Finalitysee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsub nom GO (Colombia) v Secretary of State for the Home Department [2006] EWCA Civ 1276, (2006) Times 27 Octobersee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andTimes 21 Octobersee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andRe [1997] Fam 117see also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andsee also Finality; Issue estoppelsee also Finality; Issue estoppel:finality, andTimes 14 December
2.113Finality
1Finality as used here includes, but is wider than, estoppel. It has been suggested that finality should be used instead of estoppel on the ground that it is clearer – see Cross and Tapper on Evidence, 10th edn, LexisNexis, p95 n89. However, here finality is used in its broader sense. Legislation may distinguish between finality and conclusiveness. For example: Social Security Act 1998 s17(1) provides that a decision is final on the issue of entitlement or payment that it covers, while s17(2) provides that findings of fact and determinations within it are conclusive for the purpose of other decisions. and certainty are legitimate aims of legal policy.
2Denson v Secretary of State for Work and Pensions reported as R(CS) 4/04 at [24]. For convenience, reference throughout the remainder of this section will be to finality only. However, in public law consistency is also an important consideration
3See chapter 14. that may conflict.
2.114Finality is secured by a variety of means. For example: estoppel; abuse of process; merger; abuse of power; legitimate expectation; legislative provision; time limits; and the nature of the decision-making process. Judge Richardson summarised the law on estoppel and abuse of process in
Verdin v Harrods Ltd:
4[2006] ICR 396 at [24].Firstly, where a cause of action has been determined in litigation between two parties, as a general rule that cause of action cannot be raised again in subsequent litigation between them. The technical term for this principle is cause of action estoppel. Secondly, where an issue has been determined in litigation between two parties, as a general rule that issue cannot be raised again in subsequent litigation between two parties. The technical term for this principle is issue estoppel. Thirdly, even where a cause of action or issue has not been determined in prior litigation between two parties, there may be circumstances in which it would be an abuse of process for the cause of action or issue to be raised between them. The categories of abuse of process are not closed. There may be an abuse of process if a party seeks to litigate an issue which should have been raised in earlier proceedings. There may be an abuse of process if a party seeks to litigate an issue which has been decided in a test case by which it was understood he would be bound.
Time limits
2.115There will almost always be an express limit on the time within which proceedings may be initiated. If there is, it operates in effect as a bar on raising the issue in those proceedings and to that extent provides for finality. However, the legislation may allow a challenge by other means. For example: the decision-maker may have power to change the tribunal’s decision.
5For example: see the decision-maker’s powers under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.2.116A time limit must comply with article 6. This requires that a party must have access to a tribunal. That right is violated if sufficient time is not allowed. The issue was considered by the Court of Appeal on an application for permission to appeal in
Denson v Secretary of State for Work and Pensions.6R(CS) 4/04. The Court was concerned with the time for appealing to a tribunal in a child support case. The legislation allowed 28 days with the possibility of extension for cause to a maximum of 13 months. The Court decided that limiting the period in which an appeal could be made pursued the aim of certainty and finality, which was a legitimate aim, and that the time period allowed was proportionate to that aim.
7At [24]–[26].Issues that have been, or could have been, decided already
2.117Most decisions are final when taken and communicated. Some are provisional. An instance of this is a conditional discharge of a patient in a mental health case. This is ordered on the basis that the patient can be satisfactorily treated and supervised in the community, provided the conditions of discharge are satisfied. It is treated as provisional only. If it turns out that the conditions cannot be met, the tribunal is entitled to substitute a different decision.
8R (H) v Secretary of State for the Home Department [2004] 2 AC 253.2.118It is necessary to distinguish three lines of authority. One deals with civil law cases, a second with public law cases and a third with cases decided by an inquisitorial procedure.
Civil law cases
9This includes criminal law.2.119The finality of the decision in proceedings or of a conclusion on an issue within a decision is governed by estoppel. There are different varieties of estoppel; some are rules of evidence, others rules of policy. The variety relevant to this issue is known by the Latin tag of
res judicata. The principles of res judicata are not rules of evidence. They are rules of policy that bring finality to litigation.
