93 / 264
GAZETTE
APRIL 1977
RECENT ENGLISH CASES
(a) Attorney-General; Relator Actions
Gouriet v. Union of Post Office Workers and Others —
Court of Appeal — Lord Denning M.R., Lawton and
Ormrod LJJ.
By Sections 58 and 68 of the Post Office Act 1953 and
Section 45 of the Telegraph Act 1863, as amended, it was
an offence punishable by imprisonment or fine for persons
engaged in the business of the Post Office wilfully to delay
or omit to deliver postal packets and messages in the
course of transmission and for any person to solicit or
endeavour to procure any other person to commit such an
offence.
On Thursday, 13 Jan. 1977, it was publicly announced
that the executive council of the Union of Post Office
Workers (U.P.W.) had unanimously resolved to call on its
members not to handle mails to South Africa during the
week beginning at midnight on Sunday the 16th, in
response to a call from the International Confederation of
Free Trade Unions to its member unions for protest
action against the South African government's policy of
"apartheid"; and on the Friday, the press reported that
similar action was proposed by other British trade unions,
including the Post Office Engineering Union (P.O.E.U.).
On Friday the 15th, shortly before 1 p.m., the plaintiff
applied to the department of the Attorney-General for his
consent to act as plaintiff in relator proceedings for an
injunction to restrain the U.P.W. from soliciting or
endeavouring to procure any person wilfully to detain or
delay any postal packet in the course of transmission
between England and Wales and the Republic of South
Africa. A draft writ and statement of claim had been
prepared.
At about 3.30 p.m. the Attorney-General stated that
"having considered all the circumstances including the
public interest" he had concluded that he should not give
his consent to the application. The plaintiff thereupon
issued the writ of summons in his own name and applied
to the Judge in Chambers for afinal injunction. The Judge
refused the order on the ground that in the absence of any
reported authority on the point he had no jurisdiction to
grant the relief where the Attorney-General had refused
his consent. The plaintiff appealed, and the Court of
Appeal was convened on the Saturday to hear him. The
Court granted him an interim injunction in the terms
asked for against the U.P.W. It also gave him leave
ex
parte
to join the P.O.E.U. as defendants and also to join
the Attorney-General as a defendant, the injunction to
run until 10.30 a.m. on Tuesday the 18th or such other
time as the Attorney-General might be able to attend to
assist the Court. In face of that order the proposed
boycott by Post Office employees did not take place.
On the resumed hearing the plaintiff had amended his
pleadings to claim permanent injunctions against both
trade unions and a declaration that the Attorney-General
by refusing his consent had acted improperly and
wrongfully exercised his discretion.
The Attorney-General attended, and stated,
inter alia,
that by virtue of his special office and functions, the
prerogative vested in him on behalf of the Crown, and by
long established constitutional practice his discretion to
consent or refuse to act as plaintiff in relator proceedings
was absolute and could not be reviewed by the Courts;
that he did not have to give his reasons, and that the
Court was not entitled to inquire into them; and that if his
decision was wrong he was answerable to Parliament
alone. He applied for the declaration now claimed against
him to be struck out.
The two trade unions applied under R.S.C., Ord. 18, r.
19(1)
(a)
to strike out the writ and statement of claim
against them on the ground that as the Attorney-General
alone could seek an injunction in a Civil Court to prevent
a threatened breach of the law, and as he had refused to
do so, the plaintiffs pleadings disclosed no reasonable
cause of action. At the end of the hearing the declaration
sought against the Attorney-General was provisionally
amended to claim that notwithstanding his refusal to
consent to relator proceedings, the plaintiff was entitled to
proceed with his claim for final injunctions against the
two unions:
Held,
allowing the appeal, (1)
(per
Lawton and
Ormrod L.J.J.) that the Attorney-General's exercise of his
discretion to refuse his consent to the bringing of relator
proceedings in his name could not be reviewed or
questioned by the Courts.
Per
Lord Denning M.R. Where the Attorney-General
refuses his consent to relator proceedings in a matter
which appears plainly to threaten a breach of the criminal
law, to the prejudice of the public as a whole, and declines
to give his reasons for his refusal, the Courts are entitled
to review the exercise of his discretion, not directly but
indirectly, by allowing the complainant to come to the
Court himself, and to grant him an injunction, and, if need
be, a declaration. The Attorney-General has no
prerogative by which he alone can say whether or not the
criminal law should be enforced in the Courts.
Per
Lawton L.J. I cannot accept that the Attorney-
General in relation to law enforcement through the Civil
Courts is the sole arbiter of what is the public interest.
(2) That where the Attorney-General's consent to
relator proceedings had been refused, the Court was not
without jurisdiction to provide a remedy; it could allow a
member of the public, who did not claim any special
interest of his own but who asserted that other persons or
bodies were threatening to commit acts in breach of the
criminal law enacted in Acts of Parliament, which would,
if carried out, affect the rights of the public, including his
own, to use the facilities of the Post Office, to apply to the
Court for a declaratory judgment against the intending
infringers that the apprehended action would be unlawful;
and if the plaintiff had claimed a declaration against the
unions, the Court could in the exercise of its equitable
jurisdiction grant him an interim injunction pending the
final determination of any application for a declaration;
that the Court had therefore had jurisdiction to grant the
interim injunction; but that as it had been effective to
restrain the proposed postal boycott it could now be
discharged.
(3) But
(per
Lawton and Ormrod LJJ.) that so long as
the plaintiff was unable to add the Attorney-General as
plaintiff in relator proceedings, he could not obtain final
injunctions against the trade unions; and as his pleadings
claimed only that relief the writ and statement of claim
would have to be struck out, unless he amended them to
include a prayer for declaratory judgments that it would
be unlawful for the unions to counsel or solicit their
members wilfully to delay or omit to transmit any postal
packet or message between this country and South
Africa.
Per
Lord Denning M.R. If the Court can grant a
declaration I see no reason why it should not grant a final
6 9