for loss of his employment as clerk to the West Northumberland Joint Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948.

The applicant, who was clerk to Gosforth Urban District Council, was also appointed clerk to the West Northumberland

Joint Hospital Board on October 7, 1936, and held that appointment until March 31, 1949, when the employment ceased in consequence of the passing of the National Health Service Act, 1946.

The urban district council awarded the applicant compensation for the loss of his employment as clerk to the board on the basis of his service from October 7, 1936, to March 31, 1949, viz., 63l. a year until 1961 and 33l. a year in respect of his accrued pension rights thereafter. He contended that the whole of his local government service should have been taken into account, and so appealed from that award to the tribunal. The tribunal had the function of determining the compensation payable to, among others, officers of hospital boards who lost their employment by reason of the transfer of hospitals to the Minister of Health under the National Health Service Act, 1946.

On June 14, 1950, the tribunal dismissed that appeal by an award or determination which was set out in a document which stated the facts, the contentions of the council and how they arrived at the sums awarded by them, and that the tribunal agreed with those figures.

The applicant made the present application to the Divisional Court on the ground that the tribunal were in error in computing the compensation to which he was entitled on the basis of his service only as an officer of the board. He also sought an order of mandamus directing the tribunal to hear and determine his application according to law.

It was conceded on behalf of the urban district council that the figure of 33l. a year in respect of accrued pension rights was wrong, and the court held that the compensation of 63l. a year until 1961 was also wrongly calculated under the regulations of 1948. It was necessary in calculating that compensation, as the applicant contended, to take into account his entire local government service.

This case is reported only on the question whether, that being so, the court had jurisdiction to quash the award of the tribunal or to order the tribunal to make a new award on the proper basis.

Maurice Lyell for the applicant. The award of the tribunal was wrong on its face. The applicant is entitled to an order of certiorari quashing the decision of the tribunal, and to an order of mandamus directed to them ordering them to make a proper award.

J. P. Ashworth for the tribunal. The applicant is not entitled to an order of mandamus because the tribunal have not declined jurisdiction: Rex v. Licensing Authority for Goods Vehicles for the Metropolitan Area; Ex parte B. E. Barrett Ld. (1). They have exercised their jurisdiction although they have done so

(1) [1949] 2 K. B. 17.

wrongly. There can be no question of mandamus issuing unless and until their decision is set aside, and then it will issue only if they then decline to exercise their jurisdiction and to make another award.

As regards the question of certiorari it is the established practice of the court that certiorari will issue only where an inferior court has acted without jurisdiction or has exceeded its jurisdiction. In Rex v. Paddington and St. Marylebone Rent Tribunal; Ex parte Bell London and Provincial Properties Ld. (2), Sir Valentine Holmes argued(3) that a tribunal "had chosen to make what had been called by the House of Lords 'speaking orders', and had given in their decision reasons which were clearly wrong in law, and certiorari would accordingly lie to quash the orders: see Racecourse Betting Control Board v. Secretary of State for Air (4); Rex v. Nat Bell Liquors Ld. (5); Halsbury's Laws of England, 2nd ed., vol. 9, p. 888, para. 1493". But the court did not then give any decision on that point(6).

It is quite clear from Racecourse Betting Control Board v. Secretary of State for Air (4), that certiorari will not lie on the ground merely that an inferior court have made an error of law, even though that error be apparent on the face of the record. [Counsel referred to Rex v. Paddington and St. Marylebone Furnished Houses Rent Tribunal; Ex parte Kendal Hotels Ld. (7).]

[PARKER, J. The term "speaking order" appears to have originated in Walsall Overseers v. London and North Western Ry. Co. (8). Does that case not show that certiorari will issue if the record of an inferior court is bad on its face?]

[LORD GODDARD, C.J. It appears that that case was not cited to the Court of Appeal in Racecourse Betting Control Board v. Secretary of State for Air (9).]

