THE MASTER OF THE ROLLS: The judgment I am about to read is the judgment of the Court.
THE MASTER OF THE ROLLS: The Plaintiff Company, the Appellant in this Court, is a Company incorporated in Dublin according to the laws of Eire, and it claims in the present proceedings to be the proprietor of a leasehold interest in premises in London known as 158 Coldharbour Lane, Brixton, or Lambeth. The action is one for alleged arrears of rent from tenants occupying a part of the premises. The defence raised in the action included a challenge to the Plaintiff Company's title to sue on the ground that since the Plaintiff Company is a foreign corporation having no business or address in England, and since it has neither availed itself of the provisions of section 408 of the Companies Act, 1948, nor has a licence in mortmain, so as to entitle it to hold land in this country, the interest which the Plaintiff Company claims to have in the premises in question had, prior to the initiation of the present proceedings, been forfeited to the Crown. The Defendant tenants rely particularly upon the decision of this Court in the earlier case in which the Plaintiff Company was involved, Morelle Ltd. v. Waterworth, reported in 1955, 1 Queen's Bench, page 1.
In the case just mentioned (which I will hereafter refer to as the "first Morelle case") two distinct points were raised. (1) Was the assurance to the Plaintiff Company of the unexpired residue of a term of years in house property in London an assurance of land in mortmain within the terms of section 1 of the Mortmain and Charitable Uses Act, 1888? (2) If so, was the term so assured automatically forfeited to the Crown by virtue of the same subsection? Both these questions were answered affirmatively by this Court. Both questions turned on the proper interpretation of the relevant terms of the Mortmain and Charitable Uses Acts, 1888 and 1891.
It is not in dispute that the only distinction between the present case and the first Morelle case — though it may be a distinction of substance — is that, in the present case, the land in question (which, like that in the earlier case, is the subject of an unexpired residue of a term of years) is registered land, and that the name of the Plaintiff Company has been inserted on the Land Register in respect of that land as proprietor thereof with a possessory title. It has been accordingly contended, unsuccessfully in the County Court, on behalf of the Plaintiff Company that such registration has, in any event, given to the Plaintiff Company a good title to the land and, accordingly, to sue in this action, notwithstanding the effect of the Mortmain Acts, unless and until the Crown or some other person entitled to make application obtains rectification of the Register.
It will be convenient to refer now to the relevant provisions of the Acts of 1888 and 1891.
Section 1(1) of the Act of 1888, which is in Part I of the Act entitled "Mortmain", reads:
"Land shall not be assured to or for the benefit of, or acquired by or on behalf of, any corporation in mortmain, otherwise than under the authority of a licence from Her Majesty the Queen, or of a statute for the time being in force, and, if any land is so assured otherwise than as aforesaid the land shall be forfeited to Her Majesty from the date of the assurance, and Her Majesty may enter on and hold the land accordingly".
Subsection 2 of the section contains a number of provisos of which, having regard to the nature of the argument later discussed, paragraph (iv) is of some significance. That paragraph is:
"If the right of entry under this Act is exercised by or on behalf of a mesne lord, the land shall be forfeited to that lord from the date of the assurance instead of to Her Majesty".
Section 10 contains certain definitions and it is to be observed that these definitions relate equally to Part I of the Act relating to mortmain and Part II relating to charitable uses. The material definitions are:
"(i) 'Assurance' includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, bequest, and every other assurance by deed, will, or other instrument; and 'assure' and 'assuror' have meanings corresponding with assurance. (iii) 'Land' includes tenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land".
The last mentioned definition was replaced by section 3 of the Mortmain and Charitable Uses Act, 1891, which reads (as later amended by the Statute Law Revision Act, 1908):
"Land in the Mortmain and Charitable Uses Act, 1888, and in this Act shall include tenements and hereditaments corporeal or incorporeal of any tenure but not money secured on land or other personal estate arising from or connected with land".
It will be observed that the effect of the amendment by the Act of 1891 has been to exclude from the definition of land, for the purposes of both Acts, the formula "any estate and interest in land".
When this appeal was first called on in December last before the Master of the Rolls, Lords Justices Birkett and Romer, it was suggested, having regard to the importance of the matters involved and since we were informed that a number of properties were similarly affected, that an opportunity should be given to the Attorney-General to attend the appeal and put forward such arguments as he thought fit as amicus curiae. The case was adjourned accordingly and the Attorney-General has availed himself of the opportunity which we gave. We are greatly indebted to the Attorney-General and to Mr Cross for their very considerable assistance in a difficult matter. On the appeal again coming on before a full Court, the first point raised by the Attorney-General was that the Crown should be added as a party to the proeeedings as being (within the terms of Order XVI rule 11)
"a party who ought to have been joined, or whose presence before the Court might be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter".
We decided to postpone our decision upon this application until we had heard the argument upon the whole ease, and we shall deal hereafter with it. It may be stated, however, that though the apparent interest of the Crown would be to support the Court of Appeal's conclusion in the first Morelle case, in reality this is found not to be so: for, if the leasehold terms in question have vested in the Crown, then the Crown would presumably be liable upon the covenants contained in the leases, including the covenants relating to repairs and delivery up. As we have stated, the alleged interests of the Plaintiff Company in the present case and in the first Morelle case are interests in the unexpired residues of terms of years. In the present case the term of years expires in 1964. It is plain that the Crown have not thought it right or in its proper interests to seek to support the decision in the first Morelle case and of the County Court Judge in the present appeal.
The next point accordingly taken by the Attorney-General was that the decision of this Court in the first Morelle case was erroneous and, having been arrived at per incuriam, was open now to review and ought not to be followed by this Court. Mr Shaw-cross, who appeared on behalf of the Plaintiff Company, felt a difficulty in himself arguing this point - assuming, since this is a County Court appeal, that it was sufficiently taken in the Court below. The main argument upon this question was accordingly presented to us by the Attorney-General and Mr Cross as amici curiae.
At our invitation the Attorney-General and Mr Cross put before us the general character of the argument upon which they would rely in support of their main contention, namely, that this Court, in the first Morelle case, had reached an erroneous conclusion upon one or both of the two questions then submitted to it and above formulated. In so putting this main contention the learned Counsel for the Crown informed us of the authorities upon which they relied, but they did not refer specifically to more than a few of them: nor did they fully elaborate their argument. But they then submitted their case for saying that this Court had decided the first Morelle case per incuriam; and we heard this part of the argument upon the basis of the correctness of the Attorney-General's main contention.
This main contention was to the following effect:
(1) The Mortmain and Charitable Uses Act, 1888, is by its own title an Act to consolidate and amend the law relating to mortmain.