10Diplock LJ in Mills v Cooper [1967] 2 QB 459 at 469. Accordingly, UTR r15(2) and its equivalents do not apply. 2.120As between the parties to a case and their privies,
11One party may be privy to another by blood, title or interest. For convenience, no further reference is made to privies in this section. the outcome decision of a case is binding. This is because the cause of action is merged into the judgment and ceases to exist.
12Diplock LJ in Thoday v Thoday [1964] P 181 at 197. A former employee’s cause of action in the county court for wrongful dismissal merges with the judgment of an employment tribunal on wrongful dismissal: Fraser v HLMAD Ltd [2006] ICR 1395. This extends to issues that could have been, but were not, raised in the earlier proceedings.
2.121The parties are also bound by the court’s conclusions on issues that are the component parts of the cause of action. However, this is applied less rigidly than estoppel of the outcome of a cause of action. Diplock LJ explained this in
Mills v Cooper:
13[1967] 2 QB 459.… a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.
14[1967] 2 QB 459 at 468–469. See also Lord Keith in Arnold v National Westminster Bank plc [1991] 2 AC 93 at 104 and 109.2.122As between different parties, sections 11 and 12 of the Civil Evidence Act 1968 apply, but only for courts and those tribunals to which the strict rules of evidence apply.
15See the definition in Civil Evidence Act 1968 s18(1). Section 11 deals with convictions. It provides that a conviction is evidence that the accused committed that offence. The relevant provisions are:
(1)In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.
(2)In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere–
(a)he shall be taken to have committed that offence unless the contrary is proved; and
(b)without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.
(3)Nothing in this section shall prejudice the operation of section 13 of this Act or any other enactment whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.
2.123The conviction is only evidence of guilt. It is not evidence of other matters that are not necessarily involved in the offence. Apart from subsection (3), there is no provision that the fact of conviction is conclusive for later proceedings. In other words, its probative worth has to be assessed in the context of the evidence as a whole.
2.124Section 12 deals with findings of adultery and paternity. The former are unlikely to be relevant to a tribunal, but the latter may. The previous finding is evidence of paternity, but is not conclusive.
2.125If neither the principles of res judicata nor sections 11 and 12 of the Civil Evidence Act 1968 apply, a finding of fact in one proceeding in not admissible as evidence in later proceedings.
16Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 at [15]–[27]. The reason is that the finding represents the opinion of the fact-finder and that opinion is not relevant evidence in other proceedings.
17See also chapter 10. This is, of course, subject to statutory provision that makes a finding of fact relevant, or even conclusive,
18Social Security Act 1998 s17(2) is an example. for other purposes. And UTR r15(2)(a) and its equivalents allow a tribunal to admit evidence that would otherwise be inadmissible.
2.126However, even between different parties in separate civil proceedings, the court may refuse to allow findings in the earlier proceedings to be challenged if that would be an abuse of the process of the court.
19An application on this ground was rejected by the Court of Appeal in Simms v Conlon [2007] 3 All ER 802. The principles were set out by Sir Andrew Morritt V-C in
Secretary of State for Trade and Industry v Bairstow:
20[2004] Ch 1.(a)A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.
(b)If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of ss11 to 13 Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings….
(c)If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings.
(d)If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.
21[2004] Ch 1 at [38]. Public law defences in private law cases require a different approach. The tribunal may allow them to be raised again if the circumstances warrant it.
22Barber v Croydon LBC [2010] HLR 26.Public law cases
2.127The principles of estoppel can apply to public law cases.
23But see the comments of Lord Hoffmann in R v East Sussex County Council ex p Reprotech (Pebsham) Ltd [2003] 1 WLR 348 at [35], quoted below, on the usefulness of estoppel in public law. In
Thrasyvoulou v Secretary of State for the Environment,24[1990] 2 AC 273. the House of Lords was concerned with a second enforcement notice issued by a local authority against the owner of premises. The owner had successfully appealed against a previous enforcement notice on the same grounds. The House of Lords decided that the local authority could not raise the issue again. Lord Bridge set out the test for whether the principles of estoppel applied to public law cases:
In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of
res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.
