Coppard v Customs and Excise

This is a judgment of the court.

This appeal raises an issue of some constitutional importance. It can be framed without levity in the question: when is a judge not a judge?

The facts giving rise to it can be shortly stated. Mr Coppard sued the Commissioners of Customs and Excise in the Queen’s Bench Division of the High Court for damages for breach of a contract which they had entered into with him for deferred payments of VAT. The breach had resulted in the Commissioners making him bankrupt, and they admitted liability for any damage it had caused. The case therefore went to trial on damages alone. It was listed for hearing before His Honour Judge Richard Seymour QC, who after a two-day hearing delivered a reserved judgment on 23 January 2001, finding against Mr Coppard on all substantive questions and awarding him nominal damages of £2 for the admitted breach. He refused permission to appeal, and were it not for subsequent developments the case would not have reached this court.

What Mr Coppard subsequently discovered, however, was that Judge Seymour was not authorised to sit as a judge of the High Court. The office he held was that of circuit judge. In that capacity he was authorised by the Lord Chancellor, pursuant to section 68 of the Supreme Court Act 1981, to deal with what was known as Official Referees’ business and is now the business of the Technology and Construction Court, a limb of the High Court; but that was all.

The Lord Chancellor has power under s.9(1) of the Supreme Court Act 1981 to authorise circuit judges to sit as justices of the High Court. This power is routinely exercised on the appointment of a circuit judge to the Technology and Construction Court, but by a most regrettable oversight it had not been exercised in respect of Judge Seymour or (as has now been ascertained) Judge Toulmin QC. Accordingly it is accepted both by the respondent Commissioners and by counsel for the Lord Chancellor that the judge sat and adjudicated in Mr Coppard’s case without legal authority.

Before considering the consequences of this, it is right to say that the judgment Judge Seymour delivered was of high quality and legally impeccable. The sole reason why this court (Judge and Mummery LJJ) gave conditional permission to appeal after refusal on the papers by Latham LJ was that his position raised a question of general importance which was not resolved by authority.

It is first necessary to deal with the condition upon which permission was granted: that this court must be satisfied by affidavit evidence that it is right to enlarge the time for appealing.

Mr Coppard can be exonerated of any delay until the last week of August 2001, when he finally learnt from the Lord Chancellor’s Department what Judge Seymour’s legal status had been at the time of trial and judgment. From then until 12 June 2002, when the appellant’s notice was finally lodged, he deposes that he was occupied in seeking funds, first – unsuccessfully, despite a favourable opinion of counsel – from the Legal Services Commission, then privately. He finally remortgaged his house on 29 May 2002 and within a fortnight had issued his appellant’s notice.

It is in the interests of public justice, at least as much as in Mr Coppard’s interests, that the present issue should be resolved. It is only if to do so at this distance of time would unjustifiably damage or jeopardise the position of others that we would be disposed to refuse to enlarge time, and we do not see such a situation here. Neither the respondent Commissioners nor the intervener takes any point on time. In all these circumstances we enlarge the time for appealing to the date of the appellant’s notice.

In his amended grounds Mr Duncan Macpherson puts his case with simplicity and clarity. His premise is that Judge Seymour knew or ought to have known that he was not authorised to sit as a judge of the High Court. It follows, he contends, that when he tried this High Court case Judge Seymour was a judge neither in law nor in fact. He submits, both consequently and independently, that Judge Seymour did not constitute a tribunal established by law within Article 6 of the European Convention on Human Rights, and that his judgment should be set aside and the damages claim reheard by a properly constituted tribunal.

Some important elements of this process of reasoning are uncontentious. It is common ground, for the reasons I have given, that Judge Seymour was in law not a judge of the High Court. If in addition he was not a High Court judge de facto, it will follow that his judgment, not being a judgment of the High Court at all, is a nullity and has to be set aside as of right. In this event Article 6 will add nothing. But if Judge Seymour was, in the eye of English law, a High Court judge in fact, with the result that his judgment is valid at common law, the question will arise whether the obligation of the state under s.6 of the Human Rights Act to act compatibly with the Convention rights would be violated by the common law’s recognition of a judgment not given by “a tribunal established by law”.

