Davy (Respondent.)
v.
Spelthorne Borough Council (Appellants)
JUDGMENT
Die Jovis 13° Octobris 1983
Upon Report from the Appellate Committee to whom was
referred the Cause Davy against Spelthorne Borough Council,
That the Committee had heard Counsel as well on Monday the
18th as on Tuesday the 19th days of July last upon the
Petition and Appeal of Spelthorne Borough Council, Council
Offices, Knowle Green, Staines, Middlesex, praying that the
matter of the Order set forth in the Schedule thereto,
namely an Order of Her Majesty’s Court of Appeal of the 9th
day of February 1983, so far as therein stated to be
appealed against might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order
might be reversed, varied or altered or that the Petitioners
might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem
meet; as also upon the Case of Arthur James Davy lodged in
answer to the said Appeal; and due consideration had this
day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled. That the said Order of Her Majesty’s Court of
Appeal of the 9th day of February 1983 complained of in the
said Appeal be, and the same is hereby, Affirmed and that
the said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
Appellants do pay or cause to be paid to the said Respondent
the Costs incurred by him in respect of the said Appeal, the
amount thereof to be certified by the Clerk of the
Parliaments if not agreed between the parties.
Cler: Parliamentor;
HOUSE OF LORDS
DAVY
(RESPONDENT)
SPELTHORNE BOROUGH COUNCIL
(APPELLANTS)
LORD FRASER OF TULLYBELTON
My Lords,
Lord Fraser of Tullybelton
Lord Wilberforce
Lord Roskill
Lord Brandon of Oakbrook
Lord Brightman
This appeal is a sequel to the decision of this House in the
case of O’Reilly v. Mackman [1982] 3 W.L.R. 1096. The issue of
most general importance raised in the appeal relates to the
circumstances in which a person with a cause of action against a
public authority, which is connected with the performance of its
public duty, is entitled to proceed against the authority by way of
an ordinary action, as distinct from an application for judicial
review.
The respondent is the owner of premises known as Riverside
Works, Nutty Lane, Shepperton. The appellants are the local
planning authority for the district within which those premises are
situated. On 28th September 1977 the respondent made a planning
application for the retention for a period of ten years of the
existing buildings and the continued use of the premises as a pre-
cast concrete works. Thereafter, the respondent made another
planning application, which was later withdrawn, and amended his
original application, which was refused, and he met officers of the
appellants on several occasions when he discussed with them the
future use of the premises. The respondent alleges that
eventually, as a result of the discussions and correspondence with
the appellants’ officers, on or about 6th November 1979 he entered
into an agreement with the appellants whereby he undertook not to
appeal against an enforcement notice to be served by the
appellants upon him in respect of the use of the premises,
provided that the notice would not be enforced by the appellants
for a period of three years from the date of its service. The
appellants served an enforcement notice on 15th October 1980
which, the respondent alleges, was in accordance with that
agreement. The enforcement notice stated that the appellants
required the respondent, within three years of the date when the
notice took effect, to cease using the land for the manufacture of
concrete products and to remove from it all buildings and works.
The respondent did not appeal against the enforcement notice and
the time for so doing has long since expired. The notice took
effect thirty-five days after the date of service, 15th October
– 1 –
1980, and the time for appealing against it expired when it took
effect. The respondent alleges that he refrained from appealing
against the enforcement notice in pursuance of the agreement of
6th November 1979 and that he entered into that agreement on
the advice of the appellants’ officers.
On 24th August 1982 the respondent issued a writ against
the appellants. In his statement of claim he made allegations
including those which I have summarised. He also alleged that the
agreement of 6th November 1979 was ultra vires the appellants
and void on several grounds which I need not now particularise.
He claimed damages from the appellants on the ground that the
appellants, or their officers, had purported to advise him as to his
rights under the Town and Country Planning Act 1971 (“the 1971
Act”), and that their advice had been negligent. The appellants
deny that there was any legally enforceable agreement between
the respondent and themselves. They also deny that they, or their
officers, purported to advise the respondent on his rights, and they
say that, if they did give any such advice, it was not given
negligently. For the purposes of the present appeal the
respondent’s allegations must be taken to be true.