It is conceded that the Walsall case(8), was not cited in the later cases. But the Divisional Court has long adopted the practice that it will interfere with decisions of inferior tribunals only if they have misconducted themselves or exceeded their jurisdiction, and that it will not interfere even in the case of a manifest error of law on the face of an order of the inferior tribunal. It is conceded that the order of the tribunal in the present case was a "speaking" order. The issue before the House of Lords in the Walsall case(8), was of a limited nature.

(2) [1949] 1 K. B. 666.

(3) Ibid. 670.

(4) [1944] Ch. 114.

(5) [1922] 2 A. C. 128, 154.

(6) [1949] 1 K. B. 666, 683.

(7) (1947) 63 T. L. R. 239.

(8) (1878) 4 App. Cas. 30.

(9) [1944] Ch. 114.

[LORD GODDARD, C.J., referred to Riceslip Parish v. Henden Parish (10).]

[Counsel referred to Rex v. Nat Bell Liquors Ld. (11), and Rex v. Minister of Health (12).]

[With regard to the question of mandamus counsel referred also to Rex v. Port of London Authority; Ex parte Kynoch Ld. (13); Reg. v. Cotham (14) and Rex v. Monmouthshire Justices (15).]

Harold Williams, K.C., and Mattar for the district council. On the question whether certiorari is available the attention of the court must be drawn to Rex v. Westminster Assessment Committee; Ex parte Junior Carlton Club (16), and Rex v. Westminster Assessment Committee; Ex parte St. James' Court Estate Ld. (17).

Lyell in reply. The remedy of certiorari has fallen into disuse except in cases where a tribunal has exceeded its jurisdiction only because the Summary Jurisdiction Act, 1848, took away all possibility of certiorari being directed to courts of summary jurisdiction for error on the face of the record: see per Lord Penzance in Walsall Overseers v. London and North Western Ry. Co. (18). That decision of the House of Lords remains good law and is relied on. It is conceded that if Racecourse Betting Control Board v. Secretary of State for Air (19), was rightly decided certiorari will not issue. But the Walsall case(20), was not cited to the Court of Appeal in the latter case. The Divisional Court is bound to follow the decision of the House of Lords: see Young v. Bristol Aeroplane Co. Ld. (21)

Dec. 14. LORD GODDARD, C.J., delivered the following judgment:- In this case a point of the very greatest importance, and one which has necessitated the examination of a large number of cases and consideration of the principles which apply to the doctrine of certiorari, has been argued. Certiorari, as has often been pointed out in this court, is a remedy of a very special character. In most cases it is moved and granted on questions as to whether or not an inferior court or tribunal has jurisdiction. It never goes to a superior court, but an order of certiorari will be made where it is shown that an inferior court has either no jurisdiction in a particular matter or has exceeded its jurisdiction. The object of the old writ of certiorari, which has now been replaced by an order of certiorari - that is merely

(10) (1699) 5 Mod. 416.

(11) [1922] 2 A. C. 128.

(12) [1939] 1 K. B. 232.

(13) [1919] 1 K. B. 176.

(14) [1898] 1 Q. B. 802.

(15) (1913) 109 L. T. 788.

(16) [1940] 3 All E. R. 155.

(17) (1940) 85 S. J. 46.

(18) 4 App. Cas. 30.

(19) [1944] Ch. 114.

(20) 4 App. Cas. 30.

(21) [1944] K. B. 718.

a procedural change - was to call up into this court the proceedings of and the order which had been made in the lower court in order that they should be examined.

Certiorari did not issue, or seldom issued, to a court of record. In former days the procedure in that case was by writ of error, and where a writ of error was granted the whole record was brought up to the Court of King's Bench and that court would examine the record and would only decide for the applicant if error appeared upon the record. It was for that reason that a writ of error was such an unsatisfactory remedy in a criminal case. Only the record was brought up. That record consisted of the commission of assize - showing the appointment of the judges, the holding of the court, the precepts of the sheriffs, the names of the grand jurors, and the finding of the indictment - a record of the petty jurors, any special plea that might have been made, such as a plea in bar, the verdict recorded and the judgment of the court. Nothing was shown on the record as to the evidence which was admitted or the charge which was given to the jury. If there had been a completely wrong charge given by the judge on a point of law - what we should call misdirection - or the wrongful admission of evidence, that could not be examined on a writ of error, because it did not appear on the record.

