The Uses of Power: MrJustice Denning and the Pensions Appeal Tribunals Patrick Polden>}{: Introduction The existence of the Denning Law Journal testifies to Lord Denning's unique importance in re-shaping English law to meet the challenges of the middle decades of the twentieth century. The massive corpus of his collected judgments has been subjected to a detailed and rigorous scholarly scrutiny of a kind not accorded to any other English judge of recent times, and his contribution to constitutional and administrative law in particular, has been analysed searchingly and, in some cases, highly critically. 1 In adition, he has, of course, given us his own retrospective views on many of his most significant judgments in sundry lectures and articles and in the series of volumes beginning with The Discipline of Law (1979) and extending to The Closing Chapter (1983).2 In all this literature, one minor but interesting part of his judicial career has received little attention. From January 1946 to October 1948, Denning], then a puisne judge in the King's Bench Division, was the judge nominated to hear appeals from the tribunals set up under the Pensions Appeal Tribunals Act 19433 in succession to Tucker J. It was his first foray into administrative law and gave him an unusual opportunity to develop and implement his views. The statute made no provision for a further appeal so he was constrained only by the need to respect the decisions of the nominated judges in Scotland and Northern Ireland. In The Family Story,4 Denning recounts his relish for this taste of unfettered judicial creativity, which he used to good effect; for by the time he was elevated to the Court of Appeal, in October 1948, he had created a framework of controls and guidelines which left his successor with little scope to do more than alter emphases "Of the Department of Law, Brunel University. I wish to thank my colleagues Mr Martin Coleman and Dr K. J. M. Smith for their helpful comments. 1. P. Robson and P. Watchman (eds.),Justice, Lord De1l1/ingand the Constitution (1981); J. L. Jowell and J. P. W. B. McAuslan (eds.),Lord DfIlning: The Judge and lhe Law (1984). 2. There is a full list of his writings to 1984 in Lord DfIlnillg: The Judge mid the Law, supra n.1. 3. For an outline of Denning's career, see R. F. V. Heuston, in Lord De1l1ling:The Judge and lhe Law, supra n.1, pp.1-25. 4. (1985), p.165. Denning's predecessor, Tucker, regretted that there was no further appeal: Kemp v. Min;sler of PfIls;ons (1945-6) 61 T.L.R. 341, at p.343. 97 THE DENNING LAW JOURNAL and refine procedures. Only one of his decisions, Robertson v. Ministry of Pensions, 5 has proved to be of sufficient general importance to find its way into the textbooks, but of the earlier decision in Starr, Nuttall and Bourne v. Ministry of Pensions6 Professor Palley has written: "Many men would think his courageous and humane decision in Starr, affecting the welfare of many thousands of ex-servicemen and their families, was a worthwhile achievement of a lifetime".7 It is the purpose of this article to examine in more detail the reported decisions under the Act and to elucidate Denning's ideas on the proper functioning of administrative tribunals and the role of the judiciary in supervising them. First, however, it is necessary to sketch in the background to the legislation. The background Pensions to ex-servicemen and their families for death or disability sustained during service in the armed forces were granted under the terms of successive Royal Warrants. The unprecedented scale of the casualties in the Great War, and their being no longer confined to professional fighting men, made the administration of the Warrant a matter of much greater public concern than before. Dissatisfaction with the many decisions of the Ministry of Pensions adverse to claimants was voiced in and out of Parliament and eventually the government had to respond by establishing independent appeal tribunals.9 The Lord Chancellor was made responsible for manning the tribunals, each of which comprised a legally qualified chairman, a doctor and a disabled ex-serviceman. Although they allowed more than 20% of appeals from the Minister's decisions, the tribunals themselves came under fire, but heavy pressure to introduce a further appeal to a "supreme tribunal" was successfully resisted by the Lord Chancellor's Office. 10 When war again threatened it was apparent to those charged with contingency planning that some similar pensions provision for civilian casualties would be needed. This raised the spectre of a continuing post-war charge on government revenue of wholly unpredictable but potentially enormous dimensions, and a 5. [1949] 1 K.B. 227. The importance of the decision in public law is its extension of estoppel by representation to public authorities. See S.A. de Smith, Judicial Review ofAdminslralive Action 3rd ed., (1973), p.4 n.4 for speculation on Denning's own estimate of its importance. 6. [1946] 1 K.B. 345. 7. Lord Drnning: The Judge and the Law, S/lpra n.l, p.365 n.78. 8. Comparatively few decisions were reported in the general series of reports, but the semi-official War Pension Appeals Reports contain more than 300 of Denning's, as well as a handful by Tucker ], almost fifty from Scotland and two from Northern Ireland. 9. War Pensions (Administrative Provisions) Act 1919. Separate appeal tribunals to determine the assessment of the pension payable were introduced by the War Pensions Act 1921 and on these a second doctor sat instead of the lawyer. In 1940 nearly 850,000 Great War Pensions were still being paid. 10. Pari. Debs. 1922 (5th series) H. ofC., vo1.l51, cols.320-42, 1615-39; PRO LCO 2/971. See also Sir Claud Schuster's summary in PRO LCO 2/938: Memorandum for Lord Haldane, 26.1.1924, !T.42-5. About 40 cases in which the tribunals were thought to have erred were dealt with under an unpublicised "arrangement" between the Ministry of Pensions and the Treasury. 