Fawdry & Co v Murfitt (Lord Chancellor intervening)

A procedural failure does not ordinarily invalidate a transfer of proceedings unless the court so orders under rule 3.10 of the Civil Procedure Rules 1998. The court must consider the nature of the breach, any denial of natural justice and the prejudice caused by validating or invalidating the step.

Alternatively, the common law doctrine of de facto authority may preserve judicial acts where a person acted under colourable authority and was generally treated as competent. The doctrine protects litigants, certainty and finality. It does not protect a mere usurper lacking any colour of office. Where applicable, the doctrine is sufficiently accessible and foreseeable to constitute part of the law establishing a tribunal for article 6 purposes.

A firm claimed fees for consultancy work. The claim, brought in the Queen’s Bench Division, was dismissed by a circuit judge who was authorised to conduct Technology and Construction Court business but lacked general authority to sit in the Queen’s Bench Division.

The Presiding Judge had intended, at short notice, to transfer the proceedings to the Technology and Construction Court list so that the judge could try them. No written transfer order was drawn up. The parties were neither told about that transfer nor given the opportunity to address it.

The claimant appealed from the order of Her Honour Judge Linda Davies dated 26 January 2001. The issues were whether the transfer conferred jurisdiction despite the procedural breaches, whether the common law doctrine of de facto authority preserved the judgment, and whether that doctrine satisfied the requirement in article 6(1) of the European Convention on Human Rights that a tribunal be established by law.

1. Appeal dismissed unanimously. Hale LJ delivered the leading judgment. Sedley and Ward LJJ agreed that the Presiding Judge had transferred the proceedings to the Technology and Construction Court list. The circuit judge was therefore legally authorised to try them as a judge nominated to conduct that business.

2. The requirement in paragraph 2.2 of the relevant practice direction that the parties consent to, or have an opportunity to address, the transfer had been breached. Rule 3.10(a) of the Civil Procedure Rules 1998 nevertheless provided that an error of procedure did not invalidate a procedural step unless the court ordered otherwise. Some failures to hear a party may amount to a denial of natural justice for which that cure is inappropriate. More commonly, the court must balance the character of the breach and the prejudice caused by validating or invalidating the step.

3. The transfer was made to preserve the fixed trial date. The case was suitable for the specialist list, and the judge was well qualified to determine it. Neither party suffered prejudice from the transfer or from the absence of an opportunity to address it. Invalidating the transfer would deprive the successful defendant of the judgment and require a retrial. The court therefore declined to order that the procedural error invalidate the transfer.

4. Although unnecessary to the result, Hale LJ held that the common law doctrine of de facto authority would also preserve the judgment. The judge was validly appointed to judicial office, everyone responsible believed that the proceedings had been properly assigned to her, and she genuinely believed that she was authorised to sit. She therefore possessed ample colourable authority and was not a mere usurper. Sedley LJ agreed provisionally but considered the position of a judge who knew or ought to know of the want of authority to remain uncertain. Ward LJ agreed that the doctrine protected this judgment.

5. Hale LJ further concluded, obiter, that the doctrine was sufficiently accessible and foreseeable for article 6(1). Properly understood, it validated the lawful establishment of the tribunal as well as its acts. It protected citizens who had good reason to believe that they were before a properly constituted court. It did not operate to protect usurpers. The order was: appeal dismissed, with no order as to costs.

• Court of Appeal: By [2002] EWCA Civ 643, unanimously dismissed the appeal. It held that the transfer to the Technology and Construction Court list was valid despite the procedural errors and that the trial judge had legal authority.
• High Court, Portsmouth District Registry: Her Honour Judge Linda Davies dismissed the consultancy-fee claim on 26 January 2001 and ordered the claimant to pay summarily assessed costs. No citation is stated.