FAWDRY & CO (A FIRM) v MURFITT [2002] EWCA Civ 643

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PORTSMOUTH DISTRICT REGISTRY
[2002] EWCA Civ 643Case No Case No: A2/2001/0347Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
FAWDRY & CO (A FIRM)AppellantMURFITTRespondent
Before
Lord Justice WardLord Justice SedleyLady Justice HaleNicholas Isaac (instructed by Fawdry & Co) for the AppellantThe Respondent was not present or representedPhilip Sales (instructed by Treasury Solicitor) for the Interested PartyDate 14 May 2002

Lady Justice Hale:

This

[1]is the claimant’s appeal against the dismissal of his claim by Her Honour Judge Linda Davies, sitting in Portsmouth, on 26 January 2001. The claim was brought in the Queen’s Bench Division of the High Court. Judge Davies is authorised to sit as a Judge of the Family Division of the High Court and in the Technology and Construction Court (TCC) but she is not authorised (colloquially ‘ticketed’) to sit as a Judge of the Queen’s Bench Division. The sole issue in this appeal is whether she had jurisdiction to hear this case. The successful defendant has played no part in the appeal, but with the Court’s permission, the Lord Chancellor’s Department has intervened and filed evidence of the circumstances in which Judge Davies came to hear it. Facts[2]The appellant is a firm owned by Mr Colin Slinn who acted in person until the matter reached this Court. The firm brought proceedings in the High Court to recover fees allegedly due for consultancy work done for the defendant. The total claimed was £19,340. Such a claim would normally be transferred to the county court but had apparently remained in the High Court because the claimant wished to be able to enforce the judgment in Jersey.[3]It was listed for trial on Friday 26 January 2001 in the Southampton District Registry before His Honour Judge Thompson QC. Judge Thompson does have authority to try Queen’s Bench Division cases (and the Presiding Judge of the Western Circuit, Mr Justice Toulson, had earlier decided that it be allocated to him). However, two urgent matters were also listed before him that Friday and therefore on Thursday 25 October, the day before the hearing, he informed Mrs O’Callaghan, the Winchester group diary manager, that he would not have sufficient time to hear this case.[4]Mrs O’Callaghan discovered that Judge Davies would be available to hear it in Portsmouth. She was aware that Judge Davies was not authorised to hear Queen’s Bench cases but was authorised to sit in the Technology and Construction Court. She faxed a memo to Mr Justice Toulson asking for his approval for the case to be ‘released’ to Judge Davies ‘who is ticketed to hear TCC matters’. He telephoned Mrs O’Callaghan about 4.00 pm and told her to do so. Mr Justice Toulson was also aware that Judge Davies did not have a Queen’s Bench ‘ticket’. He has since said that he considered that his instruction amounted to an order to transfer the case to the TCC list so that Judge Davies could try it. No order was ever drawn up to that effect. The order made by Judge Davies is stated to have been made in the High Court of Justice, Queen’s Bench Division, Portsmouth District Registry.[5]The parties were immediately informed of the transfer to Portsmouth but not of any transfer to the TCC. Mr Slinn says that he enquired on arrival at court next morning whether Judge Davies was authorised to hear the case. Soon after the hearing began, Judge Davies observed as follows:
“The matter is in the High Court, as I understand it, because that is the only basis upon which any judgment could be enforced in Jersey, and otherwise it would not be in the High Court. It comes before me, sitting as a High Court judge today, it being released – having been released to me for the purpose of this hearing.”
Ultimately, the Judge decided that although the claimant had undoubtedly done a considerable amount of work for the defendant, it had not been proved that this was done under an agreement that it be paid for rather than as a favour to a friend. She therefore dismissed the claim with costs summarily assessed at £1976.90. The following Monday, 29 January, Mr Slinn set about investigating her authority to hear the case and discovered that she did not have a general Queen’s Bench ‘ticket’. He also gained the impression in conversation with Mrs O’Callaghan that it was His Honour Judge Thompson who had released the case to her. Although that impression was corrected in her letter of 6 February, no mention was made of any transfer to the TCC. The first he heard of this was in a letter dated 25 July 2001 from an official in the Lord Chancellor’s Department in response to inquiries made by the Civil Appeals Office. In those circumstances it is scarcely surprising that Mr Slinn is puzzled as to what actually took place and questions its validity. Issues in this appeal[6]I have found the researches and arguments of counsel, Mr Sales for the Lord Chancellor’s Department and Mr Isaac for the appellant, both interesting and instructive. They have identified three issues:(1) What in fact happened on 25 January and was it effective to give Judge Davies authority to hear the case? This depends upon whether there was an effective transfer to the TCC and whether the undoubted breaches of the rules which took place were fatal to her jurisdiction.(2) If she did not have jurisdiction, was her sitting rescued by the common law doctrine of de facto authority?(3) If it was so rescued, is this sufficient to comply with the requirement that the court be ‘established by law’ for the purpose of Article 6 of the European Convention on Human Rights? Did the Judge have authority to hear the case?[7]In recent years, especially following the Woolf reforms and the Civil Procedure Rules, there has been increasing integration between the different courts in the civil justice system. Nevertheless, the High Court and the county courts are still separate courts, constituted under different statutes, with different judges appointed in different ways and under different terms of appointment. While High Court judges automatically have jurisdiction in the county courts (by virtue of section 5(3) of the County Courts Act 1984), the same is not true in reverse. There are two provisions in the Supreme Court Act 1981 under which circuit judges may be given power to exercise the jurisdiction of the High Court: section 9 is headed ‘Assistance for transaction of judicial business of Supreme Court’ and section 68 is headed ‘Exercise of High Court jurisdiction otherwise than by judges of that court’.[8]Section 9(1) provides as follows:
“A person within any entry in column 1 of the following Table may . . . at any time, at the request of the appropriate authority, act – (a) as a judge of a relevant court specified in the request; or (b) if the request relates to a particular division of a relevant court so specified, as a judge of that court in that division.”