98 THE USES OF POWER desire to restrict the number of war pensions payable until the total number of potential claims had become clearer may have influenced the government's decision to defer the establishment of both entitlement and assessment tribunals until the war had ended. I I Meanwhile, according to the Minister of Pensions, "The finest court of appeal in the country is available in the House of Commons.,,12 This position, though endorsed by the cabinet as late as March 1942,13 was becoming politically untenable; more than 100,000 claims had been rejected and Aneurin Bevan had complained that the Commons order paper was becoming congested by members' attempts to bring individual cases of alleged injustice before the House. I 4 The ploy of appointing as Minister of Pensions a popular figure, Sir Walter Womersley (described in one debate as "a sort of bluff King Hal"),15 giving him as Parliamentary Under Secretaries Labour MPs with a reputation for championing the working man (successively Miss Ellen Wilkinson and Will Paling), and setting up an advisory committee which included some of the most vocal critics, appeased the sceptics for a while but they could only repeat the threadbare excuse that too few suitable doctors were available for the tribunals. A rising tide of backbench anger, both over the restrictive entitlement to pensions and the lack of any appeal, finally forced the government's hand after a particularly stormy debate on 23rd March 1943.16 A new, more liberal Royal Warrant and appeal tribunals were promised. The Pensions Appeal Tribunals Bill, modelled on the earlier legislation, had its second reading on 24th June. But the Commons by now were deeply suspicious: details of the new Warrant had not been released and at the Committee stage a backbench revolt obliged the government to withdraw its Bill. 17 When it returned nearly three weeks later, after the terms of the Warrant had been disclosed, it contained major concessions on the burden of proof and the strength of the causal link between service and disability and also provided for an appeal from the tribunals on a point of law. 18Given the Bill's troubled history and hasty revision, it is not surprising that those involved in the creation of the tribunals failed to appreciate the significance of the changes in the Warrant and the Bil1.19 Tribunal sittings began in October 1943, and more than twenty tribunals were soon in operation. 11. Pari. Debs. 1939-40 (5th series) H. of e., Yo1.360,co1.899. 12. Ibid., co1.705. 13. PRO LCO 2/2646. 14. Pari. Debs. 1940-1 (5th series) H. of e., yol. 370, col. 280. The Ministry always refused to make public the number of claims on the grounds of national security. 15. Pari. Debs. 1941-2 (5th series) l-I. of e., yo1.383, co1.1896, per E. Walkden. 16. Pari. Debs. (5th series) H. of e., yols.367-390 shows this growing pressure. 17. Pari. Debs. 1942-3 (5th series) H. of e., Yo1.390,co]s.1333-1428, 1818-54. 18. Ibid., yo1.391,cols.716-864, 1114-1220. For the reconstruction of the Bill see PRO LCO 2/2780. 19. PRO LCO 2/3714: G. P. Coldstream to Sir A. Napier, 9 September 1947. 99 THE DENNING LAW JOURNAL In the debates government spokesmen had laid particular emphasis on the informal procedures, which would make legal representation usually unnecessary, and on the need to avoid the fate that had befallen the Workmen's Compensation Acts.2oIn the first few months the government's hope that the points of law upon which appeals were to be made to the nominated judge would be few seemed to be borne out,21 but plainly, much would turn on the interpretation placed by the nominated judge on the width of the right of appeal, since the more willing he was to entertain appeals the greater would be his opportunity to control the tribunals. The right of appeal 1. Procedural limitations As well as being limited to points of law, the right of appeal was circumscribed in two ways: first by a requirement that leave must be obtained from the tribunal or the judge (section 6(2)) and second by a six weeks time limit for appeals, imposed by rule 23(2) of the Pensions Appeal Tribunals Rules 1943; by rule 31 this period could be extended by the tribunal or the President of the Tribunals. The Great War tribunals had consistently adopted a very rigid stance against allowing appeals out of time, administrative measures having had to be taken to mitigate the injustices that resulted.22 Their successors seemed disposed to follow suit and in Richardson v. Minister of Pensions23 (May, 1945) the Court of Session held that the President's decision was not reviewable by the court. Cooper LJ-C described the six weeks time limit as "very liberal", especially since "if an appellant can adduce some good reason for a relaxation of the time limit (as, for example, that the delay has been due to illness or some accidental mischance affecting himself or his advisers) the desired indulgence will doubtless be granted: and I should assume would not be opposed by the Ministry at least in cases where the delay was slight.,,24In particular, the court was not prepared to grant an extension merely on the grounds that its own decision on one appeal cast doubts on the correctness of other tribunal decisions in cases with broadly similar facts.25 This was the orthodox view, with which the Lord Chancellor and the Attorney-General were in agreement: "what had occurred was a possibility inherent in any system of law, and that if litigants did not exercise their right of appeal and subsequently a litigant does exercise his right of appeal and succeeds, the litigants in cases already decided cannot and should not have the opportunity of re-opening their cases. If such a course were allowed, the practical difficulties 20. Pari. Debs. 1942-3 (5th series) H. of c., vo1.390, cols.1326, 1355-6; vo1.391, cols.1205-9. 21. In the notes issued for the guidance of appellants the appeals were optimistically referred to as "rare cases"_ 22. PRO LeO 2/974, 978. 23. [1945] S.c. 363. 24. Ibid., at p.368. 25. The Minister of Pensions had expressed a more liberal view: Pari. Debs. 1944-5 (5th series) H. of c., vo1.360, cols.2239-40. 