With regard to the proceedings of courts not of record the writ of certiorari would bring up to the Court of King's Bench the proceedings in and the order of the lower court, and such orders have differed from time to time by reason of different statutory provisions - more particularly so in the case of proceedings before justices. Before the procedural changes wrought by the Summary Jurisdiction Act, 1848, commonly called Jervis's Act, all proceedings before justices had to be set out at great length, with their certificates of conviction; the simple forms of convictions which are now common were substituted by the Summary Jurisdiction Act. I am emphasizing this point because it will be seen from cases which we have to examine that the question as to how far this court can inquire by certiorari into the correctness of a decision, as distinct from the jurisdiction of the court which made it, depends on the contents of the documents, as I believe, which are brought up and laid before this court. For instance, if leave to apply for an order of certiorari were now granted to bring into this court a conviction by justices, say, for some simple offence, only the charge, the conviction, and the sentence would be brought up. I think it was very likely that in the year 1848, when Sir John Jervis introduced his Bill into Parliament, that one of the matters which moved him to do so, and moved Parliament to pass the Act, was that until then all sorts of objections could be taken on

certiorari on account of the very full statements which used to be brought up on conviction.

Many statutes took away certiorari in respect of the matters with which those statutes dealt, but that certiorari was taken away never debarred the court from granting certiorari if a question of jurisdiction arose; the justices or inferior tribunal could not give themselves jurisdiction, and if they had purported to give themselves jurisdiction which they had not, certiorari would lie to quash their order, because they had no jurisdiction to make it. The taking away of certiorari by statute prevented the Court of King's Bench, no doubt, from inquiring into what I may call the merits of the determination. That power was taken away and the decision of the inferior court was to be regarded as final on its merits. But that did not prevent the court of King's Bench from inquiring whether or not the inferior court had any jurisdiction to make the order at all. I think that is the explanation why one finds many instances in the books where, although by a statute such decision was not to be removed into any court by writ of certiorari or otherwise, certiorari has been granted in respect of that very matter, but only on the ground of want of jurisdiction.

Counsel for the tribunal has contended that this court has no power to examine the order in the present case on certiorari, on the ground that certiorari goes only to defect of jurisdiction, and he relied specially on Racecourse Betting Control Board v. Secretary of State for Air (22), a decision of the Court of Appeal which certainly creates difficulty in this court. I can discuss that case perhaps a little more frankly because I was one of the members of the Court of Appeal which decided it. It was the case of a motion in the Chancery Division to set aside an award of the General Claims Tribunal.

Lord Greene, M.R., in giving judgment in the Court of Appeal said(23): "It was said that the jurisdiction to set aside the award of an arbitrator for error of law appearing on its face is one that exists at common law independently of the Arbitration Acts. It was also said that the jurisdiction is not confined to consensual arbitrations, but extends to arbitrations under statutes. Both these propositions are unquestionably correct: see, e.g., as to the former, Hodgkinson v. Fernie (24), and, as to the latter, In re Jones and Carter's Arbitration (25). The next and vital proposition is, however, one which, in my opinion, cannot be supported either on principle or on authority. It was that the jurisdiction is not confined to the case of awards of arbitrators, but extends to the decisions of every form of

(22) [1944] Ch. 114.

(23) Ibid. 119.

(24) (1857) 3 C. B. (N.S.) 189.

