The epithet ‘quasi-judicial’ has become familiar, if not popular, in administrative law. It is commonly used to describe certain kinds of powers wielded by ministers or government departments but subject to a degree of judicial control in the manner of their exercise. Generally speaking, it is applied to powers which can be exercised only when certain facts have been found to exist, and it indicates that these facts must be found in conformity with a code of rules called ‘natural justice’. As a term ‘quasi-judicial’ has for some years been falling into disfavour. ‘I do not like it’, observed a learned judge to whom it had been a source of recurrent difficulty in the well-known series of cases under the Housing Acts. More recently the Master of the Rolls has spoken of ‘what is loosely called a quasi-judicial proceeding—an expression well adapted to mislead unless the context in which it is used is kept closely and accurately in mind’.

The Property Acts of 1925 have restricted in several ways the old equitable doctrine of notice. This article is an attempt to bring together and summarise some of the effects and problems which result from one of the innovations which the Acts introduced to that end.

Section 10 of the Land Charges Act, 1925, enacts that certain ‘charges on, or obligations affecting, land’ may be registered as land charges in His Majesty's Land Registry. Some of these registrable charges have long been recognised as imposing an equitable burden upon the land concerned, and for present purposes we may confine our attention to two of them: (i) estate contracts, (ii) restrictive covenants. By ‘estate contract’, the section means a contract by an estate owner to convey or create a legal estate. By ‘restrictive covenant’ it means a covenant or agreement (not made between a lessor and lessee) restrictive of the user of land.

Both estate contracts and restrictive covenants are registrable if created after the Act came into force. But those which were already in existence before the Act are subject to a distinction: restrictive covenants older than the Act are not registrable—section 10, indeed, so defines a restrictive covenant (for the purposes of the Act) as to exclude them from the Act entirely; estate contracts older than the Act, however, do sometimes become registrable, namely, ‘if acquired under a conveyance’ (i.e., if the person who has the benefit of the estate contract assigns it) after 1925. This distinction, of course, is important and should be borne in mind.

It may be convenient in conclusion to attempt to restate the ambit of the first two exceptions in the light of cases decided since Young v. Bristol Aeroplane Co., Ltd.:—

(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow, whether the second decision was reached in ignorance of the first, or the first decision was discussed and distinguished in the second. (The rider to the formulation of the exceptions in the Young Case is the product of the subsequent decisions in Battersby v. Anglo-American Oil Co., Ltd. and Fisher v. Ruislip-Northwood U.D.C.)

It appears that when the court has once decided that there is a conflict between two or more previous decisions and purported to resolve it that resolution is final in the sense that a subsequent court cannot then prefer the rejected decision. It is doubtful whether it is open to a subsequent court to decide there was no conflict at all, but it is suggested that no such power should be conceded, although Fisher v. Ruislip-Northwood U.D.C. permits it where the second exception is concerned.

When the court has once decided that there is no conflict between two or more previous decisions, it is not open to a subsequent court to hold that there is in fact a conflict and thereby confer upon itself jurisdiction to make a selection: Hogan v. Bentinck Collieries. Fisher v. Ruislip-Northwood U.D.C. is to the contrary, but should be overruled on this point. The Court of Appeal has, of course, power to choose between these two conflicting authorities when the point again comes before it.

(2) The court is bound to refuse to follow a decision of its own which was reached in ignorance of a previous decision of the House of Lords that covers the point, or which, though not expressly overruled, cannot, in its opinion, stand with a subsequent decision of the House of Lords, or which is expressly disapproved in considered dicta by a majority in the House of Lords: Leathley v. John Fowler and Co., Ltd. [1946] K.B. 579.

Where the House of Lords decision comes first, and the decision is discussed and distinguished in the later Court of Appeal decision, the Court of Appeal in the case sub iudice is bound by the Court of Appeal decision according to Young v. Bristol Aeroplane Co., Ltd. and Williams v. Glasbrook Brothers, Ltd., but according to Fitzsimmons v. Ford Motor Co., Ltd., is under a duty to follow the House of Lords decision if, in its opinion, there is a conflict. There is stronger authority in support of the Williams v. Glasbrook Brothers, Ltd. decision, that of a ‘full’ court, but the ruling in the Fitzsimmons Case should be preferred, as it is unreasonable to treat the first and second exceptions differently. The Court of Appeal has, of course, power to choose between the two lines of authorities when the question next arises.

If the Fitzsimmons Case is preferred, it has been held in Fisher v. Ruislip-Northwood U.D.C. that a subsequent court can decide that there was no conflict at all, and revive the discarded Court of Appeal decision, but it is suggested that this view should not be followed.

The case of Bowmakers, Ltd. v. Barnet Instruments, Ltd. deserves perhaps more attention than it has received. The judgment, delivered by du Parcq L.J., is per curiam. and of a strong Court of Appeal. It is a broad and easy-flowing judgment which cites few authorities and states a general rule in general terms without enumerating the exceptions to which it adverts. It accordingly gives rise to not a few difficulties. But it may well be correct on the main points which it appears to decide; and it may prove to be generally helpful in principle, upon the difficult topic of property passing under illegal contracts, if the principle involved can be extracted and stated with particularity.

The facts, as determined in the Court of Appeal, are as follows:—

The defendants (appellants), Barnet Instruments, Ltd., were minded to purchase from a Mr. Smith some machine tools; but instead of the defendants purchasing directly from him, in order to facilitate the financing of the transaction, it was arranged, as is customary, that Bowmakers, Ltd., the plaintiffs, should buy the machines from Smith and let them, upon normal hire purchase terms, to the defendants. Accordingly the plaintiffs, having bought from Smith, entered into three separate hire purchase agreements with the defendants: Nos. 1 and 2 of March and April, 1944, concerned new machine tools, No. 3 of June, 1944, dealt solely with a machine tool which was ‘used’. The defendants ‘after making some, but by no means all the agreed payments sold for their own advantage and converted to their use, all the machines except that one which was the subject of agreement 2, and this latter they also converted to their own use by refusing to deliver it up to the plaintiffs on demand’.

In September, 1194, Richard I, having returned from a disastrous captivity, sent itinerant justices around the country to reclaim and reorganise royal rights. According to Roger of Hoveden, they were instructed to put into writing all lands, housestae Mariae Ecclesia and William de Chemilli, such contracts should be made. The charter embodying the contract was to be made in the form of a chyrograph, of which one part was to be kept should remain in the area [area = chest = huche]. The area was to be secured by three locks: the Christians were to have one key, the Jews a second and the two Williams a third, and they should each of them seal the lock the key of which they heldt by the Jew, sealed with the seal of him to whom the money was lent, rents and possessions of the Jews. They should also provide six or seven places in which the Jews should make all their contracts, and appoint two law-worthy Christians, two law-worthy Jews and two law-worthy writers before whom, together with William de Sanc: the other par. The clerks of the two Williams should keep a roll of the transcripts of all charters: they were exhorted to keep the roll up to date, in return for which they were to receive one penny for evor. Five or more of the appointed oery charter made, twopence going between the writers, the total payment of three-pence being levied equally from the debtor and creditfficials were required to be present at each transaction, and the three groups, the Christians, the Jews and the keepers of the rolls were each to maintain a roll embodying payments made to the Jews.