25[1990] 2 AC 273 at 289.2.128The courts and the Upper Tribunal have recognised the relevance of a statutory code. In
Staffordshire County Council v Barber,
26[1996] ICR 379. the Court of Appeal held that a later industrial (now employment) tribunal could not consider a fresh claim on the same issue. In so deciding, the court took account of the tribunal’s power to review its own decisions in the interests of justice.
27[1996] ICR 379 at 392. In
White v Aldridge QC and the London Borough of Ealing,28[1999] ELR 150. the Court of Appeal held that it was not necessary to consider whether estoppel applied in a Special Educational Needs Tribunal in view of its power to strike out cases that were frivolous or vexatious. And in
RC v CMEC and WC,29[2009] UKUT 62 (AAC). the Upper Tribunal took account of the effects on estoppel of a statutory decision-making framework: see the section on ‘Inquisitorial proceedings’ below at para 2.144.
2.129If estoppel does apply, the issue may arise whether there is privity of interest between different Secretaries of State. The issue arose in
R (Nahar) v Social Security Commissioners.
30[2002] 1 FLR 670. The factual issue was whether the claimant was married. The immigration authorities decided that she was, but the social security authorities decided that she was not. The Commissioner refused leave to appeal and the claimant sought a judicial review. Munby J dismissed the application. His reason was:
I am satisfied that there can here be no issue estoppel. In my judgment there is neither identity of parties nor any sufficient privity of interest as between the Entry Clearance Officer and/or the Secretary of State for the Home Department on the one hand and the Secretary of State for Work and Pensions on the other hand. On that simple but fundamental ground the claimant’s case must fail insofar as it is based on issue estoppel.
31[2002] 1 FLR 670 at [51]. 2.130In addition to estoppel, the nature of the decision or the decision-making process may provide for finality or limit the scope of finality.
2.131As to the nature of the decision, this may be more limited in public law case than in a civil one. A civil law case is likely to deal with an issue for all time. A decision on, say, criminality or negligence is definitive between the parties. This is also possible in a public law case. But it is also possible that the outcome in a public law case is limited to a particular application, basis (like a claim for a particular social security benefit) or period (like a tax year).
2.132If the proceedings deal with a particular application, basis or period, the tribunal’s findings of fact and conclusions of law will not, subject to contrary provision, be binding in respect of a different application, basis or period. They may also be limited to a particular claim or application. For example: a decision based on the credibility of a party is not binding in a later case in which the party appears as a witness.
32Ocampo v Secretary of State for the Home Department [2006] EWCA Civ 1276, reported in (2006) Times 27 October as GO (Colombia) v Secretary of State for the Home Department. 2.133One reason for this is that the tribunal had no jurisdiction over any other application, basis or period.
33Lord Radcliffe in Society of Medical Officers of Health v Hope [1960] AC 551 at 565–566. The proceedings are initiated in respect of a particular application, issue or period. That, in turn, limits the jurisdiction of the tribunal and the extent to which its decision is binding. The tribunal may have to decide an issue, but it only has jurisdiction to do that in the context of the particular case. It does not have a general jurisdiction to decide the issue once and for all time. The House of Lords dealt with this point in
Society of Medical Officers of Health v Hope.34[1960] AC 551. The House was there concerned with a decision by a local valuation court in respect of a particular year of assessment. Referring to the valuation court’s limited jurisdiction, Lord Radcliffe said:
For that limited purpose it is a court with a jurisdiction competent to produce a final decision between the parties before it: but it is not a court of competent jurisdiction to decide general questions of law with that finality which is needed to set up the estoppel
per rem judicatam that arises in certain contexts from legal judgments.
35[1960] AC 551 at 563–564.2.134This was also the view of the Privy Council in
Caffoor v Commissioners of Income Tax, Colombo.
36[1961] AC 584. The Council refused to follow its earlier decision in Hoystead v Commissioner of Taxation [1926] AC 155. The issue was whether a decision made in one year of assessment was binding as to that issue in later years. The Council decided that it was not. Lord Radcliffe said:
… it is not the status of the tribunal itself, judicial or administrative, that forms the determining element for estoppel in cases of this kind but the limited nature of the question that is within the tribunal’s jurisdiction.
