This article is about the pre-1948 contractual remedy against the Crown. For the 1628 Act of Parliament that forms part of the constitutional prelude to the English Civil War, see
Petition of Right
.
In
English law
, a
petition of right
was a
remedy
available to subjects to recover property from
the Crown
.
[1]
Before the
Crown Proceedings Act 1947
, the
British
Crown could not be
sued
in
contract
. However, as it was seen to be desirable that Crown contractors could obtain redress, lest they be inhibited from taking on such work, the
petition of right
came to be used in such situations, especially after the
Petitions of Right Act 1860
simplified the process. Before the petition could be heard by the courts, it had to be endorsed with the words
fiat justitia
on the advice of the
Home Secretary
and
Attorney-General
.
[1]
This Latin phrase was normally translated as "Let right be done".
One of the most famous
causes celebres
in English law, the
Archer-Shee case
, arose out of proceedings on a petition of right.
[2]
[3]
Section 1 of the Crown Proceedings Act 1947 allows claims for which a petition would previously have been demanded to be brought in the courts directly as against any other defendant. However, a petition and
fiat
still appear to be necessary for personal claims against the
monarch
.
[1]
Claims allowed
[
edit
]
A petition of right was available:
[4]
- To obtain restitution of
real
or
personal property
of the subject which has found its way into the hands of the Crown, or compensation if restitution could not be made; or
- To recover
damages
for
breach of a contract
made on behalf of the Crown, whether the breach was due to the acts or the omissions of
servants
of the Crown.
Where the Crown was in possession of the property of the applicant, and the
title
of the Crown appeared by record, as by
inquest of office
, the
remedy
was somewhat different and was called
monstrans de droit
.
[4]
Petition of right was not available in respect of engagements in the
naval
,
military
or
civil service
, which, were not generally considered as
contracts of employment
but as appointments enjoyed
during the pleasure
of the Crown.
[4]
This relationship based on the
royal prerogative
only ended in 1996.
[5]
Nor was the action available for breach of public duty,
e.g.
a failure to perform
treaty
obligations, nor for
trespass
or
negligence
or other
torts
by Crown servants.
[4]
Where such acts were wrongful the remedy was still by action against the official as an individual and not in his official capacity.
[6]
Procedure
[
edit
]
Common law
[
edit
]
At
common law
the petition went through its earliest stages in
Chancery
. The petition suggested a right disputing the title of the Crown, and the Crown endorsed the petition
soit droit fait la partie
. Then a commission was issued to inquire into the truth of the suggestion. After the return to the commission, the
Attorney-General
filed a response and the merits were determined as in any
inter partes
action. If the right was determined against the Crown, judgment of
amoveas manus
was given in favour of the applicant.
[4]
Scotland and Ireland
[
edit
]
The law as to petitions of right applied to
Ireland
but not to
Scotland
, and a right to present such a petition was also thought to exist in
colonies
whose law was based on the common law of England. Ultimately, in many colonies legislation was passed with respect to claims against the government which made it unnecessary to resort to a petition of right.
[4]
References
[
edit
]
Bibliography
[
edit
]
- Bradley, A.W. & Ewing, K.D. (2003).
Constitutional and Administrative Law
(13th ed.). London: Longman. pp. 770?771.
ISBN
0-582-43807-1
.
External links
[
edit
]