(2) This Act and the amending Act of 1891 should, therefore, according to well-established principle and authority (see, for example, Re Budgett, 1894, 2 Chancery, page 557, and Aristoc Ltd. v. Rysta, 1945 Appeal Cases 68 at page 93) be construed, so far as their terms fairly admit, in conformity with the law relating to mortmain as it previously stood - particularly as it stood according to the terms of the confirmation of Magna Carta, 9 Henry III, Chapter 36, and the Statute De Religiosis Viris, 7 Edward I.
(3) The earlier law relating to mortmain was based essentially on the conception of the feudal tenure of land.
(4) Thus
(a) the dispositions struck at were dispositions of the fee and leaseholds were excluded from its scope except in so far as a leasehold term was in duration such as to be practically equivalent to a freehold,
(b) alternatively, an assignment of a relatively short unexpired residue of a term of years such as those in question in the present and the first Morelle cases was never comprehended by the law relating to mortmain.
(c) the penalty for infringing the provisions of the law relating to mortmain was liability to forfeiture (following a distinct and established procedure) and not an automatic forfeiture.
(d) moreover, the right of forfeiture in the Crown was subject to the prior like rights, in gradation, of the mesne lords, if any.
(e) the subject matter forfeited was in all cases the fee itself.
(5) Finally, in construing the relevant terms of the Mortmain, etc. Act, 1888, it is of the highest significance that the Statute related both to the law relating to mortmain and also to that relating to charitable uses (previously the subject of the Statute 9 George II) and the inclusion in the definition of land in section 10(1) (iii) of the phrase "any estate and interest in land", which was excluded by the amending Act of 1891, was attributable to the application of the Act to charitable uses.
It was clear to us that this argument had involved considerable research and reference to some of the oldest authorities in our law, and would have taken no little time to develop fully. We did not, in the circumstances, hear the answer which Mr Gardiner was prepared to offer. For, whether or not, if we were free to treat the matter as res integra, we should arrive at a different answer to either or both of the material questions from those given by this Court in the first Morelle case, it is clear that we cannot now reopen those questions at all unless we can properly hold that the decision of this Court in the first Morelle case was given per incuriam so as, consistently with the judgment of this Court in Young v. Bristol Aeroplane Company Limited, 1944, 1 King's Bench, page 718, to leave the matter at large for our independent decision.
We have carefully considered the Judgments and the report of the arguments in the first Morelle case as they appear in 1955, 1 Queen's Bench. We have also had available to us the notes made during the hearing of that case by Lord Justice Denning and Lord Justice Morris. With this material before us it has been impossible, in our judgment, to fasten upon anything in the Judgments in the first Morelle case or upon any step in the reasoning on which those Judgments were based, and to say of it: "Here was a manifest slip or error".
It is true that the argument formulated for us by the Attorney-General and Mr Cross was not (as it clearly appears) so fully or carefully formulated on the former occasion. In particular, it does not appear that the point was made or at all comparably emphasised that the 1888 Act, being an Act only to consolidate and amend the previous relevant law, must be so construed as prima facie not intended to bring about substantial changes in that law. But, as we have already said and as we venture to emphasise, the question before that Court was one of the true interpretation of the language in fact used by Parliament in the 1888 and 1891 Acts. It is, we think, manifest that section 1 of the 1888 Act is widely different from that of the Statute 7 Edward I - which is indeed not surprising, having regard to their respective dates. Thus, as regards forfeiture, the Statute of Edward I lays it down that any prohibited transaction should be "under pain of forfeiture" and continues to provide that in the event of any person offending against the Statute "It shall be lawful to us and other chief lords of the fee immediate to enter into the land so aliened within a year from the time of the alienation" etc.
On the other hand, whatever be the true sense in which the words "shall be forfeited" are used at the end of subsection 1 of section 1 of the Act of 1888, it seems clear, as the Attorney-General observed and conceded, that the same words in paragraph (iv) of subsection 2 of the same section refer inevitably as a matter of language to a forfeiture taking effect immediately. And although there have been several decisions of the Courts (named by the Attorney-General) upon the scope of the old law relating to assurances in mortmain, there has been none upon the relevant terms of the Act of 1888, except the case before Mr Justice Wills of Truro Corporation v. Rowe, 1901, 2 King's Bench, page 870, which is not binding on this Court and which was criticised in the current Second Edition of Halsbury's Laws of England, Volume 8, page 83, note (g), (see now Third Edition, Volume 9, page 73, note (1)) on the ground that the attention of the Court had not been directed to the terms of the definitions in section 10 of the Act of 1888. Further, there is no doubt, in our judgment, that the old law relating to mortmain including the effect, as it had been understood, of the Statute 7 Edward I, was clearly put to this Court in the first Morelle case, if less fully or elaborately than upon the present occasion; and this Court in the first Morelle case deliberately expressed its conclusion upon the question whether, as a matter of construction of the Acts of 1888 and 1891, the old view as to the non-applicability of the law of mortmain to relatively short terms of years or to an assignment of the unexpired residues of such terms still held good; and also upon the question what effect should be given (in the light of the earlier law) to the terms of section 1(1) of the 18S8 Act as to forfeiture to Her Majesty. It is also clear, from the Judgment of Lord Justice Singleton (see page 6 of the report in 1955 1 Queen's Bench) that the Court had also in mind the effect of section 3 of the Act of 1891 which removed from the definition of "land" in the 1888 Act the words "any estate interest in land".
In delivering the Judgment of this Court in Young v. Bristol Aeroplane Company Limited (1944, 1 King's Bench, at page 725) Lord Greene, Master of the Rolls, thus stated the effect of the rule stare decisis in its application to the Court of Appeal:
"In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment."
Lord Greene returned to the fourth class — which is that now relevant — at page 728 of the report when he said:
"It remains to consider the quite recent case of Lancaster Motor Company (London) v. Bremith Limited, in which a court consisting of the present Master of the Rolls, Lord Justice Clauson and Lord Justice Goddard, declined to follow an earlier decision of a court consisting of Lord Justice Slesser and Lord Justice Romer. This was clearly a case where the earlier decision was given per incuriam. It depended on the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the court was apparently not referred and which it obviously had not in mind. The Rules of the Supreme Court have statutory force and the court is bound to give effect to them as to a statute. Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it - in such a case a subsequent court must decide which of the two decisions it ought to follow; and those where it has acted in ignorance of a decision of the House of Lords which covers the point - in such a case a subsequent court is bound by the decision of the House of Lords.
