S 44 Fraud or Collusion in Obtaining Judgement or Incompetency of Court May Be Proved (Manner in which lack of competency may rise): Farquharson v Morgan [COURT OF APPEAL]  1 QB 552 (United Kingdom)
FARQUHARSON v MORGAN
[COURT OF APPEAL]
 1 QB 552
HEARING-DATES: 15, January 2 February 1894
2 February 1894
Prohibition – County Court – Absence of Jurisdiction apparent on face of Proceedings – Discretion – Acquiescence in Exercise of Jurisdiction – Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61), s. 24.
Where total absence of jurisdiction appears on the face of the proceedings in an inferior court, the court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior court.
By the terms of the lease of a farm it was agreed that upon the determination of the lease certain matters not within the Agricultural Holdings (England) Act, 1883, should be the subject of compensation to the tenant, and that the procedure contained in ss. 7 to 28 of that Act should apply to such matters as well as to any claim under the Act. Upon the determination of the lease, the tenant’s claim for compensation was referred to arbitration in the manner provided by the Act; and an award was made, which on the face of it shewed that compensation had been awarded to him for matters not within the Act. A county court judge made an order to enforce the award by execution as on an ordinary county court judgment under s. 24 of the Agricultural Holdings Act, 1883:-
Held, upon an application by the lessor for a prohibition to the county court against proceeding upon such order, that the writ must issue, notwithstanding the agreement contained in the lease, and the fact that the lessor had by his conduct acquiesced in the exercise of jurisdiction by the county court.
APPEAL from the order of a Divisional Court (Charles and Wright, JJ.), refusing an application for a prohibition to the county court of Dorsetshire.
The facts, so far as material, were as follows:-
By lease, dated November 29, 1888, the appellant Farquharson let a farm to the respondent Morgan from year to year. The lease provided that, on the determination of the tenancy, the tenant should be entitled to allowances and compensation in respect of various matters which were not the subject of compensation under the Agricultural Holdings (England) Act, 1883, to be ascertained upon the basis provided by that Act; and it was agreed thereby that the clauses of that Act relating to procedure, and contained in ss. 7 to 28 (both inclusive) thereof, should apply as well to any claim for allowance or compensation to be made under the lease as to any claim under the said Act.
Prior to the determination of the tenancy, which took place on March 25, 1891, the respondent gave a notice of claim to the appellant, setting forth the matters in respect of which he claimed compensation at the determination of the tenancy. His claim included items which were the subject of compensation under the lease, but not under the Agricultural Holdings (England) Act, 1883. The appellant gave a counter notice of claim against the respondent under the Act. The parties respectively appointed referees to act for them in the matter, and such referees appointed an umpire. The referees being unable to agree, the umpire made an award in the matter, awarding that a lump sum of 92l. 12s. 9d. ought to be paid by the appellant to the respondent, as the balance due to the latter after allowing the amount due to the former. The respondent thereupon applied to the county court to enforce payment of the sum awarded under s. 24 of the Agricultural Holdings Act, 1883. On such application the appellant took objection to the form of the award, because it awarded a sum generally for compensation, and did not specify particulars of the compensation awarded, as required by s. 19 of the Agricultural Holdings Act, 1883. He did not then take any objection to the jurisdiction of the county court. The award was remitted to the umpire by consent of both parties in order that he might amend it in conformity with s. 19. The umpire accordingly amended his award by stating particulars, from which it appeared that it included compensation to the respondent in respect of matters which were the subject of compensation under the lease, but not under the Agricultural Holdings Act, 1883.
The appellant appealed against the amended award to the county court. On the hearing of such appeal it was contended on behalf of the appellant, inter alia, that the award was invalid in law and bad in form; that the compensation had been awarded for certain improvements, acts, and things in respect of which the tenant was not entitled to compensation under the Agricultural Holdings Act; that there had been no valid submission under the Act, and no appointment of arbitrators or umpire; and that various sections of the Act had not been complied with in drawing up the award. The county court judge dismissed the appeal on the ground that the notice of appeal against the
award was not given within the time prescribed by the Agricultural Holdings Act; but stated a case for the opinion of the High Court of Justice. Upon that case coming on for hearing before the Queen’s Bench Division, it was ordered, by the consent of the parties, that the matter of the appeal should be remitted to the county court judge to be reheard upon the merits; that no objection should be taken by the appellant to the appointment of another umpire, the Court being of opinion that there is power to send the award back to a new umpire under s. 9 of the Agricultural Holdings Act; and that the county court judge should deal with all matters of fact and law, subject to his stating a special case upon any points of law if he should think fit. Upon the case coming again before the county court judge, he affirmed the award; and on July 21, 1893, upon the application of the respondent, he made an order under s. 24 of the Agricultural Holdings Act, 1883, to enforce payment of the sum awarded by execution as in the case of money ordered by a county court under its ordinary jurisdiction to be paid.