37[1961] AC 584 at 599. See also Matalan Retail Ltd v Commissioners of Revenue and Customs [2009] EWHC 2046 (Ch), (2009) Times 21 October.2.135A second reason for this result is that the decision-makers and the public bodies for whom they act are not contentious parties.
38Lord Radcliffe in Society of Medical Officers of Health v Hope [1960] AC 551 at 563–565. So, unlike in most litigation, there is no dispute between the parties. There is only an issue to be resolved.
39See chapter 1. Even if the public body is not itself a party to the proceedings, there is no real dispute.
Boulter v The Justices of Kent40[1897] AC 556. was a case involving an application before the justices for a licence in respect of a public house. Lord Herschell said:
There is, in truth, no
lis, no controversy
inter partes, and no decision in favour of one of them against the other, unless, indeed, the entire public are regarded as the other party …
41[1897] AC 556 at 569.2.136A third reason producing the same result is that, if a statutory duty is involved, the application of a statutory duty cannot be abrogated by estoppel. In
Society of Medical Officers of Health v Hope,
42[1960] AC 551. the House of Lords was concerned with a valuation for rating purposes by a valuation officer. Lord Keith said:
… a public officer in the position of the respondent [the valuation officer] cannot be estopped from carrying out his duties under the statute.
43[1960] AC 551 at 568.2.137And in
Commissioners of Inland Revenue v Brooks,
44[1915] AC 478. Lord Parker said:
… where there is a statutory provision requiring an estimate to be made for a statutory purpose and by a statutory authority, the principle of estoppel cannot be invoked to render the provision nugatory in cases where such principle might otherwise have applied.
45[1915] AC 478 at 491–492. See also Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 at 620.2.138Of course, none of this prevents a decision in one proceedings being relevant in later proceedings. For example: a decision on an issue in respect of one tax year may be a cogent factor in determining the same point in a later year.
46Lord Hanworth MR in Commissioners of Inland Revenue v Sneath [1932] 2 KB 362 at 384. Indeed, it may be improper to argue for a different result in the absence of new evidence or circumstances. For example: a tribunal’s decision to discharge a patient is a decision on a particular application. There is no legislation that prevents an immediate application for readmission. Nevertheless, the House of Lords has decided that an application for re-admission must be based on fresh facts not known to the tribunal.
47R (von Brandenburg) v East London and The City Mental Health NHS Trust [2004] 2 AC 280.2.139The decision-making process may also provide for or limit the scope of finality.
2.140It is not permissible to have more than one decision governing the same issue for the same period. As the Tribunal of Commissioners explained in R(I) 9/63:
… it is not legally possible to have two decisions by different boards or tribunals on an identical question relating to the same period, which conflict with each other. Nor indeed is it convenient to have two decisions even to the same effect, since if one were reviewed there would then be a conflict.
48R(I) 9/63 at [18].2.141A decision, once finally made, cannot be changed except with legislative authority, regardless of whether or not there has been reliance or detrimental reliance.
Re 56 Denton Road, Twickenham49[1953] Ch 51. concerned a decision by the War Damage Commission on the damage to a property. The Commission first made a preliminary decision. Then it changed it in a way that was more favourable to the owner. Finally it attempted to revert to its original decision. The court held that the second decision, the one most favourable to the owner, was final and irrevocable. Vaisey J accepted the proposition that:
… where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by the body.
50[1953] Ch 51 at 56–57.The judge went on to say that this principle ‘ought not to be denied its proper force and effect’ whether or not the owner had altered her position in reliance on the Commission’s decision.
51[1953] Ch 51 at 57.2.142Legislation may provide that a decision is final subject to permissible challenges.
52Social Security Act 1998 s17(1) is an example. An express provision on finality does not bar a claim for a judicial review.
53R v Medical Appeal Tribunal ex p Gilmore [1957] 1 QB 574. That wording is not sufficient to prevent a claim for negligence against a decision-maker.
54Jones v Department of Employment [1989] QB 1.2.143The legislation may provide for a decision, or its continuing operation, to be affected by a decision of a court, of a tribunal (including the tribunal that made the decision)
55For example: UTR r47. or of a decision-maker.
