Marquess of Reading, J.

1. This matter was referred to the Judicial Committee by an order of His Majesty in Council made under Section 4 of the Judicial Committee Act, 1833.

2. The questions in issue relate to the principles applicable to the determination of the compensation payable to those Civil Servants in the service of the Crown who were transferred to the Irish Free State after the 20th March, 1922, and were discharged or have retired in consequence of the change of Government, effected by the establishment of the Government of the Irish Free State in pursuance of the Articles of Agreement for a Treaty made between Great Britain and Ireland. The amount of the compensation pay able was determined by the Government of the Irish-Free State in accordance with the principles laid down in certain minutes of the British Treasury, and in particular the minute of the 20th March, 1922. The question referred to their Lordships is whether the payment of compensation so determined in respect of Civil Servants or other officials or public servants transferred to the service of the Provisional Government or of the Government of the Irish Free State after the20th March, 1922, is a payment of compensation within the meaning and true intent of Art X of the Articles of Agreement.

3. Article X is as fellows:



The Government of the Irish Free State agrees to pay fair compensation on terms not less favourable than those accorded by the Act of 1920 to Judges, Officials, Members of the Police Forces and other Public Servants who are discharged or who retire in consequence of the change of Government effected in pursuance hereof.

4. This Act of 1920 is the Government of Ireland Act, 1920.

5. The arguments before their Lordships covered a wide range, and raised some problems difficult, of solution which lay on the fringe of the question. referred but which fortunately it is not necessary for their Lordships to solve.

6. Before proceeding to deal with the arguments at the hearing before the Board it is desirable to pass in brief review the facts and circumstances which have led to the present dispute.

7. In the year 1920 it was contemplated that changes should be made in the Government and administration of Ireland, and accordingly the Government of Ireland Act, 1920, was passed. Power was given to establish Parliaments in Southern and Northern Ireland and executive authority with in the limits reserved by the Act. It was further provided by Section 55 that existing Irish officers in the service of the Grown should continue to serve in Ireland and in the new Governments to be formed, and should held their offices upon the same tenure and the same conditions as hitherto. In order to protect those officers who might be removed from office or might wish to retire in consequence of the change to be effected in the Government of Ireland, provision was made for payment to them of compensation to be calculated in like manner as the superannuation allowances or gratuities had been applicable to them, with certain additional concessions, on the terms and conditions contained in the Eighth Schedule of the Act and the Rules thereunder.

8. Under these provisions an officer in an established capacity in the service of the Crown who wished to retire under the statutory conditions would receive as compensation under this Act an annual allowance or pension calculated in like manner as the superannuation allowance he would be qualified to receive under the Superannuation Acts, 1834 to 1914, if he retired oh the ground of ill health supplemented for the purpose of that calculation by certain additional years of service and certain notional increments of salary.

9. The annual allowance or pension payable under the Superannuation Acts, 1834--1914 to a Civil Servant who retires on the ground, of ill health after not less than ten years service is one-sixtieth of the salary and emoluments of his office at the date of his retirement for each year of service. A new system was introduced under the Superannuation Act of 1909 for the benefit of those officers who elected to avail themselves, of it. They became entitled to an annual allowance calculated upon one-eightieth instead of one-sixtieth per year of service, and in addition to a lump sum payment of one-thirtieth of the salary and emoluments for each year of service, such payment not to exceed one and a half times the amount of the salary and emoluments. During the War the remuneration was increased by what was termed a bonus. At first no part of the bonus was included for the purpose of the calculation of these allowances, but gradually it was recognised by the Treasury and particularly by the minute of 20th March, 1922, that the bonus had become a regular part of the Civil Servants remuneration, and that it should be taken into account in computing the retiring allowances. The bonus is not a fixed sum like the salary, but is variable and is calculated on a sliding scale by reference to the official index figure of the cost of living.

10. The scheme of Government under the Act of 1920 was superseded in December, 1921, by the Articles of Agreement for a Treaty between Great Britain and Ireland, which by Article 17 provided for a provisional arrangement for the administration of Southern Ireland during the transitional period pending the constitution of a Government of the Irish Free State. By the Irish Free State (Agreement) Act, 1922, passed on 31st March, 1922, force of law was given to these Articles, and provisions were made for carrying the Treaty into effect. In pursuance of this Act an order in Council of 1st April, 1922, was issued transferring the functions in connection with the administration of public services in Southern Ireland to the Provisional Government; in December 1922, the Irish Free State was established and the Constitution was enacted by Act No. 1 of the Dail Eireann. Article 77 of the Constitution (First Schedule to the Act) provides that every existing officer (subject to the exception therein mentioned) of the Provisional Government at the date of the coming into operation of this Constitution "shall on that date be transferred to and become an officer of the Irish Free State... and shall hold office by a tenure corresponding to his previous tenure." By Article 78 "every such existing officer who was transferred from the British Government by virtue of any transfer of services to the Provisional Government shall be entitled to the benefit of Article X of the Scheduled Treaty." This Statute made the Articles of the Treaty part of the Municipal Law of the Irish Free State. In consequence of these enactments existing Irish officers transferred to the Provisional Government and later to the Irish Free State, became entitled by Irish Free State Law to the benefit of Article X of the Treaty.

