Crown Proceedings Act 1947
Encyclopedia
The Crown Proceedings Act 1947 (c. 44) is an Act
of the Parliament of the United Kingdom
that allowed, for the first time, civil actions against the Crown
to be brought in the same way as against any other party. The Act also reasserted the common law
doctrine of Crown privilege but by making it, for the first time, justiciable paved the way for the development of the modern law of Public Interest Immunity
.
The Act received the Royal assent
on 31 July 1947 but did not fully come into force until 1 January 1948. , it remains substantially in force in the UK.
There remain significant differences between Crown proceedings
and claims between private parties, especially as to enforcement of judgments.
d in contract. However, as it was seen to be desirable that Crown contractors could obtain redress, they would otherwise be inhibited from taking on such work, so a petition of right
came to be used in such situations, especially after the Petitions of Right Act 1860
simplified the process.
Before the petition could be heard by the courts, it had to be endorsed with the words fiat justitia
on the advice of the Home Secretary
and Attorney-General.
Similarly, the Crown could not be sued in tort
. The usual remedy was for the complainant to sue the public servant responsible for the injury. A famous example was the case of Entick v. Carrington. The Crown usually indemnified the servant against any damages
.
Henry Brougham
called for equality between Crown and subjects in a House of Commons
motion in 1828 but it was to be a further century before the proposal was realised. In 1921 a Crown Proceedings Committee was established and produced a draft Bill
in 1927. However, little was done to progress it through parliament and in 1926 there was adverse criticism of state of affairs from the House of Lords
and the Court of Appeal
.
Section 2 renders the Crown liable as though it were a natural person
for:
S.2(2) provides that the Crown is liable for breach of statutory duty so long as the statute binds both the Crown and private persons.
S.3 provides for the protection of patent
s, registered trade marks, design right
s and copyright
s from breach by Crown servants.
caused by members of the British Armed Forces
to other members of the British Armed Forces. This section was suspended by the Crown Proceedings (Armed Forces) Act 1987, ss.1-2 with a power for the Secretary of State for Defence
to revive it when "necessary and expedient". There was some retrospective litigation after the 1987 Act in which a declaration was made under the Human Rights Act 1998
, s.4 that such immunity was incompatible with the European Convention on Human Rights
, art.6(1).
of documents by the Crown and require the Crown to answer requests for further information. This new power is subject to important qualifications in s.28(2) including the proviso that the Crown can resist disclosure where this could be “injurious to the public interest”. This reasserted the traditional doctrine of Crown privilege but also made the issue justiciable, ultimately giving rise to the doctrine of Public Interest Immunity
.
s and procedures:
claims but these sections were repealed and replaced by provisions under the Merchant Shipping Act 1995
.
S.9 originally excluded claims arising from the operations of the Post Office, including telegraphic and telephone services, other than the loss or damage of a registered letter. These provisions were repealed and replaced by the Post Office Act 1969.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that allowed, for the first time, civil actions against the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
to be brought in the same way as against any other party. The Act also reasserted the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine of Crown privilege but by making it, for the first time, justiciable paved the way for the development of the modern law of Public Interest Immunity
Public Interest Immunity
Public-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...
.
The Act received the Royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 31 July 1947 but did not fully come into force until 1 January 1948. , it remains substantially in force in the UK.
There remain significant differences between Crown proceedings
Crown proceedings
In English law, Crown proceedings are legal proceedings which involve the Crown, and this would include all government departments.Proceedings commenced by or against the Crown are governed by the Crown Proceedings Act 1947, and procedurally by Part 66 of the Civil Procedure Rules 1998.In...
and claims between private parties, especially as to enforcement of judgments.
Background
Before the Act, the Crown could not be sueLawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
d in contract. However, as it was seen to be desirable that Crown contractors could obtain redress, they would otherwise be inhibited from taking on such work, so a petition of right
Petition of right
In English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...
came to be used in such situations, especially after the Petitions of Right Act 1860
Petitions of Right Act 1860
The Petitions of Right Act 1860 was an Act of Parliament passed by the Parliament of the United Kingdom that codified and simplified the process of obtaining a petition of right.-Procedure:...
simplified the process.
Before the petition could be heard by the courts, it had to be endorsed with the words fiat justitia
Fiat justitia
Fiat justitia is a Latin phrase, meaning “Let justice be done". Historically in England, a warrant for a writ of error in Parliament or later a petition of right in the courts could be brought only after the king, or on his behalf the Home Secretary, had endorsed fiat justitia on a petition for...
on the advice of the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
and Attorney-General.