On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of coordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise:
(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
(2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.
(3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."
Some further light has been thrown upon the meaning and scope of the term "per incuriam" by later decisions. In the first, Police Authority for Huddersfield v. Watson, 1947 King's Bench, page 842, a Divisional Court of the King's Bench Division consisting of Lord Goddard, Lord Chief Justice, and Mr Justice Atkinson and Mr Justice Lewis held that that Court was, like the Court of Appeal and upon similar principles, bound by previous decisions of its own. In delivering the Judgment of the Court the Lord Chief Justice said, at page 847 of the report:
"What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and it has given its decision in ignorance or forgetfulness of the existence of that case or that statute."
Applying that principle the Divisional Court held itself bound by the earlier decision of the same Court in Garvin v. Police Authority for the City of London, 1944 King's Bench, page 358.
In a later case of Nicholas v. Penny, 1950, 2 King's Bench, page 466, concerned with the question whether evidence of a speedometer reading was prima facie evidence of the speed recorded, the Divisional Court, consisting of Lord Goddard, Lord Chief Justice, Mr. Justice Humphreys and Mr. Justice Morris (as he then was) held themselves not bound by a previous decision in Melhuish v. Morris (1930, 4 All England Reports, page 98) on the ground that that case had been decided per incuriam. Lord Goddard said (at page 472 of 1950, 2 King's Bench):
"But, without necessarily saying that we can always differ from a previous decision of the Divisional Court merely because it has not been argued on both sides, the Court is not obliged to follow that decision, for it has been laid down by the Court of Appeal in Young v. Bristol Aeroplane Company Limited, which has been followed quite recently in this Court, that where material cases or statutory provisions, which show that a Court has decided a case wrongly, were not brought to its attention the Court is not bound by that decision in a subsequent case. Two remarkable cases which might have been cited to the Court in Melhuish v. Morris if the case had been argued on both sides were not cited to it, and those cases, I think, would have had a considerable influence-on that decision".
A third case to which we were referred by the Attorney-General was that of A & J Mucklow Limited v. I.R.C., 1954, 3 Weekly Law Reports, page 129, in this Court. The case was concerned with the validity of a direction given under Section 21 of the Finance Act, 1922 (as amended by Section 31 of the Finance Act, 1937) in respect of the so-called "broken accounting period" up to the commencement of the appellant company's winding up, on the ground that the company had not for such period distributed a reasonable amount of its income to its members. It was in that case contended by the Crown (who were held by this Court entitled on other grounds to succeed) that a direction given under the Section in respect of a broken period was inescapable; and the Crown relied in support of that contention upon the language of Lord Hanworth, Master of the Rolls, and (more particularly) of Lord Justice Slesser in an earlier case of H. Collier & Sons Limited v. I.R.C., 1933, 1 King's Bench, page 488. This Court held that they were not bound by the opinions of the majority of the Court in the earlier case on the ground (among others) that those opinions proceeded upon a premise which was admittedly erroneous, such premise being inconsistent with an authority binding on the Court of Appeal which had not been cited in Collier's case. At page 140 of the Report of Mucklow's case in 1954, 3 Weekly Law Reports, the present Master of the Rolls said:
"It is conceded that Lord Justice Slesser fell into error in supposing that in cases falling under the original Act the commissioners had a duty to ascertain any 'reasonable' figure which fixed the limits of tax liability. Colville Estate Limited v. Inland Revenue Commissioners was not cited to the Court of Appeal in Collier's case. In Colville's case it had been clearly held that if in such a case as I am supposing, that is, one falling under the terms of the original Act of 1922, a company had not distributed a reasonable part of its actual income, then the members were liable to be taxed in respect of the whole of that income and not a reasonable part only of it; and that view of the section was later approved in the House of Lords in Fattorini's case, per Lord Atkin, per Lord Macmillan, and per Lord Wright. It was argued that the error into which Lord Justice Slesser fell was nevertheless not essential to the ratio of his decision of the case. As a matter of strict logic, it may be that the conclusion was independent of the false premise. The question is, however, not whether, as a matter Of logic, the conclusion depended on the premise, but whether Lord Justice Slesser thought that his conclusion followed from the antithesis which he had earlier stated; and I am very far from satisfied that, if it had not been for his view of the effect of the original section and of the contrast which he consequently discerned from the introduction of the formula 'available for distribution, etc.' he would ever have formed the view which he did of the meaning of that formula. For my part, therefore, I should be prepared to hold that the judgment of Lord Justice Slesser, if it would otherwise be authoritative, can be reviewed in this Court (within the principle of Young v. Bristol Aeroplane Company) on the ground that it was delivered, in this essential respect, per incuriam, or that a material part of the reasoning on which the conclusion rests is inconsistent with later pronouncements (in Fattorini's case) of the House of Lords".
The Master of the Rolls then referred to the judgment of Lord Hanworth and concluded (page 142):
"I think also that the disabling quality in the judgment of Lord Justice Slesser must, as a consequence, equally affect that of Lord Hanworth, Master of the Rolls".
Lord Justice Jenkins in the same case, after saying that he felt "considerable difficulty" as to Collier's case, and after referring to Lord Justice Slesser's "misapprehension" and to the fact that the views of Lord Hanworth, Master of the Rolls, and Lord Justice Slesser upon the point raised in Mucklow's case were not necessary to the decision in Collier's case, said (at page 154):
"For the reasons I have stated, I cannot regard the circumstances in which the majority judgments in Collier's case were delivered as wholly satisfactory, and having regard to those circumstances, to the probability that the Court was consequently denied the assistance of anything comparable to the very full argument addressed to us in the present case, and to the fact that it was unnecessary for the purpose of deciding the case then before the Court to express any opinion on this aspect of the construction of section 31 (4), I think that those are substantial grounds for the view that we would be justified in holding that it should not be considered as a binding authority for the proposition that section 31 (4) is automatic in its effect".
In the light of these authorities it was the contention of the Attorney-General that the question whether a decision had been given per incuriam was not to be determined according to any hard and fast rule but was one of degree, depending upon the special circumstances of the case. He referred to the language of Lord Greene, Master of the Rolla, which we have earlier quoted:
"We do not think it would be right to say that there may not be other cases of decisions given per incuriam" (i.e., other than decisions given in ignorance or forgetfulness of a Statute or a Rule having the force of a Statute) "in which this Court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts".