The relief claimed by the respondent was as follows:
-
-
-
An injunction ordering the appellants not to implement
the enforcement notice. -
Damages.
-
An order that the enforcement notice be set aside.
-
-
The appellants applied to have the writ and statement of
claim struck out under the Rules of the Supreme Court, Order 19
Rule 1, or under the inherent jurisdiction, on the ground that they
were an abuse of the process of the court. Their application was
rejected by the Vice Chancellor on 11th October 1982, before the
decision of this House in O’Reilly (supra), and the learned Vice
Chancellor’s reasons have been largely superseded by that decision.
The appellants appealed and the Court of Appeal (Cumming-Bruce
and Fox L.JJ. and Bush J.), with the decision of your Lordships’
House in O’Reilly before them, ordered that Claims 1 and 3, and
certain portions of the statement of claim relating to them, be
struck out, on the ground that they raised questions of public law
which could only be raised by way of judicial review under Rules
of the Supreme Court, Order 53. The Court of Appeal left the
respondent’s claim for damages for negligence alive. In the
instant appeal, the appellants’ seek to have that, the only
remaining claim, struck out.
The first contention of the appellants is that the
respondent’s claim for damages involves a challenge of the
enforcement notice which is, in substance, a challenge of its
validity, and which is therefore barred by section 243 of the 1971
Act. In order that the respondent may succeed in his claim for
damages, he must establish three things – viz. (1) that the
appellants, or their officers, advised him on his rights under the
1971 Act and that they owed him a duty of care when they did so;
(2) that they were in breach of that duty by negligently advising
him not to appeal against the enforcement notice, and (3) that he
– 2 –
has suffered damage flowing from the breach. The damages are
claimed because, according to the respondent, he had a good
defence to the enforcement notice which he could, or at least
might, have established, if he had appealed against the notice
timeously, but which he lost the chance of establishing when he
acted on the appellants’ advice and, in accordance with the
agreement of 6th November 1979, did not appeal. It is thus a
necessary step in the respondent’s case for him to show that he
had a good defence, good enough to give him at least a chance of
successfully challenging the enforcement notice, if he had appealed
against it in time. The amount of damages to which he would be
entitled will, of course, depend largely on the prospects of success
if he had appealed. The appellants maintain that the respondent is
not entitled to have the merits of his defence investigated in
these proceedings because the defence is in substance a challenge
of the validity of the enforcement notice, and is therefore barred
by section 243 of the 1971 Act. Section 243(1) (as amended by
the Local Government and Planning (Amendment) Act 1981) (“the
1981 Act”) provides as follows:
“243(1). Subject to the provisions of this section –
“(a) The validity of an enforcement notice shall not, except
“by way of an appeal under Part V of this Act, be
“questioned in any proceedings whatsoever on any of the
“grounds on which such an appeal may be brought;”
Part V of the 1971 Act deals with enforcement of planning
control. The first section in Part V is section 87 which (as
substituted by the 1981 Act) provides that a local planning
authority shall have power to serve an enforcement notice in cases
where there has been a breach of planning control. Section 88 (as
substituted by the 1981 Act) provides:
“88(1). A person having an interest in the land to which an
“enforcement notice relates may, at any time before the
“date specified in the notice as the date on which it is to
“take effect, appeal to the Secretary of State against the
“notice, whether or not a copy of it has been served on
“him.
“(2). An appeal may be brought on any of the following
“grounds –
“(a) that planning permission ought to be granted for the
“development to which the notice relates or, as the case
“may be, that a condition or limitation alleged in the
“enforcement notice not to have been complied
“with ought to be discharged;
“(b) that the matters alleged in the notice do not constitute
“a breach of planning control;
“(c) that the breach of planning control alleged in the notice
“has not taken place;
“(d) in the case of a notice which, by virtue of section 87(4)
“of this Act, may be issued only within the period
“of four years from the date of the breach of planning
– 3 –
“control to which the notice relates, that that period
“had elapsed at the date when the notice was issued;
“(e) ….