Column 1 is headed ‘Judge or ex-judge’ and includes ‘A circuit judge’ at item 5. Column 2 is headed ‘Where competent to act on request’ and against item 5 says ‘The High Court and the Court of Appeal’. By section 9(2)(b) the ‘appropriate authority’ to make the request for a circuit judge to sit in the High Court is the Lord Chancellor. By section 9(3)(b) it is the duty of a circuit judge to comply with such a request. There is nothing to suggest that such a request cannot be made ad hoc or orally. In practice, however, the Lord Chancellor, after consultation with the senior judiciary, appoints individual circuit judges as ‘section 9 judges’ to sit in one or more divisions of the High Court. He has not delegated this function to the Presiding Judges. Hence there is no suggestion that Mr Justice Toulson could have requested Judge Davies to sit under section 9. What might have happened had Mrs O’Callaghan instead contacted the Judicial Appointments Branch of the Lord Chancellor’s Department one can only speculate, but it seems unlikely that they would have been able to respond favourably in such a short space of time. It follows that the only way in which Mr Justice Toulson could have given Judge Davies authority to hear this case was by transferring it to the TCC list.[9]The Technology and Construction Court is not a separate court constituted by statute. It is the modern name, adopted in 1998, for that part of the business of the High Court which was done by Official Referees. The Judicature Acts 1873-75 created ‘Official Referees of the Supreme Court of Justice’ to whom any question could be referred for trial if it involved prolonged investigation of documents or accounts or any scientific or local investigation. Initially they could not give judgment or make orders as to costs, but in the Judicature Act 1884 they were given power to give a judgment, make orders for costs and exercise all the powers of the High Court in a case referred to them. When the office of circuit judge was created in the Courts Act 1971 it was provided that in future Official Referees’ business would be dealt with by such circuit judges as the Lord Chancellor should determine.[10]The present legislative provision is contained in section 68(1) of the Supreme Court Act 1981:
“Provision may be made by rules of court as to the cases in which the jurisdiction of the High Court may be exercised by – (a) such Circuit judges, deputy Circuit judges or Recorders as the Lord Chancellor may from time to time nominate to deal with official referees’ business.”
That provision was formerly made under the Rules of the Supreme Court, Ord 36. Official Referees’ business included any cause or matter begun in the Chancery or Queen’s Bench Divisions which met the criteria laid down in the 1873 Act or for which trial by an Official Referee was ‘desirable in the interests of one or more of the parties on grounds of expedition, economy or convenience or otherwise’. Cases which were begun in the Chancery or Queen’s Bench Division in the usual way could be treated as Official Referees’ business from the outset or transferred to be so dealt with.[11]The relevant rules are now the Civil Procedure Rules (CPR). Part 49 deals with ‘Specialist Proceedings’. Rule 49(1) provides that the CPR shall apply to the listed proceedings subject to the provision of the relevant practice direction which applies to those proceedings. The list, in rule 49(2)(e), contains ‘Technology and Construction Court Business (as defined by the relevant practice direction)’. The relevant practice direction is PD 49C. Para 1.2 defines a ‘TCC claim’ as one ‘which involves issues or questions which are technically complex or for which a trial by a judge of the TCC is for any other reason desirable’. Such claims may now be begun and dealt with either in the High Court or in a county court but unless a judge of the TCC otherwise directs must be dealt with by a judge of the TCC. As before they may be allocated to the TCC at the outset or transferred there later. Para 2.2 provides as follows:
“The TCC is a specialist list for the purposes of the CPR Part 30 (Transfer) but no order for the transfer of proceedings from or to the TCC shall be made unless the parties have either: (1) had an opportunity of being heard on the issue, or (2) consented to the order.”
Part 30 deals with transfers between and within courts. Rule 30.5(2) provides that the court may order proceedings to be transferred to or from a specialist list (though any application for this has to be made to a judge dealing with claims in that list). Rule 30.4(1) provides that where the court orders proceedings to be transferred, the court from which they are transferred must give notice to all parties. The Practice Direction, PD 30, at para 4.1 also provides that the transferring court will immediately send notice of the transfer to the receiving court.[12]Mr Isaac, on behalf of the appellant, first argued that Mr Justice Toulson did not in fact transfer the case to the TCC list: that is not what he was asked to do, not therefore what he agreed to do, and not what Judge Davies thought he had done, nor was there any written order or other record made of such a transfer. Mr Isaac concedes, however, that Mr Justice Toulson had power to order the transfer and the evidence is that this is indeed what Mr Justice Toulson thought he was doing. This is scarcely surprising, given that he knew that this was the only way in which he could authorise Judge Davies to hear the case.[13]It is obvious, however, that in making that order, several provisions of the CPR and Practice Direction were not complied with, principally the requirement in PD 49C, para 2.2 that the parties consent or be given an opportunity to be heard upon such a transfer. The question, therefore, is whether such a failure is so fundamental as to vitiate the transfer or whether it is covered by CPR rule 3.10:
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make any order to remedy the error.”
