United Kingdom House of Lords Decisions

Lord Chelmsford—That is merely a question of over-rating.

The Lord Advocate said he contended the appellants were not liable in respect of their whole valuation.

The Lord Chancellor—The principle laid down in the Mersey Dock case was that the only exemption was in the case of the Crown, to which a very extended meaning was attached, so as to include prisons, rooms at the assizes, and other places. The case was not decided as to charities. Lord Kenyon thought hospitals were not liable, because there was no occupier; I should have thought the trustees were the occupiers; but however that may be, it is quite clear that in the Mersey Dock case the trustees were considered occupiers.

The Lord Advocate referred to a decision of the Court of Queen's Bench exempting the University of Oxford.

The Lord Chancellor—That won't do. You can't make this out to be a royal foundation.

The Lord Advocate further referred to the case of the University of Edinburgh decided by the Court of Session.

The Lord Chancellor—But it has been decided that harbours and docks are not occupied for Crown purposes.

The Lord Advocate said he would only then say a few words in supplement of what the Attorney-General had said with reference to res judicata.

Lord Kingsdown—The two actions were between the same classes of persons, though not between the same persons.

The Lord Advocate submitted that the trustees were a corporation, so that the parties were the same.

Lord Chelmsford—The actions were not brought for the same rate; and besides, there are three persons in whose names the action is brought, along with the inspector of the poor. The previous action was not brought in the names of the same persons.

The Lord Advocate submitted that the parties were the same. He referred to Erskine 4, 4, 3, as to res judicata, and submitted it had been finally decided by the Court of Session in 1852 that the revenues of the appellants were not liable in respect of the sum of £7680.

Without calling upon the respondents, the Lord Chancellor then rose and moved the judgment of the House. He said—My Lords, after the very full investigation which the point raised in this case has already received, your Lordships can have no difficulty in arriving at a proper conclusion. The two latter points raised by the appellants were, after an intimation from your Lordships, very properly abandoned by them without further contention. We can quite understand that such cases as the present should be brought from time to time before us, because all the courts in the kingdom were in error upon the subject. Lord Mansfield, Lord Kenyon, and Lord Tenterdon, all thought that trustees holding property entirely for public purposes could not be beneficial owners, so as to make the trust property assessable. But in the Mersey Dock case it was finally decided, after a very elaborate argument, that all trustees are beneficial occupiers in the sense in which those words are used in the statute of Elizabeth, which does not differ from the law of Scotland—that, with exception of the Crown, the royal palaces, the House in which your Lordships administer justice, and other places of a similar kind, all the property in the kingdom waS liable to be assessed for relief of the poor. Now, harbours, docks, and rivers are not in the occupation of the Crown, and are therefore rateable. Upon the general principle, therefore, there can be no doubt, and he thought that the particular point raised in this case had been decided in Adamson's case; but it does appear that some matters did not form the subject of the interlocutor then. There has therefore been strictly no adjudication upon this particular point. It is now for the first time to be established that in Scotland, as in England, all trustees of harbours, docks, and rivers, for whatever purpose their revenues may be applied, are liable to be assessed for relief of the poor. The appellants further urged that this matter was already res judicata—a contention more plausible than substantial. Ten years ago it would appear that the then inspector of the poor brought an action against the commissioners for the time being to recover the rates imposed from 1846 to 1847, and that the latter pleaded inter alia that the subjects being held by them solely and exclusively for the benefit of the public, and the rates and revenues leviable by them being by law limited and appropriated to the maintenance and repair of the harbour and liquidation of the debt incurred in the construction of the works, they were not liable to the assessment concluded for in the summons. An interlocutor was pronounced sustaining the plea, with exception as to a sum of £7680, and upon appeal to your Lordships' House that interlocutor was reversed in so far as it constituted that sum an exception, and affirmed as to the remainder. But what was affirmed? Only this, that the dues were not liable to assessment for that particular time. It would indeed be grievous if that had concluded their non-liability for the time, seeing that the liability of harbours, docks, and rivers had never been expressly and finally established. I therefore beg to advise your Lordships to affirm this interlocutor, and to dismiss the appeal with costs.

Lord Chelmsford—I am of the same opinion as to the objection of res judicata. I shall not enter further into the details of the action in which the former judgment was pronounced than to observe that whether the declaration appended to its judgment by the House of Lords amounted to a reservation of the question, or a declaration of general liability, the matter was equally left open to future question. It would appear that the appellant had not attended sufficiently to what was meant by a plea of res judicata. The maxim is, “res judicata pro veritate accipitur,” and is only applicable when the parties and the cause of action in the one case are identical with those in the other—the rule as laid down by the Digest being “ excepti nem rei judicatae obstare quotiens eadem quœstio inter easdem personas revocaiur.” The plea, therefore, is not competent where the parties only are identical, but, like that of “judgment recovered” in this country, must, so as to operate as an estoppel, refer to a case in which precisely the same question was at issue. In a case where the plea of res judicata properly applied, the jurisdiction of the Court is not taken away, though it is impossible to go behind the judgment. With regard to the liability of the harbour dues and the sum of £7680, the objections have been sufficiently answered in the course of the argument, and by my noble and learned friend.

Lord Kingsdown concurred.