Coppard v Customs and Excise

The de facto doctrine can confer legal judicial authority, rather than merely validate individual acts. It applies where a person is generally reputed, and honestly believes, to hold the judicial office exercised, and where the defect is a controlled mistake of form rather than a lack of competence or substantive qualification.

The doctrine cannot validate a knowing usurper. Knowledge includes wilful blindness to an obvious lack of authority, but not a mere failure to discover an administrative omission.

So confined, the doctrine is compatible with Article 6 of the European Convention on Human Rights. A de facto judge is a tribunal established by law because the common law recognises the judge’s authority. Article 6 does not require formal authority to have existed before the hearing where the defect is cured by that limited doctrine.

The appellant claimed damages from HM Customs and Excise for breach of an agreement concerning deferred VAT payments. Liability was admitted, but the damages claim was tried in the Queen’s Bench Division by Judge Richard Seymour QC. He awarded nominal damages of £2.

After judgment, the appellant discovered that the judge, although a circuit judge assigned to the Technology and Construction Court, had not been authorised under section 9(1) of the Supreme Court Act 1981 to sit as a High Court judge. The Court of Appeal extended time for an appeal because the issue affected public justice.

The central questions were whether the judge was a High Court judge in fact and, if so, whether he was a tribunal established by law for the purposes of Article 6.

1. Appeal dismissed. The court held that Judge Seymour was a High Court judge in fact and that his judgment was valid.

2. The de facto doctrine does not merely validate acts performed under colour of office. Properly understood, it recognises the authority of the office itself. A person believed by both himself and the public to possess the judicial authority exercised may therefore be treated in law as having it. This conclusion adopted the logic identified in Fawdry and Co v Murfitt [2003] QB 104.

3. The doctrine has an important limit. It cannot validate the authority or acts of a knowing usurper. A person who knows that he lacks authority includes one who deliberately shuts his eyes to an obvious fact. It does not include a person who has simply failed to discover an administrative omission.

4. Judge Seymour honestly believed that his appointment to the Technology and Construction Court authorised him to sit elsewhere in the High Court. The statutory scheme was piecemeal and complicated. He was qualified to sit and would have received the required authority under section 9(1) of the Supreme Court Act 1981 but for departmental oversight. His mistake was neither knowledge of incapacity nor wilful blindness.

5. Article 6 requires adjudication by the prescribed exercise of the state’s judicial power. It precludes arbitrary tribunals, but common law is law for this purpose. The de facto doctrine, limited to mistakes of form and excluding usurpers or arbitrary ratification, establishes the tribunal by law. Article 6 does not implicitly require the tribunal’s formal authority to have existed before the hearing.

6. CPR 3.10 could not reduce a defect concerning judicial qualification to a procedural irregularity. That argument was rejected, although the appeal failed because the doctrine supplied the necessary authority.

• Court of Appeal (Civil Division) — The court extended time and dismissed the appeal in [2003] EWCA Civ 511 .
• High Court, Queen’s Bench Division — Judge Richard Seymour QC tried the damages claim and, on 23 January 2001, awarded the claimant nominal damages of £2.