Die Lunae,
26° Martii 1956
Parliamentary
Archives,
HL/PO/JU/4/3/1039
HOUSE OF LORDS
SMITH
v.
EAST ELLOE RURAL
DISTRICT COUNCIL AND OTHERS
26th
March, 1956.
Viscount Simonds
MY LORDS,
Viscount
Simonds
Lord
Morton
of Henryton
Lord
Reid
Lord Radcliffe
Lord
Somervell
of
Harrow
On the
6th July, 1954. the Appellant, Kathleen Rose Smith, issued a
writ
against the East Elloe Rural District Council, Mr. Pywell,
the Clerk to that
Council, and the Ministry of Health, whose
functions and obligations were
subsequently transferred to the
Ministry of Housing and Local Government,
claiming as against the
Council, (a) damages for trespass to the Appellant's
land
at Hallgate, Holbeach, in the County of Lincoln, (b) an
injunction against
further trespass, and (c) a declaration
that a certain Compulsory Purchase
Order dated the 27th August,
1948, was " wrongfully made and in bad faith " ;
against
the Ministry of Health a declaration that the said Order "
was
" wrongfully confirmed . . . and in bad faith";
against the Ministry of
Housing and Local Government that "
the said compulsory purchase order
" and confirmation of the
same are in bad faith "; and against Pywell a
declaration
that " he knowingly acted wrongfully and in bad faith
procuring
" the said Order and confirmation of the same ";
and as against all the
Defendants further or other relief and
damages. The Ministry of Health is
no longer a party to the
proceedings; the present Respondents are the
Council, Pywell and
the Ministry of Housing and Local Government.
All the
Respondents entered conditional appearances to the writ and
then
applied to the Master in Chambers to have the writ set aside
upon
the ground that " the writ of summons in this action is
invalid for lack of
" jurisdiction, it being provided by
paragraph 16 of Part IV of the First
" Schedule to the
Acquisition of Land (Authorisation Procedure) Act, 1946,
"
that save by the procedure specified in the said Schedule, a
compulsory
" purchase order confirmed in accordance with the
provisions of the said Act
" (as was here the case) shall
not, either before or after it has been confirmed,
" be
questioned in any legal proceedings whatsoever. By reason whereof
this
" Honourable Court has no jurisdiction to grant the
relief sought against
" the said Defendants". Two
summonses in similar terms were in fact
taken out, one by the two
Ministries, the other by the Council and their
Clerk, but nothing
at this stage of my Opinion turns on it.
Orders as
asked by the summonses having been made by the Master and
an
appeal from them having been dismissed by the Judge in Chambers,
an
appeal was taken to the Court of Appeal. That Court in turn
dismissed
the appeal. It is clear from the judgment of the Court,
which was delivered
by Lord Justice Parker, that the main
question there argued was on a point
of construction of the
Schedule which was in the proceedings before this
House relegated
to the background. Before your Lordships the argument
was almost
wholly devoted to what was justifiably described by leading
counsel
for the Appellant as a matter of great public importance.
In my
statement of the application to strike out the writ I have
indicated
the nature of the question. I must now be more
specific.
The
Compulsory Purchase Order challenged in these proceedings was
made
by the Respondent Council on the 26th August, 1948, and
authorised them
subject to its provisions to acquire compulsorily
a house and some 8 1/2 acres
of land described in the Schedule
thereto of which the Appellant was the
owner. The statutory
public local enquiry having been duly held, the
Minister of
Health confirmed the Order on the 29th November, 1948, by
an
Order cited as the East Elloe (Holbeach) Housing Confirmation
Order,
1948, which was duly advertised on the 13th and 20th
December. 1948. A
notice to treat and a notice of entry were duly
served on the Appellant,
2
and in due
course the compulsory purchase price for the said house and
land
was fixed by the Lands Tribunal at £3,000. The Respondent
Council
caused a firm of builders to demolish the house and to
erect on its site and
on the said land a number of houses. The
writ in this action was, as I have
said, issued on the 6th July,
1954.
I must now
turn to a consideration of the provisions of the Acquisition of
Land
(Authorisation Procedure) Act, 1946. But I must preface it by
two
observations. First, I would remind your Lordships that the
Act is applicable
to a great variety of transactions, in which a
large or small area of land is
required by a national or local
authority for public purposes, and, secondly,
I do not forget that
this Act is the last example of a long series of similar
enactments,
in which by one provision or another Parliament has sought to
give
finality and security from challenge to compulsory acquisitions of
land.