In the first Morelle case (so ran the Attorney-General's argument) the circumstances were of a very special and unusual character; and he referred particularly to the subject-matter — the law relating to mortmain — which is of a specialised and highly technical character and which very infrequently comes before the Courts; to the fact that the arguments were brief, the learned Counsel for the plaintiff company having only been instructed in the afternoon before the case came on for hearing; and to the absence of any sufficient emphasis, consequently, upon the connexion of the law relating to mortmain with the feudal conception of land tenure and upon the fact that the Act of 1888 was a consolidating and amending Statute.
We have been unable to accept this argument. As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene, of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the Judgments were based and to say of it: "Here was a manifest slip or error". In our judgment, acceptance of the Attorney-General's argument would necessarily involve the proposition that it is open to this Court to disregard an earlier decision of its own or of a Court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the Court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of Counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided. Although, as was pointed out in Young v. Bristol Aeroplane Company, a "full Court" of five Judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal Division of the Court consisting of three Judges, we cannot help thinking that, if the Attorney-General's argument were accepted, there would be a strong tendency in cases of public interest and importance, to invite a "full Court" in effect to usurp the function of the House of Lords and to reverse a previous decision of the Court of Appeal. Such a result would plainly be inconsistent with the maintenance of the principle of stare decisis in our Courts.
In conclusion upon this point we would add that we are unable to accept Mr. Shawcross' suggestion that the decision in the first Morelle case should be regarded as per incuriam on the ground that a necessary party to the proceedings, viz., the Crown, were not before the Court. A decision cannot, in our judgment, be treated as given per incuriam simply because of a deficiency of parties.
We therefore hold that the decision in the first Morelle case is binding upon us.
It remains to consider the contention that this case is distinguishable from the first Morelle case on the grounds that the land here in question is registered land, and that the assurance in mortmain was effected by means of a transfer for valuable consideration from the previous registered proprietor, one Desmond Dixon, to the Plaintiff Company, completed by the registration of the Plaintiff Company as proprietor in succession to the Transferor.
We should note that the case of Rodnall Limited v. Ludbrook, decided by this Court at the same time and in the same way as the first Morelle case, was in fact a case of registered land, but it was decided without separate argument on the admission of Counsel that it was indistinguishable from the first Morelle case. Accordingly, if and so far as the fact and effect of registration are found on examination to afford valid grounds for distinguishing the first Morelle case from the present case, we are free to make the distinction. On that assumption there can be no doubt that Rodnall Limited v. Ludbrook was decided per incuriam, for it was decided in disregard of the statutory provisions which (on the assumption now made) distinguished it in truth from the first Morclle case.
The facts regarding the registered title to the land now in question, namely, the leasehold interest under a lease for 99 years from the 25th December, 1865, in No. 158, Coldharbour Lane, Lambeth, are briefly these. The land was first registered with a possessory title on the 19th July, 1904. The immediate predecessor in title of the Plaintiff Company, Desmond Dixon, was registered as proprietor on the 26th November, 1951. The instrument of transfer from Desmond Dixon to the Plaintiff Company was dated the 20th December, 1952, and was expressed to be made in consideration of the sum of £85, the receipt whereof was thereby acknowledged by Dixon, the Plaintiff Company being therein described as having its registered office at 8, Upper O'Connell Street, Dublin, Eire. The Plaintiff Company was registered as proprietor on the 27th January, 1953, with the address "care of Yamild Ltd., 128, Albany Street, N.W.1". There is no evidence showing in detail the order in which the various stages of the transaction were carried out. It seems likely that there was an antecedent contract for the sale and purchase of the property, but this is not proved. Nor is it shown when the £85 was in fact paid by, and the instrument of transfer delivered to the Plaintiff Company. It seems likely again, however, that in accordance with the usual practice the £85 was paid against delivery to the plaintiff Company of the executed transfer together with the Land Certificate, that the Plaintiff Company thereafter applied for registration, producing these documents to the Registry, and that registration was granted after the usual notice by the Registry to Dixon as the registered transferor. There would thus have been an interval of some five weeks between the payment of the purchase price and the completion of the transfer by registration on the 27th January, 1953, that is, on the assumption that the price was in fact paid on the date borne by the transfer, namely, the 20th December, 1952.
It was argued by Mr. Shawcross, for the Plaintiff Company, that, forfeiture or no forfeiture, the Plaintiff Company as the registered proprietor of the land (that is to say, the leasehold interest comprised in the registered title) must, under the provisions of the Land Registration Act, 1925, be considered as owner of the land for all purposes including the right to recover and receive the rent payable by tenants of the land holding immediately under such owner, as the Defendant tenants do, at all events until such time as the right of the Crown to the land by forfeiture may be asserted and established in proceedings for rectification of the register. This, in Mr. Shawcross' submission, flows as a necessary consequence from the cardinal principle of land registration that registered interests alone are to be recognised.
This, in Mr. Shawcross' submission, flows as a necessary consequence from the cardinal principle of land registration that registered interests alone are to be recognised.
But the cardinal principle upon which Mr. Shawcross relies is subject to certain exceptions. In particular, Section 80 of the Land Registration Act, 1925, contains a saving of the rights of the Crown. That Section is in these terms:
"Subject to the express provisions of this Act relating to the effect of first registration of title and the effect of registration of a disposition for valuable consideration, nothing in this Act affects any right of His Majesty to any bona vacantia or forfeiture",
This means, as we understand it, that registered land is to be forfeited to the Crown in any case in which it would have been so forfeited if unregistered, save in so far as the sections of the Act concerning the effect of first registration and the registration of dispositions for valuable consideration expressly provide that these operations are to discharge the land from any right of the Crown by way of forfeiture.
The provisions of the Act as to first registration are not directly material here, but we quote them as having some bearing upon the arguments addressed to us.
Section 5 of the Act provides, with respect to freeholds, that:
"the registration of any person as first proprietor thereof with an absolute title shall vest in the person so registered an estate in fee simple in possession in the land together with all rights privileges and appurtenances belonging or appurtenant thereto", subject as therein mentioned: "but free from all other estates or interests whatsoever including estates or interests of His Majesty".
Sections 6 and 7 apply the provisions of Section 5, to the cases of first registration of freeholds with a possessory or qualified title, with modifications as to which it is sufficient for the present purpose to note that where the first registration is of a possessory title only estates rights and interests adverse to the title of the first proprietor and subsisting at the time of first registration are not affected.
Section 9 of the Act provides with respect to leaseholds that:
"the registration under this Act of any persons as first proprietor thereof with an absolute title shall be deemed to vest in such person the possession of the leasehold interest described, with all implied or expressed rights, privileges, and appurtenances attached to such interest", subject as therein mentioned, "but free from all other estates and interests whatsoever including estates and interests of His Majesty".
