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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnard v National Dock Labour Board  EWCA Civ 5 (31 March 1953)
Cite as:  EWCA Civ 5,  1 Lloyd's Rep 371,  2 WLR 995,  2 QB 18,  1 All ER 1113
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COURT OF APPEAL
B e f o r e :
LORD JUSTICE DENNING, and
LORD JUSTICE ROMER.
| BARNARD (BERNARD) AND OTHERS
|- v -
|THE NATIONAL DOCK LABOUR BOARD
SILVERTOWN SERVICES, LTD.
Room 392, Royal Courts of Justice, Strand, London, W.C.2, and 2, New square, Lincoln's Inn, London, W.C.2.)
instructed by Messrs Harold Miller & Fraser.
Counsel for the First Respondents, the National Dock Labour Board: MR GILBERT PAULL, Q.C., and MR HAROLD BROWN,
instructed by Mr G. Grinling Harris.
Counsel for the Second Respondents, Silvertown Services, Ltd.; MR W.K. CARTER, Q.C., and MR GEOFFREY LANE,
instructed by Messrs Linklaters & Paines.
Crown Copyright ©
LORD JUSTICE SINGLETON: This case was before Mr Justice McNair in July of last year. When the case was being opened on behalf of the plaintiffs, and when some two days had collapsed, it was seen that there was a preliminary point taken by the Defendants, and that was dealt with first. The learned Judge gave his judgment on the 7th July in regard to that preliminary point, and his decision upon that was in favour of the Plaintiffs, The action proceeded, and the evidence before the Judge occupied some six days, and there was considerable argument. His decision was in favour of the Defendants. This appeal made on behalf of the Plaintiffs has occupied the Court for parts of six days.
I think I can best state the position by reference to the Statement of Claim. Paragraph 1 is in these terms:
"The Plaintiffs and each of them are journeymen Lightermen and members of the Watermen, Lightermen, Tugmen and Bargemen's Union and were registered dock workers at all material times under the Dock Workers (Regulation of Employment) Scheme 1947 made pursuant to the Dock Workers (Regulation of Employment) Act l946 and were at all material times in the employment of the first or of the second Defendants or of both of them."
"The first Defendants are the National Board established under the said Scheme and the second Defendants are registered employers under the said Scheme and members of the Association of Master Lightermen and Barge Owners (port of London), and were habitually concerned with the providing of barges or other craft and of services for the unloading of sugar in bulk or otherwise in the Port of London."
"on or about the 14th April 1950 the Defendants and each of them wrongfully, and in breach of the above agreements" -- the agreements as to terms of service — "purported to order the Plaintiffs and each of them, to report after 8 a.m. at Silvertown to tow down with empty craft and to attend at the S.S. Baron Renfrew lying in the port of London at or near Williams Jetty, Dagenham, Essex at 2 p.m. there to take over the unloading and to continue unloading bulk raw sugar and to load the same into lighters until 10 p.m. and on or about the 15th April 1950 being a Saturday to do the same after 12 midday and until 2 p.m. Thereupon the Plaintiffs and each of them declined to carry out the purported orders."
Indeed, the Plaintiffs contended that the orders which were given to them were not lawful or proper orders in that they were not in accordance with their terms of employment, and they refused to obey them.
"on the 14th April 1950 the second Defendants by letter of that date reported to the first Defendants that the Plaintiffs" (naming the first six) "had refused to obey the purported order as above set out and by letter dated 15th April 1950 the second Defendants reported to the first Defendants that the Plaintiffs Barnard, Cast, Osborn and Pinson had refused to obey the purported order given on the 15th April 1950 as above set out."
"Thereupon the first Defendants by letter dated 19th April 1950 advised the Plaintiffs and each of them that they had been reported by the second Defendants as above set out and required the Plaintiffs and each of them if they should so desire, to submit the explanation of their action and, pursuant to the practice and rules of the first Defendants in investigating such reports as those above mentioned advised the Plaintiffs and each of them that such explanations would e considered by the first Defendants if the same were sent to the first Defendants within the first three days after the said 19th April 1950."
"The Plaintiffs and each of them submitted their explanations within the said time but the first Defendants failed to wait until the expiration of the said three days and wrongfully and in breach of their said practice and rules and of the said Scheme pretended to investigate the above mentioned report and wrongfully, and in breach of their said practice and rules, and in breach of the said scheme, on or before 22nd April 1950 ordered that the plaintiffs and each of thorn should be suspended without pay for seven days, and pursuant to the said orders the Plaintiffs were so suspended and deprived of their said pay at an average of Nine pounds three shillings and sixpence for seven days for each of the Plaintiffs. Thereafter the Defendants and each of them wrongfully removed the names of the Plaintiffs from the Register of Dockworkers under the said Scheme."
When the action was in its early stages, that is, during the opening on the 7th or 8th July, it had become apparent from documents discovered at a late stage that there was another point which was open to the Plaintiffs, and Paragraph 11 was amended in this way:
"Further the pretended suspension was illegal, ultra vires and invalid, as it was made by the London Port Manager and not by the Local Board as required by the said Scheme, paragraphs 15 and 16."
The Plaintiffs claimed declarations to which I shall refer a little later.
Towards the end of July Mr Justice McNair intimated that his judgment would be in favour of the Defendants, and he gave his judgment on the 3rd October in favour of both Defendants. He was of opinion that neither of the orders, given was unlawful, and that neither of them involved the working by the Plaintiffs of unreasonable hours.
During the hearing of this appeal - on the fourth day of it - Mr Platts Mills accepted this finding of the learned Judge, and intimated that he did not propose further to argue that the orders given were unlawful, and he agreed that the appeal as against the Second Defendants, Silvertown Services, Ltd., should be dismissed with costs. Thus the foundation of the plaintiffs' claim went. In view of the course adopted by Mr Platts Mills, I do not propose to say anything further on the nature of the orders given, but I shall confine myself to the other points in the case.
I need hardly say that the question as to whether the orders were proper orders or not was one of some difficulty. I think it is a matter for regret that the legality of the orders was questioned, but I have no doubt that those who refused to obey them thought they had good ground for doing so. I hope that in future disputes of this kind can be avoided, for there is no question about this, that the turn-round of a ship bringing sugar from one of the British Dependencies is of importance to the life of the nation, and disputes of this kind ought to be avoided as far as is possible.
The appeal continued against the judgment in favour of the National Dock Labour Board. The case put against them was that the suspension of the plaintiffs was unlawful and irregular in that the Local Board, the body charged with the duty of considering oases of a disciplinary nature, had not in fact considered their cases, and also that action had been taken before the time for the explanations of the plaintiffs had expired.
It was admitted by Mr Paull for the first Defendants that notices of suspension had been sent before the time within which explanations were called for had run, but he contended that the Plaintiffs could not now complain of that, as they had appealed to the Appeal Tribunal and had thereby waived any irregularity. He further submitted that the Local Board had authority to delegate to the Port Manager (who was the Secretary of the First Defendants) the duty of dealing with cases of discipline, and that they had properly done so. He relied upon the plea in Paragraph 12 (A) of the Defence of the National Dock Labour Board, which was by way of amendment:
"These Defendants will contend that unless and until the decisions of the Appeal Tribunal are sot aside by Certiorari proceedings, the decisions of such Appeal Tribunal are binding in and upon all persons affected thereby and that this Honourable Court has no jurisdiction to enquire into any of the matters sot out in the Re-amended Statement of Claim."
The point raised by Paragraph 12 (A) of the Defence of the First Defendants was the one which was dealt with as a preliminary point by Mr Justice McNair, who hold that the plea did not avail the Defendants. The learned Judge, having considered the authorities, said:
"All that I say at this stage is that this preliminary plea to the jurisdiction fails, and the action must proceed."
I think it is desirable that I should first state the facts as far as is necessary for consideration of the points which remain.
The Plaintiffs were all registered dock workers, and the Second Defendants were registered employers, on the 16th June, 1947, there was made by the Minister of Labour and National Service the Dock Workers (Regulation of Employment) Order, 1947, Statutory Rules and Orders No. 1189 of 1947. The Order was made under Section 2 of the Dock Workers (Regulation of Employment) Act, 1946, and it applies as from the 28th June, 1947, in respect of all ports set out in Appendix 1 of the order, of which the Port of London is one.
The Order sets out in Clause 1 (a) that:
"The Objects of the Scheme are to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work."