56For example: Social Security and Child Support (Decisions and Appeals) Regulations 1999 regs 4 and 6.Inquisitorial proceedings
2.144In
R(I) 9/63, a Tribunal of Commissioners (whose proceedings were inquisitorial) said that estoppel did not directly apply to tribunals, but that they proceeded by analogy.
57[1964] P 181 at [24]. This statement was never developed by the Commissioners.
2.145In
Thoday v Thoday,
58[1964] P 181. Diplock LJ said that estoppel did not apply to proceedings that were inquisitorial:
‘Estoppel’ merely means that, under the rules of the adversary system of procedure upon which the common law of England is based, a party is not allowed, in certain circumstances, to prove in litigation particular facts or matters which, if proved, would assist him to succeed as plaintiff or defendant in an action. If the court is required to exercise an inquisitorial function and may inquire into facts which the parties do not choose to prove, or would under the rules of the adversary system be prevented from proving, this is a function to which the common law concept of estoppel is alien. It may well be a rational rule to apply in the exercise of such an inquisitorial function to say that if a court having jurisdiction to do so has once inquired into the truth of a particular allegation of fact and reached a decision thereon, another court of co-ordinate jurisdiction in the exercise of its own discretion should not re-embark upon the same inquiry, but should accept the decision of the first court. But this is a different concept from estoppel as hitherto known in English law.
59[1964] P 181 at 197.2.146Diplock LJ’s suggestion has been considered and developed in cases involving children, in which the proceedings are inquisitorial. In
Re B (Minors) (Care Proceedings: Issue Estoppel),
60[1997] Fam 117. the court reviewed the family law cases. Those cases had refused to apply the rigid rules of estoppel, preferring Diplock LJ’s discretionary approach. Hale J set out some of the factors that had to be balanced in cases under the Children Act 1989: the interests of finality, the importance of the issue in the earlier proceedings, and the likelihood that a different outcome would be reached in the later proceedings.
61[1997] Fam 117 per Hale J at 128–129.2.147This was applied more widely in cases involving children by the Court of Appeal in
White v Aldridge QC and the London Borough of Ealing.
62[1999] ELR 150. Butler-Sloss LJ said:
In cases with an inquisitorial element, the approach, as Diplock LJ explained, is not the same as in strict common-law litigation. Since the court has its own function to perform to arrive at the right result, independent of the submissions of the parties, it has to adopt a degree of flexibility to an application to strike out or to refuse to hear evidence on certain issues. But the underlying principle not to relitigate the same issue twice applies in all cases of an inquisitorial nature including Children Act cases.
63[1999] ELR 150 at 157.2.148Hale J’s analysis has been adapted to child support proceedings, which are subject to a statutory decision-making framework. In
RC v CMEC and WC,
64[2009] UKUT 62 (AAC). the Upper Tribunal said:
Hale J’s advice needs some adjustment for application in the child support scheme. Tribunals must make the best findings they can on the information and evidence available to them. The information may include findings made by previous tribunals and family courts. The significance of those findings will depend on their reliability and relevance. In assessing their reliability, tribunals must consider: (i) the evidence on which they were based; (ii) the nature of the fact-finding process (for example, whether the parent was subject to cross-examination); and (iii) the evidence now available. If there is no evidence to the contrary, tribunals may be entitled to conclude that the findings previously made are sufficient and reliable in the child support context. Whether or not this is so will depend on their relevance in the particular case. In assessing the relevance of previous findings, tribunals must consider: (iv) the facts that are relevant to the issue before the tribunal; (v) the precision with which they have to be found in order to apply the legislation; (vi) whether the previous findings relate, or can be related by other evidence, to the time now in issue; and (vii) the extent to which the issues in the previous proceedings affected the evidence that was obtained or the facts that were found.
65[2009] UKUT 62 (AAC) at [57].Issues covered by an inquiry
2.149The report of an inquiry is admissible on the findings of fact and on the conclusions reached, for example on a person’s suitability for particular work, but it is not binding on a tribunal, provided the tribunal explains why and in what respects it differs in its findings or conclusions.