(25) [1922] 2 Ch. 599.

inferior tribunal, and, accordingly, when the legislature establishes a special tribunal, whether or not it can be described as an arbitral tribunal, the court can set aside a decision given by it if an error of law appears on its face. This jurisdiction was said to exist quite independently of the old procedure by way of writ of error. No authority was quoted in support of this proposition, and, in my opinion, it is wrong in principle. In the case of an inferior court, if it acts beyond its jurisdiction, the remedy is by certiorari. If, acting within its jurisdiction, it makes an error in law, the remedy is by appeal (if the decision is appealable), and that whether or not the error appears on the face of the decision. In the case of new tribunals set up under statute no appeal will lie unless the right of appeal is conferred expressly or impliedly by statute, and, accordingly, where, as in the present case, no right of appeal is given, their decisions are not appealable". He then considered cases of arbitration, and took the view that the undoubted right of the court to interfere where an error of law appears on the face of an award is an exception to the general rule.

MacKinnon, L.J., in giving judgment, said much the same thing and also treated arbitration as an exception. I did not deal with the matter quite in that way, but I need not now refer to that judgment.

We have to consider whether we are bound by that decision, but it is to be noticed that two cases - one in the House of Lords and one in the Judicial Committee of the Privy Council - were not there cited to the Court of Appeal, and in my opinion if those cases had then been cited to the court the decision must have been contrary to what it was.

In Walsall Overseers v. London and North Western Ry. Co. (26), Lord Cairns, L.C., reviewed the history of the practice of quarter sessions of taking the opinion of a judge of assize - as they did by the terms of the commission which has been addressed to them since the reign of Edward III when justices were first appointed and courts of quarter sessions were first set up. That commission gave and still gives them authority to hear and determine cases provided that in cases of difficulty they reserve their decision until a judge of assize with whom they can confer has come into the county. But that practice gradually fell into disuse and the practice grew up of consulting the Court of King's Bench by means of a special case. Lord Cairns said: "But supposing that the court of quarter sessions did not adopt that course, there was still another mode by which any question of law which appeared to the court of quarter sessions

(26) 4 App. Cas 30, 40.

doubtful, might be left open for the exercise of the judgment of a higher tribunal. All that was necessary was that the court of quarter sessions, in making its order, should not make it a unspeaking or unintelligible order, but should, in some way, state upon the face of the order the elements which had led to the decision of the court of quarter sessions". When Lord Cairns, L.C., speaks of an unspeaking or unintelligible order, he obviously means an order which gives no reasons, or does not explain in any way why the court made the order, but simply states that the court made such-and-such a conviction, order for removal or for quashing the poor rate, or other order of that sort, giving no reasons for doing so. It may not he unintelligible in one sense, but it is unintelligible in that it does not tell the superior court why the inferior court made that order.

Lord Cairns, L.C., continued: "If the court of quarter sessions stated upon the face of the order, by way of recital, that the facts were so-and-so, and the grounds of its decision were such as were so stated, then the order became upon the face of it, a speaking order; and if that which was stated upon the face of the order, in the opinion of any party, was not such as to warrant the order, then that party might go to the Court of Queen's Bench and point to the order as one which told it, own story, and ask the Court of Queen's Bench to remove it by certiorari, and when so removed to pass judgment upon it, whether it should or should not be quashed. In that case, as I said just now, the jurisdiction of the Court of Queen's Bench was merely a jurisdiction to leave the order standing or to remove it out of the way. It was not a jurisdiction to substitute for it another or a different order; that would be making the Court of Queen's Bench, in the ordinary sense of the term, a court of rehearing or of appeal".

That passage seems to me to show that on certiorari the Court of Queen's Bench could look at the order and pronounce on it as they could on a writ of error. But it might be that writ of error did not or might not give the court a very free hand, because they could look only at what was stated on the record; anything, however, that was stated on the record could be examined by the court and they could pass judgment on it. Similarly anything that is stated in the order which an inferior court has made and which has been brought up into this court can be examined by the court, if it be a speaking order, that is to say, an order which sets out the grounds of the decision. If the order is merely a statement of conviction and that there shall be a fine of 40s., or an order of removal or quashing a poor rate, there is an end of it, this court cannot examine further. If the

inferior court tells this court why it had done what it has and makes it part of its order, this court can examine it.

