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Pensions Appeals (High Court Judgment)

Volume 437: debated on Thursday 22 May 1947

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asked the Attorney-General if his attention has been called to the judgment delivered by Mr. Justice Denning on 5th May, to the effect that a decision by a pensions appeal tribunal to reject an appeal must be unanimous; how many such rejections have been unanimous and how many by a majority only; and if he will make arrangements for the rehearing of all rejected appeals which were not rejected unanimously or take action forthwith, without further hearing, to give the benefit of the doubt to all appellants in such cases.

I am aware of the decision referred to. The decisions of pensions appeal tribunals as announced in court and communicated to the parties do not normally indicate whether the members were unanimous, nor does this fact usually appear in cases stated on appeal to the judge. It can in general only be ascertained by drawing an inference from the private notes of the individual members of the tribunals where such notes exist. I am unable therefore to state the number of cases corresponding to that tried by Mr. justice Denning and it would be impossible to ascertain it without examining the notes of the members of the tribunals in nearly 40,000 cases. Although the procedure adopted by the tribunals has not been in every case in conformity with the principle laid down in the judgment referred to, there is no evidence that any injustice has been done, and my noble Friend is not prepared to adopt either of the courses suggested by the hon. Member.

If what my right hon. and learned Friend says is the case—and I see his difficulty—is there not manifestly a most unfair disparity between the appellants who were fortunate on 5th May and the great majority of the appellants whose appeals have been rejected?

No, Sir. I cannot accept that view. It occasionally happens that a higher tribunal reverses a view of the law which has hitherto been acted upon by the courts for a long period, but that does not result in the earlier cases, which were decided on what was then conceived to be the law, being reopened. It may happen in the course of years to come, that a judge who hears pension appeals will arrive at the view that some practice hitherto followed and accepted was not correct. If that were to enable the parties who did not contest the practice as applied to their own cases at the time to reopen those cases we should never reach finality in any of these matters.

Does not my right hon. and learned Friend agree that there ought to be a very clear distinction drawn between what is the law as between litigants and what is the law affecting the claim by a disabled ex-Service man against the State for his pension, and since this decision now makes it perfectly clear that a large number of people who ought to have had a pension were deprived of it how can the State with any conscience deprive them of it?

I am quite unable to accept the assumption that the conclusion is to be drawn at all from the decision of the learned judge that there is any justification for saying that anyone who ought to have received a pension is being deprived of one. Parliament has decided that these claims are to be decided by a form of judicial procedure which has been laid down, involving a hearing before tribunals, with a possibility of appeal to a judge. The whole basis of judicial procedure in this country is that a particular decision which is not challenged within the time limit for an appeal, should stand as between the parties to it, whatever view may be taken subsequently, in another case, as to the law which was applied in the previous decision.

In the particular and unusual circumstances arising out of Mr. Justice Denning's judgment, would it not be right, where the respective numbers contributing to any division of opinion among the members of a tribunal are not known, and there is therefore a reasonable doubt as to whether, in the light of the doctrine laid down by Mr. Justice Denning, any particular application should or should not succeed, that the appellant should be given the benefit of that doubt?

Where a tribunal consisting of several members announces its decision without a dissentient voice, that decision has to be taken as the decision of the tribunal as a whole, a decision in which all the members acquiesce. We could only ascertain whether that was, in fact, the case by examining the private notes of the members of tribunals in something like 40,000 cases. That would be quite an impracticable course to pursue, even if it were a course which was desirable in the interests of justice. My noble Friend and I do not think that it is a course which is desirable in the interests of justice.

Is it not obvious that this may mean injustice in something like 40,000 cases?

In order to ventilate this important matter further, I beg to give notice that I shall raise it on the Adjournment.