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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Robertson v Minister of Pensions [1948] 2 All ER 767

DENNING J: In April, 1941, the War Office wrote to Colonel Robertson telling him that his disability had been accepted as attributable to military service. The question raised by this Case Stated is whether that assurance is binding on the Minister of Pensions.

Colonel Robertson served throughout the 1914-18 war. He served in the Territorials for all the years between the wars, and he served for six years in the 1939-45 war. He now suffers from a disability which is the result of an injury, but the question is: Which injury? He had two injuries. The first was in a train accident in 1927, not connected with military service. It seemed to be only a slight injury. He had a stiff neck and some neuritis, but this cleared up by 1928. Thereafter he played Rugby football and led an energetic life with no further trouble. The second accident was in December, 1939, while on military service. He fell and injured himself, receiving a severe blow on the chin. This was very painful and left some stiffness which persisted, and in May, 1940, he was taken into Millbank Hospital and X-rayed. A medical board was held in July, 1940, and he was found unfit for general service and put in Category B permanently.

Those facts give rise to three possible interpretations: (i) The disability may have been due to the first injury which took a long time to manifest itself. It would then not be due to war service. (ii) The first injury may have cleared up, or, at any rate, left only a condition which might never have given any trouble but for the second accident. The disability would then be due to the second injury which was attributable to war service. (iii) The first accident may have given rise to an injurious process which would, sooner or later, have given rise to the disability in greater or less degree, but was accelerated or intensified by the second accident. The disability would then be due to the first injury, though aggravated by the second. In that case, so long as aggravation remained, the disability would be due to war service. It is plain that for the determination of those nice questions a sight of the X-rays would be most important.

On 11 and 14 March, 1941, Colonel Robertson wrote to the Director of Personal Services at the War Office giving a full statement regarding his case and making this request:

"On July 3, 1940, I was examined at Millbank by a medical board, which reported me permanently unfit for general service and placed me in Category B. I understand that no report was made on the question of attributability and I should be glad if this matter can now be reconsidered".

On 8 April 1941, the Director of Personal Services replied:

"Dear Colonel, You wrote me on Mar. 11 regarding the injury you sustained in December, 1939, and I now write to let you know that your case has been duly considered and your disability has been accepted as attributable to military service. I am pleased the question has been settled in such a satisfactory manner".

Colonel Robertson says that, on the faith of that assurance, he did not take any steps (as he otherwise would have done) to get an independent medical opinion in 1941; that at that time the X-ray plates were still available, whereas they have now been lost or destroyed; and that his position is, accordingly, prejudiced. Colonel Robertson did not, of course, know what steps the War Office took when they considered his case, but at the hearing before me the War Office file was produced, and, by consent, I looked at it. It shows that the Director of Personal Services wrote to the divisional commander and obtained evidence as to the injury in December, 1939, and its consequences, and that he sent all the material, including the proceedings at the medical board, to the headquarters of the Army Medical Department. They reported: "From the evidence available we consider that the officer's condition was attributable to the accident in December, 1939".

There was ample material for that decision. The doctors at the medical board had agreed that, although the discs were probably damaged in the first accident, the second was the precipitating cause of the symptoms from which he suffered. The papers were then sent to the Army Finance Department who replied: 'We agree - attributable'. Then they were returned to the Director of Personal Services who wrote to Colonel Robertson the letter of 8 April 1941. It is clear, therefore, that the letter was written after careful consideration by all the departments concerned at the War Office and with their full authority, but the Minister of Pensions had not been consulted, nor anyone in his department. Nevertheless, if the letter was to have any effect at all, it would have to be binding on the Minister of Pensions, because the Pensions (Navy, Army Air Force, Nursing and Auxiliary Services) Transfer of Powers Order, 1939 (SR & O, 1939 No 1194), made under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act, 1939, s 1, had transferred to him the entire administration of disablement claims in respect of service after 2 September 1939...

Even if Colonel Robertson had studied the Royal Warrant in every detail, there would have been nothing to lead him to suppose that the decision was not authoritative. He might well presume that the Army Medical Board was recognised by the Minister of Pensions for the purpose of certifying under arts 2(4) and 5 of the Royal Warrant, and that their certificate of attributability was sufficient for the purpose of the warrant.

What then is the result in law? If this was a question between subjects, a person who gave such an assurance as that contained in the War Office letter would be held bound by it unless he could show that it was made under the influence of a mistake or induced by a misrepresentation or the like, none of which appears here. There are many cases in the books which establish that an unequivocal acceptance of liability will be enforced, if it is intended to be binding, intended to be acted on, and is, in fact, acted on....

[W]e have here no promise, express or implied, by Colonel Robertson to forbear from getting a medical opinion. Yet, if his disability had not been accepted as attributable to military service, he would have got one. He did, therefore, on the faith of the War Office letter forbear to get such an opinion. That is sufficient to make the letter binding. The case falls within the principle that if a man gives a promise or assurance which he intends to be binding on him and to be acted on by the person to whom it was given, then, once it is acted on he is bound by it: see Central London Property Trust Ltd v High Trees House Ltd.....

I come, therefore, to the most difficult question in the case. Is the Minister of Pensions bound by the War Office letter? I think he is. Colonel Robertson thought, no doubt, that, as he was serving in the Army, his claim to attributability would be dealt with by or through the War Office. So he wrote to the War Office. The War Office did not refer him to the Minister of Pensions. They assumed authority over the matter and assured him that his disability had been accepted as attributable to military service. He was entitled to assume that they had consulted any other departments that might be concerned, such as the Minister of Pensions, before they gave him the assurance. He was entitled to assume that the board of medical officers who examined him were recognised by the Minister of Pensions for the purpose of giving certificates as to attributability. Can it be seriously suggested that, having got that assurance, he was not entitled to rely on it? In my opinion, if a government department in its dealings with a subject takes it on itself to assume authority on a matter with which he is concerned, he is entitled to rely on it having the authority which it assumes. He does not know, and cannot be expected to know, the limits of its authority. The department itself is clearly bound, and as it is but an agent for the Crown, it binds the Crown also, and as the Crown is bound, so are the other departments, for they also are but agents of the Crown. The War Office letter, therefore, binds the Crown, and through the Crown it binds the Minister of Pensions. The function of the Minister of Pensions is to administer the Royal Warrant issued by the Crown and he must so administer it as to honour all assurances given by or on behalf of the Crown.

In my opinion, therefore, the finding of the tribunal that the disability was not attributable to war service must be set aside. The War Office letter is binding on the Minister of Pensions.... This appeal is, therefore, allowed.