Coppard v Customs and Excise

This appeal considered whether a judge who had no formal authorisation to sit as a High Court judge could nevertheless be treated as a judge de facto, and whether that status satisfied Article 6 of the European Convention on Human Rights as implemented by the Human Rights Act 1998 (section 6). The Court of Appeal concluded that the de facto doctrine can validate the office as well as the acts of the person who is reputed to hold it, provided the person is not a usurper who knew or wilfully shut his eyes to his lack of authority.

The court found that Judge Seymour, although formally a circuit judge authorised under section 68 of the Supreme Court Act 1981 to hear Technology and Construction Court business, did not know and ought not to have known that he lacked separate section 9 authorisation to sit as a High Court judge elsewhere. He was therefore not a usurper and was a judge in fact. The de facto doctrine thus rendered his judgment a judgment of the High Court and the tribunal was regarded as "established by law" for Article 6 purposes. The appeal was dismissed.

This appeal arose from a claim by Mr Coppard against the Commissioners of Customs and Excise for damages for breach of contract relating to deferred payments of VAT; the breach had caused his bankruptcy and the Commissioners admitted liability. The High Court trial was heard by His Honour Judge Richard Seymour QC who delivered a reserved judgment on 23 January 2001, finding against Mr Coppard on the substantive issues and awarding nominal damages of £2. Permission to appeal was initially refused on the papers.

Mr Coppard later discovered that Judge Seymour had not been formally authorised under section 9(1) of the Supreme Court Act 1981 to sit as a justice of the High Court; he had been a circuit judge authorised under section 68 to deal with Technology and Construction Court business only. The appellant obtained enlargement of time to appeal and argued that (i) Judge Seymour was not a judge in law or in fact and so his judgment was a nullity, and alternatively (ii) if treated as a judge in fact the proceedings nevertheless failed to satisfy Article 6 because the tribunal had not been "established by law".

The court framed the issues as: (i) whether Judge Seymour was a judge in fact (a judge de facto) and (ii) whether, if so, he constituted a tribunal "established by law" for Article 6 purposes. The Court of Appeal reviewed the de facto doctrine, relevant authorities and comparative materials, and held that the doctrine can validate the office and not merely individual acts so as to give the person the status of a judge-in-law where the person was reputed to hold the office and did not know (nor wilfully blind himself to the fact) that he lacked authority. The court emphasised a limitation: the doctrine cannot validate the acts or office of a usurper who knew he had no authority.

Applying these principles, the court accepted evidence that Judge Seymour had reasonably believed that his appointment to the Technology and Construction Court (a limb of the High Court) gave him authority to sit elsewhere and that the omission to grant section 9 authority was an oversight of the Lord Chancellor’s Department. He neither knew nor ought to have known of the lack of formal authorisation. The court therefore held him to be a judge in fact and concluded that the de facto doctrine, properly understood, is compatible with the requirement in Article 6 and section 6 of the Human Rights Act that a person's civil rights be determined by a tribunal established by law. The appeal was dismissed.

The court also refused to characterise the omission as a mere procedural error to be cured by the Civil Procedure Rules and stressed the constitutional importance of judicial appointment and authority.

Appeal dismissed. The court held that Judge Seymour, although not formally authorised under section 9(1) of the Supreme Court Act 1981, was a judge in fact and not a usurper; the de facto doctrine validates the office (not merely acts) in appropriate cases and such a judge constitutes a tribunal "established by law" for Article 6 purposes. Because Judge Seymour neither knew nor ought to have known he lacked authority, his judgment stands.

Appeal from the Queen's Bench Division (trial before His Honour Judge Richard Seymour QC, reserved judgment 23 January 2001). Permission to appeal was initially refused on the papers; conditional permission was later granted by this court to consider the constitutional issue (see [2003] EWCA Civ 511).