100 THE USES OF POWER would be insuperable."26 But Denning's decision in Starr, Nuttall and Bourne v. Minister of Pensions27 meant that as many as 27,000 tribunal decisions were probably vitiated by procedural defects. Because of the importance attached to maintaining the principle of finality in litigation and also because it was felt to be unfair to allow those claimants to appeal out of time and probably succeed on a technicality while later claimants with comparable case histories would fail on the merits of their applications, the government declined to take any action. This decision gave rise to a storm of protest in the press and in Parliament.28 The Minister's Central Advisory Committee was strongly critical and servicemen's organisations were predictably up in arms: the British Legion representative on the CAC "could not believe that the Government or the country would wish to stand on a legal position which deterred ex-servicemen from receiving pensions because their appeals happened to have been heard before certain legal pronouncements on the interpretation of the Royal Warrant had been made.,,29 Neither did the Legion confine itself to political activity, for it prepared a "mass attack" by placing seventy-three representative applications for leave to appeal out of time in Denning's list.3o By unexpectedly setting these applications down for July 11th, Denning denied the government any breathing space and seems also to have made it clear that he could not be relied upon to follow Richardson.31 So to head off the "disaster" that an adverse decision threatened, the government had to come to terms with the British Legion, the applications being adjourned while a compromise was negotiated.32 The terms ofthe bargain were that all of these cases would be reviewed by the Ministry and claimants who were again rejected might take their case to a "Special Review Tribunal", constituted like an appeal tribunal, but with members of the highest calibre that could be procured. Although both sides might bring fresh evidence as it would be a hearing de novo, there would be no appeal from the SRT's decision.33 Here, then, the mere threat of a Denning judgment sufficed to wring a significant concession from the government. As Denning remarked in a later case, "this reserve power has often proved a decisive force in obtaining for servicemen their rights.,,34 Nevertheless, Denning knew the goverment's manoeuvre was designed to prevent him from delivering a highly inconvenient ruling and when he held, in Brain and Wilkes v. Minister of Pensions,35 that a tribunal erred in law when it decided against the claimant only by a majority, and thereby re-created the 26. PRO LCO 2/3711: nOle of meeting, May 1946. 27. [1946] 1 K.B. 345. 28. See especially Pari. Debs. 1945-6 (5th series) H. of c., vo1.422, cols.1633-44. 29. PRO LCO 2/3711: W. Paling to Lord Chancellor, 16 July 1946. 30. PRO LCO 2/3711: Daily Mirror, 12 June 1946. 31. [1945] S.c. 363. 32. Supra, n.29. 33. This was announced in the Commons on 25 July: Pari. Debs. 1945-6 (5th series) H. ofC., vo1.426, co1.2023. It was estimated that about 5,000 cases might go before the SRTs. 34. James v. Millisler oj PeIlsiOIlS [1947] 1 K.B. 867, at p.871. 35. [1947] 1 K.B. 625. 101 THE DENNING LAW JOURNAL situation brought about by Moxon and Starr (albeit on a much smaller scale - some eighty cases), the matter was taken to the Social Services Committee of the Cabinet, which accepted the Lord Chancellor's view that no concession to popular opinion should be made. The Attorney-General duly repeated the orthodox view of the law, yet a few months later he was forced to admit that this view was mistaken. Mrs James's husband had died of Hodgkin's Disease and in September, 1946 a tribunal had pronounced it not attributable to his war service. In November, a differently constituted tribunal held, in Donovan v. Ministry of Pensions,37 that a Hodgkin's Disease case was attributable to war service. Mrs James was refused leave to appeal out of time and applied to the judge.38 For the Ministry, the Attorney-General and Harold Parker QC argued that the Scottish cases of Richardson and Whit?9 should be followed, that RSC order 55 r2(1)4O governing applications for leave to appeal out of time in the King's Bench, was prohibitive and precluded this application, and that the question at issue in the case was one of fact not law. Denning rejected each of the arguments, holding the RSC on this question to be directory, not prohibitive; it was not ousted by the Pensions Appeal Tribunals Act and the rules made under that Act did not bind the judge,41so that he had the power to grant the application in an appropriate case. Since the Court of Session's expectation that the President would grant leave whenever it was just to do so had been falsified by experience, especially by the refusals which had obliged the government to establish the SRT's, then this was such a case.42 This was disingenuous, for Cooper LJ-C had made it abundantly clear that he did not consider injustice would be done simply because an interpretation of the law more favourable to the claimant was given after his own time for appealing had lapsed.43 For Denning, however, "the circumstances of pension appeals differ ... from ordinary litigation. The serviceman usually appears in person, or is helped by a British Legion representative. The Minister appears by one of his officers who is not a lawyer ... The circumstances are altogether different from ordinary litigation where it is the duty of the party, and not the court, to raise any point of law on which he relies.,,44 Moreover, "it is inevitable that in a field where the law has had to be declared and developed so rapidly, there should be occasional 36. PRO LCO 2/3714: memorandum to Social Services Committee, June 1947 and minutes of meeting 55[47] 4th meeting, 25 June. 37. 1 W.P.A.R. 609. 38. [1947] 1 K.B. 867. For the decision to employ the Attorney-General in this case see PRO LCO 2/3714: R.Rieu to Lord Chancellor, 3 July 1947. 39. [1945] S.c. 363; 2 W.P.A.R. 483. 40. "An appeal to the nominated judge for leave to appeal shall not be made unless an application has been made to the tribunal and has been refused." 4\. [1947] I K.B. 867, at pp.869-70. 42. Ibid., at p.8n. 43. [1945] S.c. 363, at p.368. 44. Ibid., at p.873. 