11. The compensation payable by the Irish Free State Government to those officers who were discharged by the Government or who retired because of the change of Government effected in pursuance of the Articles for the Treaty, and who came within the provisions of Article X, was assessed by the Minister of Finance of the Irish Free State assisted by a Committee carefully selected for this purpose. It is not disputed that the Minister of Finance assessed the compensation in accordance with the principles set forth in the minutes of the British Treasury including the minute of 20th March, 1922, but the Civil Servants were dissatisfied with a part of the award and claimed that the compensation so determined was not fair compensation within the meaning of Article X. They raised objections to the award in respect of, inter alia, the following two matters:



(1) In regard to the portion of the annual allowance which is computed on the bonus as distinguished from the fixed salary, it was made a condition of the award that this portion should be adjusted quarterly by reference to the official figure of cost of living, and should be reduced according to the sliding scale when the cost of living figure fell, but that it should not be increased beyond the amount ascertained at the date of retirement if the cost of living figure rose. This principle is known as the overriding maximum.

(2) In regard to that portion of the lump sum payment which is computed on the bonus, the award was based upon 75 per cent, and not upon the whole of the bonus payable for the quarter preceding the date of retirement.

12. The meaning and intent of Article X and the principles upon which the compensation payable under it should be assessed, including the principles relating to the overriding maximum and the 75 per cent above-mentioned, were considered by the Judicial Committee on the hearing of the appeal in the case of Wigg v. Attorney-General of Irish Free State (1927) A.C. 674 : 96 L.J.P.C. 88 : (1927) Ir. R. 285 : 137 L.T. 450 : 43 T.L.R. 457. The plaintiffs in the action were two Civil Servants who sought to enforce their claims under Article X in the Courts of the Irish Free State. In expressing their opinion allowing the appeal in favour of the two Civil Servants, the Board, when referring to the effect of the minute of the 20th March, 1922, upon the claims, assumed that these officers had at the date of the minute been transferred to the Government of the Free State, and held that the minute could not affect their rights. These officers were, in fact, not transferred to the Government of the Irish Free State until after the date of this minute, and it was contended that the advice tendered to His Majesty was tainted, if not vitiated, by this error of fact. It is because of this misapprehension by the previous Board (its effect upon the decision will be considered later) that the present reference was ordered.

13. At the outset of the hearing in this reference, Mr. Dickie, who attended their Lordships on behalf of the Council of the Transferred Officers Protection Association, argued that the Board is bound in law, and without examination, to follow the decision in the appeal in Wiggs case (1927) A.C. 674 : 96 L.J.P.C. 88 : (1927) Ir. R. 285 : 137 L.T. 450 : 43 T.L.R. 457 whether they considered it to be right or wrong. He maintained that if it was wrong, nothing short of an Act of Parliament could rectify it. Their Lordships are unable to hold that this proposition stated in such an extreme form is established. It may well be that the Board would hesitate long before disturbing a solemn decision by a previous Board, which raised an identical or even a similar issue for determination; but for the proposition that the Board is, in all circumstances, bound to follow a previous decision, as it were, blindfold, they are unable to discover any adequate authority. In other words, no inflexible rule, which falls in all circumstances to be applied, has been laid down.

14. Mr. Dickie based his argument mainly upon cases in which one of the parties to a suit which had been decided against him, or a person who was not a party to the suit, applied for a re-hearing of it. Their Lordships must, however, point out, in considering these cases, that they have no direct application to the matter before the Board, as this Reference is not a re-hearing of the claims in Wiggs case (1927) A.C. 674 : 96 L.J.P.C. 88 : (1927) Ir. R. 285 : 137 L.T. 450 : 43 T.L.R. 457. Now there can be no doubt that, in the early cases, a rigid standard was applied to the competency of a re-hearing. Thus, in Rajunder Narain Rae v. Bijai Govind Sing (1839) 1 Moo. P.C. 117 : 2 M.I.A. 181 : 1 Sar. P.C.J. 175 : 12 E.R. 757 Lord Brougham, in delivering the opinion of the Board, permitted himself to make soma; general observations, which seem, at first sight, to favour Mr. Dickies contention. In that case an application was made for a re-hearing. The decision in the earlier case had been given ex parte, and was pronounced by default. The earlier order was in these circumstances rescinded, and a rehearing was allowed. Lord Brougham, in giving the opinion of the Board, however, said (page 126 Page of (1839) 1 Moo. P.C.--[Ed.]): "It is unquestionably the strict rule, and ought to be distinctly understood as such, that no cause in this Court can be re-heard, and that an order once made, that is, a report submitted to Her Majesty, and adopted, by being made an order in Council--is final, and cannot be altered. The same is the case of the judgments of the House of Lords... Whatever, therefore, has been really determined in these Courts must stand, there being no power of re-hearing for the purpose of changing the judgment pronounced." Lord Brougham then pointed out that trivial errors in drawing up the judgment of the Board might competently be corrected. He then proceeded to add; "With the exception of one case in 1669, of doubtful authority, here, and another in Parliamant of still less weight in 1642 (which was an appeal from the Privy Council to Parliament and at a time when the Government was in an unsettled state), no instance, it is believed, can be produced of a re-hearing upon the whole cause, and an entire alteration of the judgment once pronounced."