Sections 10, 11 and 12 apply the provisions of Section 9 to the cases of first registration of leaseholds with a good leasehold, possessory, or qualified title, subject to modifications which, where the title is possessory only, are comparable to those applicable to the first registration of freeholds with a possessory title only.
The effect of these provisions would seem to be that if a corporation not authorised by statute, charter or special licence to hold land in mortmain were to acquire unregistered land, thereby incurring a forfeiture under the Act of 1888, and thereafter were to obtain registration of itself as first proprietor of the land with absolute title, such registration would vest in such corporation the fee simple estate in the land in the case of freeholds or be deemed to vest in such corporation the possession of the leasehold interest in the case of leaseholds, free from the estate or interest which had in fact accrued to the Crown by reason of the forfeiture: c.f. In re Suarez (No.2), 1924, 2 Chancery, page 19. But that is not this case.
As to the effect of registration of a disposition for valuable consideration, which is the material operation for the purposes of the present case, Section 20 of the Act provides, by sub-section (1), with respect to freeholds registered with an absolute title that:
"a disposition of the registered land.... for valuable consideration shall, when registered, confer on the transferee ... an estate in fee simple .... or other legal estate expressed to be created in the land dealt with .... ",
subject as therein mentioned:
"but free from all other estates and interests whatsoever including estates and interests of His Majesty; and the disposition shall operate in like manner as if the registered transferor .... were (subject to any entry to the contrary in the register) entitled to the registered land in fee simple in possession for his own benefit".
Sub-sections (2) and (3) of the same Section apply the provisions of subsection (1) with modifications to registered dispositions for value of freeholds registered with qualified or possessory title. These modifications include where the title is possessory only a saving of the estates rights and interests excluded from the effect of first registration.
With respect to leasehollds, Section 23, sub-section (1), of the Act provides that:
"in the case of a leasehold estate registered with an absolute title a disposition .... for valuable consideration shall when registered be deemed to vest in the transferee .... the estate transferred .... to the extent of the registered estate....",
subject as therein mentioned,
"but free from all other estates and interests whatsoever including estates and interests of His Majesty; and the transfer .... shall operate in like manner as if the registered transferor .... were (subject to any entry to the contrary on the register) absolutely entitled to the registered lease for his own benefit".
Subsections (2), (3) and (4) of the same Section apply the provisions of sub-section (1) with modifications to the case of registered dispositions for value of leaseholds registered with good leasehold, qualified or possessory title, the last-mentioned being the class of title with which we are here concerned. The modifications applicable where the title is possessory only are comparable to those applicable to freeholds registered with possessory title only, and relating as they do to the title of the first registered proprietor arc not material in the present case.
The effect of these provisions for the present purpose would appear to be that if registered land had been transferred to a corporation not authorised to hold land and the transfer had been completed by the registration of such corporation as proprietor of the land transferred, the transferee corporation could thereafter by a registered disposition for valuable consideration vest the land in the purchaser thereof free of the forfeiture which had in fact been incurred by reason of the transfer in mortmain to such corporation. But that is not this case. The forfeiture here in question was brought about by the registered disposition itself, by reason of the incapacity of the transferee, the plaintiff Company, to hold land in mortmain, and we cannot construe the provisions of Sections 20 and 23 of the Act as extending to any forfeiture so occasioned. Those provisions are designed to protect a purchasing transferee from defects in the transferor's title, such as a forfeiture subsisting at the date of the transfer against the registered estate in the Transferor's hands, and not to relieve such a transferee from a defect in the transferee's own title such as a forfeiture arising on completion of the transfer by reason of the transferee's own lack of authority to hold land in mortmain. The transfer is, by Section 23 (1) (to take the Section directly in point here) made to "operate in like manner as if the registered transferor .... were (subject to any entry to the contrary in the register) absolutely entitled to the registered lease for his own benefit", and not as if the registered transferor were so entitled and the registered transferee, if in fact a corporation not authorised to hold land in mortmain, were authorised to do so.
In the course of the argument there was some discussion as to the point of time at which the forfeiture arose. It was suggested that the contract for the sale of the land by Dixon to the Plaintiff Company, if indeed there was any antecedent contract (as to which there was no evidence) or at all events the payment of the purchase money against delivery of the executed transfer, constituted Dixon a trustee of the land for the Plaintiff Company, and that this sufficed to work a forfeiture under the 1888 Act.
We find difficulty in accepting this proposition. It is not clear to us that a man who contracts to sell land to a corporation not authorised to hold land in mortmain, even though he receives the purchase money, incurs or creates a forfeiture at any time before actual conveyance. The contract would not be specifically enforceable and, therefore, could hardly give rise to a constructive trust. If the vendor refused to complete prima facie the only remedy of the purchaser corporation would be to recover any purchase money paid as money had and received to its use. We say nothing as to the effect of an express declaration of trust in favour of such a corporation, and are referring only to a contract of sale and purchase to be carried out by conveyance in the ordinary way. Moreover, in the present case the transaction was a sale and purchase of registered land intended to be carried out and in fact carried out by means of a transfer completed by registration under the Act. We note that by section 22(l)
"A transfer of the registered estate in the land ... shall be completed by the Registrar entering on the register the transferee as proprietor of the estate transferred, but until such entry is made the transferor shall be deemed to remain the proprietor of the registered estate ..."
Accordingly, we think the better opinion is that there was no forfeiture here until the completion by registration of the transfer from Dixon to the Plaintiff Company. But if we are wrong in this, and if the contract for sale or the receipt of the purchase money sufficed to work a forfeiture on the ground that Dixon thereby constituted himself a trustee for the Plaintiff Company, how does the case stand? On this assumption the position was that immediately before the registration of the transfer Dixon was a registered proprietor who had incurred or created a forfeiture, while the Plaintiff Company had no interest at all; for ex hypothesi the forfeiture worked contemporaneously with the arising of the trust, which in any case had no effect on the registered title. Dixon then effected a disposition for valuable consideration of the registered estate in the land to the Plaintiff Company, and by force of section 23 of the Act that disposition when registered operated to vest the registered estate in the Plaintiff Company free of the forfeiture occasioned by the arising of the trust in its favour. But that same disposition when registered brought about a new forfeiture operating against the registered estate in the hands of the Plaintiff Company by reason of the Plaintiff Company's want of authority to hold land in mortmain, and this forfeiture was not touched by the overreaching effect accorded to registered dispositions for value by section 23.