102 THE USES OF POWER errors." Accordingly, he proclaimed that "the doctrine of stare decisis does not apply in its full rigour to this branch of the law.,,45 The second point, that in the absence of a hierarchy of appeals an erroneous judgment can only be cured by legislation if it has to be followed to the letter, is the stronger. The other seems plausible but becomes unconvincing when it is recalled that the "point of law" in question is really the one about the sufficiency of evidence which claimants regularly did take, and that the British Legion advisers were in most cases at least as expert and alive to the possibility of an error oflaw of this kind as the average lawyer in a county court or magistrates' court. After James, the President of the PATs told the Lord Chancellor's Office that he would automatically grant leave out of time where the request was based on the impact of a later judgment.46 However, Denning had still not finished widening his net, and now had the "unappealable" SRT's in his sights. Mrs Gillibrand's claim had been rejected by a tribunal back in September, 1944, and was again turned down by the Ministry on review, but this widow refused to take it to an SRT; instead, following James,47 she sought leave to appeal out of time against the original decision and found Denning predictably sympathetic.48 He agreed that her case should be remitted to a PAT for "from any decision of that Tribunal Mrs Gillibrand will have a right of recourse to this Court. She shall not be forced to go before a tribunal from which there is no appeal. I am glad to have the assurances of the Ministry that there will be no delay. She has waited for justice long enough.,,49 The tone of this pronouncement, familiar to connoisseurs of the later Denning style, is somewhat at odds with the circumstances of the case, but it is clear that the exclusion of appeals from the SRT's rankled with him. 50 He soon received an unexpected opportunity to bring even the SR Ts under his control. The Legion had kept its part of the bargain, but a Mr Revely, advised by the R.A.F. Association, disregarded the understanding and, having been turned down by the Ministry (twice), by a PAT (in June, 1944) and by an SRT, applied out of time for leave to appeal against the original PAT decision.51 Using his own decisions in James and Gillibrand,52 Denning explained that a "pre-Moxon,,53 45. Ibid., at p.872. 46. PRO LCO 2/3714: G. P. Coldstream to Sir A. Napier, 9 September 1947. 47. [1947] I K.B. 867. 48. [1947] W.N. 320; I W.P.A.R. 1039. 49. I W.P.A.R. 1039, at p.1054. 50. It is evident from the tributes which Denning and counsel for the British Legion paid to the SRTs that it was not the actual quality of their decisions which concerned him: Reve/y v. M il/isler of PePlsiOliS 3 W.P.A.R. 1573, at pp.1581, 1583. 51. 3 W.P.A.R. 1573. The Reve/y case is complicated. His original appeal was allowed as to aggravation only and he did not appeal, but when his pension was stopped on a finding that the aggravation had passed away, he appealed against that decision. He was able to go to a SRT on the original decision, but could not now appeal against it to the judge (Woodrow v. Mil/isler of PePlsiOllS I W.P.A.R. 659). 52. [1947] 1 K.B. 867; I W.P.A.R. 1039. 53. [1945] I K.B. 490. 103 THE DENNING LAW JOURNAL claimant now had two choices and that "continuance of this dual system is very undesirable".54 afthe three reasons he gave the important one was plainly that the SRTs might decide points of law incorrectly and uncorrectably. He therefore seized the opportunity to work out with counsel for the various parties a rather complicated procedure whereby he would effectively (though not in form) create an appeal against the decision of an SRT.55 George Coldstream summarised the effects as follows: "We have now arrived at this situation: there is a statutory right of appeal to the nominated Judge of the High Court from a decision of the statutory tribunals and it seems that Denning J will allow it to be exercised no matter what the date of the decision may have been and notwithstanding that the claimant has availed himself of the machinery of the SRTs. The very existence of the SRTs is based on the supposition that in cases rejected by the statutory tribunals before 31.7.1946, it is impossible for the claimant to get to the High Court. On this hypothesis, one of the main reasons for setting up the SRT procedures, disappeared. As a matter of practical effect, the new situation simply means that the claimant has a double review by the Minister of Pensions and a double appeal to a PAT. ,,56 2. Law and facts As for the restriction of the right of appeal to points of law, Lord Denning has taken a prominent part in "the incessant conversion of questions of fact into questions of law,,57 which has become such a feature of judicial practice. He playfully alluded to this technique in a lecture in 197758as one of the means used in policing administrative and quasi-judicial decision makers, but the boundary between the two is in any case notoriously difficult to draw with precision. 59Some questions clearly fell to be regarded as points of law; such were the definitions of "war risk injury" and "war service injury" in the schemes for compensating ciVilians,where there was a useful body of case law from workmen's compensation to draw upon.60 But the floodgate which Denning flung wide, and through which the British Legion channelled a torrent of appeals, was the requirement that the tribunal should limit its deliberations to, and base its decision solely upon, evidence which was logically probative. 54. 3 W.P.A.R. 1573, at p.1581. 55. Ibid., at pp.l582-84. The first such "appeal" Vlllsell v. Minister oJPensions) is reported at [1948] 2 All E.R. 789. 56. PRO LCO 2/3728: Coldstream to Attorney-General, 12 August 1948. The President of the SRTs (Sir Henry Braund) declared that these decisions made them redundant, but after discussions, they were continued and Denning's circuitous "appeal" procedure was simplified: PRO LCO 2/3712, 3715, 3716; Swal/ v. Mil/ister oj Pensio1lS4 W.P.A.R. 387. 57. A.W.B. Simpson in Lord Dem/irlg: The Judge and the Law, supra n.l, at pASO. For a general account see S.A. de Smith, Judicial Review of Administrative Action 3rd ed. (1973), pp.III-20. 58. See Justice, Lord Dennil/g and the C01lStitutiOll,supra n.l, at p.163. 