“(f) ….
“(g) ….
“(h) ….”.
The defence on which the respondent would have relied
would have been under paragraph (d) of that section. The effect
of section 243(1)(a) is to prohibit the bringing of appeals on any of
the grounds to which it relates before the High Court and, in
accordance with section 88(1), to substitute the Secretary of State
as the forum for deciding such appeals. Section 88(1) also limits
the time for appealing to the period before the date on which the
enforcement notice is to take effect. Accordingly, the appellants
say that the present proceedings, being in substance an appeal
against the enforcement order, are incompetent because they are
brought before the wrong tribunal and also, although I did not
understand this to be relied on as a separate point, because they
are out of time.
I note in passing that although section 243(1)(a) provides
that the “validity” of an enforcement notice is not to be
questioned except as therein provided, the word “validity” is
evidently not intended to be understood in its strict sense. It is
used to mean merely enforceability. That appears from a
consideration of the grounds on which an appeal may be brought
under Part V of the 1971 Act, which are not limited to matters
affecting the validity of the notice. The relevant grounds are set
out in section 88(2) part of which I have already quoted, and it is
apparent that paragraph (a), (at least) goes to the merits rather
than to the validity (In the strict sense) of the notice.
Accordingly, the fact that the respondent is not questioning the
“validity” of the notice is immaterial. In fact, of course, the
respondent now accepts the notice as perfectly valid and, as at
the date of instituting the present proceedings, unappealable;
indeed, that is the essential basis of his claim for damages.
But in my opinion, the respondent’s claim for damages is
not barred by section 243(1)(a). That paragraph provides that the
validity of an enforcement notice shall not be questioned in any
proceedings whatsoever “on any of the grounds on which such an
“appeal may be brought.” The words “such an appeal” are a
reference back to an appeal under Part V of the 1971 Act, and
they mean in effect the grounds specified in section 88(2). But
section 243(l)(a) does not prohibit questioning the validity of the
notice on other grounds. If, for example, the respondent had
alleged that the enforcement notice had been vitiated by fraud,
because one of the appellants’ officers had been bribed to issue it,
or had been served without the appellants’ authority, he would
indeed have been questioning its validity, but not on any of the
grounds on which an appeal may be brought under Part V. So
here, the respondent’s complaint that he acquiesced in the
enforcement notice because of negligent advice from the appellants
is not one of the grounds specified in section 88(2), and it would
not have entitled him to appeal to the Secretary of State under
– 4 –
Part V of the 1971 Act. Accordingly, even on the assumption that
the validity of the enforcement notice is being questioned in the
present proceedings (an assumption which in my opinion is open to
serious doubt), it is certainly not being questioned on any of the
grounds referred to in section 243(l)(a) and the proceedings are not
barred by that subsection. In my opinion, therefore, the
appellants’ first contention fails.
Their second contention is that, when the respondent alleges
that he had a good defence to the enforcement order, he is
asserting a right to which he is entitled to protection under public
law, and one which therefore he cannot be permitted to defend by
way of an ordinary action. The contention was based on the
speech of my noble and learned friend, Lord Diplock, in O’Reilly,
(supra), in the following passage at page 1110 C to D:
“. . . . it would in my view as a general rule be contrary
“to public policy, and as such an abuse of the process of
“the court, to permit a person seeking to establish that a
“decision of a public authority infringed rights to which he
“was entitled to protection under public law to proceed “by
“way of an ordinary action and by this means to evade the
“provisions of Order 53 for the protection of such
“authorities.”
The appellants accept that there are, of course, many claims
against public authorities which involve asserting rights purely of
private law, and which can be pursued in an ordinary action. They
accept also that if a question as to the validity of the
enforcement notice had arisen incidentally in an action to which
they, the appellants, were not parties, it could properly have been
decided in the High Court – for example, if it had arisen as a
preliminary issue in an action by the respondent against his
solicitors for negligence. But Mr. Sullivan maintained that, when
there is an issue between a citizen and a public authority which
involves determining whether the citizen can challenge a public
notice or order, the only way to decide the issue is by way of
procedure under Order 53. He maintained further that it makes
no difference whether the issue concerns a present right or a past
right to challenge the notice or order. The only relevant
distinction, he says, between a past right and a present right is
that investigating a past right tends to be more difficult, and
more burdensome to the public authority, than investigating a
present right, so that the authority’s need for the protection of
Order 53 will be all the greater in the former case.