Accordingly we are of opinion that the result is the same even if (contrary to our view) a forfeiture was incurred at any stage in the transaction earlier than the actual completion of the sale by regintration of the Plaintiff Company as proprietor, and that the Plaintiff Company cannot escape the forfeiture consequent upon the registration of the disposition for value in its favour on the ground that there was an earlier forfeiture from which the land was freed under section 23 by the registration of such disposition. If this were not so the strange result would ensue that transfers for value of registered land to corporations not authorised to hold land in mortmain could always be made without giving rise to a forfeiture of the land in the hands of the transferee corporation.
For these reasons the fact that the present case concerns registered land does not in our opinion afford any valid ground for distinguishing the first Morelle case. The express provisions of the A ct relating to the effect of registration of a disposition for valuable consideration, that is to say (so far as leaseholds are concerned) the provisions of section 23, include no provision which can properly be construed as freeing the land from the forfeiture incurred by the registered transfer to the Plaintiff Company. Accordingly by virtue of section 80 of the Act such forfeiture took effect upon the registration of the transfer, just an it would have done on the execution and delivery of an assignment of unregistered leaseholds, and, as we are bound to hold following the first Morelle case, took immediate and automatic effect without any act or proceeding on the part of the Crown to assert or establish it. This forfeiture being, as we have held, unaffected by the provisions of the Land Registration Act, it follows that it took effect without rectification of the Register and was not suspended pending an order for rectification or contingent upon such an order being obtained.
A good deal of the argument was directed to the use of the word "deemed" in Bection 9, where the registration of a person as first proprietor of a leasehold interest is to be "deemed to vest" in such person possession of the interest described, and in section 23 where the registration of a disposition for valuable consideration of a registered leasehold interest is to be "deemed to vest" in the transferee the estate transferred, another example being in section 69 where the registered proprietor of land is to be "deemed to have vested in him ... the legal estate ..." It was said on the one hand that the effect of "deeming" a man to have property vested in him is that he is to be treated as having it vested in him whether in fact he has it vested in him or not. On the other hand it was said that "deemed" means deemed for the purposes of the Act, and only so far as those purposes require, the relevant purposes here being the protection of third parties dealing with the registered proprietor for value and in good faith.
Several authorities bearing upon this point were cited. We find it difficult to attach any great significance to the use of the word "deemed" in sections 9, 23 and 68 of the Act, as section 5 provides with respect to the first registered proprietor of a freehold estate that registration "shall vest in the person so registered an estate in fee simple ...." with no deeming about it; and again Section 20 provides with respect to a registered disposition for value of a freehold estate that the disposition when registered "shall confer", not "shall be deemed to confer", on the transferee an estate in fee simple or other legal estate appropriate to the transaction. It can hardly have been intended that the effect of the registration of the first proprietor of a leasehold interest or the registration of a transfer for value of a leasehold interest was to differ from the effect of like transactions in regard to freehold estate in any respect other than such as flows from the inherent differences between a freehold and a leasehold estate. There may perhaps have been technical conveyancing reasons for these variations in language. At all events we cannot extract from them anything of assistance in the determination of the present case, which to our mind turns simply upon the absence in section 23 of any express provision to oust the saving of the Crown's right of forfeiture contained in section 80. Before parting with this case we should refer to a point as to the form of the transfer to which Mr Gardiner called our attention. Rule 121 of the Land Registration Rules 1925 provides by sub-paragraph (1) as follows:
"A transfer of land to an incorporated company or other corporation, sole or aggregate, shall be made by an instrument in Form 35, and, save as mentioned in this rule, shall refer to the licence in mortmain or statute enabling the corporation to acquire or hold the land".
Form 35 is in the following terms after the heading:
"Pursuant to a licence", etc. "I, A.B., of etc. (the proprietor) (fill in the corporate name of the transferee) hereby transfer to (blank)/all the land"
as in the earlier Form. Then there is a note:
"If the licence or statute contains any limit to the extent of land which may be conveyed or held, or any provisions as to the purposes for which it may be used, add at the end of the form: 'And it is hereby declared that the land already held by the transferees under such licence (or Act), together with the land hereby transferred, does not exceed (blank) acres (or that no land other than that hereby transferred is held by the transferees), and that the present transfer is for the purposes of (fill in the purposes for which the land is to be used)'".
Rule 121 was not followed in the present case, and the transaction was carried out by the common form of transfer, which was accepted for registration, although it was apparent from the description of the Plaintiff Company as having its registered office at 8, Upper O'Connell Street, Dublin, Eire, that it was a foreign corporation. If Rule 121 had been followed the Plaintiff Company would never have been registered as proprietors. The reason why Rule 121 was not followed appears from the view expressed in this foot-note to the Rule contained in Brickdale and Stewart-Wallace on the Land Registration Act, 1925, 3rd edition, at page 434. The note is:
"Leasehold land is not within the Mortmain Acts unless the lease is virtually perpetual, and leases for twenty, forty, and even ninety-nine years have been expressly held to be exempt (see Tudor's 'Charitable Trusts', 4th. edition (1906), page 429, and, ibid., the note to section 1 of the Mortmain Act, 1888)".
That being the view of the law on which the Registrar, no doubt on competent legal advice, was accustomed to act, it appeared unnecessary to insist on the use of Form 35 on a transfer of short leaseholds to a corporation, as that Form only differs from the common one in its references to the licence in mortmain, which would be inappropriate on the view that short leaseholds were not within the Mortmain Acts. That view has now been shown by the first Morelle case to have been erroneous, and no doubt the practice of the Land Registry will be altered accordingly.
It was suggested that this departure from the Rules might have invalidated the transfer in the present case, but the point was not pressed, and we are satisfied that the transfer was not so invalidated. The rule-making power is conferred by section 144(1) of the Act, which empowers the Lord Chancellor with the advice and assistance of the Rule Committee therein mentioned to make general rules (inter alia):-
"(ii) For prescribing the forms to be observed, the precautions to be taken, the instruments to be used, the notices to be given, and the evidence to be adduced in all proceedings before the Registrar or in connection with registration...",
and by subsection (2) any rules made in pursuance of that section are to be of the same force as if enacted in the Act.
Accordingly, if the Rules categorically enjoined that a particular form and none other should invariably be used for transactions of a particular kind the use of a different form for a transaction of that kind might be held to invalidate the transaction. But Rule 74 provides:
"The forms in the Schedule hereto shall be used in all matters to which they refer, or are capable of being applied or adapted, with such alterations and additions, if any, as are necessary or desired and the Registrar allows".