15. The case referred to by Lord Brougham as "of doubtful authority" was Dumaresq v. Le Hardy (1868) 1 Moo. P.C 127n : 12 E.R. 760, 11th March, 1667-68. There it was alleged that a matter of fact had been misrepresented to the earlier Court, that consequently the point in question was mistaken, and that the cause had been determined against the petitioners clear and undoubted right and contrary to law. An order for re hearing was there made and the case was re-heard though, in the result, the Board adhered to the former decision.

16. The case of Fenton v. Hampton (1858) 11 M.P.C. 317 : 14 E.R. 727 : 117 R.R. 32 cited during the argument, related to another proposition which dealt with the binding character of an earlier decision upon the Board in a later case. The Board there said (page 395 Page of (1858) 11 M.P.C.--[Ed.]): "We think we are bound by the decision of the case of Kielly v. Carson (1842) 4 Moo. P.C. 63 : 13 E.R. 225 : 59 R.R. 336, the greater authority of which, as compared with Beaumont v. Barrett (1836) 1 Moo. P.C. 59 : 12 E.R. 733, it is quite unnecessary to enlarge upon." In Kielly v. Carson (1842) 4 Moo. P.C. 63 : 13 E.R. 225 : 59 R.R. 336 the Board had refused to follow the earlier decision of Beaumont v. Barrett (1836) 1 Moo. P.C. 59 : 12 E.R. 733 for reasons which do not touch the argument in the present case. These decisions do not contribute to the solution of the problem in issue.

17. Reference may also be made to the case of Singapore and the Hebe (1866) 1 P.C. 378 : 4 Moo. P.C. (N.S.) 271 : 16 E.R. 319 which again related to re-hearing. In refusing a petition for re-hearing, the Board at page 388 Page of (1866) 1 P.C.--[Ed.] said: "We do not affirm that there is no competency in this Court to grant a re-hearing in any case... Although it is within the competency of the Court to grant a rehearing, according to the authorities cited above, still it must be a very strong case indeed, and coming within the class of cases there collected" (i.e., in Rajunder Narains case (1839) 1 Moo. P.C. 117 : 2 M.I.A. 181 : 1 Sar. P.C.J. 175 : 12 E.R. 757 "that would induce this Court so to interfere.". 13. The case which in comparatively recent times comes nearest to formulating a general proposition with reference to the competency of a re hearing is Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177. The decision of the Board is thus set out at page 671 Page of (1871) 3 P.C.--[Ed] : "Their Lordships are of opinion, in respect of the two petitions addressed to the Crown, that no further proceedings should be taken therein. Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finality of the decisions of the Judicial Committee, their Lordships are of opinion, that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused with costs" It will be observed that the decision turned on expediency, not on competency, and that the Board abstained from laying down any general rule which is applicable to all cases.

18. The case of Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177 was considered in Ridsdale v. Clifton (1877) 2 P.D. 276 : 46 L.J.P.C. 27 : 36 L.T. 865 That was a case which raised the question of the finality of a previous decision, not inter partes but as against strangers. Having regard to the fact that the case was not concerned with questions of law affecting civil rights of property, but related to the public worship of the Established Church, and that in Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177 the decision was pronounced ex parte, the Board stated that "these considerations have led their Lordships to the conclusion that, although very great weight ought to be given to the decision in Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177, yet they ought in the present case to hold themselves at liberty to examine the reasons upon which that decision was arrived at, and if they should find themselves forced to dissent from these reasons, to decide upon, their own view of the law" (page 307 Pages of (1877) 2 P.D.--[Ed.]). The Lord Chancellor, Lord Cairns, in giving the decision of the Board, added with reference to decisions relating to civil rights of property: "Even as to such decisions it would perhaps be difficult to say that they were, as to third parties, under all circumstances and in all cases, absolutely final, but they certainly ought not to be re-opened without the very greatest hesitation" (page 306 Pages of (1877) 2 P.D.--[Ed.]). The door is thus not closed against a request for a re-hearing at the instance of a stranger to an earlier decision, even in a case concerned with civil rights of property, although it is plainly indicated that the Board would be slow to accede to such a request.