59. A point made by Denning when criticising a tribunal for not giving assistance to a claimant in formulating her application for leave to appeal: Lee v. Minister of Pe1lSions(No.2) 3 W.P.A.R. 1901. 60. Examples are Ex p. Haines [1945] K.B. 183; Re Saffell [1946] I K.B. 259. 104 THE USES OF POWER This was the rule laid down by Tucker J in Moxon v. Minister of Pensions61 and confirmed in Starr, Nuttall and Bourne v. Minister of Pensions62 and once the Ministry amended its original practice, it was seldom that there was no medical evidence at all against the claim. It was vainly argued in Scottish cases that medical questions were to be regarded purely as questions of fact and not susceptible to appeal,63 and Denning soon gave notice that he was very willing to subject the medical evidence to detailed examination. The implications were lost neither on the government nor on the servicemen's organisations which assisted claimants. Coldstream observed that "in his judgment in Starr and Nuttall ... Denning J laid down as the test that the claim must be negatived by evidence . .. It seems, however, at any rate in the learned Judge's view, to open up as a matter oflaw ... the question whether there was any evidence at all. Rowing and Forster64 are illustrations of this development. On this basis, every case might be appealable to the High Court, and the limitation of appeals to points of law would cease to have any meaning." He predicted that the "microscopic attention paid to the precise words used by the doctor ... will inevitably mean slowing up of the machine" and that there would be a "flood of appeals to the High Court".65 Both predictions were fulfilled to some extent. Some chairmen of tribunals, and especially the President (A. B. Ashby), confronted with numerous notices of appeal couched in such general terms as "there was not sufficient evidence on which the tribunal could have found against . the claimant", sought to hinder appellants by requiring, in effect, "further and better particulars" under rule 25 in order to prepare the statement of case for the judge66 but Denning took a dim view of such practices, insisting that the overriding terms of rule 11 should be given effect.67 With such encouragement the appeal in very general terms became commonplace,68 although in cases where the Ministry had conceded, or the tribunal found, "aggravation" but not "attributability", it was varied to a claim that the evidence supporting one necessarily proved the other as well.69\¥hat kept the number of appeals down was the practice of the British Legion in only promoting those which seemed to have a reasonable chance of success, rather than the formal restriction to questions of law. 61. [1945] I K.B. 490. 62. [1946] I K.B. 345. 63. Brown v.MinisterofPmsions [1946] S.c. 471; T. Broum v.Millister ofPmsiollS 2 W.P.A.R. 577; Paul v. Minister of PmsiollS 2 W.P.A.R. 633. 64. [1946] I All E.R. 664; I W.P.A.R. 145. 65. PRO LeO 2/3711: memorandum of I May 1946. 66. Port v. Minister of PmsiOllS 3 W.P.A.R. 1491. 67. Lee v. Minister of Pensions (No.2) 3 W.P.A.R. 1901. "It shall be the duty of the Tribunal to assist any Appellant who appears to them to be unable to make the best of his case" (r.II(3». 68. StockweJ/ v. Minister of Pensions I W.P.A.R. 189. 69. E.g., BOll, Baker and McDermoll v. Minister of Pet/siol/S 3 W.P.A.R. 2167. 105 THE DENNING LAW JOURNAL Denning's determin,ation to keep the route to the High Court open to all claimants led him to demolish all obstacles, whether embodied formally in rules or pleaded as administrative inconvenience.7o He was more than willing to pay the price of a greatly increased workload, and showed none of the concern at the proliferation of appeals that he later displayed to the detriment of other claimants to state provision.71 Only one group of claimants failed to bring themselves within his jurisdiction. In Gates v. Ministry of Pensions, 72 he rejected a widow's claim that it extended to appeals from tribunal decisions under the Great War legislation. Denning agreed that the body of the 1943 Act did not expressly confine it to the later war, but the long title did and recent (unspecified) authorities showed that he might use that as an aid to interpretation. Denning's successor, Ormerod J, was even able to extend the scope of the appeal a little further. In Stephens v. Ministry ofPensions,73 against unusually strong opposition from counsel for the Ministry, he held that in an exceptional case he might re-hear and grant an application for leave to appeal out of time which he had previously refused. In doing so he was acting on a suggestion of Morton LJ in Ex p. Aronsohn74 that this might be done where crucial new evidence had come to light. The steady flow of appeals which these decisions encouraged enabled Denning to impose on the tribunals his conception of their practice and procedure. Settling the practice of tribunals 1. The dethronement of the medical member In all his pension appeals, it is doubtful whether Denning gave a more important judgment than he did on his very first day in Starr, Nuttall and Bourne v. Ministry of Pensions.75 These were test cases arranged by the Ministry of Pensions in the hope that the new judge could be persuaded to adopt a less inconvenient approach than his predecessor, whose decision in Moxon v. Minister of Pension/6 had dismayed and disconcerted those responsible for the operation of the tribunals. Despite the significant changes made by the Royal Warrant and the revised Bill, the tribunals, taking their lead from their President, conducted their proceedings in much the same way as under the earlier legislation and warrants. The informality stressed by ministers in Parliament was given recognition in their own rules, which expressly empowered them to take notice of facts not admissible in a 70. In addition to those mentioned, see also Bell v. Minister of Pet/siom I W.P.A.R. 965, dealing with difficulties where the claimant died before the hearing. 71. R. v. Preston Supplemelliary Bet/ejit Appeals Tribunal, Ex. p. Moore [1975] I W.L.R. 624. This was, however, an application for certiorari. 72. 3 W.P.A.R. 2055. 73. 4 W.P.A.R. 985. 74. [1946] 2 All E.R. 544. This was the only attempt to challenge one of Denning's decisions in the Court of Appeal. The court held that it had no power to review his refusal to grant leave to appeal out of time. 75. [1946] 1 K.B. 345. 