Although the argument was presented most persuasively, it
is in my view not well founded. The present proceedings, so far
as they consist of a claim for damages for negligence, appear to
me to be simply an ordinary action for tort. They do not raise
any issue of public law as a live issue. I cannot improve upon the
words of Fox L.J., in the Court of Appeal, when he said this:
“I do not think that the negligence claim is concerned with
“‘the infringement of rights to which [the plaintiff] was
“‘entitled to protection under public law’ to use Lord
“Diplock’s words in O’Reilly v. Mackman. The claim, in my
“opinion, is concerned with the alleged infringement of the
“plaintiff’s rights at common law. Those rights are not
– 5 –
“even peripheral to a public law claim. They are the
“essence of the entire claim (so far as negligence is
“concerned).”
It follows that in my opinion they do not fall within the scope of
the general rule laid down in O’Reilly (supra). The present
proceedings may be contrasted with the case of Cocks v. Thanet
District Council [1982] 3 W.L.R. 1121, which was decided in this
House on the same day as O’Reilly (supra). In Cocks, the House
held that the general rule stated in O’Reilly applied (and I quote
the headnote) “where a plaintiff was obliged to impugn a public
“authority’s determination as a condition precedent to enforcing
“his private law rights”. In that case, the plaintiff had to impugn
a decision of the Housing Authority, to the effect that he was
intentionally homeless, as a condition precedent to establishing the
existence of a private law right to be provided with
accommodation. It is quite clear from the speech of Lord Bridge
of Harwich, with which all the other members of the House
agreed, that the plaintiff was asserting a present right to impugn
or overturn the decision – see page 1127 D: “the decision of the
“public authority which the litigant wishes to overturn”. (Emphasis
added).In the present case, on the other hand, the respondent does
not impugn or wish to overturn the enforcement order. His whole
case on negligence depends on the fact that he has lost his chance
to impugn it. In my opinion therefore the general rule stated in
O’Reilly supra is inapplicable. The circumstances in which the
procedure under Order 53 is appropriate were described in some
detail by Lord Diplock in O’Reilly. At page 1100 G he mentioned
the fact that in that case no claim for damages would lie against
the defendants, and that the only relief sought was for a
declaration, a form of relief that is discretionary only. At page
1106 D he explained that one of the reasons why the procedure
under Order 53 is appropriate in certain cases is that it provides
“a very speedy means, available in urgent cases within a matter
“of days rather than months, for determining whether a disputed
“decision was valid in law or not.” The importance of obtaining a
speedy decision is (see page 1106 B) that:
“The public interest in good administration requires that
“public authorities and third parties should not be kept in
“suspense as to the legal validity of a decision the authority
“has reached in purported exercise of decision-making
“powers for any longer period than is absolutely necessary in
“fairness to the person affected by the decision.”
That explanation points the contrast with the present case, where
the validity of the enforcement order is not now challenged, and
no public authority or third party is being kept in suspense on that
matter. Procedure under Order 53 would in my view be entirely
inappropriate in this case.
A further consideration is that if the claim based on
negligence, which is the only one of the original three claims now
surviving, were to be struck out, the blow to the respondent’s
chances of recovering damages might well be mortal. The court
has no power to order the proceedings for damages to continue as
if they had been made under Order 53. The converse power under
Order 53 rule 9 operates in one direction only – see O’Reilly at
page 1109 A. So, if ‘the present appeal were to succeed, the
– 6 –
respondent’s only chance of bringing his claim for damages before
the court would be by obtaining leave to start proceedings for
judicial review (now long out of time) and then by relying on
Order 53 rule 7 to attach a claim for damages to his claim for
judicial review. That would be an awkward and uncertain process
to which the respondent ought not to be subjected unless it is
required by statute – see Pyx Granite Co. Ltd, v. Ministry of
Housing [1960] A.C. 260 per Viscount Simonds page 286. In my
view it is not.