[14]The argument is that there are some failures to comply with the rules, or even the practice directions, which are so fundamental that they cannot be described simply as an ‘error of procedure’ and rule 3.10 cannot apply to them. Some colour is given to that argument in this case by section 68(1) of the 1981 Act, because the jurisdiction of the High Court may only be exercised by the judges nominated to deal with Official Referees’ business in those cases for which provision is made by rules of court. To that extent the rules are conferring a jurisdiction upon a person which he or she would not otherwise have. One problem with that argument is that, as Mr Isaac concedes, there are some breaches of the rules relating to transfer to which rule 3.10 does apply. It is difficult therefore to conclude that it cannot cover PD 49C, para 2.2.[15]The question is more whether in this case it would be wrong for it to do so, so that this court should ‘order otherwise’. The failure to afford an opportunity to be heard will sometimes be such a denial of natural justice as to render the application of any such cure completely inappropriate, irrespective of whether the opportunity would have made any difference: refusing to listen to one of the parties during the trial of the action is an obvious example. The failure to afford an opportunity to be heard on a purely procedural matter is less likely to fall into that category but could do so, particularly if the matter cannot be cured by reconsidering the original decision.[16]More commonly, however, the court will have a discretion whether or not to disapply rule 3.10(a) in which a number of factors will have to be balanced. Prominent amongst these will be the prejudice to each party if that does, or does not, happen. There may of course be good reasons to object to a transfer to the TCC list, but in this case its purpose was purely to secure the trial of the action on the date which had already been fixed and for which parties were prepared. This in itself fulfilled the criteria for a transfer to that list. It would be different if such a transfer had been used as a device to enable a judge to try a case which he or she was not qualified to hear: an example might be a complex medical negligence case. But this was the sort of case which this judge was eminently well qualified to hear: it was a straightforward claim for services rendered of the sort that is usually dealt with in a county court. The judge has been nominated to deal with the much more complex cases, often involving difficult points of law as well as fact, which are tried in the TCC. There was no reason not to order a transfer in this case and there is no reason now to think that either party was prejudiced either by the transfer or by not being given an opportunity to be heard on the matter. For us to order otherwise under rule 3.10 now would substantially prejudice the successful party. He would be deprived of the benefit of the judgment and put to the trouble and expense of defending himself all over again. It is only if, for example, the alternative was to fix the claimant with the judgment of an unqualified or inappropriate tribunal that a contrary interest should come into the reckoning.[17]I therefore conclude that the transfer of this case to the TCC list to be heard by Judge Davies was a valid order of the court and effective to give her power to hear it. I do however have considerable sympathy for the appellant. There is little point in having two different courts and an elaborate system for deciding which judge is qualified and suited to hear which sort of case if it can be circumvented in this fashion. It was a fortunate chance that Judge Davies was a nominated TCC judge. It might be thought preferable for the Lord Chancellor to ensure that there are sufficient judges authorised under section 9 to cater for emergencies of this sort or alternatively to have an appropriate rapid response system. Acts of a de facto officer[18]That is sufficient to determine this appeal. Nevertheless, we have heard argument on whether, even if the case had not been validly transferred to the TCC, the judge’s order is valid as the act of a de facto officer. This longstanding doctrine of the common law is summarised thus in Wade and Forsyth, Administrative Law , 8 th edition, at pp 291-292:
“The acts of an officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so.”
[19]It was held by Sir Jocelyn Simon P in Adams v Adams [1971] P 188 that despite the lack of modern English authority applying the doctrine, it was still part of the English common law (and had been overlooked in R v Cronin [1940] 1 All ER 618). He referred to ‘two masterly judgments of great learning’, State v Carroll (1871) 38 Conn 448, in the Supreme Court of Connecticut, and In re Aldridge (1897) 15 NZLR 361, in the Court of Appeal of New Zealand, and also to an even more learned article by Sir Owen Dixon, later Chief Justice of Australia, ‘De Facto Officers’ (first published in Res Judicatae , Melbourne, 1938, reproduced in S Woinarski, ed., Jesting Pilate , 1965).[20]Sir Owen explains that the doctrine has its origin in the medieval conception of an office as property, an incorporeal thing, to which the usual principles of the law of property applied. Thus a person who dispossessed another of his office, a disseisor, was nevertheless entitled to exercise the authority of that office, unless and until the disseisee exercised his right of re-entry. Nowadays, the rule is based not on that technicality but on public policy. Sir Owen quotes from Curtis v Barton (1893) 139 NY 505, at p 511:
“When a court of competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of the judge who presides in the court to his office.”
[21]Despite its technical rationale in the notion of disseisin, the authorities show that the de facto officer must have some basis for his assumption of office, variously expressed as ‘colourable title’ or ‘colourable authority’. Quite what suffices for that purpose has been debated, a particularly broad view being taken in State v Carroll (1871) 38 Conn 448. In that case, the elected judge of the city court not being available, the clerk of the court invited a justice of the peace to act in his place. The report does not reveal whether or not that justice knew that he had no lawful authority to sit. After an extensive review of the authorities, Butler CJ summarised the circumstances in which the doctrine would apply thus, at p 427:
“An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised: First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. Third, under color of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, [under an unconstitutional statute, not relevant here]. . .”