The appellant thereupon applied at chambers to prohibit the county court from proceeding upon such order, upon the ground that the county court judge had no jurisdiction to enforce the award under the Agricultural Holdings Act, s. 24. The application was referred to the Divisional Court, which held that, under the circumstances, it had a discretion to refuse to issue the writ on the application of the appellant, and, therefore, dismissed the application.
Danckwerts, for the appellant. The award shews on the face of it that the umpire awarded compensation in respect of items of claim not within the Agricultural Holdings Act. The county court had no jurisdiction to enforce the payment of the compensation so awarded under s. 24 of the Act. The appellant may have assented to the county court judge’s dealing as an arbitrator with the matters which were the subject of compensation under the lease, but not under the Act; but it is contended that nothing which he did imports consent to the county court’s having power to issue execution under s. 24 as to those
matters. The appellant is willing that the prohibition should be confined to so much of the county court judge’s order as relates to matters outside the Act. With regard to that part of the award, the respondent’s remedy is to bring his action as on an award at common law.
Where there has been an apparent excess of jurisdiction the issue of the writ of prohibition is of right, not discretionary, and the acquiescence of the applicant in the exercise of the jurisdiction does not preclude him from applying for the writ; for consent cannot give jurisdiction: Worthington v. Jeffries. n(1) In the case of Broad v. Perkins n(2) , the Court of Appeal, acting on a passage in the opinion of Willes, J., delivered to the House of Lords in Mayor of London v. Cox n(3) , refused to grant a prohibition; but that passage does not appear to apply to cases where the want of jurisdiction is apparent on the face of the proceedings, but only to cases where it depends on some fact in the knowledge of the applicant which he has kept back from the Court below. [He also cited Knowles v. Holden n(4) ; Jones v. James n(5) ; Mouflet v. Washburn. n(6) ]
Clavell Salter, for the respondent. Except where the want of jurisdiction is apparent on the record, the Court have a discretion to refuse the writ, where there has been misconduct or laches on the part of the applicant. Here the appellant, by the terms of the lease, agreed that the matters not within the Agricultural Holdings Act should be dealt with by the same method of procedure as that applicable to compensation under the Act; and his conduct in the course of the subsequent proceedings before the county court and the Queen’s Bench Division amounted to acquiescence in the jurisdiction of the county court. The whole matter was, with his consent, remitted to the county court judge. The appellant has been guilty of misconduct within the meaning of the opinion delivered by Willes, J., in Mayor of London v. Cox. n(3) There has always been a distinction drawn between cases where the want of jurisdiction appears on a record and those where it does not, the reason being that the former might
n(1) Law Rep. 10 C. P. 379.
n(2) 21 Q. B. D. 533.
n(3) Law Rep. 2 H. L. 239.
n(4) 24 L. J. (Ex.) 223.
n(5) 19 L. J. (N.S.) (Q.B.) 257.
n(6) 54 L. T. 16.
be drawn into a precedent. There is no record in that sense in the county court. There is no reason why “misconduct” for this purpose should be confined to the keeping back of a matter of fact on which the jurisdiction depends. If it is possible for the applicant for a prohibition to estop himself by his conduct from applying, it is impossible to lay down any hard-and-fast rule as to the sort of conduct which will estop him. The Court is not bound to grant him a prohibition where it sees that it would be unjust and unreasonable or oppressive that he should have one.
[He cited Denton v. Marshall n(1) ; Jones v. James. n(2) ]
Danckwerts, in reply.
Cur. adv. vult.
Feb. 2. The following judgments were delivered:-
PANEL: LORD HALSBURY., LOPES and DAVEY, L.JJ
JUDGMENTBY-1: LORD HALSBURY
LORD HALSBURY: In this case, with every disposition to decline to interfere with the proceedings in the county court on the ground that, if it is possible for a person to render himself incapable of applying for a prohibition in such a case as this, the appellant has done so, I feel nevertheless constrained to decide that the writ must issue to prohibit further proceedings on the order of the county court so far as it is applicable to that portion of the award which is in respect of matters outside the Agricultural Holdings Act. It has been long settled that, where an objection to the jurisdiction of an inferior Court appears on the face of the proceedings, it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction. I find no authority justifying the withholding of a writ of prohibition in such a case. Looking to what
n(1) 32 L. J. (Ex.) 89.