The third contention for the appellants was that the claim
for damages had the same purpose and would have the same effect
as the other reliefs claimed, namely injunction and setting aside.
My Lords, this contention seems to me entirely without
justification. The ostensible purpose of the claim for damages is
clearly different from the purpose of the other claims, and for all
that your Lordships can tell, the respondent may at this date
prefer to receive a payment in cash rather than to have the
enforcement order set aside. It seems to me quite impossible to
hold that the true purpose of the claim for damages is only to put
pressure on the appellants not to enforce the order. As regards
the effect of the claim for damages being allowed to proceed, the
suggestion was that the threat of the claim hanging over the head
of the appellants would be likely to cause them to refrain from
enforcing the order, if the respondent has not complied with it
when the three year period expires in November 1983. I have
some doubt whether it would be proper for the appellants to allow
their decision to be influenced by such a threat, but, assuming
that the threat would be a legitimate and proper consideration, it
could only operate by affecting the exercise of the appellants’
discretion in deciding whether to prosecute the respondent for
failing to obey the enforcement notice, and it would in my opinion
be something much less compelling than an injunction or an order
to quash. I have no hesitation therefore in rejecting the
appellants’ third contention.
For these reasons I would dismiss this appeal.
LORD WILBERFORCE
My Lords,
Although, with one qualification which I shall state, I agree
with the judgments in the Court of Appeal, I will make some
observations upon this appeal both from respect to the attractive
argument of Mr. Sullivan Q.C. for the appellant and because this
case may be of some general importance.
The issue as it reaches this House, after other matters have
been disposed of without cross appeal, is simply whether a common
law action for damages against the appellant council arising from
alleged negligence should be struck out as an abuse of the process
of the court. There are two grounds on which this is sought to be
done. The first is that the claim is precluded by section
243(l)(a) of the Local Government Act 1971 (as amended) which
reads:
“243(1). Subject to the provisions of this section –
– 7 –
“(a) The validity of an enforcement notice shall not, except
“by way of an appeal under Part V of this Act, be
“questioned in any proceedings whatsoever on any of the
“grounds on which such an appeal may be brought;”
I agree with the Court of Appeal that this section does not apply.
In my opinion the enforcement notice is not questioned in the
proposed action, and, even if it is, it is not questioned on the
grounds specified. Although there may be some warrant for not
giving to this subsection a restricted meaning (see Square Meals
Frozen Foods Ltd, v. Dunstable Corporation [1974] 1 WLR 59), to
extend it so as to cover a claim such as that we are concerned
with would amount to a reconstruction too radical to be
contemplated. I need add no more on the point to what has been
said by my noble and learned friend Lord Fraser of Tullybelton.
The second point is the substantial one. For proper
appreciation it is necessary to define the claim to which it
relates. As pleaded (and for the purpose of this appeal we are
only concerned with the pleading and not with its substance or
merits) it is that the appellant council owed to the respondent
plaintiff a duty of care in, through its officers, advising him as to
his planning application; that the council was negligent in so
advising him; that by reason of this negligence he suffered
damage, namely the loss of a chance of successfully appealing
against the enforcement notice served upon him by the council.
Though this was initially one of several claims, it now stands on its
own, and should be judged as an independent and separate action.
To say that such a claim, so formulated, ought to be, or
indeed can be, struck out as an abuse of the process of the court
seems on the face of it a remarkable proposition. There is no
doubt that, side by side with their statutory duties, local
authorities may in certain limited circumstances become liable for
negligence at common law in the performance of their duties (see
for example Dorset Yacht Co. v. Home Office [1970] AC 1004,
Anns v. London Borough of Merton [1978] AC 728, 756, 788). In
what circumstances then can it be said to be an abuse of process
to sue them for negligence in the common law courts?