Sub-clause (4) of Clause 1 reads;
"At each port to which the scheme relates, it shall apply to registered dock workers and registered employers";
so that it applied in fact both to the Plaintiffs in this case and to their immediate employers, the second Defendants.
Clause 3 provides in sub-clause (1):
"There shall be a National Dock Labour Board (hereinafter referred to as 'The National Board') which shall be responsible for the administration of the scheme. The functions of the National Board shall include all such activities and operations as further the objects of the Scheme as set out in Clause 1 hereof, and in particular, but without prejudice to the generality of this Clause -- (a) ensuring the full and proper utilisation of dock labour for the purpose of facilitating the rapid and economic turnaround of vessels and the speedy transit of goods through the port."
Sub-clause (3) provides;
"With a view to ensuring the efficient and harmonious working of the Scheme in the ports and of promoting and stimulating local interest in the successful administration of the scheme, it shall be the duty of the National Board to delegate to the local boards, as many as possible of the functions of the National Board, being functions which in the opinion of the National Board can appropriately be so delegated and to consult fully with the relevant local board on all such matters as it considers appropriate, so, however, that the final determination under paragraph 1 (c) of this Clause shall not be so delegated,"
The Local Boards are set up by that clause, Clause 3, and the power of the National Board to delegate certain matters to the Local Board is in sub-clause (3) of Clause 3.
In Clause 4 the constitution of the National Board is dealt with, and in sub-clause (8) it is provided:
"For the purpose of the Scheme, the Board may appoint and pay such officers and servants as it thinks necessary,"
Clause 5 deals with local Dock Labour ' Boards:
"(l) There shall be a local dock labour board in each port, and in the application of the scheme to each part the expression 'the local board' means the local board constituted in accordance with the following provisions of this Clause."
"The local board shall consist of equal numbers of persons representing dock workers in the port and of persons representing the employers of such dock workers. The local board shall appoint a chairman and deputy chairman, but every such appointment shall be subject to the subsequent approval of the National Board."
The Local Board, as I shall show, is entrusted with important duties. Sub-clause (6) of Clause 5 provides:
"There Shall be paid to the members of local boards such salaries, fees, and allowances, as the National Board may determine."
"The local board shall from time to time appoint appeal tribunals for the purpose Of appeals under the Scheme, and shall, if necessary, appoint a registration committee to whom it may delegate such duties as it may think fit in relation to the registers both of dock workers and of employers of dock workers."
Sub-clause 7 (b):
"The appeal tribunal shall consist of not less than three and not more than five persons, not being members of the local board, appointed from persons nominated by the Local Joint Committee of the National Joint Council for the Port Transport Industry."
"The procedure and quorum of a local board shall be such as the board may from time to time determine."
"The resolution of a majority of a local board as regards any matter arising under, or for the purposes of, the Scheme shall be the resolution of the board."
Clause 6 deals with the functions of Local Boards as to registers and other matters, and sub-clause (1) (a) (ii) of that clause provides that the Local Boards shall "be deemed to act as agent for the employer except when by arrangement with the local board, the employer or his representative attends the call and makes his own selection of men."
"All dock workers other than weekly workers who on the date on which this Scheme comes into operation are in the employment of an employer to whom this Scheme applies shall be deemed to have been allocated to that employer by the local board."
Clause 8 (1):
"Every registered dock worker shall be deemed to have accepted the obligations of the Scheme."
Clause 8 (5):
"A registered dock worker who is available for work when allocated by the local board to employment by a registered employer shall -- (a) carry out his duties in accordance with the rules of the port or place where he is working; and (b) work for such periods as are reasonable in his particular case."
Clause 9 (1):
"Every registered employer shall be deemed to have accepted the obligations of the scheme."
Clause 9 (6):
"A registered employer shall pay to the National Board in such manner and at such times as the National Board may direct the total amount of the gross wages due to daily workers contained in the return made under the preceding paragraph."
"It shall be an implied condition of the contract between a registered dock worker available for work and a registered employer that the rates of remuneration and conditions of service (including conditions as to holidays and pay in respect thereof) shall be in accordance with the national or local agreements for the time being in force."
"Disentitlement to payment."
"(1) A registered dock worker available for work who while in the reserve pool fails without adequate cause to comply with any of the provisions of Clause 8 (4) (a) hereof, shall not be entitled to receive any payment under Clause 14 hereof in respect of any pay week in which such failure occurred or continues."
Clause 15 (3):
"A registered dock worker available for work who while in employment to which he has been allocated by the local board fails without adequate cause to comply with the provisions of Clause 8 (5) hereof, or fails to comply with any lawful orders given to him by his employer, may have his engagement terminated and may be returned to the reserve pool, and, whether or not he is so returned, may be reported in writing to the local board. When a registered dock worker is so returned to the reserve pool his record book shall be returned to the local board unless otherwise agreed by the board."
"The local board shall consider any written report received under paragraphs (2) or (3) hereof, and if, after investigating the matter, the board notifies the registered dock worker that it is satisfied that there has been such failure or behaviour as aforesaid, the registered dock worker shall not be entitled to any payment, or to such part of any payment as the board thinks fit, under Clause 14 hereof in respect of the pay week in which such failure or behaviour occurred or continues."
Clause l6 is perhaps the most important for the purposes of this appeal; it deals with disciplinary procedure. Sub-clause (2) is in these terms:
"Where a registered dock worker available for work fails to comply with any of the provisions of the Scheme, then without prejudice to and in addition to the powers conferred by Clause 15 hereof, the local board may take any of the following steps as regards that dock worker — it may (a) determine for such period as it thinks proper he shall not be entitled to any payment under Clause 14 hereof; (b) suspend him without pay for a period not exceeding seven days; (c) give him seven days' notice of termination of employment; (d) dismiss him summarily."
It is under Clause 16 (2) that it is said the suspension of the Plaintiffs took place.
Before dealing with Clause 16 (2) I propose to refer to Clauses 18 and 19 of the scheme.
"(1) If a registered dock worker who is available for work is aggrieved because (a) he is not entitled to any payment Under Clause 14 hereof by reason of any of the Matters act out in Clauses 15 or 16; or (b) he has been suspended from the scheme; or (a) of his grouping or re-grouping in the register or record; or (d) his name has been removed from the register or record under paragraphs (1) (a) and (3) of Clause 17; or (c) he has received seven days' notice to terminate his employment in accordance with paragraphs (1) (b) and (3) of Clause 17; he may within three clear days of being informed that he is not so entitled, or has been so suspended, or has been grouped or re-grouped in a particular manner, or within three clear days of notice given to him of such removal or termination, lodge an appeal in writing with the appeal tribunal."
"The appeal tribunal shall as soon as may be hear the appeal and if the appeal is allowed shall have power to order that the registered dock worker shall be entitled to receive any payment or proportion thereof which may be due under Clause 14 hereof, but subject to the conditions contained in that clause, or shall be grouped in accordance with the determination of the Tribunal, and the local board may in a case of summary dismissal, restore to the register or record the name of the dock worker as from such date, not being later than the date of the determination of the appeal as the tribunal may decide and the dock worker shall be treated as if he had not ceased to be a registered dock worker as from that date, and in any other case the board shall retain the name of the dock worker on the register. In all cases the Tribunal shall have power to vary, modify or alter the penalty imposed so, however, that it shall not have power to increase any penalty imposed or to impose a more severe penalty."
"Where in any case notice has been given that the name of a registered dock worker or a registered employer is to be removed from the register or record or (as the case may require) the employer's register, or where a registered dock worker has received notice of suspension from work or from the provisions of Clause 14 hereof, and an appeal is lodged in accordance with the provisions of Clause 18 hereof, the operation of the notice (except in a case of summary dismissal and in a case of the disentitlement under Clause 15 (1) hereof) shall be suspended pending the hearing of the appeal, and if the appeal is allowed, the notice shall be treated as ineffective, but otherwise the notice shall be treated as effective."
Thus it will be seen that in matters of discipline the power to take the steps mentioned in Clause 16 (2) is in the hands of the Local Board. There is no express power of delegation given to the Board.
In war time the position was governed by the Essential Work (Dock Labour) Order of 1941, under that Order the Local Board, under Clause 4 (e), "shall nominate the port Manager for appointment by the Corporation as and when a vacancy occurs", and under Clause 18 (c) under "Disciplinary procedure" the Port Manager might suspend a workman without pay from the Dock Labour Scheme.
