These are some of the many questions that can arise when the jurisdiction of a judge or tribunal is in doubt. Two recent cases are concerned with the jurisdictional problem that arises when the validity of the appointment of the judge is questioned. By chance both arose in relation to a judge of the Technology and Construction Court. They highlight, but fail to shed light on, the ancient and still living doctrine of the de facto acts of a usurper to a public office.
The wrong procedure
The first case, Fawdry vs Murfitt, concerned the circuit judge who usually heard TCC work in Portsmouth. A non-TCC case needed a judge at the last minute and Judge Linda Davies was free. Another judge directed that the case should be transferred to the TCC so she could try it but, in breach of the rules, the parties were not notified or given a chance to object before the transfer was ordered. The losing party subsequently argued that Judge Davies had had no jurisdiction since the transfer was invalid, and sought a retrial.
An unauthorised judge
The second case, Coppard vs Commissioners of Customs and Excise, involved Judge Richard Seymour, one of the London-based TCC judges, being assigned to hear an ordinary Queen's Bench case without, as a circuit judge, having been specially authorised to hear High Court cases. Everyone thought Judge Seymour was authorised to do so because the workload of a TCC judge usually involves High Court cases. But in this instance, Judge Seymour needed special authority, which he had not been given. The losing party again argued that Judge Seymour had had no jurisdiction and sought a retrial.
The cases raised two aspects of the age-old jurisdictional argument. The first had been allocated to a judge authorised to hear the particular type of case in question, but there was an error in the allocation procedure. The second had been allocated to a judge who was not authorised to hear the type of case in question owing to an administrative error. What are the consequences of allocating a case to the right judge by the wrong procedure or to a judge not actually authorised to hear it?
Both cases could have been decided on the grounds that there was not a sufficiently serious error to even potentially vitiate the jurisdiction of the judge allocated to try it. A failure to allow a litigant a chance to object to the allocation of their case to a judge qualified to try it, and the appointment of a judge to try a case which is of a type that they habitually try are not serious or obvious shortcomings in the judicial system. However, the Court of Appeal, in both cases, decided that the judge lacked jurisdiction. And then, in order to validate both judgments, it plunged into the deep end by using the "office holder in fact" doctrine.
The "office holder in fact" doctrine
This doctrine originated in the medieval period. It was invented to deal with the difficulty that had arisen when Edward IV declared that the three Lancastrian kings who had preceded him were usurpers. If they were usurpers, the judges they had appointed were also usurpers, so that all their judgments would have been invalid. This led to a piece of judicial creativity to save these judgments despite the invalid appointments of those who had delivered them. The principle that was developed, which is still applicable today, was this: where there had been some defect in the appointing process of the "judge" the judge's judgment would stand unless either the public or the judge knew or should have known of the defect in the appointment process. This principle applied not only to judges but to any office holder under the crown.
In neither of the recent cases did the judge or the parties suspect that there had been an irregularity in the allocation process. Thus, in both cases, the invalid allocation of the case to the particular judge was not allowed to invalidate the judgment that had subsequently been delivered.
But what are the limits to this Alice in Wonderland world, which regularises the judgment of a judge who thought that she was a judge but who was not a judge even though she acted as a judge? As Lord Justice Hale herself asked in her Court of Appeal judgment in Fawdry's case: "Would it make any difference if Judge Davies had allowed herself to be persuaded to sit knowing she should not? What if the court's usher had been persuaded to sit and everyone in court had behaved as if he were entitled to do so?"
Who would have thought that a case involving the appointment of the Abbot of Fountain in 1431, an early case establishing the “office holder in fact” doctrine, might be relied on in 21st-century adjudication enforcement?
The answer seems to be that public policy requires the upholding of the acts of an office holder who has all the appearance of having been validly appointed despite the appointment being an invalid one, if everyone thought at the time that they had a "real judge" trying their case. However, as Lord Justice Hale also pointed out: "The dividing line between what is and is not sufficient 'colour' in borderline cases may not be as clear as one would like."
This is all very interesting, you may be thinking, but why does it matter? The answer is that the ambit of "the office holder in fact" doctrine may be wider than you realised. The doctrine that validates the invalid judgment applies to any office holder. An office holder includes anyone appointed by the state to decide disputes involving willing and unwilling parties. What of adjudicators? They have all the characteristics of an office holder. What of an arbitrator appointed compulsorily by statute, such as one appointed under the Agricultural Holdings Acts? What of the regulator, tribunal member or disputes board appointee who owes their appointment and jurisdiction to statute?
There seems every reason to suppose that the "office holder in fact" doctrine should apply to each of these where a defect in the appointment has occurred. Take, for example, an adjudicator who was appointed to adjudicate but who lacked the necessary qualification required of an adjudicator for that dispute (for example, the contract may stipulate that they should be a quantity surveyor). What of any adjudicator appointed under a construction contract that was not "in writing"' or was not a "construction contract" – perhaps because it involved steelwork installation? What of the adjudicator who was late in accepting a nomination, or the referring party who was late in accepting a nomination or the referring party who did not refer the dispute promptly enough to the nominated adjudicator after their acceptance of that nomination?
To date, these questions have been raised and answered solely by considering whether or not the statutory provisions governing the jurisdiction and appointment of an adjudicator have been complied with. Following the two TCC judge cases I have referred to, a more sophisticated approach may be needed.
In future, a jurisdictional challenge concerned with the qualification of the adjudicator may have to be considered in two stages. Initially, it must be decided whether the appointment of the adjudicator was valid. If the answer is no, it can then be asked: did the parties and the adjudicator nonetheless think that the adjudicator had been validly appointed?
In ordinary arbitrations where the parties have chosen arbitration by inserting an arbitration clause into their contract, the arbitrator is not an office holder, so the doctrine cannot apply. Fortunately, the Arbitration Act (1996) has adopted a more sophisticated approach to questions of jurisdiction than are applicable to adjudications.
Since 1996, an arbitrator may examine and rule on his or her jurisdiction and deliver an award that will bind the parties unless one or other successfully challenges that award in an arbitration appeal. When this power was first given to English arbitrators in 1996, many thought that new and dangerous ground was being laid, namely the granting to non-judges of the power to rule on their own jurisdiction. In civil law arbitration codes, an arbitrator has always had such a power.
The framers of the Construction Act stopped short of giving adjudicators similar powers. It might not any longer matter that there is what many perceive to be a shortcoming in the statutory powers of adjudicators. If the medieval "office holder in fact" doctrine is applicable to construction adjudications, many that took place under an adjudicator that lacked jurisdiction may be saved by recourse to this doctrine, even though the adjudicator could not save the adjudication themselves.
His Honour Judge Thornton is a judge of the Technology and Construction Court.