The contention of Mr Philip Sales for the Lord Chancellor is that in answering the first question we will be answering the second – in other words, that ‘law’ in Article 6 includes common law; but if he is wrong, as Mr Macpherson says he is on authority and principle, then on this further and alternative ground the appeal must succeed. If Mr Sales is held to be right, however, Mr Macpherson seeks to fall back on a further argument: that in that case the common law, by treating an invalid assumption of jurisdiction as valid, itself offends against Article 6. But we do not think that this argument is on analysis a true fallback. It is the same answer as Mr Macpherson gives to Mr Sales’ proposition that a judge-in-fact is a judge-in-law, namely that Article 6 will not accommodate such a proposition even if the common law does.

The one answer to the appeal which in our judgment is unacceptable in principle is that advanced, perhaps more out of hope than out of conviction, by counsel for the Commissioners, Mr Michael Patchett-Joyce, that the want of authority was a simple error of procedure which by virtue of CPR 3.10 does not of itself invalidate any step taken on the basis of it. It would do little for the rule of law and for constitutional propriety to relegate an issue as important as qualification for judicial office to the realm of procedure.

So the two key questions are:

Did Judge Seymour sit and give judgment as a judge-in-fact of the High Court?

Did he in that event constitute a tribunal established by law?

The concept of a judge in fact (de facto) is an ancient one. It is not confined to judges but has been extended to offices, including the monarchy itself, which have been exercised by persons later held not to have lawfully occupied them. The central requirement for the operation of the doctrine is that the person exercising the office must have been reputed to hold it. Given this, Wade and Forsyth, Administrative Law (8^th edition, 2000, 291-2) describe the doctrine in this way:

Recently this court in Fawdry and Co v Murfitt[2003] QB 104 considered some of the implications of the doctrine so stated. The caseconcerned a different situation from the present because the judge who had sat was held to have been a judge in law, albeit for reasons which had been unknown to her. But had this not been the case, it would have been necessary to consider whether she had been a judge in fact, and the court looked at this question contingently. All three members of the court were troubled by the possibility that the principle might be so broad as to validate the acts of someone who knew perfectly well, although the litigants did not, that he or she had no authority to adjudicate. Neither Mr Philip Sales (who appeared in that case, as in this, for the Lord Chancellor as intervener) nor the court was content with the idea that the doctrine could go so far; and more than one authority suggested that it did not. Thus in In re Aldridge (1875) 15 NZLR 361, 372, Richmond J said:

This question, although not determinative, was considered by this court in Fawdry and Co v Murfitt. Hale LJ, giving the leading judgment, said (para. 30):

For reasons which will become apparent when we turn to Article 6 of the Convention, it is necessary in this case, in contrast to Fawdry, not simply to form a view but to reach a conclusion on this question. We would hold that the de facto doctrine cannot validate the acts, nor therefore ratify the authority, of a person who, though believed by the world to be a judge of the court in which he sits, knows that he is not. We accept, on well-known principles, that a person who knows he lacks authority includes a person who has shut his eyes to that fact when it is obvious, but not a person who has simply neglected to find it out. We will call such a person a usurper.

Is it arguable that Judge Seymour was such a person? There is now before the court a witness statement of Emma Millicent Robinson, a barrister in the Government Legal Service, who recounts that she spoke to Judge Seymour on 26 February 2003 about this case. She says:

Mr Macpherson accepts this statement as an admissible and factual account of the state of the judge’s knowledge. Mr Sales submits that the judge himself is not open to questioning about it: see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 477. Mr Macpherson has not sought to debate this, but he submits that as evidence it is simply not good enough: Judge Seymour knew that no s.9 authority had been issued to him and should have known that being assigned under s.68 to the Technology and Construction Court did not by itself have the effect that he assumed it did. In so far as this was a matter of fact, there was no error on the judge’s part: he knew the facts. Insofar as it was an error of law, Mr Macpherson first submitted, it cannot be a proper foundation for the de facto doctrine. He accepted, however, that if this were right the leading New Zealand case of Aldridge could not have gone the way it did, and for that reason abandoned the point.