It is important to notice the change which took place when peace came, and it is important, too, to see how it has dealt with by the National Dock Labour Board.
I now refer to Document No. 21. On the 3rd July, 1947) that is shortly after the new Order came into force, there was a meeting of the National Dock Labour Board, and
"It was unanimously agreed that until the new Local Board is appointed, the Port Manager be authorised to carry out similar functions on behalf of the Local Board as were delegated to him in the Book Labour Scheme for the Port of London made under the provisions of the Essential Work (Dock Labour) Orders
The next Minute is:
"It was agreed that the Port Manager should continue to act as heretofore."
On the 22nd October, 1947, there was a further meeting of the London Dock Labour Board, and Minute No. 63 deals with the appointment of the Port Manager:
"Under Clause 6 of the Scheme, subject to the decision of the National Board under Clause 3 (3) and subject to the terms of employment to be offered by the National Board to Members of the staff taken over from The National Dock Labour Corporation, Ltd., it was proposed by the Chairman and seconded by Mr Thomas, and unanimously agreed that F.P. Hogger should be appointed to continue to act as Port Manager."
Minute No. 64 of the same date reads:
"Appointment of Secretary to the Local Board. It was agreed that the Port Manager should be appointed to act as Secretary to the London Dock Labour Board";
that is Mr Hogger of whom one has heard, and read, a good deal in the course of this case. I think it right to make clear that, whatever else may be said in regard to Mr Hogger, everyone agrees that he had a most difficult post which he filled with great ability; he was charged with the duties under the Essential Work (Dock Labour) order, 1941, and his was no easy task during the war years, and I should not think it is much easier now. There has not been a word of criticism as to the way in which Mr Hogger endeavoured to carry out his duties.
On the same date there is a further Minute, No. 70, headed:
"Disciplinary Action - Clausesl5 (4) and 16 (3) of the Scheme".
"It was moved by Mr Condon that five disciplinary Sub-Committees each consisting of two Members of the Board should be set up, one Sub-Committee to meet each week to deal with, and if necessary, take action on (a) reports in writing submitted by Area Managers in accordance with sub-sections 3 and 4 of Clause 15; (b) reports in writing submitted by Employers in accordance with sub-sections 3 and 4 of Clause 15. It was contended that disciplinary power should not be in the hands of officials of the Board, but should be vested in the Board themselves as laid down in the scheme, thus preventing any abuse of authority. It was also thought that if any punishment was determined by the Board only after full consideration by them, then the number of appeals would be lessened. It was suggested that at present suspensions are sometimes imposed indiscriminately, whereas punishment should be made to fit the crime and used as a deterrent. It was agreed that in the case of a charge of unsatisfactory conduct a man should have specification of the charge at the time. The Chairman considered it to be impracticable for the Board to do everything themselves as laid down in the scheme, but should appoint its Officers to carry out the functions, who would be responsible to the Board for their actions. Mr Nunneley stated he appreciated the position, but for a start would it not be desirable to set up Committees for a period to overlook what was being done in the matter of discipline. After a lengthy discussion of the matter, it was agreed that no official shall impose summary dismissal without permission of the Board, and all other punishments shall be dealt with as now and reported weekly to the Board, this arrangement to be subject to review within a period of three months."
If I may go back to Clause 16 of the Scheme, the powers which were given to the Labour Board in that Clause on disciplinary matters were:
"(a) to determine that for such period as it thinks proper he shall not be entitled to any payment under Clause 14 hereof; (b) to suspend him without pay for a period not exceeding seven days; (c) to give him seven days' notice of termination of employment; (d) to dismiss him summarily."
The effect of this resolution - Minute No. 70 -of the Local Board is that (d), the power to impose summary dismissal, should not be in the hands of an official without permission of the Board, but that other punishments, that is (a), (b) and (c) should be dealt with as now; that is, as they had been under the old Order, and reports were to be made weekly to the Board. Thus the Board conferred, it is said, upon the Secretary, the Port Manager, the power to impose three of the disciplinary punishments in Clause 16, sub-clause (2), of the Order. It is said that the Board by the resolution of the 3rd July, followed by the resolution of the 2nd October, delegated their powers in that respect to the Port Manager. I draw attention to the Minute which I have just read, Minute No. 70, because it shows that at a comparatively early stage in the working of the 1947 Order someone was drawing attention to the undesirability of disciplinary matters remaining in the hands of the Port Manager or of any official. There had been a change from the old practice; peace had come, and though it was most desirable in war time to have a quick turn-round of a ship, it was equally desirable in peace time to have the Scheme drawn up by the Minister and embraced in the Order under which matters of discipline were placed in the hands of the Local Board. The member who moved that there should be Disciplinary Committees was in fact a Trade union representative, a member of the Transport and General Workers' Union. I am not sure that his idea of five Disciplinary Subcommittees was quite right, because if the order is read strictly the question of discipline is in the hands of the Board. However, it was a suggestion which he made, and one of the others who raised this question, or who spoke upon it, was Mr Nunneley, who asked if it would not be desirable to set up Committees for a period to overlook what was being done in the matter of discipline; and Mr Nunneley, we were told, is the Secretary of the Port of London Authority. I think it is clear that in October, 1947, the members of the Board were alive to the difficulties, and one difficulty was that it was not easy for the Local Board for the whole of the port of London to deal with every question of discipline which arose from Teddington down to the Nore. However, I have drawn attention to the provisions of the Order contained in Clause 16. I would add that though the Minute to which I have referred said that the punishments imposed by the Port Manager should be reported weekly to the Board, they were not in fact; the Board did not meet as often as weekly, but I have no doubt from time to time the reports of what the Port Manager had done were made to the Local Board.
On the 28th October, 1947, there was another meeting which again dealt with the question of disciplinary reports, It deals with pilferage, but there is this passage which perhaps I might read:
"In reply to a Question by the port Manager, it was agreed that the statements of disciplinary action taken which he had been instructed to lay before the Board at each Meeting should not include progress reports of each case but should be confined to reporting the initial action taken";
and thereafter the reports seem to have been a summary of that which had been done, rather like one would find in the record of a Police Court or of any other Court proceedings, a record of what had happened.
On the 23rd and 27th February, 1948, there were further meetings of the Board, Minute No. 181,
"Disciplinary Report. Consideration was given to the Report for the period 19th January to 14th February, 1948, which detailed disciplinary action taken during that period. Mr Thomas considered that the present procedure had not proved successful and that the suggestion of disciplinary Sub-Committees of the Board, as detailed in Minute No. 70, should now be put into operation. After a full discussion it was finally agreed that the present procedure should continue for a further three months and be subject to review again at the end of this period."
On the 31st May, 1948, there is another Minute:
"Disciplinary Procedure; Reported that under Minute No. 181 it had been agreed that the method of dealing with Discipline should be reviewed at the end of May. It was agreed that the present procedure should continue."
At that time the new Order had been in force for about a year, and it was agreed by the Board that the present procedure should continue; that is, that the Port Manager should deal with every case and should have the power of inflicting the punishments mentioned in Clause l6, sub-clause (2), of the Order, except that he had no power to dismiss a man summarily.
The matter was again brought up on the 29th November, 1948, when there was a discussion. The first submission of the Union arising from Clause 15 was:
"To consider the amendment of this Clause to allow for a decentralisation of the disciplinary procedure by way of setting up sub-committees to deal with the cases arising in the several sectors."
A little later in the Minute I find:
"It was agreed that the Secretary inform Head office that in the opinion of the London Board it would be undesirable to set up Sub-Committees to deal with cases arising in the several sectors' for the following reasons",
and the reasons are set out, one of which is that the constitution of the London Board is, of itself, a safeguard against unfair disciplinary action. I am not sure that I follow that unless it meant — and it may mean — that the Local Board represented both sides, and they were all aware they had a Port Manager in whom they could place implicit reliance.
The conclusion of that discussion was:
"The Board were, therefore, opposed to the idea of decentralisation either discipline or appeals."
In the result the position remained as it was until this dispute arose.
I am still citing from Document No. 21, and I go to page 87, which sets out one of the orders given to the Plaintiffs on the 14th April, 1950. The order to some of the Plaintiffs was:
"Attend s.s. 'Baron Renfrew', William's Jetty, Dagenham, Load craft 2 p.m. to 10 p.m. This arrangement having been agreed between The Association of Master Lightermen and The Watermen, Lightermen, Tugmen and Bargemen's Union, and endorsed by the Executive Council of the Union. Any man refusing to carry out orders as per agreement will be reported to the National Dock Labour Board."
