1. Infra, nn. 27 and 28

2. (1877) PD 203.

3. [1917] AC 170.

4. [1955] NZLR 271.

5. [1962] AC 152.

6. (1963] Ch 502.

7. [1975] 1 All ER 1979.

8. An issue similar to this arose in Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306.

9. (1875) LR 10 CP 733 at 746.

10. (1881) 8 QBD 9.

11. At 12.

12. See Hohfeld, Fundamental Legal Conceptions (ed. W.W. Cook 1923) 50. The definition given here departs from Hohfeld's in the following ways: (1) The present definition allows that the exercise of a power may bring about a number of changes simultaneously: in Hohfeld's system the ability to bring about each of these changes would constitute a single power. (2) The present definition confines the notion of a power to abilities to bring about legal changes intentionally: in Hohfeld's system the act which is the exercise of a power must be intentional, but it need not be performed with the intention of bringing about the relevant change.

13. (1917) 39 Ont LR 138.

14. (1697) 2 Salk 593, 1 Ld Raym 215. Cf. Dixon v Wells (1890) 25 QBD 29.

15. Ibid.

16. (1877) 2 CPD 562.

17. Supra, n.3.

18. Other cases belonging in this category are: R v Sparrow (1740) 2 Strange 1123; Cullimore v Lyme Regis Corporation [1962] 1 QB 718.

19. (1963) 32 U QB 366. See also R u Inhabitants of Birmingham (1823) 8 BC 29.

20. [1961] 2 All ER 396.

21. Further cases belonging in this category are: Patchett v Latham (1947) 65 TLR; SS Construction Pty Ltd v Ventura Motors Pty Ltd [1964] VLR 229; Disher v Disher [1965] P31; R v Registrar of Titles [1975] VLR 723.

22. [1936] AC 177.

23. Another case belonging in this category is Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303.

24. Supra, n.2.

25. See note in (1950) 28 CBR 791.

26. Cf. Bain u Throne (1916) 2 Tas LR 57. Other cases on this point are: Batley v Williamson (1873) 8 QB 118; Storey u Graham (1899) 1 QB 406 at 412. Other cases of a different type which belong to this category are: Budd 11 Anderson [1943] KB 642; Tilbury and Lewis Pty Ltd v Marzurini [1940] VLR 245.

27. There are not a lot of cases reported before the nineteenth century. The earliest reference I can find to the distinction is in Hales, Pleas of the Crown (published 1736, but written before 1676) Vol 2, 50. There it is stated that statutes directing that quarter sessions be held at certain dates are ‘only directive and in the affirmative’; consequently quarter sessions held at other dates are not invalid. It seems from this terminology that the distinction was grafted onto an older distinction (never clear) between ‘affirmative’ and ‘negative’ rules. In any event it is clear that the rule here is treated as imposing a duty on the justices to hold the sessions at the stipulated times. The next reference is in Anon (1696) 2 Salk 473 (the same case is reported in 12 Mod 546, but as occurring in 1701). This case is obscure, but it seems also to involve a duty. Then comes Yale v The King (1721) 6 Bro PC 27 where a bond taken on behalf of the King to secure payment to the exchequer of revenues collected on his behalf, was claimed to be void because it contained a trivial departure from a form of words required by statute. It was resolved by the judges in the House of Lords that the statute was in this respect ‘directory’. This seems to be the first reported case in which the rule could not be thought of as imposing a duty on its addressees: here the distinction seems to have been used just as a device to justify ignoring the statute. Other early reported cases are Foot Foot v Prouse Mayor of Truro (1725) 1 Stra 625, where the distinction was used to justify a decision which should have been based on the de facto officer doctrine; R v Woolstanton (1733) Sess Cas 58, a case similar to Anon above; R v Woolstanton (1738) Andrews 362 at 371, where the distinction was used to justify a reading of ‘void’ as ‘voidable’ which had been sanctioned in earlier cases; R v Sparrow (1739) 2 Stra 1123, where the rule imposed a duty; and R v Loxdale (1758) 1 Burr 445, where the rule was treated as mandatory.

28. This sceptical conclusion was reached about all directory rules by Sedgwick in Statutory and Constitutional Law (2nd edn, 1874, J.N. Pomery) 316, who cites cases where rules are held directory as instances of cases where courts disregard statutes altogether.

29. It might even be that at times the sheriff has a “duty” to postpone enforcement; see the dictum of Evershed MR in Barclays Bank Ltd v Roberts [1954] 3 All ER 107 at 112C.