n(2) 19 L. J. (N.S.) (Q.B.) 257.
appears on the face of the award in this case, and applying to that the provisions of the Agricultural Holdings Act and the power of enforcing awards given by that Act, I think it is impossible to doubt that there is that on the face of the proceedings which shews that the judge in granting execution under the provisions of that Act was acting beyond his jurisdiction. The Act specifies the matters which are to be the subject of compensation under it; and it appears on the face of the award that there are matters included in the compensation awarded which are outside the provisions of the Act. Sect. 24 of the Act provides in substance that a sum awarded as compensation under the Act may be recovered on the order of the county court judge as money recovered by an ordinary county court judgment. It is apparent that, in applying that section to subject-matters which are not included in the provisions of the Act, the county court was exceeding its jurisdiction. Under these circumstances, reluctant as I am to aid the appellant in this case, I am unable to resist the conclusion that the writ ought to issue. Considering the course of the litigation, I think the appellant ought not to have any costs of the proceedings except in this Court where he has succeeded.
JUDGMENTBY-2: LOPES, L.J
LOPES, L.J: This case raises the much vexed question whether the grant of prohibition is discretionary, or whether it is demandable of right.
It seems to me that there has always been recognised a distinction between what I will call a latent want of jurisdiction, i.e., something becoming manifest in the course of the proceedings, and what I will call a patent want of jurisdiction, i.e., a want of jurisdiction apparent on the face of the proceedings.
Whilst in cases of latent want of jurisdiction there has always been a great conflict of judicial opinion, as to whether the grant of the writ was discretionary or not, the authorities seem unanimous in deciding that, where the want of jurisdiction is patent, the grant of the writ of prohibition is of course.
Lord Mansfield, in Buggin v. Bennett n(1) , held that the Court was not bound to grant a prohibition to a party who had
n(1) 4 Burr. 2037.
acquiesced in the proceedings of the Court below, except where the absence of jurisdiction was apparent on the face of the proceedings.
In Bodenham v. Ricketts n(1) , Lord Denman laid down the rule in the same terms as Lord Mansfield; and about the same time the same rule was adopted in a considered judgment of the Court of Queen’s Bench in Yates v. Palmer. n(2)
In the elaborate opinion of the judges delivered by Willes, J., to the House of Lords in Mayor of London v. Cox n(3) , it is said that “upon an application being made in proper time, upon sufficient materials, by a party, who has not by misconduct or laches lost his right, its grant or refusal is not in the mere discretion of the Court;” and at p. 283 of the same case it is said: “Where, however, the defect is not apparent, and depends on some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the Court below, and he has thought proper, without excuse, to allow that Court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the Crown is not taken away, for mere acquiescence does not give jurisdiction: Knowles v. Holden n(4) ; yet, considering the conduct of the applicant, the importance of making an end of litigation, and that the writ, though of right is not of course, the Court would decline to interpose, except perhaps upon an irresistible case, and on excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant.”
It was held in that case that the writ was not of course, inasmuch as there might be circumstances which would justify the Court in refusing it, such as undue delay, insufficient materials, or misconduct or laches by the party applying for it. But there is nothing in the case contravening the rule, which I have mentioned, where the absence of jurisdiction is apparent on the face of the proceedings; in fact, there is an express exception of such cases.
n(1) 6 N. & M. 170.
n(2) 6 D. & L. 283.
n(3) Law Rep. 2 H. L. 239, at p. 279.
n(4) 24 L. J. (Ex.) 223.
In 1888, in a case of Broad v. Perkins n(1) , the question whether, in the circumstances of that case, the Court had any jurisdiction to refuse a writ of prohibition, was directed to be argued before the full Court of Appeal; and Lord Esher, M.R., delivering the judgment of the full Court, repeated the opinion of Willes, J., in Mayor of London v. Cox n(2) , which I have above cited.
The result of the authorities appears to me to be this: that the granting of a prohibition is not an absolute right in every case where an inferior tribunal exceeds its jurisdiction, and that, where the absence or excess of jurisdiction is not apparent on the face of the proceedings, it is discretionary with the Court to decide whether the party applying has not by laches or misconduct lost his right to the writ to which, under other circumstances, he would be entitled. The reason why, notwithstanding such acquiescence, a prohibition is granted where the want of jurisdiction is apparent on the face of the proceedings, is explained by Lord Denman in Bodenham v. Ricketts n(3) to be for the sake of the public, lest “the case might become a precedent if allowed to stand without impeachment,” and, I will add for myself, because it is a want of jurisdiction of which the Court is informed by the proceedings before it, and which the judge should have observed, and of which he himself should have taken notice.