That order was given to the men in writing; it was assumed, I think, that if the order was given verbally it would not be obeyed, so it was given in writing. The men refused to have it; they did not like orders in writing; they thought it was showing lack of trust in them; they thought they were entitled to a verbal order, and so it was given to them verbally. It is one of the two orders which gave rise to this trouble. They were entitled, they said, apart from the questions I have mentioned already, to orders the night before. On this occasion they were brought down by day on one order, and then they were given another order. They did not like that very much.
On page 88 of this bundle there is a copy of the report in this case from the Lighterage superintendent for Silvertown Services, Ltd., to the First Defendants, the National Dock Labour Board:
"We have to report that our allocated workers as listed below refused to attend and load cargo at the above steamer. The orders given were within the framework of the Trade Agreement and in accordance with terms agreed between the Association of Master Lightermen and the Watermen, Lightermen, Tugmen and Bargemen's Union, further supported by the Executive Council of the Trade union. We have no option, therefore, but to report these men to you for disciplinary action."
On page 89 is a report in regard to the other Plaintiffs in regard to the Saturday order.
On page 90 the Port Manager, or someone on his behalf, wrote to Silvertown services, Ltd., on the 18th April, that is four days after the report:
"I am in receipt of your letter of the 14th inst., reporting the above men for refusing to attend and load cargo at s.s. Baron Renfrew on April 14th. Disciplinary action is proceeding and it is hoped to communicate with you again later."
On the 19th April the men received a notice in those terms:
"It is reported that, for reasons given below, you have failed to comply with the provisions of the Scheme. Your explanation should be sent to your Sector office within the next three days. Failure to do this may result in disciplinary action being commenced, in accordance with the scheme, without consideration of your explanation. You are advised to consult your Trade Union representative immediately."
The complaint was:
"Silvertown Services, Ltd., report that whilst in their employ you refused orders to attend and load craft at s.s. Baron Renfrew on 14.4.50."
That notice is dated the 19th April, 1950, and is headed:
"National Dock Labour Board."
In fact the men had until Saturday night, the 22nd April, to put in their explanations in answer to that complaint, but the complaints were dealt with on the morning of the 22nd April in a way which I shall show. As I said earlier, Mr Paull submitted that there was a mistake there in the timing made by the port Manager or his representative.
On the 24th April notice was sent out to the men, and it is what is called a Roneo-ed form headed: "National Dock Labour Board. London Dock Labour Board . . . Clause 16 (a) (b) of the Scheme. To:
" Mr So-and-So -- one of these was sent to each of the Plaintiffs -"1, Notice is hereby given that for the reason stated overleaf you will be suspended from work and the Dock Workers (Regulation of Employment) Scheme 1947 without pay for a period of 7 days. 2. You are entitled to appeal against this decision but in order to do so you must lodge your appeal in writing within three clear days of the receipt of this Notice with the Clerk of the Appeal Tribunal, London Dock Labour Board, at Room 3, Lower Ground Floor, Ibex House, Minories, E.C.3, and continue at work pending the appeal. 3. If you do exercise your right of appeal, unless the Appeal is allowed, the period of suspension will begin three days after the date of the decision of the Appeal Tribunal or at such other date as the Appeal Tribunal by its decision may fix. 4. If you do not exercise your right of appeal the period of suspension will begin on the 8-5-50. 5. Your Record Book must be deposited at 01 Sector office of the Board on the working day before your period of suspension commences and should be collected after the last call on the last day of your suspension at noon 13-5-50.",
and the reason stated overleaf is:
"Whilst in the employ of Silvertown Services Ltd. on 14.4.50. you refused orders to attend and load craft at the s.s. Baron Renfrew."
On page 99 of the same bundle there are set out the replies or explanations of the men which were in fact posted on Friday, the 21et April, but which for some reason were not delivered until the Monday; that is after the suspension had taken place.
I go back to the notice of suspension. This is said to be the decision of the Local Board under Clause 16 (2) of the Scheme. It is common ground that the Board took no part in the suspensions; it was the act of the Port Manager against whose good faith no one said a word.
Page 101 of this same bundle contains a report from the Clerk to the Appeal Tribunal that the men, seven of whom are named there,
"have appealed against 7 days' suspension without pay from the Scheme, imposed by the London Port Manager on behalf of the National Dock Labour Board, and as you are the employer to whom these men were allocated at the time of the alleged offence, you are invited to attend the hearing of this appeal, which will be held at the above address on: - Tuesday 9th May 1950 at 10.30 a.m. In accordance with the Rules and Procedure laid down by the National Dock Labour Board, I enclose for your information copies of the Notice of Appeal, the Complaint form and the appellants explanation."
On page 105 there is a document headed:
"London Dock Labour Board Appeal Tribunals. Hearing held at Ibex House, Minories, E.C.3.",
and the members of the Tribunal are given, and then follows:
"Appeal by A. Chappell 010424 and 6 others against seven days' suspension without pay."
The First Defendants are named; there was no Trade Union representative present. At the end of the document appears:
"Decision. Appeal disallowed."
That is the decision of the Appeal Tribunal upon the appeals of the men.
The next document, on page 106, is the report dated the 14th April, 1950, and there is a further report on the 19th April. At the foot of the document on page 106 there is this note:
"No replies to complaint form received;"
That is not right. No explanations had been received prior to the suspension, but the explanations of the men had been sent in due time, and they were in the hands of the National Board long before Notice of Appeal was given. How that note: "No replies to complaint form received" came to be on the document I am not sure, but on page 107 there are set out the grounds of the appeals of the various men, or some of them. One of them, Mr Dyckhoff, puts it shortly and concisely:
"Tried, condemned, judged and sentenced, before any man's explanation was received in your office. This is Dictatorship."
He expressed his point of view. The others gave their reasons.
On page 114 there is a document dated the 19th May, 1950, to which Mr Paull, on behalf of the Defendants, attached importance. It is a letter from the Clerk to the Tribunal — I suppose it is a copy of the letter sent to each man —
"I have to confirm that the Tribunal which today heard your appeal decided that it should be disallowed. It was further decided that the period of suspension should operate; from 22nd May 1950 to 27th May (inclusive). Your record book must therefore be deposited at City Sector office on the Board; on 20th May 1950 and should be collected after the last call on 27th May 1950. Yours faithfully, W.A. Newberry, Clerk to the Appeal Tribunals."
Mr Paull said that that shows that the Appeal Committee went fully into the matter; they altered the dates of suspension and the date at which the book should be deposited. I do not regard it as any alteration of the Order of the Local Board. The order of the Appeal Tribunal was that the appeals of the men should be disallowed, but as the time for suspension had run by, the Appeal Tribunal put on other dates of suspension; that is all; they disallowed the appeals.
On page 121 of Document 21 there is a report of a meeting of the London Dock Labour Board on the 12th May, 1950; that is three days after the Appeal Tribunal had decided upon the appeals, and there is this rather cryptic note or Minute:
"It was explained that the 14 men had refused legitimate orders for work on the s.s. 'Baron Renfrew' discharging bulk sugar at Williams' Jetty, Dagenham. The firm had reported the fourteen men, who had accordingly been suspended from work without pay for seven days. The men had appealed against their suspensions and on the 9th May 1950 an Appeal Tribunal had disallowed their appeals."
As I have said, the suspension had been the act of Mr Hogger, the Port Manager. As far as I know, that was not brought to the attention of the Appeal Tribunal in any sense whatever. I do not know how much they knew about the procedure.
On page 122a there is a Minute of a further meeting of the Dock Labour Board in regard to disciplinary reports, and on page 122b there is a document which shows the form in which matters of discipline or cases which had been dealt with by Mr Hogger were reported to the Local Board.
I do not think I need go into further documents for the purpose of considering the points which are raised upon this appeal.
The first question for consideration is whether the Local Board had power to delegate their duties under Clauses 15 and 16 of the order. The Order does not give any such power expressly. Clause 15 deals with the question of payment; Clause 16 is entitled "Disciplinary procedure".
