R v Medical Appeal Tribunal, Ex p Gilmore (In re Gilmore’s Application)

A statutory provision making a tribunal’s decision “final” ordinarily excludes an appeal, but does not exclude certiorari. The superior courts may quash the decision of an inferior tribunal for excess of jurisdiction or an error of law apparent on the record.

An adjudication incorporates a document to which it refers. Facts disclosed by that document may therefore establish an error on the face of the record. A tribunal cannot prevent review by omitting material findings which it is required to record, because the court may order completion of the record.

A worker with severely impaired sight in one eye suffered an industrial injury which aggravated the sight in his other eye. The Medical Appeal Tribunal assessed disablement at 20 per cent, notwithstanding Regulation 2(5) of the National Insurance (Industrial Injuries Benefit) Regulations 1948, which required the disablement of both paired organs to be treated as resulting from the relevant injury.

After an unsuccessful statutory review process, the worker sought certiorari. The Divisional Court refused leave, but the Court of Appeal granted leave and extended time. The respondents conceded that the tribunal had erred in law. The Court nevertheless considered whether the error appeared on the face of the record and whether section 36(3) of the National Insurance (Industrial Injuries) Act 1946, which made the tribunal’s decision final, excluded certiorari.

1. The application for certiorari was granted unanimously. The tribunal’s decision was quashed, with the applicant receiving his costs in the Court of Appeal and below. Mandamus was unnecessary because the tribunal could be expected to reconsider the claim. No costs were awarded in relation to the mandamus application.

2. Per Denning LJ, with Romer and Parker LJJ agreeing, once the tribunal accepted that the industrial accident had aggravated the sight of the applicant’s left eye, Regulation 2(5) of the National Insurance (Industrial Injuries Benefit) Regulations 1948 required it also to take account of the pre-existing blindness in the paired right eye. Its assessment of only 20 per cent could not reasonably have been reached on a proper understanding of the regulation and was therefore erroneous in law.

3. The error appeared on the face of the record. Although the written adjudication did not identify the two eyes, it expressly extracted part of the specialist’s report. The report was thereby incorporated into the adjudication, as a pleading incorporates a document to which it refers. Read together, the documents disclosed the primary facts and the resulting legal error.

4. A tribunal cannot defeat certiorari by failing to record material facts. Regulation 13 of the Determination of Claims Regulations 1948 required the tribunal to record its reasons and findings on every material question of fact. Had the specialist’s report not been incorporated, the Court could have ordered the tribunal to complete the record.

5. Section 36(3) of the National Insurance (Industrial Injuries) Act 1946 did not exclude certiorari. Per Denning LJ, statutory finality makes a decision final on facts and excludes an appeal, but does not make it final on law. Certiorari remains available for excess of jurisdiction or error of law on the face of the record unless Parliament uses clear and explicit language to remove it.

6. Romer LJ additionally construed section 36(3), in its statutory context, as identifying which decisions could be appealed or referred. It did not address applications for certiorari, which are neither appeals nor references. Parker LJ agreed that the established supervisory jurisdiction could be removed only by clear words and that the word “final” was insufficient.

1. Court of Appeal: Granted certiorari and quashed the Medical Appeal Tribunal’s assessment. The applicant received his costs in the Court of Appeal and the Divisional Court.

2. Divisional Court: Refused the applicant leave to seek certiorari. The Court of Appeal subsequently granted leave and extended the six-month time limit.

3. Medical Appeal Tribunal: Assessed disablement at 20 per cent. It later rejected an appeal arising from an attempted statutory review, holding that an alleged legal misdirection was not fresh evidence or non-disclosure of a material fact.