30. Consider e.g. the facts in N.Z. Institute of Agricultural Science v Ellesmere Country [1976] 1 NZLR 630.

31. [1975] QB 235. A very similar case is N.Z. Institute of Agricultural Science v Ellesmere Country [1976] 1 NZLR 630.

32. (1877) 2 PD 203 at 210. The relevant passage is not quoted by Roskill LJ in Howard v Secretary of State for the Environment, but is in the judgment of Lord Denning at 241.

33. At 244.

34. At 245.

35. [1975] 1 All ER 979. Other cases belonging to this category are: Vickers Sons & Co Ltd v Siddell (1890) 15 AC 496 (see also the Court of Appeal decision (1888) 39 ChD 92 at 105); R v Lincolnshire Appeal Tribunal, ex parte Stubbins [1917] 1 KB1; Francis Jackson Development Ltd v Hall [1951] 2 KB 488; Graham v Attorney General [1966] NZLR 937. There are also many cases in which rules of civil procedure have been treated in this way — a typical case is MacFoy v United Africa Co Ltd [1962] AC 152. The treatment of rules of civil procedure as directory is normally aided by general rules — often referred to as ‘slip rules’— in the relevant codes which deal with the effect of procedural defects. For a survey of cases involving rules of civil procedure see In re Pritchard [1963] Ch 502.

36. [1945] AC 271 at 284.

37. [1953] P 79 at 92.

38. Idem.

39. Supra, n. 31.

40. An example can be derived from Marsh v Marsh itself, if we consider what would have been the position if there had in fact been a breach of natural justice.

41. This concept would apply to any rules of civil procedure where the question whether breach resulted in a nullity or an irregularity turned on the character pf the breach.

42. There is one case of high authority, in which a court has held a rule directory, which does seem to have deprived the rule of any effect whatsoever: this is Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277.

43. (1827) 5 LT (OS) CP 159. See also Spice v Bacon (1877) 2 ExD 463.

44. Cf. Woodward v Sarsons (1875) 10 LRCP 733 at 747.

45. Hughes v Justin [1894] 1 QB 667; Armitage v Parsons [1908] 2 KB 410; Muir v Jenks [1913] 2 KB 412. In all these cases the judgment seems to have been treated as voidable rather than void. In Amritage v Parsons the plaintiff was allowed to amend the judgment, and in Muir v Jenks Buckley LJ stated (at 417): ‘The defendant is entitled to have the judgment set aside, unless the party who holds the judgment applies as he may to reduce it to the proper amount.’ my emphasis.]

46. Cf. Anlaby v Praetorius (1888) 20 QBD 764.

47. Supra, nn. 45 and 46.

48. In cases involving civil procedure, the source of such a power is often sought in the ‘slip rules’ which such codes usually contain dealing with the effect of procedural defects. But these rules are not often framed so as to help. Normally such rules state that breach of any of the rules of the code shall not render the proceedings void, but shall give the court power to set aside the proceedings on such terms as it thinks fit. This wording is appropriate to prevent procedural defects rendering void something which would otherwise have been valid, but they can not help where the difficulty is to find some source for giving what has been done any legal status at all. This problem was the cause of a number of distressing decisions in England, which ultimately led to a change in the form of the slip rule. Among the more distressing cases are: Ingall v Moran [1944] KB 160; Hilton v Sutton Steam Laundry Ltd [1945] KB 65; Finegan v Cementation Co Ltd [1953] 1 QB 688. The history can be traced from: In re Pritchard [1963] Ch 502; Harkness v Bells Asbestos Engineering Ltd [1967] 2 QB 729.

49. E.g. Holmes v Russel (1841) 9 Dowling 487, per Coleridge J: ‘It is difficult sometimes to distinguish between an irregularity and a nullity, but I think the safest rule…is to see whether a party can waive the objection. If he can waive it, it amounts to an irregularity, if he cannot, it is a nullity.’ See also Lord Denning in MacFoy v United Africa Co Ltd [1962] AC 152 at 160.

50. (1877) 47 LJQB 148. See also Bristol Corporation v Sinnott [1917] 2 Ch 340; Sandringham Corporation v Rayment (1928) 47 CLR 510, (particularly the judgment of Isaacs J).

51. (1848) 1 Ex 651. See also Lubovsky v Snelling (1944) KB 44; Wilson v McIntosh [1894] AC 129- though the finding in this second case that waiver could occur after the time limit expired seems dubious.

52. At 656.

53. Cases in which defects have been held to make the proceedings void are: Noseworthy v Overseers of Buckland-in-the-Moor (1873) LR 9 CP 233; Craig v Kansen [1943] KB 256; cases in which defects in service, or defects in obtaining an order for substituted service, have been held to make proceedings voidable include Holmes v Russel (1841) 9 Dowling 487; Fry v Moore (1889) 23 QBD 395; and Wiseman v Wiseman [1953] P79.