If the Local Board could delegate one of their powers they could delegate all. They do not say they delegated all, but only some of them, and the delegation is said to have been in the Minutes of the meetings of the 3rd July, 1947, the 2nd October, 1947, and the 29th November, 1948, which I have read as far as is material, The Minutes show that the first at least, and I think the second, was a decision to carry on in the same way as they had done under the old Order, but I am prepared to assume that it was intended as a delegation of their duties under the 1947 Order.
Mr Justice McNair's decision upon this was in favour of the Defendants. He said:
"The next objection taken by the plaintiffs is that the suspension order was made by Mr Hogger the Port Manager and not by the Board. In my judgment there is nothing in the express provisions of the Scheme that requires the Board itself to moot to consider and come to a determination upon each suspension order. In practice it would clearly be impossible for them to do so in view of their constitution and in view of the fact deposed to by Mr Hogger that in any one year there may be some 2,000 man-cases to consider. In my judgment the Board acted well within their powers when by resolutions dated 2nd October, 1947 and 29th November 1948 they authorised Mr Hogger as their agent to determine (subject to report to the Board from time to time) whether or not suspension notices should be sent. If authority be needed for these conclusions it can be found in Huth v. Clarke (1890) 25 Queen's Bench Division, page 391: Local Government Board v. Arlidge, (1915) Appeal Cases, page 120 and other cases to the same effect cited on behalf of the Dock Labour Board. I would desire to reserve the question whether if contrary to my judgment the Board had no power to delegate their functions to the Port Manager any subsequent ratification of his act would be of any avail."
It is, to my mind, essential to notice the change Which was made by the 1947 Order by which the Local Board is entrusted with the disciplinary powers set out in Clause l6 (2). Those powers are of a judicial, or certainly of a quasi judicial, nature. The constitution of the Local Board is laid down in Clause 5 (2). It is to consist of equal numbers of persons representing the dock workers and persons representing employers, and by Clause 5 (6) provision is made for payment to them of such salaries, fees and allowances as the National Board may determine.
It is no answer to say there would have been too much work for them to do; nor do I think any such ease is made upon the evidence of Mr Hogger. In view of the Scheme, or the order, as a whole, I fail to see that the Local Board had any power to delegate their disciplinary duties under Clause 16, and I do not think that the authorities referred to in the judgment of Mr justice McNair support the submission made on behalf of the Defendants that the Local Board had power to delegate the duties given by Clause 16 (2). It follows that Mr Hogger, the Port Manager, had no right to suspend the men, or to issue Suspension Notices; there was no order of the Local Board. During the hearing of the appeal I asked where was the Order of the Local Board, and I was referred to the document of the 24th April, 1950, headed "Notice of suspension". It is not an order of the Local Board; it is a notice issued by the Port Manager.
I cannot regard it as other than a nullity. The Plaintiffs appealed against that suspension, and their appeals were disallowed. It is not necessary to dwell upon the irregularities, such as the failure to wait until the time for the Plaintiffs' explanations had run, or the note that he explanations had been received. It is said on behalf of the First Defendants, the National Board, that as the Plaintiffs appealed and failed they cannot now we heard to say that their suspension was wrongful. If, as I think, the Notice of Suspension was in each case a nullity, the fact that there was an unsuccessful appeal upon it cannot turn that which was a nullity into an effective suspension; nor can the words at the end of Clause 19 have any such effect. The words to which I refer are "but otherwise the notice shall be treated as effective." The clause, Clause 19, presupposes a good notice of suspension given upon a decision of the Local Board under Clause 16, and the notice which was given does not fall within that category. I do not think that the appeals of the Plaintiffs can be said to amount to ratification or to waiver. That was the view of Mr Justice McNair, who said:
"on these findings it is also not necessary for me to express any final opinion on the question of waiver raised by the National Dock Labour Board. But had it been necessary I should as at present advised have inclined to the view that waiver was not established inasmuch as it was not proved that the Plaintiffs had the requisite knowledge in fact as to the Port Manager's position or authority."
It is clear that the Plaintiffs had no knowledge of the position at the time of the appeal; discovery of the Minutes was given at a late stage, and when the Judge was dealing with the preliminary point an application to amend the Statement of Claim
was made; that was granted, and I have read the statement which was made.
Thus I come to the last point which was raised as a preliminary point on the trial. It is that the action does not lie. Mr Paull told this Court when the appeal was called on that there was a preliminary point; we thought we ought to hoar the appeal first, and we reserved consideration of the preliminary point.
It is submitted on behalf of the National Dock Labour Board that in the Order of 1947 there is a complete code on matters of discipline, and that the only way in which decisions can be questioned is by Writ of Certiorari. There is great force in this submission, and there is a body of authority to support it. It cannot be right to say that whenever a Tribunal such as the Local Board or the Appeal Tribunal makes a mistake the Court can grant a declaration such as is asked for in the present case; that would lead to endless confusion. The Courts have, however, power to grant a declaration or an injunction in certain oases to prevent an injustice. In the case of Cooper v. Wilson and Others, which is reported in 1937 2 King's Bench Division at page 309, this Court granted relief to a police officer who had been dismissed by the Watch Committee of the Liverpool City Council. In that case a question of jurisdiction arose. The Appellant said that he had resigned from the Police Force, and that he was dismissed afterwards so that he was not entitled to the rateable deduction which had been made from his pay. He brought an action against the Chief Constable and the Watch Committee claiming a declaration that he had duly resigned and was therefore entitled to be paid the rateable deduction which had been made from his pay. It was held, Mr Justice Macnaghten dissenting:
"(1) That in a borough the right to dismiss a police constable is vested solely in the Watch Committee, but that in this case that Committee had no power to dismiss the appellant, who had already terminated his service by due notice of resignation, and it had no power ex post facto to treat him as dismissed from a date prior to the hearing by them of an application to confirm the purported dismissal by the Chief Constable; (2) that it could not be said that by appearing before the Watch Committee the appellant must be taken to have abandoned his notice of resignation; (3) that the appellant was not limited to the right of appeal to the Secretary of State given by the police Appeals Act, 1927; and therefore (4) that he was entitled to the declarations claimed. Semble that the proceedings before the Watch Committee were contrary to natural justice owing to the presence of the Chief Constable during the Committee's deliberations on the appellant's appeal",
and the headnote of the case concludes:
"Where a statutory body is alleged to have acted without jurisdiction its decision can properly be questioned in an action for a declaration that the decision is null and void."
Mr Paull submitted that when the leading judgment, the judgment of Lord Justice Greer, is examined it becomes clear that the case was one in which a body had acted without jurisdiction, and in such circumstances the Court may have power to grant a declaration, as it did in that particular case.
Lord Justice Greer said at page 317 of the report:
"It seems to me clear that the Watch Committee have no power to dismiss a constable who has already terminated his service by due notice, nor can they ex post facto decide that they Mould treat him as dismissed as from a date prior to the hearing of an application to confirm the decision of the Chief Constable";
and on page 321 the learned Lord Justice said:
"It would be idle for a plaintiff who is alleging that he has never been dismissed to appeal to the Secretary of State, nor do I think that the fact that is a remedy which he could take prohibits his access to the Court for a declaration that his dismissal was invalid, nor do I think that the power which he undoubtedly possessed of obtaining a Writ of certiorari to quash the order for his dismissal prevents his application to the court for a declaration as to the invalidity of the order of dismissal";
and at page 324:
"The case of Andrews v. Mitchell seems to me to support the view that a claim for a declaration that a statutory body acted without jurisdiction can be dealt with by an action for a declaration that the decision in question was null and void."
The case of Andrews v. Mitchell to which Lord Justice Greer referred is reported in 1905 Appeal Cases at page 78. The head-note to that case is:
"Section 68 of the Friendly Societies Act, 1896, which enacts that every dispute between a member of a friendly society and the society shall be decided in manner directed by the rules of the society, and the decision so given shall be binding and conclusive on all parties without appeal, docs not apply to a decision given by the arbitration committee without jurisdiction, the rules having been disregarded upon a question of substance. A member of a friendly society was duly summoned before the arbitration committee for a breach of the rules, and was in his absence expelled from the society by a resolution of the committee upon a different charge, namely, of fraud and disgraceful conduct, of which no written notice had been given to him as required by the rules:- Held, that the decision was null and void."
