Attorney General v Foley & Anor

In an application under section 42 of the Supreme Court Act 1981, the Attorney General is entitled to rely initially on the ordinary assumption that solicitors instructed in his name have authority to act. He need not adduce evidence of personal authorisation unless the respondent makes an early, properly supported challenge to the solicitor’s authority.

The burden lies on the challenger to raise evidence casting doubt on the authority. Any challenge should be made by an interlocutory application to stay the proceedings. The evidence required from the Attorney General depends on the nature of the challenge. A challenge made late and unsupported by evidence does not require rebuttal.

Lewis Frank Foley and Harry Desmond Foley appealed against civil proceedings orders made by the Divisional Court under section 42 of the Supreme Court Act 1981. Permission to appeal was limited to whether the proceedings had properly been brought in the name of the Attorney General.

The Divisional Court had accepted that the evidence supplied a sufficient indication that the application had been authorised. The appellants relied on observations in A-G v Hayward and A-G v John Williams suggesting that personal consideration and authorisation by a Law Officer should be demonstrated in evidence from the outset. The central issue was whether such evidence was required absent a properly supported challenge.

1. The appeals were dismissed. The challenge to the Attorney General’s authority was raised too late and was unsupported by evidence. The Divisional Court was therefore entitled to make the civil proceedings orders.
2. The Attorney General, like any litigant, may employ solicitors and counsel to make an application on his behalf. In the absence of challenge, the solicitor’s authority is presumed. A respondent challenging that authority should make an early interlocutory application to stay the proceedings, supported by evidence raising a real doubt about the solicitor’s authority. The respondent should ordinarily raise the issue with the Treasury Solicitor before issuing the application.
3. The burden lies on the challenger to lead evidence supporting the allegation of want of authority. Until that burden is met, the Attorney General need not file evidence in rebuttal. If a supported challenge is made, the Attorney General should respond by admissible evidence from a person able to establish that he, possibly acting through the Solicitor General, authorised both the application and the Treasury Solicitor’s authority to act.
4. The observations of Pill LJ in A-G v Hayward and A-G v John Williams did not establish a requirement for evidence of personal authorisation at the outset. They could not be treated as authority for holding a section 42 application unauthorised merely because no contrary evidence had yet been filed.
5. Under section 1(1)(c) of the Law Officers Act 1944, the relevant question was whether the making of the application had been authorised. The Solicitor General’s earlier consideration of the case, before receiving the Attorney General’s authority, did not invalidate the application because authorisation existed before the application was issued.
6. The further affidavit was admitted, although unnecessary. The request for disclosure of the ministerial submission was refused because no coherent reason was shown why disclosure would advance the ends of justice. The application to extend permission to appeal was also refused; the power should be exercised sparingly.

• Divisional Court: civil proceedings orders were made against both appellants under section 42 of the Supreme Court Act 1981.
• Court of Appeal (Civil Division): appeals dismissed with costs, costs not to be enforced without leave; leave to appeal to the House of Lords refused.