I have not myself been able to get any assistance from a
comparison of
the language of this enactment with that of its
predecessors. Learned counsel
on both sides craved such a
comparison in aid. I shall be doing no injustice
if I say it helps
neither of them and base my opinion on the very words of
the Act.
Section I,
subsection (1) of the Act enacts that "The authorisation of
"
any compulsory purchase of land—(a) by a local authority
where, apart from
" this Act, power to authorise the
authority to purchase land compulsorily is
" conferred by or
under any enactment contained in a public general Act
" and
in force immediately before the commencement of this Act, other
"
than any enactment specified in subsection (4) of this section
;(b)....
" shall, subject to the provisions of this
and the next following section, be
" conferred by an order
(in this Act referred to as a ' compulsory purchase
" '
order') in accordance with the provisions of the First Schedule to
this
" Act (being provisions which, subject to certain
adaptations, modifications
" and exceptions, correspond with
provisions as to the authorisation of the
" compulsory
purchase of land of the Local Government Act, 1933)".
Sub-
section (2) of section 1 made provision for a special
procedure in relation
to the purchase of land to which Part III of
the First Schedule of the Act
applied. This does not affect the
land the subject of this action. It has
been observed that the
language of subsection (1) is somewhat involved, but
there appears
to be no doubt that a local authority authorises its own
authority
to make a purchase.
I need
refer to no other section of the Act and come to the first
Schedule,
which, after making the familiar provisions in regard to
advertisements,
notices to persons affected, objections, local
enquiry and confirmation, pro-
vides as follows by paragraphs 15
and 16 of Part IV.
" 15.
(1) If any person aggrieved by a compulsory purchase order
"
desires to question the validity thereof, or of any provision
contained
" therein, on the ground that the authorisation of
a compulsory purchase
" thereby granted is not empowered to
be granted under this Act or
" any such enactment as is
mentioned in subsection (1) of section one
" of this Act, or
if any person aggrieved by a compulsory purchase order
" or a
certificate under Part III of this Schedule desires to question the
"
validity thereof on the ground that any requirement of this Act or
of
" any regulation made thereunder has not been complied
with in relation
" to the order or certificate, he may,
within six weeks from the date on
" which notice of the
confirmation or making of the order or of the
" giving of the
certificate is first published in accordance with the provi-
"
sions of this Schedule in that behalf, make an application to the
High
" Court, and on such application the Court—
" (a)
may by interim order suspend the operation of the compul-
"
sory purchase order or any provision contained therein, or of the
"
certificate, either generally or in so far as it affects any
property
" of the applicant, until the final determination of
the proceedings ;
" (b)
if satisfied that the authorisation granted by the compulsory
"
purchase order is not empowered to be granted as aforesaid, or
"
that the interests of the applicant have been substantially pre-
"
judiced by any requirement of this Schedule or of any regulation
3
"
made thereunder not having been complied with, may quash the
"
compulsory purchase order or any provision contained therein, or
"
the certificate, either generally or in so far as it affects any
"
property of the applicant."
" 16.
Subject to the provisions of the last foregoing paragraph, a
"
compulsory purchase order or a certificate under Part III of this
"
Schedule shall not, either before or after it has been confirmed,
made
" or given, be questioned in any legal proceedings
whatsoever, and
" shall become operative on the date on which
notice is first published
" as mentioned in the last
foregoing paragraph ".
I will
dispose at once of the short point of construction which was the
main
topic of argument and judgment in the Court of Appeal. It was
urged
that paragraph 16 was limited in its application to cases of
compulsory
acquisition of land to which Part III of the Schedule
referred. Briefly, it
was said that the words " under Part
III of this Schedule " qualified not
only " a
certificate " but also " a compulsory purchase order ".
It is clear
to me not only that for the reasons given by Lord
Justice Parker such a
construction would produce results so absurd
that it should be avoided if
fairly avoidable, but also that it is
grammatically unsound in that the use
of the indefinite article
where it occurs for the second time indicates that
the words "
under Part III" qualify only the words " a certificate ".
In this
House a more serious argument was developed. It was that, as
the
Compulsory Purchase Order was challenged on the ground that it
had
been made and confirmed " wrongfully " and " in
bad faith ", paragraph 16
had no application. It was said
that that paragraph, however general its
language, must be
construed so as not to oust the jurisdiction of the Court
where
the good faith of the local authority or the Ministry was
impugned
and put in issue. Learned counsel for the Appellant made
his submission
very clear. It was that where the words "
compulsory purchase order"
occur in these paragraphs they are
to be read as if the words " made in good
" faith "
were added to them.