Now, if it were possible for him to do so, it is abundantly clear that Mr. Farquharson has by his conduct precluded himself from claiming the interposition of the Court in his favour. That he has acquiesced in the proceedings is beyond dispute. I cannot imagine a stronger case of acquiescence.
But I am of opinion that the award on the face of it discloses a want of jurisdiction. It contains and deals with matters which are not the subject of the Agricultural Holdings Act, matters outside that Act, and which cannot be enforced under the 24th section of that Act.
In such circumstances, most reluctantly I am compelled to hold that the writ of prohibition must issue.
n(1) 21 Q. B. D. 533.
n(2) Law Rep. 2 H. L. 239.
n(3) 6 N. & M. 170.
JUDGMENTBY-3: DAVEY, L.J
DAVEY, L.J: There are two principles which are engrained in our law. One is, that parties cannot by contract oust the jurisdiction of the Queen’s Courts. This has been somewhat modified by the power given to the Court by s. 11 of the Common Law Procedure Act, 1854 (now s. 4 of the Arbitration Act, 1889), to give effect to an agreement to refer disputes to arbitration, subject to certain well-known conditions; but, subject to this power, it is no defence to an action otherwise competent that the parties have agreed to refer the question in dispute to arbitration, or to provide for its settlement in some other mode.
The other principle is correlative to the first: it is that the parties cannot by agreement confer upon any Court or judge a coercive jurisdiction which the Court or judge does not by law possess. To do so would be an usurpation of the prerogative of the Crown, and it has always been the policy of our law as a question of public order to keep inferior Courts strictly within their proper sphere of jurisdiction: see the judgment of the Common Pleas in Worthington v. Jeffries. n(1) It follows that a party may, notwithstanding that he has contracted to have the dispute decided, or a decision in the matter enforced, by a Court not possessing by law jurisdiction, refuse to be bound by his contract and object to the jurisdiction, subject to the provisions embodied in the Arbitration Act, 1889, so far as applicable. It also follows that jurisdiction cannot be given by acquiescence. These principles are so well known that they need no illustration from decided cases or other authority.
In the present case Mr. Farquharson, the applicant for a prohibition, has contracted by the lease of November 29, 1888, that the clauses of the Agricultural Holdings (England) Act, 1883, relating to procedure, and contained in ss. 7 to 28 (both inclusive) thereof, shall apply as well to any claim of the outgoing tenant for allowance or compensation to be made under the provisions of the lease as to any claim under the said Act. The lease makes provision for certain allowances and compensation being made to an outgoing tenant at the expiration of the lease as to various matters which are not the subjects of
n(1) Law Rep. 10 C. P. 379.
allowance or compensation under the Act. An amended award has been made, dealing as well with matters which are properly subjects of allowance or compensation under the Act as with matters in respect of which allowance or compensation can only be claimed under the provisions of the lease; and the amended award, on the face of it, shews the matters in respect of which the sums thereby awarded are given.
On July 21, 1893, the present respondent Morgan made an application to the county court to enforce the award; and the learned judge, though he had doubts whether he had jurisdiction, made an order to that effect.
The present applicant and appellant applied to the High Court for a prohibition against the county court enforcing the award or proceeding further with the application. A Divisional Court has dismissed that application on the ground that under the circumstances the Court had a discretion to refuse the prohibition on the application of the present appellant.
The jurisdiction of the county court in the matter is statutory, and is conferred by the Agricultural Holdings Act. Sect. 24 of that Act is in the following terms: “Where any money agreed or awarded or ordered on appeal to be paid for compensation, costs, or otherwise, is not paid within fourteen days after the time when it is agreed or awarded or ordered to be paid, it shall be recoverable, upon order made by the judge of the county court, as money ordered by a county court under its ordinary jurisdiction to be paid is recoverable.” It is obvious that this section only applies to money agreed or awarded or ordered on appeal to be paid in respect of matters within the Act, and gives no jurisdiction over awards as to other matters made pursuant to a contractual submission or with the consent of the parties. Indeed, it was not and could not be denied that so far forth as the award related to matters outside the Act, the county court judge had no jurisdiction to enforce the award, and the applicant was prima facie entitled to the prohibition. But it was argued that the granting of a prohibition is discretionary, and that the applicant was estopped or precluded by his conduct from claiming a prohibition. Reliance was placed on a well-known passage in Willes, J.’s, judgment in Mayor of London v.