The first was sufficient to validate the justice’s acts.[22]But the judge must not be a mere usurper who is known to have no such colourable authority. The doctrine depends upon his having been generally thought to be competent to act and treated as such by those coming before him. The contrast is well illustrated by Re Aldridge (above) and Adams v Adams (above). Mr Sales also suggests that the doctrine does not apply where the person concerned knows himself to be a usurper even if the litigants appearing before him do not. That is consistent with the approach and dicta in those two cases. It is harder to reconcile with all the authorities, including the robust approach of Lord Denning MR in his dissenting judgment in In re James (An Insolvent) [1977] 1 Ch D 41, quoted by Ward LJ at para 58 later: he would also have applied the doctrine to the facts of Adams .[23]In In re Aldridge (1897) 15 NZLR 361, the New Zealand Court of Appeal applied the doctrine to the acts of Mr Edwards, a barrister who had been appointed as a Supreme Court judge in the proper fashion by the Governor but whose appointment had later been declared invalid by the Privy Council (see Buckley v Edwards [1892] AC 387 ) because Parliament had only provided for four such judges and he was the fifth. It was argued that the doctrine could not apply where the office to which he had purportedly been appointed did not exist, but the Court of Appeal held otherwise. Prendergast CJ put it this way, at p 366:
“It may be assumed that on the occasion there was a duly-appointed session of the court; that there was no de jure Judge there; that the officers of the Court and others then present received and treated Mr Edwards as a Judge of the Supreme Court; that he had prior to the occasion of the then sitting performed judicial acts under the bona fide pretence or colour of being a Judge of the Court; and, in short, that in repute he was on the occasion of the sitting a Judge of the Court.”
[24]The authorities are extensively reviewed in the judgment of Richmond J, who also quotes from State v Carroll . Richmond J observed at p 372, that ‘It may well be that the principle which validates the acts of a Judge de facto cannot be invoked for their own protection by any who wilfully abuse the office, still less by mere usurpers.’ Similarly, Denniston J at p 379:
“He cannot be termed a usurper of his office, and the result of all the authorities seems to me to be that it is only in the case of a usurper – that is, a person without a colourable title – that judicial acts done in due form by a competent court are other than valid and unimpeachable.”
Connolly J, at p 380, also referred to the fact that Mr Edwards was not a usurper and continued:
“The error in appointing Mr Edwards as a Judge when there was no judgeship vacant was that of the Governor and his Advisers, and cannot, in my opinion, prejudice the position de facto of his appointee; . . .”
[25]In Adams v Adams [1971] P 188, however, the President declined to recognise a divorce decree granted in Rhodesia by a Judge who had been appointed under the Constitution adopted in 1965 after the Unilateral Declaration of Independence. The case did not fall within the de facto doctrine ‘even so widely stated’ as in State v Carroll because the circumstances of his appointment which made it invalid in the eyes of English law were very well known, indeed notorious. The President commented, at p 214:
“ . . I can find no trace of its ever being applied during a rebellion to accord recognition to the judicial or official acts or under a usurping power: . . .”
[26]It is not unknown for statute to provide for this sort of problem expressly. Section 9(1) of the Courts and Legal Services Act 1990 gives power to the Lord Chancellor to direct that certain kinds of family proceedings in the county courts shall be allocated to specified judges or specified descriptions of judges: this is the basis for the system of ‘ticketing’ judges to hear cases concerning children. Section 9(2) provides that “Where any directions have been given under this section allocating any proceedings to specified judges, the validity of anything done by a judge in, or in relation to the proceedings, shall not be called into question by reason only of the fact that he was not a specified judge.”[27]This calls to mind the first statute passed after the accession of Edward IV, about which the President in Adams and Richmond J in In re Aldridge disagreed. According to Richmond J, at p 369:
“On the accession of Edward IV, the three preceding kings of the Lancastrian line were declared to have been usurpers; which might have occasioned uncertainty as to the validity of judicial acts done by those kings, and by Judges of their appointment. To avoid doubts on this and other cognate subjects, an Act was passed (1 Edward IV, c 1) which declares valid judicial acts, recoveries, and processes in any Court held in the times of Henry IV, Henry V and Henry VI (described as ‘lately kings de facto sed non de iure ’), and confirms the commissions of the Judges appointed by those kings, and all processes, determinations, executions, &c, thereto appendant. This Act is declaratory, and is expressed to be, to eschew ( eschuer ) – ie avoid – doubts which might arise; and accordingly in Bagot’s case 9 E IV 1 & 9 it was treated by both parties and by the Court as merely affirming the common law.”