To the same effect is the speech of Lord Penzance in the Walsall case(27). That case was referred to and considered by Lord Sumner in Rex v. Nat Bell Liquors Ld. (28). He there showed that the law of Canada with regard to certiorari was the same as the law of this country, and considered exhaustively the whole law relating to certiorari. He pointed out that where certiorari was moved on the ground of lack of jurisdiction the court must in many cases have evidence before it to show the lack of jurisdiction. But if, for instance, a court of summary jurisdiction professed to have dealt with a case of burglary, the defect of jurisdiction would appear at once in the order itself; you would need no evidence at all. If, on the other hand, the defect of jurisdiction was one which arose because of the disqualification of a justice, either on the ground of bias or for some other reason, the Divisional Court could not know that, unless evidence was brought before them, and the court would therefore admit evidence by affidavit to show the defect of jurisdiction. Lord Summer pointed out that if the inferior court was acting within its jurisdiction the superior court could only examine the order, and could not consider evidence to show that the order was come to by some process of reasoning which was incorrect, or by the admission of evidence that was not admissible, or even on the ground that there was no evidence at all, because all those were matters of appeal. He considered the well-known case of Reg. v. Bolton (29), in which there was a judgment of Lord Denman considering all these matters as they existed in 1841.

Lord Sumner referred also to the speech of Lord Cairns, L.C., in Walsall Overseers v. London and North Western Ry. Co. (30), and he quoted this passage: "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 to 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". Lord Sumner continued(31): "[Lord Cairns] 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

(27) 4 App. Cas. 30, 43.

(28) [1922] 2 A. C. 128.

(29) (1841) 1 Q. B. 66.

(30) 4 App. Cas. 30, 39.

(31) [1922] 2 A. C. 128, 155.

which on certiorari could be criticized 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". Observe that; he is saying that one cannot produce evidence to supplement that which is on the record; one is confined to that which is on the record.

Lord Sumner continued: "That supervision" - that is, the supervision of the court - "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". Later on he said(32): "Reg. v. Bolton (33), undoubtedly, is a landmark in the history of certiorari, for it summarizes in an impeccable form the principles of its application under the regime created by what are called Jervis's Acts" - I do not quite understand that, because the first Jervis's Act was not passed until 1848, and Reg. v. Bolton (33), was decided in 1841 - "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 longer, 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" - an observation characteristic of Lord Sumner.

That shows exactly, I think, what was the position when the old procedure of drawing up convictions and orders by courts of summary jurisdiction was altered so that one had only the bare decision in the case; it disarmed the exercise of the jurisdiction by certiorari of this court, because this court could look only at that order; they could not go behind it. They could not, for instance, do what Holt, C.J., had done late in the seventeenth century, in Riceslip Parish v. Henden Parish (34). That was a

(32) Ibid. 159.

(33) 1 Q. B. 66.

(34) 5 Mod. 416, 417.

settlement case in which the whole matter was brought before the Court of King's Bench. Holt, C.J., said: "Where the justices of peace give a special reason for their settlement, and the conclusion which they make in point of law will not warrant the premises; there we will rectify their judgment; but if they had given no reason at all, then we would not have travelled into the fact".

Those two cases, Walsall Overseers v. London and North Western Ry. Co. (35), and Rex v. Nat Bell Liquors Ld. (36), were not cited to the Court of Appeal in Racecourse Betting Control Board v. Secretary of State for Air (37), and it seems to me that in view of the very clear decision of Lord Cairns, L.C., in the Walsall case(35), and the equally clear and emphatic statement of the law by Lord Sumner in the Nat Bell case(36), that that decision of the Court of Appeal cannot stand.