Rule 123, sub-rule (1) provides:
"A transfer of land under the last two rules shall not be registered until the Registrar is satisfied that such transfer is in accordance with the law relating to mortmain or charitable uses",
and Rule 322, sub-rule (1) provides:
"The Registrar, if he so thinks fit, may in any particular case extend the time limited, or relax the regulations made by general rules for any purpose; and may at any time adjourn any proceeding, and make any new appointment".
The Registrar is thus given a wide discretion as to the forms to be used and his discretion extends to authorising a departure from the General Rules if satisfied that he can properly do so. It follows that although the present transaction was completed otherwise than in accordance with Rule 121 owing to the adoption in the Registry of a view as to the law of mortmain now held to be erroneous, the acceptance for registration of the form of transfer used, such acceptance being in law the act of the Registrar, must be taken as conclusive of its sufficiency in point of form. The contrary view would lead to much difficulty and uncertainty in the administration of the Act, as a person dealing with the registered proprietor of land might find it necessary to go behind the fact of his registration and enquire into the sufficiency in point of form of the disposition on the strength of which such registration was made.
For the reasons we have stated we think this appeal should be dismissed.
MR JANNER: May I ask, my Lords, in that case that my clients be awarded costs in the Court of Appeal taxed as between solicitor and client?
THE MASTER OF THE ROLLS: You are not asking for any special Order except that the Appellants pay your costs in this Court as between party and party, and that you have your costs as a legally aided person taxed as between solicitor and client under the Schedule?
MR JANNER: If your Lordship pleases. There are a number of other special Orders that I would ask for.
THE MASTER OF THE ROLLS: Shall we deal with costs first, or do these other matters relate to costs?
MR JANNER: If one might deal with the costs first, my Lord.
THE MASTER OF THE ROLLS: Mr Shawcross, I understand Mr Buckley to agree that he does not ask for any costs against anybody.
MR DENYS BUCKLEY: No. Your Lordships will consider later whether the Crown should be added as a party or not.
THE MASTER OF THE ROLLS: Yes. The Order will be: Appeal dismissed with costs so far as you are concerned, Mr Shawcross.
MR SHAWCROSS: Yes, my Lord. Upon that I should ask for leave to appeal.
THE MASTER OF THE ROLLS: May we postpone that for a moment? Subject to anything Mr Janner or anybody else wants to say, it seems plainly to be a case in which we should give leave.
MR SHAWCROSS: I have had a word with my friend Mr Gardiner about it. I mention it with some diffidence, but I think it is only right that the Court should be aware of the possibility. This being a foreign company it has given security for costs of a certain amount which, in view of the length of these proceedings, may not be sufficient to satisfy the Respondents. If the Crown were joined as a party it would be possible, I respectfully suggest, to make an Order that, so far as the proceedings were prolonged by reason of the intervention of the Attorney-General, that part of the costs should be borne by the Crown. I do not ask for an Order.
THE MASTER OF THE ROLLS: I should be surprised if you did.
MR SHAWOROSS: So far as the successful Respondents are concerned, if the Crown were made a party
THE MASTER OF THE ROLLS: At the moment the matter stands that the appeal will be dismissed with costs, a straightforward Order. It might possibly be convenient to deal at once with the question of the Crown being joined as a party because that may affect a number of other matters. Do you seek to be joined, Mr Buckley?
MR DENYS BUCKLEY: Yes, if your Lordship pleases.
THE MASTER OF THE ROLLS: Does it not strike you as peculiar that the Crown which has an interest in accordance with the decision of the Court should be joined as a party merely for the purpose -what of?
MR DENYS BUCKLEY: I ask that the Crown may be joined as a party in order that if the matter is taken to the House of Lords the Crown may be able to protect its own interests with regard to the effect of the decision in the Waterworth case.
THE MASTER OF THE ROLLS: If the case is going to the House of Lords the House might very well think it better that the Crown should be represented as amicus curiae. I understand that happened not so long ago in another case.
MR DENYS BUCKLEY: Yes, my Lord. Your Lordship has heard Mr Shawcross say he does propose to ask for leave to appeal. He may not appeal, but the Crown would wish to appeal on the Waterworth decision.
THE MASTER OF THE ROLLS: Is it possible to join a party at the end of the hearing merely in order that they may appeal?
MR DENYS BUCKLEY: If your Lordship makes this Order and does join the Crown as a Defendant, I would submit it would be upon the basis that the Crown has been before the Court as a Defendant throughout the appeal. The application was made at the beginning of this hearing, and your Lordships postponed it in order to take a decision when you discovered how the matter would proceed. We took the point at the very beginning of the hearing of the appeal, and, in my submission, it would not be right now to say: "Well, it is too late to take the point now because the matter has been decided".
THE MASTER OF THE ROLLS: I am not saying that.
LORD JUSTICE ROMER: Have we got any power to join the Crown as a party except under Order 16, Rule 11 ?
MR DENYS BUCKLEY: That is so.
LORD JUSTICE ROMER: There is no other Rule apart from that.
MR DENYS BUCKLEY: No, my Lord.
LORD JUSTICE ROMER: The question is whether you come within it.
MR DENYS BUCKLEY: The question is whether we are within Order 16, Rule 11:
"that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter".
My submission would be, having regard to the way in which this case has developed, that undoubtedly one of the questions involved in this cause or matter is whether or not the legal ownership of this property is vested in the Crown which vitally affects the Crown owing to the fact that it is leasehold property with various obligations attaching to it.
LORD JUSTICE ROMER: The Crown deliberately washed its hands of the registration point which was the important point. I should have thought here the Crown was concerned prima facie.
MR DENYS BUCKLEY: The Crown is vitally concerned in the mortmain point because it is the decision of this Court, not in this case but in the case that your Lordship has held to be binding upon you, the Waterworth case, which produces the result which is adverse to the Crown.
LORD JUSTICE DENNING: We do not know whether the Crown would be liable on those leases if they were vested in them.
MR DENYS BUCKLEY: There is a strong likelihood that they would be and that the Crown would be exposed to claims by the head lessors under the leases.
LORD JUSTICE JENKINS: If they made a claim you would have an admirable opportunity of making a test case of it.
MR DENYS BUCKLEY: But the object of this Rule is to avoid multiplicity of actions either between the parties to the particular case or possibly between other parties in other cases. I would suggest to your Lordships if the Crown is joined now as a party in these proceedings so that it can protect its own interests in the House of Lords, if it goes there, not merely as amicus curiae but as a party to the proceedings, that might avoid the possibility of further litigation between the parties in this action and it will be the cheapest and most expeditious way of getting the Waterworth decision dealt with which the Crown would wish to take the opportunity of doing in the House of Lords.