It is said that, in this case, the right should be denied
because the claim involves consideration of a question not of
“private law” but of “public law” – namely whether the respondent
had or would have had a defence against the enforcement notice,
that this consideration cannot take place in an ordinary action but
can only take place in a proceeding of what is now called
“Judicial Review” under the provisions of the R.S.C. Ord. 53.
The expressions “private law” and “public law” have recently
been imported into the law of England from countries which,
unlike our own, have separate systems concerning public law and
private law. No doubt they are convenient expressions for
descriptive purposes. In this country they must be used with
caution, for, typically, English law fastens, not upon principles but
upon remedies. The principle remains intact that public authorities
and public servants are, unless clearly exempted, answerable in the
ordinary courts for wrongs done to individuals. But by an
extension of remedies and a flexible procedure it can be said that
something resembling a system of public law is being developed.
– 8 –
Before the expression “public law” can be used to deny a subject a
right of action in the court of his choice it must be related to a
positive prescription of law, by statute or by statutory rules. We
have not yet reached the point at which mere characterisation of
a claim as a claim in public law is sufficient to exclude it from
consideration by the ordinary courts: to permit this would be to
create a dual system of law with the rigidity and procedural
hardship for plaintiffs which it was the purpose of the recent
reforms to remove.
The relevant statute to the present case is the Supreme
Court Act 1981 section 31. and the relevant statutory rules those
contained in R.S.C. Ord. 53 dating from 1977. These lay down the
conditions under the procedure by which the courts can be asked
to review the actions or omissions of (inter alia) statutory bodies,
persons acting under statute, and inferior courts. Before a
proceeding at common law can be said to be an abuse of process,
it must, at least be shown (1) that the claims in question could be
brought be way of judicial review (2) that it should be brought by
way of judicial review.
The case of O’Reilly v. Mackman [1982] 3 WLR 1096
illustrates this in the clearest manner, and goes no distance
towards supporting the appellant’s case in this appeal. It was not
contested there that the appellants, seeking directly to attack the
board’s decisions, would have had a remedy by way of judicial
review (p.1099 H): indeed, as I understand the case, they would not
have had a remedy in private law at all. The only question, which
my noble and learned friend Lord Diplock was able to put in a
single sentence (p.1100 E),, was whether it was an abuse of process
to apply for declarations by using the procedure laid down in
proceedings begun by writ or originating summons instead of using
the procedure laid down by R.S.C. Ord. 53. It was decided that it
would be such an abuse of process. The statements of law laid
down in the single opinion must be related to that issue, the
foundation of which was that the claims in question could have
been brought by way of judicial review. Even when this
requirement was satisfied, Lord Diplock was careful to make it
clear that he was stating no universal rule that such claims could
only be brought by this procedure – see p.1109 H. And he
expressly stated that though there should be a general rule of
public policy against permitting a person seeking to establish that
a decision of a public authority infringed rights to which he was
entitled to protection under public law to proceed by way of
ordinary action, there might be exceptions, particularly where the
invalidity of the decision arises as a collateral issue in a claim for
infringement of a right of the plaintiff arising under private law,
and in other instances on a case to case basis. (The
contemporaneous case of Cocks v. Thanet District Council (ibid
p.1121) may be regarded as one where a direct issue of public law
arose at one remove).
It is indeed plain enough that issues which could be
characterised as issues of “public law” may arise in a number of
contexts besides those where an attack upon, or review of, actions
or omissions of public bodies is involved – cases, for example,
where the invalidity of such action is set up by way of defence,
or where the validity of such action arises collaterally in actions
against third parties. The Law Commission in its recommendations
– 9 –
of 1971 suggested that the procedure of judicial review should
cover such cases, but this suggestion was not accepted and the
reforms of 1977 – 1981 were of a more limited character. So we
must judge a contention of “abuse of process” according to normal
principle.
In fact neither of the requirements which I have mentioned
above is met.
First (and it is here that I venture to differ to some extent
from the judgment of Cumming-Bruce L.J. in the Court of
Appeal), this claim, treated as it must be as a claim for damages
for negligence, could not in my opinion, be pursued by way of
judicial review under R.S.C. Ord. 53.