66Leveson J in Secretary of State for Education and Skills v Mairs [2005] ICR 1714.Statements and promises
2.150Statements or promises made by a party outside litigation may prevent that party taking a different position in litigation. This is covered by estoppel by representation and promissory estoppel. They are not dealt with here.
67See books on estoppel and evidence. These principles are not applicable to the acts, statements and promises of a public authority.
2.151It is not possible to prevent a public authority from enforcing a duty. In
Maritime Electric Co Ltd v General Dairies Ltd,68[1937] AC 610. the Privy Council was concerned with a case in which a public utility company considerably under-billed a customer for electricity supplied. The Council held that the utility company was not bound by this mistake. Lord Maugham said:
… where, as here, the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it. This conclusion must follow from the circumstance that an estoppel is only a rule of evidence which in certain circumstances can be invoked by a party to an action; it cannot therefore avail in such a case to release the plaintiff from an obligation to obey such a statute, nor can it enable the defendant to escape from a statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey the law.
69[1937] AC 610 at 620.2.152Nor is it possible to prevent a public authority from exercising a discretion in a particular way. In
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd,
70[1962] 1 QB 416. the Divisional Court of Queen’s Bench was concerned with a local authority’s enforcement notice in respect of work carried on at premises without planning permission. The defence to this was that an officer of the local authority has stated in advance that the work did not involve a change of use and so did not require permission. Accordingly, it was argued that the local authority could not exercise its discretion to issue an enforcement notice. The Court rejected this argument. Lord Parker CJ said:
I can see no logical distinction between a case … of an estoppel being sought to be raised to prevent the performance of a statutory duty and one where it is sought to be raised to hinder the exercise of a statutory discretion. After all, in a case of discretion there is a duty under the statute to exercise a free and unhindered discretion.
71[1962] 1 QB 416 at 423–424.This line of authority is now subject to the developing law on legitimate expectation.
2.153It is not possible to require a public authority to act outside its powers. In
Minister of Agriculture and Fisheries v Matthews,
72[1950] 1 KB 148. the Divisional Court of King’s Bench was concerned with the validity of a lease purportedly granted by the Ministry. Cassels J held that the Ministry could not be stopped from denying the validity of the lease on the grounds that it had no power to grant it. He said:
… the plaintiff [the Minister] is a statutory and not an actual person and can, therefore, only perform the acts which he is empowered to perform.
73[1950] 1 KB 148 at 153.2.154Legitimate expectation cannot be relied on to require a public body to act contrary to statute.
74R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115 at 1125 and 1132; R (Nadarajah) v Secretary of State for the Home Department (2005) Times 14 December. 2.155However, it is possible to hold a public authority to a decision that is subject to a technical irregularity. So in
Wells v Minister of Housing and Local Government,75[1967] 1 WLR 1000. the plaintiff was informed by a local authority that permission was not required for a particular use of their land. The plaintiff did not formally apply for a determination whether the use would involve development. However, the Court of Appeal held that the local authority’s letter was effective as a determination. Lord Denning MR said:
Now I know that a public authority cannot be estopped from doing its public duty, but I do think that it can be estopped from relying on technicalities; and this is a technicality to be sure. … I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid.
76[1967] 1 WLR 1000 at 1007.This principle was accepted by the courts, although it only applied to the benefit of a party who had relied detrimentally on the public authority’s statement or action.
77Norfolk County Council v Secretary of State for the Environment [1973] 1 WLR 1400. 2.156However, in
R (Reprotech (Pebsham) Ltd) v East Sussex County Council,
78[2003] 1 WLR 348. the House of Lords left open whether
Wells was correctly decided.
79[2003] 1 WLR 348 per Lord Hoffmann at [30]. More to the point, Lord Hoffmann, with whom all the other Law Lords agreed, said:
It is true that in early cases such as the
Wells case … Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were undeveloped and no doubt the analogy of estoppel seemed useful…. It seems to me that in this area, public law has already developed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet.
80[2003] 1 WLR 348 at [35].2.157The full implications of this approach for planning law, for other areas of public law and for the effect of previous decisions in litigation have not developed.
2.158Legislation may make specific provision.
81For example: Nationality, Immigration and Asylum Act 2002 s96.