[28]The President, in Adams v Adams , at p 213, did not agree that this statute was merely declaratory; nor was the Act for the Confirmation of Judicial Proceedings, 12 Car 2, c 12, passed in 1660. But he did not read these as calling in question the general de facto doctrine. He merely regarded them as no exception to the principle which he enunciated, that the doctrine had not been applied to the prejudice of any right of a sovereign. For what it is worth, therefore, I would not regard a provision such as section 9(2) of the 1990 Act as calling in question the continued applicability of the common law doctrine.[29]The circumstances of this case clearly do fall within the doctrine. Judge Davies is indeed a judge, validly appointed as such. All those involved in arranging for her to hear this case believed that the case had been properly assigned to her. She herself believed the same. She sat as such and was treated as such by everyone involved. The query raised by Mr Slinn at the outset, to which he received the answer given by the judge, was not such as to deprive her of the de facto authority which flowed from all those circumstances. It could not be said that her want of authority was notorious.[30]It is not necessary to express a view upon whether the doctrine would apply had the circumstances been different. What, for example, would be the case if Mrs O’Callaghan, knowing perfectly well that Judge Davies did not have the requisite ticket, had persuaded her to sit? Would that be covered provided that Judge Davies thought that Mrs O’Callaghan had secured the necessary request from the Lord Chancellor’s Department? Would it make any difference if Judge Davies had allowed herself to be persuaded to sit knowing that she should not? From the point of view of the litigants who went through the whole case thinking that she was authorised to hear it, none of this should make any difference at all. However desirable it might be to state the doctrine in such a way as to discourage officials and judges from behaving like this, the public policy considerations which lie behind it point in the other direction. But what if the court usher had been persuaded to sit and everyone in court had behaved as if he were entitled to do so? There must come a point at which, whatever the public perception, there is no basis for applying the de facto doctrine. The dividing line between what is and is not sufficient ‘colour’ in borderline cases may not be as clear as one would like, but fortunately the point does not arise for decision here. Article 6[31]Under Article 6(1), everyone is entitled, in the determination of his civil rights and obligations, to a fair hearing before ‘an independent and impartial tribunal established by law’. If Judge Davies had not been properly authorised to hear this case, could the court be ‘established by law’ for this purpose? Mr Sales argues that the de facto doctrine, being itself part of the common law, is sufficient to fulfil this requirement. It is for the national law to determine what is and is not a lawful tribunal. The European Convention does not impose any particular requirements, other than that it be independent and impartial. Judge Davies was both independent and impartial in this case.[32]Mr Isaac argues that the doctrine is designed to validate the acts of someone who by definition was not legally entitled to perform them rather than to validate the appointment itself. The court cannot therefore be regarded as ‘established by law’ even if its acts are not susceptible to challenge.[33]Mr Isaac relies upon the decision of the European Court of Justice in Pfeifer and Plankl v Austria (1992) 14 EHRR 692 . Two of the judges who had acted as investigating judges in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. Obviously they knew about this. The Commission dealt with whether the court was ‘established by law’ separately from whether it was ‘impartial’ and held that it was not. The Court held that the two complaints coincided: the court was not established by law because of the disqualification which national law had imposed so as to remove all reasonable doubt as to the impartiality of trial courts. Hence there was a breach of Article 6(1) (and there had not been an effective waiver of the applicant’s rights). Not surprisingly, although the object of the ticketing system has nothing to do with avoiding bias, Mr Isaac argues that the lack of proper qualification and authority to try this case should be equated with the disqualification in Pfeifer .[34]Mr Sales points out that there was no Austrian equivalent to the de facto doctrine. This, he argues, does something more than merely validate the acts of an invalid tribunal. It is properly understood as a rule of law which establishes the lawful composition of the court. It determines which tribunals will be recognised as acting legitimately as a court for the purpose of our legal system. This is consistent with the object of the legality requirement in Article 6(1) as stated by the European Commission of Human Rights in Zand v Austria (1978) 15 DR 70 :
‘. . . that the judicial organisation in a democratic society must not depend upon the discretion of the Executive, but that it should be regulated by law emanating from Parliament.’
But this did not mean that Parliament had to regulate every detail: some things could be left to delegated powers of the Minister. Holding valid Judge Davies’ acts does not improperly expand the power of the executive. It is a judge-made rule designed to protect the interests of the litigants and public generally, and to promote certainty and finality in litigation, which are in themselves legitimate objectives: see Stubbings v Webb (1996) 23 EHRR 213 . In EE v Federal Republic of Germany , Application No 18889/91, 14 October 1992, the Commission had said that it was for the national courts to examine the question of their jurisdiction under national law: they were entitled to conclude that an adult criminal court had not acted arbitrarily (in assuming jurisdiction over someone who had only later claimed to be a juvenile). There is nothing arbitrary about the operation of the rule in this case.[35]Mr Sales accepts, of course, that the rule must also comply with the usual requirements of accessibility and foreseeability (for which a better word might be predictability). A long standing rule of the common law is sufficiently accessible even if it is often forgotten (there was no reference to it, for example, in the recent case of Tameside Metropolitan Borough Council v Grant [2002] 2 WLR 376, where one of the three justices sitting in a family proceedings court was not a member of the family panel). All rules require interpretation to elucidate doubtful points and adapt to changing circumstances. This is acceptable as long as the result is consistent with principle and can reasonably be foreseen: see SW v United Kingdom; CR v United Kingdom (1995) 21 EHRR 363.[36]I have no difficulty in concluding that the doctrine is sufficiently accessible and foreseeable. Despite the discussion earlier about the precise scope of the concept of ‘colourable title’ or ‘colourable authority’, its determination is no more unpredictable than many other questions in the common law. With rather more hesitation, but assisted by the concept that there must be some basis for the authority assumed by the judge, I also conclude that the rule can be regarded as validating the establishment of the tribunal as well as the acts it performs. It is not there, in modern times, to protect usurpers. Rather it protects the individual citizen, who had good reason to think that he was appearing before a properly constituted court, acted accordingly and should not without more be deprived of the rights he has established as a result. Conclusion[37]As Mr Sales has been at pains to remind us throughout, the other party to this case has an interest in not being deprived of the benefit of his order and not being made to go through the whole process again unless there was something materially wrong with it. There was nothing materially wrong with this trial and it would be wrong to set it aside.[38]I would dismiss this appeal.