My Lords,
I think that anyone bred in the tradition of the law is likely
to
regard with little sympathy legislative provisions for ousting the
jurisdic-
tion of the Court whether in order that the subject may
be deprived altogether
of remedy or in order that his grievance
may be remitted to some other
tribunal. But it is our plain duty
to give the words of an Act their proper
meaning and for my part,
I find it quite impossible to qualify the words
of the paragraph
in the manner suggested. It may be that the Legislature
had not in
mind the possibility of an Order being made by a local authority
in
bad faith or even the possibility of an Order made in good faith
being
mistakenly, capriciously or wantonly challenged. This is a
matter of specula-
tion. What is abundantly clear is that words
are used which are wide
enough to cover any kind of challenge
which any aggrieved person may
think fit to make. I cannot think
of any wider words. Any addition would
be mere tautology. But, it
is said, let those general words be given their
lull scope and
effect, yet they are not applicable to an Order made in bad
faith.
But, my Lords, no one can suppose that an Order bears upon its
face
the evidence of bad faith. It cannot be predicated of any Order
that
it has been made in bad faith until it has been tested in
legal proceedings,
and it is just that test which paragraph 16
bars. How, then, can it be said
that any qualification can be
introduced to limit the meaning of the words?
What else can "
compulsory purchase order " mean but an act apparently
valid
in the law, formally authorised, made, and confirmed?
It was
urged by learned counsel for the Appellant that there is a
deep-
rooted principle that the Legislature cannot be assumed to
oust the jurisdic-
tion of the Court, particularly where fraud is
alleged, except by clear words,
and a number of cases were cited
in which the Court has asserted its
jurisdiction to examine into
an alleged abuse of statutory power and, if
necessary, correct it.
Reference was made, too, to Maxwell on the Interpreta-
tion of
Statutes to support the view, broadly stated, that a statute is,
if
possible, so to be construed as to avoid in justice. My Lords,
I do not refer
in detail to these authorities only because it
appears to me that they do not
4
override
the first of all principles of construction, that plain words must
be
given their plain meaning. There is nothing ambiguous about
paragraph 16 ;
there is no alternative construction that can be
given to it; there is in fact
no justification for the
introduction of limiting words such as " if made in
"
good faith ", and there is the less reason for doing so when
those words
would have the effect of depriving the express words "
in any legal proceed-
" ings whatsoever " of their full
meaning and content.
I have
examined paragraph 16 by itself without reference to paragraph
15.
But paragraph 16 opens with the words " Subject to the
provisions of the
" foregoing paragraph ". It is
necessary, therefore, to see whether the earlier
has any bearing
upon the meaning of the later paragraph. I think that it
has not,
for in my opinion the width or narrowness of the grounds of
challenge
permitted by paragraph 15 does not touch the construction
of
paragraph 16. Be they wide or be they narrow, it is subject to
them that
the general bar to legal proceedings is imposed. I am,
therefore, reluctant
to express a final opinion upon a matter much
agitated at your Lordships'
bar, whether the words " is not
empowered " were apt to include a challenge
not only on the
ground of vires but also on the ground of bad faith or
any
other ground which would justify the Court in setting aside a
purported
exercise of a statutory power. The inclination of my
opinion is that they
are, but I would prefer to keep the question
open, until it arises in a case
where the answer will be decisive,
as it is not here.
I come,
then, to the conclusion that the Court cannot entertain this
action
so far as it impugns the validity of the Compulsory
Purchase Order, and it
is no part of my present duty to attack or
defend such a provision of an
Act of Parliament. But two things
may, I think, fairly be said. First,
if the validity of such an
Order is open to challenge at any time within the
period allowed
by the ordinary Statute of Limitations with the consequence
that
it and all that has been done under it over a period of many years
may
be set aside, it is not perhaps unreasonable that Parliament
should have
thought fit to impose an absolute bar to proceedings
even at the risk of
some injustice to individuals. Secondly, the
injustice may not be so great
as might appear. For the bad faith
or fraud upon which an aggrieved person
relies is that of
individuals, and this very case shows that, even if the validity
of
the Order cannot be questioned and he cannot recover the land that
has
been taken from him, yet he may have a remedy in damages
against those
individuals. Here the Appellant by her writ claims
against the personal
Defendant a declaration that he knowingly
acted wrongfully and in bad
faith in procuring the Order and its
confirmation, and damages, and that
is a claim which the Court
clearly has jurisdiction to entertain. I am far
from saying that
the claim has any merit. Of that I know nothing. But
because the
Court can entertain it, I think that the Court of Appeal, to
whose
attention this particular aspect of the case appears not to have
been
called, were wrong in striking out the whole writ and I
propose that their
Order should be varied by striking out the
Defendants other than Mr. Pywell
and the claims other than claims
3, 5, 6 and 7. Against Mr. Pywell the
action may proceed but upon
the footing that the validity of the Order cannot
be questioned.