76. [1945] K.B. 490. PRO LCO 2/3711: Coldstream's memorandum, I May 1946. 106 THE USES OF POWER court of law.77 They believed themselves able "to take judicial notice of eJl"pert medical opinion",78 whether it was (1) submitted by an independent medical specialist, to whom they were authorised to refer "difficult medical questions"; 79 (2) furnished as a signed statement by a medical practitioner and properly put in by the claimant or the Minister; (3) recited in the Minister's statement of reasons for rejecting the claim; or (4) given by the medically qualified member of the tribunal himself, either at the hearing or during its subsequent deliberations. Neither of the last two sources came within Tucker J's definition of the evidence required by s.4 of the Act: "It is, I think, of the essence of "evidence", according to English ideas, when used with reference to judicial or quasi-judicial ideas, that it should consist of oral statements or documents in writing which are made in the presence or communicated to both parties before the tribunal reaches its decision ... Information communicated by the medical member to his colleagues during their deliberations does not fulfil these requirements and cannot, in my opinion, be relied upon as evidence ... ,,80 The proper role of the medical member was crucial to the way in which the tribunals operated and in Taylor v. Minister of Pensions81 the Ministry pressed the Court of Session to pronounce on this wider issue.82 Cooper L]-C, with whom Lords Stevenson and Patrick concurred, agreed that it would be illegitimate for the medical member to introduce new medical "facts" without an adjournment or a reference but held that it was in order for him to advise and instruct his colleagues on what the accepted view was on any matter of medicine. Their approach to the statute was more purposive than Tucker's: "it is legitimate to infer, with the experience of the Workmen's Compensation Act in mind, that in providing for a medical member, Parliament desired, as far as possible to prevent cases of this type from developing into costly contests between arrays of expert witnesses.,,83 The medical member must be more than an "animated lexicon" and need not "keep his professional knowledge and experience locked up in his breast.,,84 This was much more satisfactory to the Ministry, and they contended that Denning should prefer Taylor to Moxon.8s 77. Pensions Appeal Tribunals (England and Wales) Rules 1943 (No.1757/L39), especially r.12/5; Pari. Debs. 1942-3 (5th series) H. of c., vo1.390, co1.l209 (Attorney-General). 78. PRO LCO 2/3711: memorandum of I May 1946. 79. r.15. 80. Moxoll v. Millisler of Pensions [1945]1 K.B. 490, at p.50!. 81. [1946] S.c. 99. 82. The Court of Session's earlier decision in Brazierv. Minister ofPellsiolls [1945] S.c. 359 was made shortly after, and in ignorance of, Moxon and took a less strict view. 83. [1946J S.c. 99, at p.108. 84. Ibid.. 85. [1946] S.c. 99; [1945]1 K.B. 490. 107 THE DENNING LAW JOURNAL Denning, however, firmly supported Tucker's judgment. Even if the medical member wanted to put his expert opinion forward as "evidence", he might not do so since the rules precluded him from being cross-examined, which was an essential feature of oral evidence.86 Denning pronounced that "the function of the medical member, like that of the other members, is judicial. It is not to supply evidence, but to adjudicate on the evidence";87 and that sums up the English judges' view of the tribunals, that they should base themselves on the judicial model, weighing the evidence provided by the parties without supplementing it from their own expertise. Just how strange and unpopular this conception was with the tribunals only becomes apparent from the response of their President and chairmen to Denning's judgment. The chairmen memorialised the government, demanding legislation either to permit the medical member to "give evidence" or, failing that, to convert both him and the service member into assessors,88 while the tone of Ashby's memoranda grew positively hysterical. It is clear that both he and the chairmen completely failed to grasp the essential changes that had been made in the terms under which they operated and had no conception that their proceedings could be seen as unfair to the claimant. His confident assertion that "Tribunals ... had alwaysworked in that way quite smoothly, efficiently and justly ever since they were first started" was too much for Coldstream, who retorted that "it seems to me that it is impossible for the Tribunals to go on as they have been doing for the last 25 years - it was certainly not Schuster's intention that they should act now as they acted between 1920 and 1943."89 Despite their predictions of chaos, the tribunals found that they could accommodate themselves to the more judicial manner of proceeding which was now required of them. There were, of course, longer delays, more adjournments and references,90 while the Ministry of Pensions warned that their representatives "would have to be instructed to adopt a more pugnacious attitude than in the past,,;9I in short, proceedings would come to resemble more closely those in a court of law. "The Lord Chancellor recognised that these results could not be avoided, but both he and the Attorney-General did not consider them to be unduly serious and they agreed moreover that the judgments of Denning J were probably correct . . .".92 The "dethronement of the medical member,,93 was underlined in further judgments which denied that he might give advice to the tribunal based on his 86. [1946] 1 K.B. 345, at p.353. 87. Ibid., at p.l07. 88. PRO LCO 2/3711: A. 8. Ashby, "Memorandum No.2", 11 June 1946. 89. Ibid.; PRO LCO 2/3711: Coldstream to Ashby, 18 June 1946. 90. Predicted in Coldstream's memorandum, supra n.78. In Parliament, court rulings were given as the reason for delays: Pari. Debs. 1946-47 (5th series) H. of c., vo1.430, cols.1398-99. 91. LCO 2/3711: minute of meeting, May 1946. 92. Ibid.. 93. Colpstream's phrase, supra n.78. 