It is important nevertheless that this court should not accept such a concession, at least when it is not dictated by binding authority, without considering whether it is rightly made. We are not bound by Aldridge, and in spite of its high standing in the common law on this topic, it is apparent both from it and from the present case that the common law does not – or not yet - have all the answers. The reason why, even so, we would accept the concession is that the basis of the de facto doctrine is not the nature but the occurrence of a mistake as to the judicial authority of the individual concerned.

The argument is in our view not advanced by the distinction that Mr Macpherson has sought to make between an error as to appointment and an error as to authority. His suggestion is that cases such as Aldridge and Carroll depended on the judge’s belief that he had been appointed, not simply (as in the present case) that he had authority. This seems to us a distinction without a difference in the present context.

The statute law which authorises some judges, in virtue of their appointment, to exercise one aspect only of the High Court’s jurisdiction and requires them to be given separate authority to exercise other aspects of it, is piecemeal and complicated. It is unfortunate but unsurprising that Judge Seymour assumed that his appointment to the TCC, a limb of the High Court, gave him power to sit elsewhere in the High Court without further authorisation. It certainly did not amount, in our judgment, either to knowledge of his own incapacity or to wilful blindness to it.

We hold that Judge Seymour neither knew nor ought to have known, in the sense that he was ignoring the obvious or failing to make obvious inquiries, that he was not authorised to sit as a judge of the High Court. There is uncontested evidence that but for an oversight in the Department he would have been formally authorised under s.9. He was well qualified to sit. This is therefore not a case of usurpation, nor of lack of the requisite competence or qualification. On established principles of law, Judge Seymour was a judge-in-fact of the High Court and his judgment therefore a judgment of the High Court.

But this is an end of the appeal only if, as Mr Sales submits is the case, the validation of Judge Seymour’s status (not merely of his judgment) at common law is cognate with his establishment by law as a tribunal for the purposes of Article 6. Mr Macpherson submits that it is not: he argues that the doctrine of de facto authority validates acts done under colour of a supposed but legally non-existent authority, but that it does not create authority in law where none existed – indeed its very premise is the non-existence of true authority in law. Thus in the leading Canadian case Re Manitoba Language Rights under the Manioba Act 1870 (1985) 19 DLR (4^th) 1, the Supreme Court, which had had the benefit of wide-ranging citation of common law authority, said (at 28):

Article 6 begins:

Two important questions thus arise:

Does the de facto doctrine validate the act or the office?

If it is the latter, is this a sufficient compliance with the requirement of Article 6 that a person’s civil rights are to be determined by a tribunal established by law?

We put the questions in this way because it is correctly conceded by Mr Sales that if the judge’s acts alone are validated, this is insufficient to comply with Article 6: the tribunal itself will by definition not have been established by law. We put them in this order for an equally important reason. The true ambit of the de facto doctrine cannot logically be determined by the requirements of Article 6: to do this would be to adjust the common law defensively, not to declare it objectively. It is one thing to bring the substantive doctrines of the common law into harmony with the Convention in the manner described by this court in A v B [2002] 2 All ER 547, para. 4. It is another for a legal system to hold itself to be Convention-compliant by ratifying what would otherwise be non-compliant.

Mr Macpherson, to whose industry we are very much indebted, cites a series of persuasive rulings from other common law jurisdictions. Of these, it is sufficient to refer to the judgment of Butler CJ (with whom the other members of the court agreed) in the Superior Court of Connecticut in State v Carroll (1871) 38 Conn. 448, 471:

There is no need for further citation because Mr Sales accepts that there is no authoritative statement of the de facto doctrine which suggests, at least in terms, that it validates the office and not merely acts done under colour of it. His argument, echoing his submissions in Fawdry, is that the former is nevertheless its true logic. Dramatic though this proposition is in the face of centuries of restatements of the doctrine throughout the common law world, it seems to us to be right. The point powerfully made by Mr Macpherson, that the very premise of the de facto doctrine is that there was no legal authority, is not necessarily an answer to it, for the true analysis may be that the judge-in-fact becomes a judge-in-law by the operation of the doctrine, and that this is why his acts are valid.