I am the more convinced of that because I think that when one has read the passages to which I have referred and considered Riceslip Parish v. Henden Parish (34), in which Holt, C.J., stated the principle, it becomes clear what was puzzling the Court of Appeal in the Racecourse Betting Control case(37), namely, why the court interfered in the case of arbitrators. The Court of Appeal treated the interference by the court with arbitration wards for error on their face as an exception to the general rule. I think with all respect - and I do not know that I need say that, as I was a member of the court - that that was wrong. In the case that they cited, Kent v. Elstob (38), the court had no doubt of its right to interfere in the case where error appeared on the face of an award. They did so, I think, on exactly the same principles which Holt, C.J., applied in Riceslip Parish v. Henden Parish (39) An award is, generally, a speaking document; it sets out the reasons, and the court therefore has the reasons before it, under the hand of the arbitrator, as to why he came to the decision which he did, and if he has misapplied the law the court corrects him. It is true that Williams, J., in a later case, Hodgkinson v. Fernie (40), seems to have expressed regret that the court took that course in the case of arbitrations; and in Hogge v. Burgess (41), Martin, B., said: "According to the old rule, the decision of an arbitrator, both upon the law and facts, was conclusive. That rule was broken into by the Court of King's Bench in the case of Kent v. Elstob (38)".

The Court of Appeal drew the inference that for some reason, the origin of which they could not ascertain, awards were put in

(34) 5 Mod, 416, 417.

(35) 4 App, Cas. 30.

(36) [1922] 2 A. C, 128.

(37) [1944] Ch. 114.

(38) (1802) 3 East 18.

(39) 6 Mod, 416, 417.

(40) (1857) 3 C. B. (N.S.) 189, 202.

(41) (1858) 3 H. & N. 293, 296.

a class by themselves and were an exception to the general rule. In my opinion the reason why Williams, J., expressed regret in Hodgkinson v, Fernie (40), at the court being able to interfere in the case of awards was a different reason altogether. He thought, as I think with others, and, I believe, with Martin, B., that the rule ought to be that where the parties have chosen to submit both law and fact to an arbitrator, they, having chosen their own tribunal, ought not to be allowed to say that the law which that tribunal has laid down is wrong. I think that that is the regret which Williams, J., expressed in Hodgkinson v. Fernie (40) He pointed out that courts had allowed awards to he attacked on the ground of corruption on the part of the arbitrator, and he regretted that the courts also allowed, as they had certainly done ever since Kent v. Elstob (42), the law of the arbitrator to he attacked, because he thought that if a party chose an arbitrator he should he bound by the law which the arbitrator chose to apply. That is very much the same principle which Scrutton, L.J., used often to invoke when cases under the Arbitration Acts came before him. In giving his reasons why the court would not interfere he would say: "Business men choose to go before other business men, and they go there because they do not like the law that is administered in this court or the way that we look at the admission of evidence, or something of that sort; they like to go before their own tribunal". I think that is the real reason why Williams, J., expressed the regret which he did in Hodgkinson v. Fernie (40), and that he was not expressing a regret that an exception had been grafted on to the law. I think that the law with regard to awards is exactly the same as the law laid down by Holt, C.J., in Riceslip Parish v. Henden Parish (43).

What is the result of that? The result clearly seems to me to be that a court before whom the order in the present case is brought can examine it. The tribunal have told us what they have taken into account, what they have disregarded, and the contentions which they accepted. They have told us their view of the law, and we are of opinion that the construction which they placed on this very complicated set of regulations was wrong.

It is true, as counsel for the tribunal pointed out, that there have been several other cases, principally under the Furnished Houses (Rent Control) Act, 1946, in which the court has refused to grant certiorari, but in none of those cases were there speaking orders, or it there were the court has proceeded in the same error

(40) (1857) 3 C. B. (N.S.) 189, 202.

(42) East 18.

(43) 5 Mod 416, 417.

into which the Court of Appeal fell in Racecourse Betting Control Board v. Secretary of State for Air (44).

But are we at liberty to disregard that decision of the Court of Appeal? That, I think, depends on the application of Young v. Bristol Aeroplane Co. Ld. (45) That case was one in which the Court of Appeal considered how far they were bound by their own decision and laid down the principles on which they could depart from a previous decision of theirs. In giving the judgment of the court, Lord Greene, M.R., who was considering cases where decisions had been given, as he put it, per incuriam, which the court was entitled to disregard, said(46): "Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it - in such a case a subsequent court must decide which of the two decisions it ought to follow; and those where it has acted in ignorance of a decision of the House of Lords which covers the point - in such a case a subsequent court is bound by the decision of the House of Lords".