THE MASTER OF THE ROLLS: Does anybody want to support Mr Buckley's application?
MR JANNER: As far as my clients are concerned they wish to know to whom to pay their rent.
THE MASTER OF THE ROLLS: The question is whether the Crown should be added as a party. Are you for or against that?
MR JANNER: I am only in favour of it were it to be upon certain terms in which case one would take no objection. Were the terms not to be that the Crown would take upon itself the burden of all costs which might be involved, I would resist.
THE MASTER OF THE ROLLS: Our opinion is that we cannot and should not add the Crown at this stage as a party. It is entirely open to you, Mr Buckley, to make whatever application you may think proper to the House of Lords. I think the matter in best left to the House of Lords.
MR DENYS BUCKLEY: With respect, I doubt whether the House of Lords would add us as a party.
THE MASTER OF THE ROLLS: What application you may make to them is a matter for you. Upon the effect of any application you may make to them we cannot say anything. We do not feel we ought to do anything at this stage and that is the view of us all.
MR DENYS BUCKLEY: If your Lordship pleases.
MR SHAWCROSS: I ask for leave to appeal on behalf of my client, and I presume Mr Buckley will ask for leave to appeal against the Court's refusal to join the Crown.
MR DENYS BUCKLEY: I think I ought to do so because it is only if, your Lordships give leave to appeal from that decision that I can raise the matter.
LORD JUSTICE ROMER: Can you, Mr Buckley, apply to be joined under this Rule? The Rule says:
"The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party".
It means it can either do it under its inherent jurisdiction, or if one of the existing parties apply.
MR SHAWCROSS: It does say "without the application of either party".
LORD JUSTICE ROMER: Can you appeal from a refusal by us which is made as a result of your application?
THE MASTER OF THE ROLLS: Speaking for myself, I think this is a matter which should be essentially left to the Appeal Committee. We refuse leave to you to appeal against our decision refusing to make you a party, Mr Buckley.
MR DENYS BUCKLEY: Your Lordships are making it difficult for me.
THE MASTER OF THE ROLLS: I am making it quite simple by stating it in simple language. On the other hand, subject to Mr Janner's view, we must give leave to Mr Shawcross to appeal on any point.
MR SHAWCROSS: I think on the original hearing I did state that I would apply to have the Crown made a party, but as the matter developed I certainly did nothing more than make that formal application. Your Lordships leave would include every point.
THE MASTER OF THE ROLLS: You may have leave to appeal subject to Mr Janner. It is rather hard on him. There is no legal aid in the House of Lords.
MR JANNER: I would ask that leave to appeal to the House of Lords should be on the terms that all costs up to today should be paid and we might assume that even though the Crown were not joined as a party possibly they might be prepared to give some indication, that in the event of appeal as they were brought in in this rather peculiar capacity…
THE MASTER OF THE ROLLS: Could I suggest that we say nothing openly, about this? It may be since the Crown are interested in this matter they will think it right and proper to give every assistance in order to get this matter tried. I do not think it would be right to say more at the moment.
LORD JUSTICE ROMER: Mr Buckley is listening very intently.
LORD JUSTICE DENNING: You will get security for costs in the House of Lords.
THE MASTER OF THE ROLLS: We cannot impose conditions on a party's right to go to the House of Lords, can we? Sometimes we say: "Are you prepared to make any sort of suggestion?" Otherwise we are held to be impinging on the authority of Parliament.
LORD JUSTICE DENNING: The appellant being a company out of the jurisdiction, I am sure the House of Lords would automatically give you security for your costs.
LORD JUSTICE JENKINS: As to the costs already incurred there is no stay, so you can collect them subject to your having anything to go against.
THE MASTER OF THE ROLLS: There is £l80 in Court.
MR JANNER: That is so, my Lord.
THE MASTER OF THE ROLLS: That will go to you so far as your costs extend.
LORD JUSTICE DENNING: The House of Lords would protect you then. It would not let the appeal go on if they had not paid your costs.
MR JANNER: There is the possibility of those costs being larger than my client's contribution of £89, if they are left without their proportion of the costs being paid when it comes to the House of Lords.
THE MASTER OF THE ROLLS: I do feel it is difficult for your client. The only consolation is that you have got quite a bit of rent in hand.
MR JANNER: Yes, my Lord, but certain parts of that have been paid in instalments towards the costs of this appeal.
THE MASTER OF THE ROLLS: I follow that, but I do not think we can do more for you than give you the best Order we can here as to costs. I think we must give leave. You will be able to make any application you think right to the House of Lords if Notice of Appeal is given. I have no doubt then that you will get proper protection. Moreover, as I say, it may be that the Crown will see fit to assist you get this matter dealt with in whatever way the Crown thinks best having failed to get so far what they think they ought to have.
MR JANNER: I am much obliged, my Lord. This Company is a foreign Company and its assets in this country may be doubtful. If they do not pay the costs and do not appeal so that we are left without the costs of this appeal being paid, it might be possible for the Crown to cover at least the additional costs under those circumstances caused by their intervention.
THE MASTER OF THE ROLLS: I do not follow. Would it be possible for the Crown to do what?
MR JANNER: If the Crown had not come into thin appeal then it in very likely that the costs of this appeal would have been covered by the security for costs which was then in Court.
THE MASTER OF THE ROLLS: It is very difficult. It was only because the Crown had been invited to come in that you invited us to increase the security from £50 to £150.
MR JANNER: I appreciate that. It is only a small proportion. It by no means covers anything like the costs which have been incurred.
LORD JUSTICE DENNING: Are not the Legal Aid authorities helping you?
MR JANNER: There is the question of the £89 which my client has paid.
THE MASTER OF THE ROLLS: What are you asking us to do?
MR JANNER: I am asking that an Order be made if it is at all possible that if the appeal to the House of Lords is not proceeded with by Morelle Limited, and should the entire costs of this appeal not be paid by them, then the £89 which has been assessed as my client's contribution to the legal aid be paid by the Crown as additional costs.
THE MASTER OF THE ROLLS: I think that is a matter you should address yourself to the Crown upon. We cannot make that Order.
MR JANNER: Perhaps your Lordships might intimate to them that it would be possible.
THE MASTER OF THE ROLLS: I do not believe in intimating anything; we have no authority to do that.
MR JANNER: As I understand it, at an earlier stage the Crown stated that they would seek no Order as to costs.
THE MASTER OF THE ROLLS: But we cannot make Orders as to costs on people who are not parties. I think you must address your pleas to the Crown. We cannot do more than express the view that if you do they will obviously be persuasively addressed.
MR JANNER: If your Lordship pleases.