The member who was expelled from the Society sued the Trustees in the County court at Carmarthen claiming damages for wrongful expulsion and for an injunction. The County Court judge held that he had jurisdiction to hear the motion. He adjourned the hearing; a Summons was taken out by the Appellants for a Writ of Prohibition to the County Court, and that was dismissed by Mr Justice Darling, whose decision was affirmed by the King's Bench Division, the Court consisting of Lord Alverstone, Chief Justice, and Mr Justice Wills and Mr Justice Channell, and by the Court of Appeal. There was an appeal to the House of Lords, and the appeal was dismissed.
In the course of the argument, as set out on page 80 of the report, I find this passage -- this was in the argument of Mr A.T. Lawrence (as he then was) on behalf of the Trustees of the Society — "In any case, the county court has no jurisdiction to hear his complaint until the decision of the arbitration committee has been set aside." That is virtually the same point as that which is taken by Mr Paull here.
The Lord Chancellor, Lord Halsbury, pointed out in the course of his Speech:
"When one looks to see what the course of procedure must necessarily be in order to justify an expulsion, Mr Lawrence points out that there is a rule which certainly docs justify expulsion, but it justifies expulsion upon the express proviso that the charge has been made as provided by the rules. In this case the charge never was made as provided by the rules; and if you have no power given under the rules to expel a member except upon a charge made and tried according to the rules, you have no power to expel in a case like this."
Lord Davey (at page 82 of the report) said:
"My Lords, I concur in the observations of my noble and learned friend as to the importance of upholding these domestic tribunals of friendly societies, and not lightly interfering with their decisions. But this is not in my opinion a question of irregularity or informality - it is a question of substance",
and at the top of page 83:
"But it was an informality which went to the root of the jurisdiction, and the omission to follow the directions of the rules for preferring charges has had the unfortunate effect of making the resolution which was come to for the expulsion of the respondent, in my opinion, altogether null and void."
The House of Lords thus held that an action in the Courts could be brought in those circumstances to put right the wrong which otherwise would be done. In both those authorities it may well be said that the question was akin to a question of jurisdiction. The Speech of Lord Davey shows that his view was really expressed upon the Rules of the society. The point argued by Counsel for the Trustees of the Friendly Society that the action would not lie failed.
In the present case if the question is not one of jurisdiction, it is certainly closely akin to it. The Local Board had no jurisdiction to delegate; the Port Manager had no jurisdiction to adjudicate; each purported so to do; and in this case, as in the case of Cooper v. Wilson and Others, a Writ of Certiorari was of no use. It could be of no use to the Plaintiffs in this case. They did not know of the illegality which gives rise to the preliminary point; they did not know of the illegality until long after the time for the Writ had run, and the question which has been argued before us was not before the Appeal Tribunal at all. In the circumstances, I am of opinion that the Court has power to grant to the Plaintiffs a declaration that their suspension was wrongful.
I am more concerned as to whether that relief should be granted. It is a matter for the discretion of the Court, and that discretion should be exercised sparingly. If it had been the only question in issue, I should have doubted even more whether this Court ought to grant the relief asked for; but throughout this case the Defendants have strenuously argued that the Local Board had the right to delegate their disciplinary powers and had done so properly, and, further, that by their appeals the Plaintiffs had put themselves into such a position that they were not entitled to any relief. It was only on the fifth day of the appeal that Mr Paull told the Court that he was instructed to say that if this Court said that the Local Board could not delegate their powers, the Board would abide by that. No one can say that the case has not been fully argued on both sides; the grievances of one side and of the other have been ventilated fully in two Courts. I am in favour of allowing the appeal against the judgment in favour of the First Defendants to the extent of granting to the plaintiffs the declaration asked for in Paragraph 4 of the prayer, that is, a declaration that the purported suspensions were unlawful, and that is the Order which I think this Court should make.
LORD JUSTICE DENNING: For a great many years before 1950 raw sugar had been brought into the Port of London in bags. The principal importers were the well-known organisation of Tate & Lyle, and the lighterage services were provided by about 100 licensed lightermen employed by a firm of master lightermen called Silvertown Services Ltd. These men had a long-standing custom whereby they worked from 8 a.m. to 5 p.m. on ordinary weekdays, and from 8 a.m. till noon on Saturdays. They also had a practice whereby the craft to unload for a particular ship were marshalled continuously by the same group of lightermen, called the 'ship's hands' and this practice was upheld in a ruling given in regard to the working of the S.S. "Cape Hawke" in September 1948.
In 1950 the Tate & Lyle organisation desired to try out a new method of importing raw sugar. It was no longer to be packed in bags and unloaded in slings at ordinary quays; but it was to be carried in the ship's hold in bulk and unloaded by moans of grabs at a coal wharf in the same way as coal is unloaded. This method was much quicker and ensured a much speedier turn-round of ships than the old method when the sugar was packed in bags; but the men on shore at the coal wharf worked two shifts from 6 o'clock in the morning until 2 o'clock in the afternoon, and then from 2 o'clock in the afternoon to 10 o'clock at night. Tate & Lyle wanted the lightermen to fit their work in with those shifts. But the lightermen did not want to do this. They wanted to keep to their hours of 8 o'clock in the morning to 5 o'clock in the afternoon. They also wanted to keep to the 'ship's hands' system whereby the same group of lightermen remained with the ship continuously throughout the unloading, which the new proposal would not permit. They said that their work with their craft was the same whichever system of unloading the ship was adopted, that the new system of itself greatly quickened the turn-round of the ships; and there was no reason why they should be asked to alter their custom and practice. Many efforts were made to get the lightermen to agree. Their Union recommended to them to do as they were asked, but still they refused. The Union said they took a serious view of this refusal, but still the men refused. Eventually the employers, Silvertown Services Ltd., put the matter to the test. On Friday, the 14th April, 1950, after the lightermen arrived with their craft at the S.S. "Baron Renfrew" at William's Jetty, Dagenham, the employers gave them orders to load their craft from 2 o'clock in the afternoon until 10 o'clock at night. The men, consistently with what they had already said, refused to work those hours, but they did other work until 5 p.m., their ordinary time. On Saturday, the 15th April, 1950, the employers gave other lightermen on the S.S. Baron Renfrew" orders to load their craft to 2 p.m. They refused to load after 12 noon. They said it was their custom and practice only to work cargo until noon on Saturdays.
In view of this difficulty, the employers in writing reported all the men to the Board for disciplinary action. On Wednesday, the 19th April, 1950, the Clerk of the Board sent to each of the men a notice of the charge against him, namely, refusal to obey orders to attend and load craft at the S.S."Baron Renfrew", and they said to each man that his explanation was to be sent to the Secretary's office within the next throe days. These notices were delivered to the men on Wednesday, the 19th April. The next three days mentioned in the notice would be the Thursday, Friday and Saturday, and the men, therefore, had the whole of Saturday on which to send in their explanations. They sent their explanations by post late on the Friday night, but they were not received at the Board's offices until Monday, the 24th April. Those explanations wore in time, because the men had the whole of Saturday to send in the explanations. Meanwhile, however, on Saturday the 22nd March, 1950, before the explanations wore received, the Port Manager had sent out Notices of Suspension to all the men informing them that under Clause 16 (2) (b) of the Scheme they would be suspended without pay for a period of seven days. The men promptly gave Notice of Appeal to the Appeal Tribunal. Pending the appeal, according to the Rules, the suspensions were stayed. The men in their grounds of appeal took the point of procedure which Mr Thomas put quite clearly. He said:
"Before the allotted time period to forward an explanation for refusal of orders, and apparently without consideration of an explanation, I am issued with a notice of seven days suspension, without regard to my explanation".
The men also took the point of substance. They all said that the orders were in contradiction of the custom and practice which was upheld in the "Cape Hawke" case in 1948.
Those appeals of the men were heard by the Appeal Tribunal on the 9th May, 1950, and were dismissed. The Tribunal ordered that the period of suspension should operate for one week from the 15th May for seven of the men, and one week from the 27th May for the remaining seven. The 14 men were very upset about this, so were 91 of their colleagues employed by Silvertown Services Ltd,,, and they ceased work for the duration of the suspension. The Dock Labour Board thereupon dismissed those 91, whereupon many other lightermen ceased work also. A serious stoppage of the Docks ensued until the 6th June, 1950, the Writ in this action was issued on behalf of the men with the object of testing the legality of their suspension. Simultaneously with the issue of the Writ the men returned to work. SO the strike ended and the legal proceedings began.