I hope that I have shown that the decision in Racecourse Betting Control Board v. Secretary of State for Air (47), is inconsistent with that in Walsall Overseers v. London and North Western Ry Co (48), and Rex v. Nat Bell Liquors Ld (49). Of course the Nat Bell case(49), is not technically binding on the Court of Appeal, because it was a decision of the Judicial Committee of the Privy Council, but it was a case which obviously the Court of Appeal would treat with the utmost respect. Following, as it does, and reinforcing the decision of the House of Lords in the Walsall case(48), I have no doubt but, that the Court of Appeal would have considered it binding on them. Decisions of the House of Lords are binding on this court, as are decisions of the Court of Appeal, and if we find that a decision of the Court of Appeal is inconsistent with a decision of the House of Lords, in my opinion, and applying the same princilpes which run through the decision in Young v. Bristol Aeroplane Co. Ld. (50), we are bound to follow the decision of the House of Lords.

I am confirmed in that view by the speech of Lord Wright in Noble v. Southern Ry. Co (51). That was a case in which the Court of Appeal, considering itself bound by its own previous

(44) [1944] Ch. 114.

(45) [1944] K. B. 718.

(46) At p. 729.

(47) [1944] Ch. 114.

(48) 4 App. Cas. 30.

(49) [1922] 2 A. C. 128.

(50) [1944] K. B. 718.

(51) [1940] A. C. 583, 598.

decision in Clarke v. Southern Ry. Co (52), had given a decision in a workmen's compensation case with which all the members of the court said they disagreed. I was a member of the court and we said that we did not like the previous decision, we thought it was wrong, but we felt ourselves bound by it because it had never been overruled. It was, to a great extent, inconsistent with some subsequent cases in the House of Lords, but not so inconsistent that it could be said that it had been overruled. But Lord Wright said(51): "What a court should do when faced with a decision of the Court of Appeal manifestly inconsistent with the decisions of this House is a problem of some difficulty in the doctrine of precedent. I incline to think it should apply the law laid down by this House and refuse to follow the erroneous decision".

I think that where we have a decision of the House of Lords which says one thing and a decision of the Court of Appeal, in which the decision of the House of Lords was not cited, which says another, our plain duty is to follow the decision of the House of Lords, and that we propose to do. I think it is beneficial in this case that we should do so, not merely having regard to the facts of this case, but because so many tribunals have now been set up, all of whom, I am certain, desire to do their duty in the best way, and are often given very difficult sets of regulations and statutes to construe. It certainly must be for their benefit, and I have no doubt but that they will welcome, that this court should be able to give guidance to them if, in making their orders, they make their orders speaking orders, so that this court can then consider them if they are brought before the court on certiorari.

For these reasons I am of opinion that an order of certiorari should be made and that the award of the tribunal should be quashed.

Counsel for the applicant also moved for mandamus. We do not think it necessary to grant mandamus in this case, because once the order is quashed it follows that the applicant will be able to go back to the appeal tribunal, and counsel for the council has told us that they will welcome an opportunity for the matter to be dealt with in the light of the judgment of this court. Therefore, we see no reason why we should order mandamus to issue, but counsel for the applicant asked us to make it clear that he does not admit that he has no right to mandamus, and it will

(51) [1940] A. C. 583, 598.

(52) (1927) 20 B. W. C. C. 309.

still be open to him, if necessary, if this case goes further, to apply for an order of mandamus.

HILBERY, J. I agree.

PARKER, J. I entirely agree.

Solicitors: Gwylym T. John, Barnstaple; Adam Burn & Son, for Charles S. Perkins, Gosforth; Solicitor, Ministry of Health.

R. P. C.