Cox n(1) , which has been cited by Lopes, L.J. This passage has been adopted by the full Court of Appeal in Broad v. Perkins. n(2) It will, however, be observed that the learned judge’s statement is confined to cases where the defect is not apparent and depends upon some fact in the knowledge of the applicant which he might have brought forward in the Court below, but has kept back without excuse, i.e., where the applicant has been guilty of some misconduct in the proceedings, and has in a sense misled the Court. To the same effect is Lord Mansfield’s judgment in Buggin v. Bennett. n(3) He there says: “If it appears upon the face of the proceedings that the Court below have no jurisdiction, a prohibition may be issued at any time, either before or after sentence; because all is a nullity; it is coram non judice. But where it does not appear upon the face of the proceedings, if the defendant will lie by and suffer that Court to go on under an apparent jurisdiction, as upon a contract made at sea” (he was dealing with an Admiralty case), “it would be unreasonable that this party who, when defendant below, has thus lain by and concealed from the Court below a collateral matter, should come hither after sentence against him there and suggest that collateral matter as a cause of prohibition, and obtain a prohibition upon it after all this acquiescence in the jurisdiction of the Court below.” This passage was quoted by Parke, B., in Roberts v. Humby n(4) , in which case the Court granted a prohibition at the instance of a party to the proceedings in a case where the want of jurisdiction appeared on the face of the proceedings, even after sentence in the inferior Court. The reason of the distinction between cases in which the excess of jurisdiction appears on the face of the proceedings, and where it does not so appear, is explained by Coleridge, J., in Marsden v. Wardle. n(5) “There is reason,” says the learned judge, “for refusing the writ after judgment in the Courts where the proceedings set forth the detail of the matter, and the party has the opportunity of moving before judgment. Then, if he chooses to wait and take
n(1) Law Rep. 2 H. L. 239, at p. 283.
n(2) 21 Q. B. D. 533.
n(3) 4 Burr. 2037.
n(4) 3 M. & W. 120.
n(5) 3 E. & B. 695, at p. 701.
the chance of judgment in his favour, he may be held incompetent to complain of excess of jurisdiction if judgment is against him. There is, however, good reason for departing from this principle where the defect is apparent on the face of the proceedings below; because the complaint in that case does not rest on the evidence of the complainant; and, if such a defective record were allowed to remain and to support a judgment, it might become a precedent: that which was in truth an excess of jurisdiction might be considered to have been held to be legal.”
The learned judge is there evidently contrasting cases where the excess of jurisdiction depends on the evidence of the complainant with cases in which it is apparent on the face of the proceedings. In the county court, it is true, there is no record, strictly speaking; but the distinction does not, I think, depend on the existence of a formal record, but is one of substance, whether the defect is apparent or depends on evidence.
In the present case the jurisdiction invoked is the creature of a statute, not even conferring jurisdiction in general terms, but confined to a particular defined subject-matter. The first question which a judge has to ask himself, when he is invited to exercise a limited statutory jurisdiction, is whether the case falls within the defined ambit of the statute; and it is his duty to decline to make an order as judge, if and so far as the matter is outside the jurisdiction; and if he does not do so, he may (if a judge of an inferior Court) be restrained by prohibition. In the present case the limits of the jurisdiction appeared, I repeat, on the face of the statute, and the fact of the excess appeared on the face of the amended award which the Court was asked to enforce.
I am, therefore, of opinion that the appellant is not precluded from relying on the excess of jurisdiction in the county court, either by his covenant in the lease or by the previous proceedings in relation to the award.
In Jones v. James n(1) , which was cited on behalf of the respondent, it is to be observed that it was doubtful whether the Court had exceeded its jurisdiction, and Erle, J., seems to have treated
n(1) 19 L. J. (N.S.) (Q.B.) 257.
the matter as an irregularity in practice which might be cured by the defendant’s waiver. And the case of Mouflet v. Washburn n(1) seems to have been a case of the same character. In Jones v. Owen n(2) , on the other hand, which was in the matter of proceedings in a county court, it was contended that the attorney for the defendant had not objected to the jurisdiction; but Patteson, J., said that “there was a total want of jurisdiction which no assent could cure.”
The summons asks for a prohibition against the county court judge enforcing the whole award; but at the bar the learned counsel for the appellant limited the prohibition asked for to so much of the award as dealt with matters outside the Agricultural Holdings Act.
Although I think that the applicant is not precluded from asking for a prohibition, yet he is doing so in breach of his contract, and I think there should be no costs in the Court below; but the appellant should have the costs of the appeal.
Solicitor for appellant: Rowcliffes & Co., for Trevor Davies, Sherborne.
Solicitors for respondent: Field, Roscoe & Co.
n(1) 54 L. T. 16.
n(2) 5 D. & L. 669.