Lord Justice Sedley:

[39]I agree with Hale LJ that Her Honour Judge Davies had authority de jure to hear the case as a judge of the Technology and Construction Court despite the want of notice of transfer. I agree too, however, that the alternative argument that the judge in any case possessed de facto authority deserves at least provisional attention, and I adopt with gratitude Hale LJ’s scholarly account of the law.[40]If the outcome depended on it I would be troubled nevertheless by Hale LJ’s proposition (para.29) that the judge’s response to Mr Slinn’s query about her status – “The matter ... comes before me, sitting as a High Court judge today...” – was not such as to deprive Judge Davies of the de facto authority flowing from the surrounding circumstances. I entirely agree that the judge’s want of authority in that capacity was not notorious; but might it be said that it was or should have been known to her?[41]None of the reported cases deals in terms with the situation of the judge who is believed by the public and the litigants to have due authority but who himself knows, or ought to know, that he does not. Mr Sales readily accepted in argument that de facto authority should not extend to such a case. In a subsequent written submission he has pointed to passages in Re Aldridge (1875) NZLR 361 which at least leans towards this proposition. Thus Richmond J at 372 said:
“It may well be that the principle which validates the acts of a Judge de facto cannot be invoked for their own protection by any who wilfully abuse the office, still less by mere usurpers”
. Denniston J at 379 said:
“...the result of all the authorities seems to be that it is only in the case of a usurper – that is, a person without a colourable title – that judicial acts done in due form in a competent Court are other than valid and unimpeachable.”
All the judges held that Mr Edwards was not a mere usurper. But it is apparent from the report that the claim was based on the non-existence in law of the office to which he had been purportedly appointed. The New Zealand Court of Appeal was not, it seems, invited to consider whether Mr Edwards must have known that he was being appointed to a non-existent office and, if so, whether that made him a usurper.[42]Mr Sales’ further submission that Lord Ellenborough had the same point in mind when he spoke in R v Bedford Level Corporation (1805) 6 East 356, 368-9 of a de facto officer as “one who has the reputation of being the officer he assumes to be” is very doubtful. The primary meaning of “assume” until relatively recent times was “claim”.[43]In the present state of authority the position of the usurper, in the sense of someone who discharges an office in the actual or constructive knowledge that he has no title to it, is in my view uncertain. If the purpose of the de facto doctrine is the maintenance of stability and confidence in the legal system and the prevention of technical disputes about the formalities of appointment, it might well be said that a sufficiently clearly reputed tenure of office should not be open to challenge even on the ground of the purported officer’s knowledge of his own incapacity. Yet, as Mr Sales’ response on behalf of the Lord Chancellor confirms, it goes entirely against the grain to validate the acts of someone who knows, even if the world does not, that he is not qualified to hold the office he is exercising.[44]The expression “colourable authority”, upon which some of the decided cases turn, I find opaque. The adjective itself, which (so far as it is used at all) ordinarily connotes something specious and therefore false (see the Concise OED entry), has acquired a legal meaning which is almost the opposite: “capable of being presented as true or right; having at least a prima facie aspect of justice or validity” (OED #2b). This too tends to collapse reality into appearance.[45]In Millar v Dickson [2000] JC 648 the High Court of Justiciary had to consider the consequences for subsequent convictions and sentences passed by temporary sheriffs of its earlier decision in Starrs v Ruxton [2000] JC 208 that a temporary sheriff was not an independent and impartial tribunal. Its decision that the objection had been impliedly waived was overset by the Privy Council in its judgment of 24 July 2001. But the Scottish court had also dealt with a second argument, namely that the temporary sheriffs were in any event de facto judges and their acts consequently beyond challenge. This argument the High Court of Justiciary rejected, and it was not revived on the appeal to the Privy Council.[46]The leading opinion, that of Lord Prosser, contains a valuable consideration of the nature and effect of the de facto doctrine in a situation where the most it could achieve was to make unlawful acts unchallengeable by equiparating them with the de jure acts. His conclusion, in which the other judges concurred, was that this could have no bearing where the challenge was not directly to the tribunal but to the Lord Advocate’s decision to pursue prosecutions before it. In particular, however, Lord Prosser said (para 38):
“The fact that the illegality of the prosecution flows from the tribunal not being independent and impartial does not mean that the tribunal itself is tainted with any illegality. The situation is quite different from that which obtains when there is a fundamental nullity, and a want of power which cannot be cured by waiver.”