19. The case of Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177 was followed in Venkata Narasimha, Rao v. The Court of Wards (1886) 11 A.C. 660 in which again a petition for re-hearing was refused. In delivering the judgment of the Board, however, Lord Watson said (page 663 Page of (1888) 11 A.C.--[Ed.]): "It is quite true that there may be exceptional circumstances which will warrant this Board, even after their advice has been acted upon by Her Majesty in Council, in allowing a case to be re heard at the instance of one of the parties." But he added..."Even before report, whilst the decision of the Board is not yet res judicata, great caution has been observed in permitting the re-hearing of appeals" (page 663 Page of (1888) 11 A.C.--[Ed.]).

20. Again, in the case of Tooth v. Power (1891) A.C. 284 : 60 L.J.P.C. 39 : 64 L.T. 698 in which a previous decision was urged upon the Board as binding upon it, the Judicial Committee said: "Their Lordships think it right to add that, although, for obvious reasons, the case of Barton v. Muir (1875) 6 P.C. 134 : 44 L.J.P.C. 19 : 31 L.T. 593 : 23 W.R. 427 was relied on as an authority absolutely binding upon them by both parties at the Bar, yet it would have been their duty, had the necessity arisen, to consider for themselves whether the decision is one which they ought to follow. It was given ex parte; and, that being the case, although great weight is due to the decision of this Board, their Lordships are at liberty to examine the reasons upon which that decision was arrived at, and if they should find themselves forced to dissent from these reasons, to decide upon their own view of the law. These are the words used by Earl Cairns when delivering the judgment of the Board in Ridsdale v. Clifton (1877) 2 P.D. 276 : 46 L.J.P.C. 27 : 36 L.T. 865 which contains a full exposition of the law upon this point" (page 292 Page of (1891) A.C.--[Ed.]).

21. In Read v. Bishop of Lincoln (1892) A.C. 644 : 62 L.J.P.C. 1 : 67 L.T. 128 : 56 J.P. 725 their Lordships referred to Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177 and Ridsdale v. Clifton (1877) 2 P.D. 276 : 46 L.J.P.C. 27 : 36 L.T. 865 and quoted the relevant passages from these decisions to which reference has already been made. The Board proceeded to say: "In the present case their Lordships cannot but adopt the view expressed in Ridsdale v. Clifton (1877) 2 P.D. 276 : 46 L.J.P.C. 27 : 36 L.T. 865 as to the effect of previous decisions. Whilst fully sensible of the weight to be attached to such decisions, their Lordships are at the same time bound to examine the reasons upon which the decisions rest, and to give effect to their own view of the law" (page 655 Page of (1892) A.C.--[Ed.]).

22. The result of these decisions is (1) that there is no inherent incompetency in ordering a re hearing of a case already decided by the Board, even when a question of a right of property is involved, but (2) that-such an indulgence will be granted in very exceptional circumstances only. It is of the nature of an extraordinarium remedium.

23. The matter how before their Lordships, however, presents features which are widely different from those presented in the cases cited.

24. In the first place, as has already been pointed out, this is not a petition for a re-hearing. It is a reference to the Board under Section 4 of the Judicial Committee Act of 1833. If, however, Mr. Dickie is right, the reference may be a futile and sterile proceeding, for, on his argument, one of the parties to it is foredoomed from the outset to failure because of the previous decision. If by that decision the matter of the present reference is res judicata, then the Board has been invited to take part in a solemn farce, involving the waste of judicial time. 20. In the second place, the reference was granted because of an alleged, mistake of fact into which the previous Board was alleged to have fallen, and which is said to have been material to the issue determined by it. To suggest that, if that proposition be made out, this Board is constrained, blind-fold, to adhere to a decision based on material error in fact appears to be repugnant to good sense, and to attribute to the Board, as a Court of final resort, an impotance which would be deplorable. None of the cases, cited, unless it be the case of Dumarseq v. Le Hardy (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177--which, quantum valeat, is inimical to Mr. Dickies argument--deals with such a situation; and none of them appears to present an insuperable obstacle to a different decision being reached by the Board in this case from that pronounced in; the case of Wigg v. Attorney-General of Irish Free State (1927) A.C. 674 : 96 L.J.P.C. 88 : (1927) Ir. R. 285 : 137 L.T. 450 : 43 T.L.R. 457.

25. In these circumstances their Lordships considered, after careful attention had been given to the argument, on behalf of the Civil and they accordingly informed the learned Attorney-General that they did not think it necessary to require him to reply on this topic.