The Gazette 1955-58

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but is is clear from the authorities to which my
brethren refer in their judgments (which I have
had the advantage of reading in advance) that a
legislative intention to do so is not sufficiently
expressed by the mere provision that the decision
of such and such a tribunal shall be " final."
Per Parker, L.J. :—One thing is clear beyond
doubt. The ordinary remedy by way of certiorari
for lack of jurisdiction is not ousted by a statutory
provision that the decision sought to be quashed
is final. Indeed, that must be so, since a decision
arrived at without jurisdiction is, in effect, a nullity.
This, however, is not so where the remedy is
invoked for error of law on the face of the decision.
In such a case it cannot be said that the decision
is a nullity. The error, " however grave, is a wrong
exercise of a jurisdiction which he has, and not a
usurpation of a jurisdiction which he has not" :
(Re Gilmore's Application-(i95y) i All E.R. 796).
It is the duty of a professional domestic tribunal
investigating a charge of professional misconduct to
apply a high standard of proof and not to condemn
on a mere balance of probabilities.
The defendant, an advocate practising in Kenya,
seeking a declaration that his client was not a pro
hibited immigrant, had stated that his client's
temporary pass was valid, although in fact it had
been revoked. He endeavoured to plead a genuine
mistake before the puisne Judge, but, on being
summoned before the Advocate's Committee of
Kenya, it was found that the defendant had intended
to deceive and mislead the Court, and that therefore
a prima facie case of disgraceful and dishonourable
conduct had been made out. On consideration of
the report, the Supreme Court of Kenya found
that professional misconduct had been established
in that the appellant had omitted to state to tke
Court that the suit had previously been dismissed
by another Judge until he was forced to do so,
and that the intention to mislead the Court was
deliberate. The Court of Appeal of East Africa,
as well as the Privy Council (Lords, Simonds,
Oaksey, and Tucker and Mr. de Silva) dismissed
the appeal.
Per Lord Tucker:—Their Lordships are of
opinion that, although this case does not come
literally within the well-known rule with regard
to the functions of an appellate court where there
are concurrent findings of fact by subordinate
courts, all the reasons for the rule apply with equal,
or even greater, force to cases where professional
domestic tribunals are established by statute for
investigating and finding the facts in cases of
alleged misconduct by members of their own pro
fession. The Advocates Committee was such a
tribunal, and it had had the great advantage of
seeing and hearing the appellant giving evidence
at length in a case where, the facts being undis
puted, the ultimate decision turned on questions
of stupidity, ignorance or deliberate intent.
With regard to the onus of proof, the Court
of Appeal said :
" We agree that in every allegation of pro
fessional misconduct involving an element of
deceit or moral turpitude a high standard of
proof is called for, and we cannot envisage any
body of professional men sitting in judgment
on a colleague who would be content to condemn
on a mere balance of probabilities." This seems
to their Lordships an adequate description of
the duty of a tribunal such as the Advocates
Committee, and there is no reason to think that
either the committee or the Supreme Court
applied any lower standard of proof.
(Bhandari v. Advocates Committee—(1956) 3 All
E.R. 742).
Contempt of Court—costs.
Morgan v. Carmarthen Corporation—Mr. Justice
Danckwerts's decision in this case, noted in the
Gazette at page 81, has been reversed by the Court
of Appeal d Evershed, M.R., and Hodson
and Romer .). It will be recalled that the gist
of this dec was that, in a motion to commit
for contempt of Court the full senior and junior
counsel's fees of the person bringing the motion
would be payable by the contemnor. The Master
of the Rolls allowed the appeal with some regret.
He thought that it would be contrary to the public
interest if an individual was deterred from bringing
a real case of contempt before the court by the fear
that he would have to pay out of his own pocket
some part of the costs as he was performing what
in one respect at least was a public duty and that
the Rules Committee should consider this matter.
The claim that contempt cases should be dealt
with in a class by themselves as regards taxation
of costs was founded on an assumption as to the
intention of the Court; but it was doubtful whether
there should be attributed to the Court a desire to
impose a penalty the extent of which could not be
computed and would be unknown to the Court
imposing it.
Lord Justice Hodson said it was unfortunate
that parties should have to bring contempts to the
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