[47]That Lord Prosser’s second category exists seems clearly right in principle, but – and especially if the first proposition is also right – one wants to know what factual situations it embraces. In such a highly problematical area, different objectives of legal and public policy can pull in different directions and legal doctrine begins to verge on the metaphysical. But a point must come at which the undesirability of undoing ostensibly valid judgments has to yield to the greater undesirability of letting unqualified people adjudicate on people’s legal rights and obligations.[48]It is clear that the last word has not been said about this; but the present case fortunately does not depend on the prickly issues which I have been inspecting from the safety of the unassailable proposition that Judge Davies had legal authority to adjudicate. Lord Justice Ward:[49]I am extremely grateful to Mr Philip Jones for his very informative skeleton argument submitted on behalf of the Lord Chancellor’s Department dealing with the history of Official Referees’ Business and its development to the present-day position of the Technology and Construction Court (the TCC). Mr Sales, who appeared on the department’s behalf, added to the learning through his researches on the de facto doctrine. It led to a fascinating argument in which Mr Nicholas Isaac as counsel for the appellant played a full part. In the result, I entirely agree with Hale L.J. that the appeal must be dismissed for the reasons she gives.[50]Mr Slinn is understandably bewildered by what happened and by the explanations he has been given for what happened. This court owes him an explanation. The confusion arises because Her Hon. Judge Davies said at the outset of the case coming before her:- “The matter is in the High Court, as I understand it, because that is the only basis upon which any judgment could be enforced in Jersey, and otherwise it would not be in the High Court. It comes before me, sitting as a High Court Judge today, it being released - having been released to me for the purpose of this hearing.”[51]Having discovered after the trial that Her Honour was only authorised to sit in the Family Division of the High Court and not in the Queen’s Bench Division, Mr Slinn wrote to Mrs O’Callaghan, the Diary Manager for that part of the Western Circuit, and complained that the judge had acted without proper authority, that the mere fact that the case was “released to her” did not in his view give her authority to act in a division of the High Court where she was not authorised. He contended accordingly that the trial was null and void. She replied:- “The presiding judge of the Western Circuit the Hon. Mr Justice Toulson released the case to Her Hon. Judge Davies in her capacity as a High Court judge. He has authority to nominate a judge for certain cases.” In her witness statement filed for the purpose of this appeal she acknowledges that:- “With hindsight I probably ought to have provided a fuller explanation of what had happened but at the time I did not see that Mr Slinn had any real grounds of complaint.”[52]She has given us that fuller explanation and I have no reason whatever to disbelieve it. Indeed Mr Isaac quite properly did not challenge any of the evidence submitted to us by the Lord Chancellor’s Department. Thus the undisputed position is that she knew that Her Hon. Judge Davies was not “ticketed” for Queen’s Bench matters but was ticketed to hear TCC matters. She therefore sought Toulson J.’s approval for the case to be released to her. The mechanics of the release were by way of the transfer of the matter from the general business of the Queen’s Bench Division to the specialist list for proceedings in the TCC (which, as it happens, is still a part of that Division). That is what Toulson J. did. He was entitled to do so by virtue of Part 30.5(2) of the Civil Procedure Rules 1998. He ought to have given Mr Slinn the opportunity of being heard as required by para. 2.2 of the TCC Practice Direction but that breach did not invalidate the transfer because of the operation of CPR3.10(a). For the reasons given by Hale L.J., I, too, would not now order that the error has invalidated the transfer. In the result I am satisfied that Her Hon. Judge Davies was properly authorised to try the action as an appointed judge of the TCC to which the matter had been validly transferred.[53]I appreciate that such a technical explanation may not satisfy Mr Slinn’s legitimate query about the judge’s apparent perception, which on the analysis I have just conducted was a wrong perception, that she was “sitting as a High Court judge”, the case having been “released to me for the purposes of this hearing”. The case may have been “released” to her, but she was not sitting as a High Court judge, only as a TCC judge. When she was asked to explain that remark, she told a member of the Department that what she had said was in accordance with her understanding of her authority to hear the case. I have no reason whatever to doubt her explanation. I am totally satisfied that she sat genuinely believing she was authorised to do so.[54]It is easy to see how she could have come to think that. Mrs O’Callaghan did not speak to Judge Davies personally but left a message for her with the listing officer at the Portsmouth Combined Court. It is apparent that at least part of the message was that the case had been released to Judge Davies because approval of that release was what she had sought from and been granted by Toulson J.. If told, as she must have been, that the case had been released to her, I can readily understand that she, like most judges, would simply accept what she had been told and would get on with the job she was paid to perform, trying the cases put in front of her. For most judges the “ticketing” process is an arcane mystery known only to the Lord Chancellor and Presiding and Liaison Judges. It is not within the ken of ordinary mortals. Judges may know they do not have a full Section 9 ticket but may assume that ad hoc authority can be and has been conferred to cover the trial of a particular case if the Presider says that case has been released to that judge. That seems to me to have been Judge Davies’ perception.[55]It is not clear from Mrs O’Callaghan’s evidence whether the listing officer in Portsmouth was told that the mechanism of the release was by way of transfer of the case to the TCC. Even if it was explained, I am not at all surprised that the listing officer would not have grasped the technicalities or conveyed them to Judge Davies. I am quite sure that if the judge had been told or had appreciated what had actually happened she would have said so. There was no reason not to do so. She would have explained that the transfer solved both problems. It was an expedient device which not only kept the case in the Q.B.D. for enforcement purposes but also made available a judge qualified to try the matter and so saved the fixture.