The first matter on which the men asked for the ruling of the Court was whether the orders to load craft on weekdays from 2 o'clock until 10 o'clock, and on Saturdays until 2 o'clock, were lawful orders which they were bound to obey.
In the course of the discussion before us it became clear that this depended on whether the method of unloading raw sugar loose in bulk by grubs was governed by the existing custom and practice, (in which case the orders were not lawful because they conflicted with the existing custom); or whether it was an entirely new traffic for which no custom, practice or usage had been established, (in which case the orders were lawful because the men would then be bound to obey thorn under the working Rules which had been agreed by their Union).
The Judge who tried the case, Mr Justice McNair, who knows a great deal about these things, found that it was an entirely new traffic. The men sought in this Court to challenge the learned Judge's finding on this point. When it was pointed out that this was a question of fact, they no longer persisted in it and accepted the inevitable consequence of having their appeal on this point dismissed. The employers thereupon dropped out of the case.
The second matter upon which the men sought the ruling of the Court was the question of procedure; whether they had been lawfully suspended; and this involved a consideration of the disciplinary powers of the Board.
Under the Dock Workers' Scheme, 1947, the power to suspend a man is entrusted to the Local Dock Labour Board, which is composed of equal members of representatives of the workers and employers. In this case the Board did not themselves suspend the men; the Port Manager did. The Local Board did not have anything to do with it; they did not see the report made by the employers; they did not investigate the matter; they did not make any decision upon it themselves; they left it all to the Port Manager. The suspension was not brought to their notice until after the Appeal tribunal had given its decision.
It was urged upon us that the Local Board had power to delegate their functions to the Port Manager on the ground that the power of suspension was an administrative function and not a judicial one. It was suggested that the action of the Local Board in suspending a man was similar in character to the action of an employer in dismissing him. I do not accept this view, Under the provisions of the Scheme, so far from the Board being in the position of an employer, the Board are put in a judicial position between the men and the employers; they are to receive reports from the employers and investigate them; they have to inquire whether the man has been guilty of misconduct, such as failing to comply with a lawful order, or failing to comply with the provisions of the Scheme; and if they find against him they can suspend him without pay, or can even dismiss him summarily. In those circumstances they are just as much exercising a judicial function as the Tribunals which were considered by this Court in the corn porters' case Abbott v. Sullivan, reported in 1952 1, King's Bench Division at page 189, and in the Showmen's Guild case, Lee v. Showmen's Guild, reported in 1952 2 King's Peach Division at page 329, the only difference being that those were domestic Tribunals, and this is a statutory one. The Board, by their procedure, recognise that before they suspend a man they must give him notice of the charge and an opportunity of making an explanation. That is entirely consonant with the view that they exercise a judicial function and not an administrative one, and we should, I think, so hold.
Whilst an administrative function can often be delegated, a judicial function rarely can be. No judicial Tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. In the case of Local Government Board v. Arlidge, which is reported in 1915 Appeal Cases at page 120, the power to delegate was given by necessary implication; but there is nothing in this Scheme authorising the Board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the Board to sit as a Board to decide all these cases; but I see nothing impracticable at all; they have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for a week at a time: probably each pair would only have to sit on one day during their week.
Next it was suggested that even if the Board could not delegate their functions at any rate they could ratify the actions of the Port Manager, But if the Board have no power to delegate their functions to the Port Manager, they can have no power to ratify what he has done. The effect of ratification is to make it equal to a prior command but as a prior command, in the shape of delegation, would be useless, so also is a ratification.
Finally, Mr Paull said (and it was his principal argument) that these Courts have no right to interfere with the decisions of statutory Tribunals except by the Historical method of certiorari. He drew an alarming picture of what might happen if once the Court intervened by way of declaration and injunction. It meant, he said, that anyone who was dissatisfied with the decision of a Tribunal could start an action in the Courts for a declaration that it was bad, and thus, by a side-wind, you could get an appeal to the Courts in cases where Parliament intended there should be none. I think there is much force in Mr Paull's contention; so much so that I am sure in the vast majority of cases the Courts will not seek to interfere with the decisions of statutory Tribunals; but that there is power to do so, not only by certiorari, but also by way of declaration I do not doubt. I know of no limit to the power of the Court to grant a declaration except such limit as it may in its discretion impose upon itself; and the Court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why then should not the Court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law, which is a thing no one can do in this country. The authorities show clearly that the Courts can intervene. A good instance of the remedy by injunction is Andrews v. Mitchell 1905 Appeal Cases at page 78, when a Statute enacted that the decision of a particular tribunal should be "binding and conclusive on all parties without appeal and shall not be removable into any Court of law or restrained by injunction; but nevertheless the House of Lords held that the Court could in an action for an injunction, set aside a decision which was not given in accordance with the rules. A good instance of the remedy by declaration is Cooper v. Wilson 1937 2 King's Bench at page 509, where a Watch Committee, erected under statute, had dismissed a police serjeant when they had no power in law to do so, and had also acted in a way contrary to natural justice. Lords Justice Greer and Scott held that on both grounds the serjeant was entitled to a declaration that the order of the Watch Committee was invalid. Furthermore in the General Medical Council case of Leeson 43 Chancery Division, page 366, and Allinson in 1894 1 Queen's Bench at page 750, this Court assumed without question that the Court has power to intervene by declaration and injunction in the case of statutory tribunals just as it has in domestic tribunals, and I do not think we should admit of any doubt upon it. We had occasion to examine the power in respect of domestic tribunals in Lee v. Showmen's Guild 1952 2 Queen's Bench at page 529. The power is no less in respect of statutory tribunals.
This is not, however, the occasion to lay down the bounds of the jurisdiction. We have to consider here two decisions: first, the decision to suspend the man; second, the decision of the appeal tribunal. So far as the decision to suspend is concerned, as I see it, we are not asked to interfere with the decision of a statutory Tribunal; we are asked to interfere with the position of a usurper. Mr Hogger (if he will forgive me saying so) is a usurper, or, at any rate, is in the position of a usurper. I do not mean this unkindly, because I know that he acted in good faith on the authority of the Board, but, nevertheless, he has assumed a mantle which was not his, but that of another. This is not a case of a Tribunal which has a lawful jurisdiction and exercises it; it is a case of a man acting as a Tribunal when he has no right to do so. These Courts have always had jurisdiction to deal with such a case. The common-law Courts had a regular course of proceeding by which they commanded such a person to show by what warrant -quo warranto - he did these things. Discovery could be had against him, and if he had no valid warrant, they ousted him by judgment of ouster. In modern times proceedings by quo warranto have been abolished and replaced by a declaration and injunction. See Section 9 of the Administration of Justice Act, 1958. Side by side with the Common Law jurisdiction of quo warranto the Courts of Equity have always had power to declare the orders of a usurper to be invalid and to set them aside. So at the present day we can do likewise. We can declare that the suspension ordered by Mr Hogger was unlawful and void. We can declare it to be the nullity which in law it was. So far as the decision of the Appeal Tribunal is concerned, it seems to me that, once Mr Hogger's order is found to be a nullity, it follows that the Order of the Appeal Tribunal is also a nullity. The Appeal Tribunal has no original jurisdiction of its own; it cannot itself make a Suspension Order; it can only affirm or disaffirm a Suspension Order which has already been made. If none has been made because it is a nullity, the Tribunal can do nothing. It cannot make something out of nothing any more than anybody else can, see Toronto Railway Company v. Corporation of the City of Toronto, reported in 1904 Appeal Cases at page 809, at page 815. Mr Paull argued that the Appeal Tribunal itself, if the point had been taken before it, could have decided whether the Board had power to delegate or not; and that if the Appeal Tribunal had decided that there was power to delegate to Mr Hogger their decision could not have been reviewed in these Courts. I do not agree with this. An inferior Tribunal cannot by a wrong decision in point of law give itself a jurisdiction which it would not otherwise possess.
In the course of the argument Mr Paull was compelled to admit that if the man had no remedy by way of declaration they had no remedy at all. He agreed that the men in this case could not have obtained redress by certiorari for the simple reason that they did not know the facts. In certiorari there is no discovery, whereas in action for a declaration it can be had. The men only discovered the true position, shortly before the trial, 2½ years after the suspension. That shows that but for these proceedings the truth would never have been known. Mr Hogger could have gone on indefinitely assuming a jurisdiction which did not belong to him, and the men would be subjected to penal orders which wore null and void, and they would have had no redress. I should be sorry to think that these Courts were powerless to put right such a situation.