108 THE USES OF POWER observation of the claimant at the hearing or utilise medical opinion which had not been put before the tribunal, and in which even the inference that he might have gone outside his judicial role was sufficient to make the decision bad.94 The tribunal, then, was to model its deliberations on those of a court, assuming a judicial stance rather than an inquisitorial one and only seeking to interpret the 'evidence' before it. It was not limited to evidence understood by the courts, but it is not surprising, in view of the English judges' insistence on imposing the judicial model, that the tribunals sometimes erred in excluding material which satisfied the "logically probative" test. 95 Denning, indeed, was anxious that they should have before them as much material, particularly of a medical nature, as necessary, in order to fill the gap left by eliminating the evidence-providing function of the medical member. To this end he actively encouraged them to resort to independent medical specialists whenever it might be useful to them or advantageous to the claimant,96 even holding that if the claimant produced a specialist's report more favourable to his claim than that of the IMS, the latter should be sent a copy and given an opportunity to reconsider his own opinion.97 Likewise, both Denning and the Court of Session insisted that the Ministry's statement, the basic record of the claimant's military service and medical history, must be full, detailed and not selective.98 Moreover, although the rules governing evidence might be less strict, the procedural safeguards for the claimant must be maintained in their full rigour: he must have an opportunity to see or hear and deal with all the evidence and to put in evidence contradicting it,99 although his failure to provide evidence on relevant matters might legitimately form the basis for unfavourable inferences. I In order for him to be able to deal with medical evidence, it must, therefore, be couched in a form intelligible to a layman and not made too cryptic or technical. 2 94. Birt v. Minister of Pensions 1 W.P.A.R. 151; Forster v. Millister of Pensions 1 W.P.A.R. 145; Hurst v. Minister of PensiollS 1 W.P.A.R. 525; Heyward v. Minister of Pmsions 1 W.P.A.R. 557. 95. XY v. Minister of Pensions [1947] 1 All E.R. 38 (proceedings of military court of enquiry); Baxter v. Minister of Pensions 1 W.P.A.R. 1203 (claimant's medical certificates); DOlllwan v. Minister of Pensions 1 W.P.A.R. 609 (medical textbooks). 96. This practice was clearly in evidence by May, 1947: see PRO LCO 2/3709: Belfray (RC]) to Sir A. Napier 13 May 1947. 97. Harris v. Minister of Pellsions 4 W.P.A.R. 73. The IMS should see all the medical evidence from both sides (Fitzhugh v. Minister ofPensiollS 4 W.P.A.R. 101) and the terms of the request to him should also be made available to the parties (Houlicall v. Millister of PmsiollS 3 W.P.A.R. 1355). 98. Chairmen complained of the Ministry's selectivity and editing: PRO LCO 2/3707. The Court of Session criticised this tendency in Findlay v. Minister of Pmsiolls [1947] S.c. 589. 99. Birt v. Millister of Pmsiolls 1 W.P.A.R. 141. In Fox v. Minister of PensiollS I W.P.A.R. 459 a sick claimant who had dictated her evidence at home was held entitled to have an opportunity to sec and check thc version put before the tribunal. 1. Childs v. Minister of Pensions 1 W.P.A.R. 679;HullI v. Millister of PmsiOllS 1 W.P.A.R. 1093. 2. Thompson v. Minister ofPmsions 1 W.P.A.R. 479; Salter v. Millister ofPmsions 1 W.P.A.R. 1195. As the Franks Commission recognised, there were limits to this: Cmnd 218 of 1957, para. 222. 109 THE DENNING LAW JOURNAL 2. The burden ofproof Upon this material the tribunals must form their opinion, but here again it was insisted that they must work, as the courts did, within a framework of burdens and presumptions. The Warrant explicitly stated that "In no case shall there be an onus on any claimant under this Our Warrant to prove the fulfilment of the conditions [for entitlement to a pension] and the benefit of any reasonable doubt shall be given to the claimant" (article 4(2». Moreover, by article 4(3) "where an injury or disease which has led to a member's discharge or death during war service was not noted in a medical report made on that member on the commencement of his war service, a certificate [of entitlement] shall be given unless the evidence shows that the conditions ... are not fulfilled." Although, as Edmund Davies] later put it, "the task of interpreting article 4(2) has been bedevilled by the presence of article 4(3)",3 judges had no doubt that article 4 wrought a fundamental change by shifting the onus onto the Ministry to disprove the claim. However, perhaps because the Warrant did not expressly reverse the onus, at least some tribunal chairmen, and the Ministry of Pensions, did not fully appreciate its significance. They were given a ride awakening in the first reported case, lroingv. Ministry ofPensions,4 in which Cooper L]-C, speaking obiter and without hearing argument, not only insisted that in every disputed fact the onus must be on one party or the other, but also remarked that the phrase, 'any reasonable doubt' seemed to place the tribunal in the position of a jury in a criminal trial. The point was fully argued and his view approved in Mitchell,5 while in England Tucker ] insisted on the importance of the change in onus and approved the Scottish decisions, which interpreted "doubt" in article 4(2) as meaning "a reasonable doubt, and not a strained or fanciful acceptance of remote possibilities.,,6 Moxon was cited in Starr,7 where Denning considered the question of onus in some detail. He was particularly well qualified to do so at that time, having recently published an article entitled, "Presumptions and Burdens",8 which argued for a new classification of presumptions as "provisional", "compelling" and "conclusive", and of burdens into "legal", "provisional" and "ultimate" as a way out of the confusion into which he felt English judges had fallen. In Starr, Denning held that the Minister's function was "quasi-judicial. He may be able to come to a determinate conclusion without reasonable doubt, but if the evidence leaves him in reasonable doubt, then the claimant must be given the benefit of the doubt. That means that he must not decide against the claimant on a 3. Judd v. Millisler of PensiOlISalld Naliol/allllsurallce [1965] 3 All E.R. 642, at p.648. 