[56]In my judgment none of this speculation really matters. The two points upon which I am utterly clear are:- i) This was not an invalid transfer to the TCC in which the judge was authorised to sit and for that reason the judgment is not a nullity; ii) The judge genuinely believed that, one way or another, she was authorised to hear this case.[57]The former conclusion is the end of the appeal, but I am prepared to deal with Mr Slinn’s anxiety that if she was sitting as a judge of the Queen’s Bench Division and was not authorised to exercise that jurisdiction, then the invalidity in her appointment should nullify her judgment. There is some authority for that proposition that I have been able to trace. In R v Cronin [1940] 117 Cr. App. R. 179 the appellant had been convicted at a Borough Quarter Session presided over by a person appointed to act as a deputy recorder. This deputy was not, and never had been, a barrister as was required: he was a solicitor. The Court of Criminal Appeal held that the proceedings were void ab initio . I regard that decision to be of doubtful authority as no argument was addressed to the court on the application of the de facto doctrine. The deputy recorder, like Her Hon. Judge Davies in the circumstances postulated by Mr Slinn and assumed for the purpose of this argument was, in the words of Lord Ellenborough C.J. in R v Bedford Level Corporation (1805) 56 East 356, 358:- “An officer […] who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.”[58]There is an interesting discussion on the application of the doctrine by Lord Denning in In Re James (An Insolvent) [1977] 1 Ch.D 41, 65/6. Even if Geoffrey Lane L.J. did not totally agree, Scarman L.J. found it unnecessary to comment on Adams v Adams [1971] P. 188 which met with Lord Denning’s criticism. Lord Denning said:- “I cannot think it right that the validity of a divorce should depend on which particular judge hears the case. The decision [in Adams v Adams ], if correct, applies to any case coming before the High Court of Rhodesia during the interregnum. It makes the validity depend on which particular judge makes any particular order. That seems to me absurd. Not only absurd, but quite unjust. When a person applies after U.D.I. to the court in Rhodesia seeking justice, he cannot choose his judge. He cannot say whether his case will come in front of a judge of that court who was appointed before U.D.I. or a judge who was appointed afterwards. He may not even be able to find out. At any rate, he cannot say “I will not have Beck J. – I want Goldin J.” Simple justice demands that it should make no difference. No matter by whom the man was appointed a judge, no matter at what date he was appointed, he is sitting as a judge of the court and the order made by him is an order of the High Court of Rhodesia. He sits in the seat of the judge. He wears the robes of a judge. He holds the office of a judge. Maybe he was not validly appointed.” [I add the emphasis for Mr Slinn’s benefit.] “But, still, he holds the office. It is the office that matters, not the incumbent. I remember when I was first appointed a judge, a senior but disappointed member of the Bar raised his hat to me, saying:
“I raise my hat, if not to you, at any rate to the office”
. So long as the man holds the office, and exercises it duly and in accordance with law, his orders are not a nullity. If they are erroneous, they may be upset on appeal. But if not erroneous they should be upheld. Such is the theme which runs through the important case in the Supreme Court of Connecticut – The State v Carroll (1871) 38 Con. 449; and the Court of Appeal in New Zealand in In Re Aldridge (1893) 15 N.Z.L.R. 361. The point is well put in the United States Supreme Court in Norton v Shelby County (1886) 118 U.S. 425, 444-445:
“Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions … The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact”
. In the light of those cases, I think the decision of the Court of Criminal Appeal in Rex v Cronin (1940) 56 T.L.R. 457 was wrong. So was Adams v Adams [1971] P.188.”[59]I am quite satisfied that even if there were some defect in the appointment of Judge Davies, the de facto doctrine operates so as to protect her judgment from the charge that it was invalid.[60]It is, therefore, quite unnecessary to speculate about the position of the impostor or the judge who acts in bad faith but very interesting questions would arise in either of the fanciful scenarios where:- i) The usher with delusions of grandeur locks the new recorder in his room and takes his place on the Bench; or ii) The new recorder, on his first outing and being ever anxious to please the County Court where he is to sit for the first time, is prevailed upon to do everybody a favour and hear the Queen’s Bench action next door knowing full well it is beyond his jurisdiction. We all have experience (in courts other than our own, of course!) of fire-breathing listing officers who must be obeyed and we know how hard it is to refuse them.[61]We have not had full argument on these questions which do not arise in this appeal and what follows is my tentative first impression. In the former case the “judge” is not a judge at all, has no colour of office and cannot assume it. For what it is worth, I would treat the judgment as a nullity. In the latter case a “proper” judge knew he was exceeding his jurisdiction. There would be a clash of two principles of public policy – the need for certainty which underpins the de facto doctrine, and the need for justice to be administered by judges who are honest and impartial. The judgment of a judge infected with actual bias would probably be a nullity. I noted in Millar v Procurator Fiscal, Elgin [201] UKPC D4, to which Sedley L.J. has referred, an observation of Lord Prosser in Starrs v Ruxton, Ruxton & Starrs 2000 JC 208 , 231 that:- “I would regard the concept of a partial judge as a contradiction in terms.” So too a judge who knows he is not a judge authorised to exercise the judicial function in the trial or matter before him. His judgment would be “a decision that never was” of the kind contemplated by Lord Donaldson of Lymington M.R. in Daisy Star Ltd v Town and Country Building Society [1992] 1 W.L.R. 390, 394.[62]Having warned myself that it is idle to speculate, I should heed my own warning and say no more than that I agree that the appeal should be dismissed.

Order

Appeal dismissed; no order as to costs. (Order does not form part of the approved judgment)

Cited in 2 later judgments