The Gazette 1955-58

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client was not a pro hibited immigrant, had stated that his client's temporary pass was valid, although in fact it had been revoked.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 (Lord Evershed, M.R., and Hodson and Romer L.JJ.). It will be recalled that the gist of this decision 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 94