4. [1945] S.c. 21 5. [1946] S.c. 131. 6. Moxoll v. Mil/isler of Pmsiolls [1945] 1 K.B. 490, quoting Cooper LJ-C in lroillg v. Millister of Pf1lsiollS [1945] S.c. 21, at p.29. 7. [1946] 1 K.B. 345. 8. (1945) 61 L.QR. 379. 110 THE USES OF POWER mere balance of probabilities ... There must be a real preponderance of probability against him such as to exclude reasonable doubt.,,9 He also considered the meaning of article 4(3), which raised a "compelling presumption ... which takes the place of evidence." The distinction between claims made with the benefit of 4(3) and others was that "in order to defeat a claimant, in cases under article 4(2), the evidence against him must overthrow any evidence in his favour, whereas, in cases under article 4(3), it must also overthrow the presumption in his favour."JO Even outside article 4(3) a "provisional presumption" might arise in the claimant's favour. In Rowingv. Minister of Pens ions I 1 Denning said that "if a man is accepted for service in a certain medical category there is a presumption that at the time of his acceptance he was fit for the kind of service demanded of a man in that category; and in the event of his discharge subsequently on medical grounds due to deterioration in his health, there is a presumption that the deterioration was due to his service." This was wrongly interpreted in some quarters as endorsing the slogan "fit for service, fit for pension".12 It was generally assumed, on the basis of those decisions, that the "real preponderance of probability" test was the same as in criminal cases, but subsequently, in Miller v. Minister of Pensions, 13 Denning appeared to resile from that position. After expounding "with classical clarity,,14 the criminal standard demanded in article 4(3) cases, he held that other cases "must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge the burden in a civil case.,,15 This ignored the decision in Irving,16 which was directly in point, and reduced the "real preponderance of probabilities such as to exclude reasonable doubt" to a much lower level. Miller was followed by Ormerod J17 and relied upon by the Ministry, but ironically (in view of Denning's special academic interest in this area), became his only pensions decision to be expressly departed from by a nominated judge. Black LJ, in a Northern Ireland case, 18was able to distinguish Miller, but Edmund Davies J, in a full and careful judgment in Judd v. Minister of Pens ions and National Insurance,19 preferred Black's reasoning that where the draftsman incorporates a phrase ("reasonable doubt") which is known to have a recognised legal meaning, it should be assumed that Parliament intends it to be given that meaning; he therefore re-established the higher standard of proof for all cases under the 9. [1946] 1 K.B. 345, at pp.350-51. 10. Ibid., at p. 351. 11. [1946] 1 All E.R. 664, at p.665. 12. Pari. Debs. 1945-6 (5th series) H. of c., vo1.421, eols.2077-82. 13. [1947] 2 All E. R. 372. 14. Per Edmund Davies J in Judd v. Minisler of Pensions and N l. [1965] 3 All E.R. 642, at p.649. 15. [1947] 2 All E.R. 372, at p.374. 16. [1945] S.c. 21. 17. Oliver v. Millisler ofPmsions 5 W.P.A.R. 153. 18. Minisler of Pensions v. Greer [1958] N.J. 156. 19. [1965] 3 All E.R. 642. 111 THE DENNING LAW JOURNAL pension warrants. It is possible that Denning's apparent change of mind on this issue is explained by the context of Miller, which was one of the "unknown aetiology" cases which gave the tribunals their greatest difficulty. 20 3. Unanimity in decisions Denning's rule in Brain and Wilkes v. Ministry ofPensions,21 that a tribunal must be unanimous in rejecting the claimant's appeal, has also attracted unfavourable judicial comment. In Brain and Wilkes, as in three cases which had earlier been considered together by the Court of Session, the chairman dissented from the lay members who found against the claimant. The Court of Session clearly wished to discourage such an outcome without feeling able to go so far as to hold it wrongful: "without affirming that it is incompetent for a tribunal to decide by a majority, it appears to us that, when the question is the sufficiency of evidence to discharge such an onus, and when an express injunction has been laid upon the Tribunal to give the claimant the benefit of any reasonable doubt, only the most powerful considerations can justifY the medical and service members in outvoting the legal chairman ... ".22 Denning went further. With characteristic boldness and without drawing on precedent he sketched an elegant overview of the position. Starting from the proposition that "the rule whereby decisions are reached according to a majority vote is firmly established in all cases where one body alone is competent to reach a decision", he pointed out that because of the high risk of error ("it is almost as likely to be wrong as it is to be right"),23 the law has devised two methods of avoiding or reducing the risk. One is to give a right of appeal (as from magistrates to quarter sessions), the other is to require unanimity, or in default are-hearing before a differently composed body. The latter, exemplified by jury trials, is the one appropriate to pension tribunals, where an appeal lies only on points of law. Because of the way judges direct juries, however, ("the commonsense way in which the rule as to unanimity is applied")24 re-trials are very rare. The contrast between Denning's style of judgment in Brain, and that adopted by Lord Parker CJ in Picea Holdings v. London Rent Panet25 and by the Court of Appeal of New Zealand in Atkinson v. Brown26 is instructive. Both took as their starting point the old case of Grundy v. Barker (1798)27 in which Eyre CJ had found a well established rule that in public matters majority decisions were the rule, subject to contrary provision in the governing statute. Neither liked Denning's analogy with the jury which, indeed, seems hardly to fit comfortably a tribunal with specialist 20. [1947] 2 All E.R. 372. 21. [1947J 1 K.8. 625. 22. Brown v. Minister oj Pensiom [1946] S.c. 471, per Cooper LJ-C at p.476. Z:5. ll