This proposition can be established in two steps. First, the
right to award damages conferred by Ord. 53 r.7 is by its terms
Jinked to an application for judicial review. Unless judicial review
would lie, damages cannot be given. Secondly, an action for
judicial review in respect of alleged negligence is not “appropriate”
within the meaning of Ord. 53 r.1. I quote the words of Lord
Scarman:
“The application for judicial review was introduced by rule
“of court in 1977. The new R.S.C., Ord. 53 is a procedural
“reform of great importance in the field of public law, but
“it does not – indeed cannot – either extend or diminish the
“substantive law. Its function is limited to ensuring ‘ubi jus,
‘”ibi remedium’.
“The new procedure is more flexible than that which it
“supersedes. An applicant for relief will no longer be
“defeated merely because he has chosen to apply for the
“wrong remedy. Not only has the court a complete
“discretion to select and grant the appropriate remedy: but
“it now may grant remedies which were not previously
“available. Rule 1(2) enables the court to grant a
“declaration or injunction instead of, or in addition to, a
“prerogative order, where to do so would be just and
“convenient. This is a procedural innovation of great
“consequence: but it neither extends nor diminishes the
“substantive law. For the two remedies (borrowed from the
“private law) are put in harness with the prerogative
“remedies. They may be granted only in circumstances in
“which one or other of the prerogative orders can issue. I
“so interpret R.S.C. Ord. 53 r. 1 (2) because to do otherwise
“would be to condemn the rule as ultra vires.” Reg.
v. Inland Revenue Commissioners [1982] AC 617, 647-8 and
similarly per Lord Diplock p. 639.
So, since no prerogative writ, or order, in relation to the
present claim could be sought, since consequently, no declaration
or injunction could be asked for, no right to judicial review exists
under r.l, and no consequential claim for damages can be made
under r.7.
Secondly, and even assuming that this claim could in some
way be brought under the procedure of judicial review, there is no
ground, in my opinion, upon which it can be said that it should
– 10 –
only be so brought. Ord. 53 does not state, that the procedure
which it authorised was the only procedure which could be
followed in cases where it applied. (In this it followed the
recommendation of the Law Commission). So prima facie the
rule applies that the plaintiff may choose the court and the
procedure which suits him best. The onus lies upon the defendant
to show that in doing so he is abusing the court’s procedure. In
O’Reilly it was possible to show that the plaintiffs were
improperly and flagrantly seeking to evade the protection which
the rule confers upon public authorities. There is nothing of that
sort here. The only “public law” element involved in the present
claim is that which may require the court, after it has decided
the issue of duty of care and of negligence, in assessing damages
to estimate, as best it can, the value of the chance which the
plaintiff lost of resisting enforcement of the council’s notice. The
presence of this element is in my opinion quite insufficient to
justify the court, on public policy grounds, from preventing the
plaintiff from proceeding by action in the ordinary way in the
court of his choice, particularly when one has regard to the
serious procedural obstacles which he would find if compelled to
seek judicial review. If he had been suing his solicitor for
negligent advice, exactly the same problem in assessing damages
would have arisen and nobody could contend that the action would
not proceed. I cannot see that it makes any difference that the
defendant is a public authority: the claim remains one the essence
of which is a claim at common law: any “public law” element is
peripheral. On the same line of reasoning, but a fortiori, I reject
the appellant’s argument that any award of damages against the
council might inhibit it in the performance of its statutory duty or
might have the same effect, in practice, as granting an injunction
– an argument which logically would apply to any “private law”
claim against public authorities.
In my opinion the decision of the Court of Appeal was right
and I would dismiss the appeal.
LORD ROSKILL
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend, Lord Fraser of
Tullybelton. For the reasons he gives I too would dismiss this
appeal.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Fraser of
Tullybelton. I agree with it, and for the reasons which he gives I
would dismiss the appeal.
– 11 –
LORD BRIGHTMAN
My Lords,
I would dismiss this appeal for the reasons given by my
noble and learned friend, Lord Fraser of Tullybelton.
Source: https://www.bailii.org/