Similarly, the Crown could not be sued in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. The usual remedy was for the complainant to sue the public servant responsible for the injury. A famous example was the case of Entick v. Carrington. The Crown usually indemnified the servant against any damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
.
Henry Brougham
Henry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
called for equality between Crown and subjects in a House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
motion in 1828 but it was to be a further century before the proposal was realised. In 1921 a Crown Proceedings Committee was established and produced a draft Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
in 1927. However, little was done to progress it through parliament and in 1926 there was adverse criticism of state of affairs from the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
and the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
.
Actions allowed
Section 1 of the Act allows claims, for which a petition of right would previously have been demanded, to be brought in the courts directly as against any other defendant. However, a petition and fiat still appear to be necessary for personal claims against the monarch.Section 2 renders the Crown liable as though it were a natural person
Natural person
Variously, in jurisprudence, a natural person is a human being, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner...
for:
- TortTortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s committed by its servants and agents; - Common law duties of an employer to its servants and agentsBritish labour lawUnited Kingdom labour law involves the legal relationship between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights...
; and - Common law duties as an owner or occupier of property.
S.2(2) provides that the Crown is liable for breach of statutory duty so long as the statute binds both the Crown and private persons.
S.3 provides for the protection of patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s, registered trade marks, design right
Design right
Design right is a sui generis intellectual property right in British law. There are two types of design rights: the registered design right and the unregistered design right....
s and copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s from breach by Crown servants.
Limitations
S.10 exempted the Crown from actions for death or personal injuryPersonal injury
Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. The term is most commonly used to refer to a type of tort lawsuit alleging that the plaintiff's injury has been caused by the negligence of another, but also arises in defamation...
caused by members of the British Armed Forces
British Armed Forces
The British Armed Forces are the armed forces of the United Kingdom of Great Britain and Northern Ireland.Also known as Her Majesty's Armed Forces and sometimes legally the Armed Forces of the Crown, the British Armed Forces encompasses three professional uniformed services, the Royal Navy, the...
to other members of the British Armed Forces. This section was suspended by the Crown Proceedings (Armed Forces) Act 1987, ss.1-2 with a power for the Secretary of State for Defence
Secretary of State for Defence
The Secretary of State for Defence, popularly known as the Defence Secretary, is the senior Government of the United Kingdom minister in charge of the Ministry of Defence, chairing the Defence Council. It is a Cabinet position...
to revive it when "necessary and expedient". There was some retrospective litigation after the 1987 Act in which a declaration was made under the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, s.4 that such immunity was incompatible with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, art.6(1).
Crown privilege and Public Interest Immunity
Section 28 gave the courts, for the first time, the power to order disclosureDiscovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
of documents by the Crown and require the Crown to answer requests for further information. This new power is subject to important qualifications in s.28(2) including the proviso that the Crown can resist disclosure where this could be “injurious to the public interest”. This reasserted the traditional doctrine of Crown privilege but also made the issue justiciable, ultimately giving rise to the doctrine of Public Interest Immunity
Public Interest Immunity
Public-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...
.
Proceedings abolished
Apart from petitions of right, the Act abolished several ancient writWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s and procedures:
- Latin informations and English informations;
- Writs of capias ad respondendumCapias ad respondendumIn the common law legal systems, capias ad respondendum is or was a writ issued by a court to the sheriff of a particular county to bring the defendant, having failed to appear, to answer a civil action against him.Under the American legal system, this writ was replaced by the practice of...
, subpoena ad respondendum and writs of appraisement; - Writs of scire faciasScire faciasIn English law, a writ of scire facias was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring that defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why,...
; - Proceedings for the determination of any issue upon a writ of extent or of diem clausit extremum;
- Writs of summonsSummonsLegally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
under Part V of the Crown Suits Act 1865; - Proceedings against the Crown by way of monstrans de droit.
Amendments since royal assent
Ss.5-8 originally covered AdmiraltyAdmiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
claims but these sections were repealed and replaced by provisions under the Merchant Shipping Act 1995
Merchant Shipping Act 1995
The Merchant Shipping Act 1995 is an Act of Parliament passed in the United Kingdom in 1995.The Merchant Shipping Act 2006 amended section 178 of the Act...
.
S.9 originally excluded claims arising from the operations of the Post Office, including telegraphic and telephone services, other than the loss or damage of a registered letter. These provisions were repealed and replaced by the Post Office Act 1969.