54. In Marsh v Marsh 1945 AC 271, at 284, Lord Goddard suggested (obiter) that the effect of defects of service might depend on whether there had been a breach of natural justice. There is an interesting discussion of the effect of defects of service in D.M. Gordon ‘Certiorari and the Revival of Error in Fact’ (1926) 42 LQR 521 at 533.

55. See Spencer Bower and Turner, Estoppel by Representation (1966) 136. One plain case, not however involving the rules of procedure, in which waiver can confer jurisdiction in particular cases, is waiver of diplomatic immunity: see Dickinson v del Solar [1930] 1 KB 376.

56. See Ramia v African Woods Ltd (1960] 1 All ER 627; Mitchelson and Brothers v Brown (No.2)(1900) 8 NZLR 757; Bowmaker Ltd v Tabor [1941] KB1.

57. Apart from the cases discussed in the text, see R v Leicestershire Justices (1850) 15 QB 88; Syred u Carruthers (1858) EB & E 469; Mayor v Harding (1867) LR 2 QB 410; R v Dyott (1882) 9 QBD 47; Re Wolverhampton Aldermanic Election [1960] 2 QB 460 (there is no discussion of the principle in this case, but it seems to have been applied nevertheless); Clayton v Heffron (1960) 105 CLR 214, per Kitto J at 268 and Menzies J at 277.

58. (1868) LR 1 Sc & D 259.

59. [1893] 2 QB 476.

60. [1913] 1 KB 20.

61. Hill v Wright and Wilson (1896) 60 JP 312; Duke of Athol v Read [1934] 2 KB 92.

62. 12th edn. 1969. 328.

63. (1872) LR 7 Ex 187.

64. (1872) LR 7 QB 773.

65. This was wrongly assumed to matter in Chapman v Earl [1968] 1 WLR 1315.

66. E.g. Pearson v Broadbent (1872) 36 JP 485. But note that words limiting one power may not be taken to preclude the exercise of another power to do that same thing in circumstances covered by the limitation: see Lewis v Wolking Properties Ltd [1978] 1 All ER 428.

67. Supra, n. 63.

68. Supra, n. 64.

69. Supra, p. 246.

70. [1961] 2 All ER 396.

71. For cases of this type see: Public Prosecutor v Koi [1968] AC 829; Disher v Disher [1965] P31; Regina v Ketten'ng Justices, ex parte Patmore [1968] 1 WLR 436; Secretary of State for Defence v Warn [1970] AC 394.

72. Supra, n.13.

73. Anlaby v Praetorius (1888) 20 QBD 764; Hughes v Justin [1894] 1 QB 667; Muir v Jenks [1913] 2 KB 412; Wiseman v Wiseman (19531 P79.

74. Woodward v Sarsons (1875) LR 10 CP 733; Reynolds v Coleman (1887) 36 Ch D 453; Cullimore v Lyme Regis Corporation [1962] 1 QB 718; Graham v Attorney General [1966] NZLR 937.

75. [1962] 1 QB 577. See also Dickinson v Law and Davidson [1895] 2 Ch 62.

76. [1917] AC 170. See also Caldow v Pixell (1877) 2 CPD 562; Simpson v Attorney General [1955] NZLR 271; McPherson v McPherson [1936] AC 177; Ex parte Tasker, re Hannon [1971] 1 NSWLR 804.

77. The protection given to bona fide purchasers of goods sold under execution where either the judgment or the execution is irregular, though achieved under special rules relating to sale under execution, illustrates the laws concern for the protection of independent parties: for interesting cases see Lyon v Weldon (1824) 2 Bing 334, Immay v Magnay (1843) 1 M and W 267, at 276.

78. Pontin v Wood [1962] 1QB 594; Harkness v Bells Asbestos Engineering Ltd [1967] 2 QB 729; Coney u Choyce [1975] 1 All ER 979; Howard v Secretary of State for the Environment [1975] QB 235; NZZAS v Ellesemere County [1976] 1 NZLR 630.

79. Cf. Pryor v Smith [1977] 1 All ER 218.

80. R v Lincolnshire Appeal Tribunal. ex parte Stubbins [1917] 1 KB 1; Wilson Rothery Ltd v Mt Wellington Borough [1967] NZLR 116.

81. MacFoy v United Africa Co Ltd [1962] AC 152; Holmes v Russel (1841) 9 Dowling 487; Reynolds v Coleman (1887) 36 Ch D 453.