The question whether the de facto doctrine validates the act or the office was left open in Fawdry. Hale LJ, whose judgment contains an indispensable account of the origins and development of this branch of the law, concluded, albeit with expressed hesitation, that since “there must be some basis for the authority assumed by the judge … the rule can be regarded as validating the establishment of the tribunal as well as the acts it performs” (para. 36). In Re Manitoba Language Rights (ante), it is noteworthy that the Supreme Court went on to conclude that the doctrine of necessity permitted it to hold temporarily valid, pending proper re-enactment, the body of legislation which it had found to be constitutionally invalid. In other words, because legal certainty and administrative stability could not tolerate the vacuum, the court itself possessed authority to confer interim validity on Manitoba’s legislation.

It seems to us that Mr Sales’ analysis makes sense of an otherwise intractable – indeed a logically unintelligible - theory which appears to predicate the validity of a judgment on the very invalidity of its author’s office. In its place it postulates, in the interests of certainty and finality, that a person who is believed and believes himself to have the necessary judicial authority will be regarded in law as possessing such authority. If this is the true meaning of the de facto doctrine of jurisdiction, as we would hold it is, then the first question of compatibility with Article 6 is answered. The judge-in-fact is a tribunal whose authority is established by the common law.

The answer to the question of Convention-compliance, in our judgment, depends on at least two things: first, what the substantive content of the phrase “established by law” is; and secondly, whether the de facto doctrine, even in the shape in which we have now construed it, matches that content.

There is no decision of either the Court or the Commission which deals comprehensively with the content of the expression “established by law”. But in Zand v Austria (1978) 15 DR 70 the Commission, in debating the status of the Austrian labour courts, which had been set up only under elective ministerial powers, said (at para. 69) that the object and purpose of the provision was:

This brings us to the second question: does the de facto doctrine meet this standard? To the extent that, as we hold, it validates the authority of the tribunal and not merely its acts, it does. But Mr Macpherson submits that it does not exclude, as it needs to, a validation of the authority of a person who is so incompetent to sit that to ratify him in office would amount to arbitrariness or irrationality offensive to the rule of law.

This argument is in very large part already addressed by our holding that the doctrine cannot validate the authority of a usurper, for it will be a rare case in which an incompetent person who lacks legal authority does not know that he or she ought not to be sitting as a judge. The freak case of a person without either professional competence or legal authority who believes despite his incompetence that he is authorised to sit as a judge can be addressed if and when it arises. What matters to the present issues is that the de facto doctrine ratifies the authority only of persons believed by themselves and the world to possess the judicial power they are exercising. It does not protect people who have deluded themselves or others into thinking they have authority.

But there is a second and more troubling ground on which Mr Macpherson contends that a judge in fact is not a tribunal established by law. “Established” in his contention requires a tribunal to have been established by the time the individual’s civil rights and obligations come before it. We are not disposed to accept Mr Sales’ argument that the common law gives de facto tribunals this legal status proleptically. To accept this would be to establish, in effect, a prior dispensation for avoidable error, with undesirable consequences for legal certainty and good administration. If the de facto doctrine establishes a tribunal by law, it seems to us that it does so by recognising the authority, in an appropriate and legally controlled situation, of what would otherwise not be a lawful tribunal.

The European Convention itself is silent on this question. So is the International Covenant on Civil and Political Rights, though by Article 14(1) it adds the adjective “competent” to the requisite qualities of a tribunal established by law. But Article 47(2) of the European Union’s Charter of Fundamental Rights, a non-binding instrument adopted by the United Kingdom and the other member states in December 2000, says:

We remind ourselves that the Convention is not a United Kingdom statute, and that we should be concerned less with close analysis of its language than with the principles which animate it. We remind ourselves that the legal system of every member state will contain ways of dealing with errors and omissions in the appointment of persons to judicial office, whether by ratifying or by nullifying what has happened. Provided that the United Kingdom’s legal response, at least as it has developed in England and Wales, is not such as to ratify the acts of usurpers or to operate arbitrarily and is limited, in effect, to the correction of mistakes of form rather than of substance – and in our judgment it meets all these tests – we do not consider that the Convention requires the disqualification of a judge purely because his authority was not formally established before he sat.

A person who sits as a judge of the High Court of England or Wales in the circumstances in which Judge Seymour sat is in our judgment a judge in fact and a tribunal established by law. In spite, therefore, of the novel and difficult issues which this appeal has raised, it must be dismissed.