To sum up, therefore, the position is this: These men were in 1950 involved in an industrial dispute with their employers; it was a genuine dispute upon which there was much to be said for each side. In involved difficult questions of the interpretation of industrial agreements and of the custom and practice of the firm. It could hardly be said the men had committed an offence in the ordinary sense of the word simply by adhering to their point of view. Yet penalties were imposed upon them as if they had done something wrong, and they were imposed by an official who had no jurisdiction to impose them and had not waited for the proper time to hear their explanation. I hasten to say it was not the fault of the official, who is a man well spoken of by all. It was the fault of the system. The lightermen felt that they had not been treated justly, and they sought redress in the Queen's Courts. Yet it is said by the Board that the Queen's Courts have no power to interfere. Let us take that argument into account by all means, but let us also remember that if the men cannot get redress here, they can get it nowhere else. I think they are entitled to redress, and I agree with my Lord that we should declare that the suspension was unlawful.
LORD JUSTICE ROMER: I also agree, and the points which have been argued before us have been so fully and carefully examined by my brethren that there is very little that I myself wish to add.
On the delegation question to which the Local Board have attached so much importance, it seems to me that there are one or two elements present in this Dock Workers (Regulation of Employment) Scheme which are worthy of notice. In the first place, the Local Dock Board are themselves delegates because they exercise, at all events in the main, if not wholly, functions which are delegated to them by the National Dock Labour Board which, under Clause 3 of the Scheme, are to be responsible for the administration of the Scheme. By sub-clause (5) of Clause 3 it is provided:
" .... it shall be the duty of the National Board to delegate to the local boards as many as possible of the functions of the National Board, being functions which in the opinion of the National Board can appropriately be so delegated, and to consult fully with the relevant local board on all such matters as it considers appropriate, so, however, that the final determination under paragraph 1 (c) of this Clause shall not be so delegated",
and then under Clause 6, which specifies the functions of the Local Boards, it sets out a considerable number of activities, and ends up by saying:
"(g) such other functions as may from time to time be delegated to it by the National Board",
So, therefore, you find primarily those Local Boards are themselves delegates and there is the well-established principle of law that, prima facie, a person to whom powers or duties are delegated cannot themselves delegate their performance to someone else. That is the general rule, but in the Scheme there is one express exception to it, because it is provided by subclause (7) of Clause 5, which my Lord read:
"The local board shall from time to time appoint appeal tribunals for the purpose of appeals under the Scheme, and shall, if necessary, appoint a registration committee to whom it may delegate such duties as it may think fit in relation to the registers both of dock workers and of employers of dock workers.
There, it is to be observed, is an express exception to the general rule to which I have referred, and by application of the principle expressio unius est exclusio alterius, it appears to me to confirm the view that except in regard to that one particular matter no further delegation was in contemplation under the Scheme.
One then approaches the particular functions which have arisen on this appeal, the disciplinary functions of the Local Board; and their powers and duties in that regard as conferred and set out in Clauses 15 and 16 of the Scheme, cannot, as I see it, be regarded as administrative. The decision whether or not to impose penalties (amounting in serious cases to dismissal) for alleged offences if those offences are proved, is a judicial decision, or, at all events, a quasi judicial decision, and cannot, as I think, from any reasonable point of view be regarded as merely administrative; and as my brethren have pointed out, a judicial function is one which from its very nature is incapable of being delegated. No one has heard of an Arbitrator who has been agreed upon between the parties to a dispute being allowed to appoint someone to act in his place, because it is of the very essence of his office that he himself is the person who has to deal with the dispute referred to him. So hero the workmen under this Scheme are entitled to have the minds of the Local Board brought to bear upon any complaint which is made against them before that complaint is implemented in the form of penal sanction, and it is no answer for the Board to say:
"We cannot do it ourselves; there are too many of these complaints; we are delegating it to a man whom we trust and for whom everyone has the greatest regard, the Port Manager, Mr Hogger";
because however efficiently he may, and I have no doubt did, perform that office, he is not the person who is the tribunal named in the Scheme and to whose consideration the men are entitled. Accordingly they cannot be compelled under this Scheme to accept any decision other than that of the Local Board itself.
The only substantial argument to the contrary was based upon the evidence of Mr Hogger, who said that he had a number of reports, or man cases, which had to be dealt with each year amounting, as he said, to over 20,000 in the course of a year, though many of them would be included in one report. The practice as to them is for those reports to be considered by the Local Committees notwithstanding the provisions in sub-clause (4) of Clause 15 that the Local Board shall consider them. Mr Paull said it would be quite impossible for the Local Board itself to consider all these written reports, and that therefore it is a matter of necessary inference under Clause 15, sub-clause (4), that in that regard they should have power to delegate. I think that one answer to that is this, that there is nothing to prevent the Board from increasing its numbers; and there is nothing to prevent the Board from acting through quorums laid down itself under the powers conferred by sub-clause (9) of Clause 5 of the Scheme. It may be that the whole of the original reports even then could not at all events with convenience, be dealt with by the Board itself, but what certainly could be dealt with by the Board are the reports which result in disciplinary action; the ones which were dealt with in fact by Mr Hogger, and which he said in his evidence occupied some two days a week of his time. Those could be or, at all events, there was no evidence to show they could not be considered by the Board, and I see no reason why the Board should not do what it is bound to do, namely, consider those reports before action is taken, even if it involves an increase in the size of the Board.
With regard to the reports which do not result in disciplinary action, no harm would be done to the men by delegation (even though strictly irregular) and it is quite impossible to spell out of the fact, if it be a fact, that the Board cannot consider all the reports referred to in Clause 15 (4), the inference which Mr Paull asks us to draw, namely, that delegation was in contemplation by the draftsman of the Scheme, I quite agree with my brethren that there is no power in the Board be delegate its judicial functions, its disciplinary functions, either under Clause 15 or under Clause 16 to any outside person or persons.
On Mr Paull's preliminary point all I wish to say is this, that prima facie it is the right of everyone in this country who is involved in a legal dispute to have that dispute determined by Her Majesty's Courts. That right can be taken a way; it can be taken away by contract sometimes, and subject to certain safeguards, and it certainly may be taken away by Statute; but except to the extent to which it is taken away (and here we are only concerned with Parliamentary intervention) then that prima facie right remains.
It was a part of Mr Paull's argument under this heading that the Legislature in this Scheme had expressly referred to the Appeal Tribunal all disputes initiated by aggrieved persons, that is to say, persons who are aggrieved under the Scheme; and that the Tribunal accordingly has exclusive jurisdiction to determine all questions of law arising out of an appeal, including questions of law on which might depend the existence or non-existence of its own jurisdiction; and applying that general consideration to the particular circumstances of this case, he said that the Appeal Tribunal had jurisdiction to decide whether the delegation of the judicial function to Mr Hogger by the Local Board was valid, and if it gave an affirmative answer to that question, then it had jurisdiction to deal with any appeal from Mr Hogger, and that it did so, and that accordingly its decision was not open to review except by way of certiorari. On that I myself am by no means satisfied that such a power is conferred by this Scheme on the Tribunal, i.e. an exclusive power to decide what is essentially a question of law, namely, the question of construction on this delegation point and to decide it in such a way as to found a jurisdiction for itself so as to exclude any person affected by its decision from coming to these Courts for relief by way of declaration or injunction. It seems to me before one can conclude that such an exclusive power is conferred on a lay Tribunal of this sort one would have to have clearer language than is to be found in this Scheme. Further, it is quite plain that whether or not it had power to do so, it never did investigate that question; it never did arrive at a decision upon that question, because that question was never present to anyone's mind at all. It was a matter of assumption and not of decision that the delegation was valid, and therefore that Mr Hogger's decision was valid. Accordingly, it seems to me the principle on which Mr Paull relied on that point does not avail him in the present case.
As to the rest, it seems to mo, for the reasons my brethren have given, founded as they are upon the decisions to which they have referred, including the cases of Cooper v. Wilson and Others and Andrews v. Mitchell and the two General Medical Council cases, that there is good and sufficient ground for our holding that in the circumstances of this case it is open to this Court to make a declaration of the kind which my Lord has mentioned, and it is proper that we should make that declaration.
Order: Appeal allowed against judgment in favour of First Defendants; Appellants to have £250 towards costs in Court below and in Court of Appeal. Cross appeal dismissed.