There will be no order as to costs.
Lord
Morton of Henryton
MY LORDS,
This
appeal arises out of an action wherein the Appellant was
the
plaintiff, and it raises a question of general importance. The
original
defendants were the three Respondents and the Ministry of
Health. By her
writ issued on 6th July, 1954, the plaintiff
claimed:
1. Against
the East Elloe Rural District Council:
" (a)
Damages for trespass to the Plaintiff's land of 8 613 acres situate
"
at Hallgate, Holbeach in the County of Lincoln together with the
5
"
dwellinghouse known as 'Hall Hill House' and other buildings on
"
the said land or on some parts thereof.
" (b)
An injunction restraining them by their Officers, Servants and
"
Agents and each and every of them from trespassing upon the afore-
"
said land and premises of the Plaintiff or any part thereof or from
"
entering upon the said lands and premises without the consent of
"
the Plaintiff.
" (c)
A Declaration that the Compulsory Purchase Order dated 27th
"August
1948 was wrongfully made and in Bad Faith."
2. Against
the Ministry of Health:
" A
Declaration that the said Compulsory Purchase Order was
"
wrongfully confirmed on the 29th November 1948 and in Bad Faith."
3. Against
the Respondent J. C. Pywell, who was Clerk to the said Rural
District
Council at the relevant dates:
" A
Declaration that he knowingly acted wrongfully and in Bad
"
Faith in procuring the said Order and Confirmation of the same."
4. Against
the Ministry of Housing and Local Government:
" As
having taken over the functions of the Ministry of Health a
"
Declaration that the said Compulsory Purchase Order and Confirma-
"
tion of the same are in Bad Faith."
Further
and other relief.
Damages.
Costs.
The
Compulsory Purchase Order referred to in the writ was made by
the
first named Respondent on the 26th (not the 27th) August,
1948, and
purported to authorise that Respondent to purchase
compulsorily the house
and land mentioned in the writ, whereof the
Appellant was the owner. After
the statutory public local enquiry
had been held, the Minister of Health
confirmed the said Order on
29th November, 1948, by an Order (the East
Elloe (Holbeach)
Housing Confirmation Order, 1948), which was duly
advertised. The
relevant functions of the Minister of Health and the
obligations
of the Ministry of Health were subsequently transferred to
the
Minister and the Ministry of Housing and Local Government by a
Transfer
of Functions Order S.I. 1951 No. 142.
All the
Respondents entered conditional appearances to the writ, and on
the
27th July, 1954, the Respondents and the Minister of Health (who is
no
longer a party to these proceedings) applied by two separate
summonses to
Master Clayton under O. 12, R. 30, of the Rules of
the Supreme Court for
an Order that the writ and all subsequent
proceedings in the action be set
aside. The grounds upon which the
claim in each summons was based
were " That the Writ of
Summons in this action is invalid for lack of
" jurisdiction
it being provided by paragraph 16 of Part IV of the First
"
Schedule to the Acquisition of Land (Authorisation Procedure) Act
1946
" that save by the procedure specified in the said
Schedule a compulsory
" purchase order confirmed in
accordance with the provisions of the said
" Act (as was here
the case) shall not. either before or after it has been
"
confirmed be questioned in any legal proceedings whatsoever by
reason
" whereof this Honourable Court has no jurisdiction to
grant the relief
" sought against the said Defendants."
Master
Clayton made an Order on each summons setting aside the writ
and
all subsequent proceedings in the action, and his decision was
affirmed
by Havers, J. and by the Court of Appeal (Hodson and
Parker, L.JJ.) That
Court refused leave to appeal, but leave was
subsequently granted by the
Appeal Committee of your Lordships'
House.
My Lords,
I think there can be no doubt that the Respondents were
never
entitled to have the writ set aside so far as it claims
relief against the
Respondent Pywell. The relief claimed by
paragraph 3 of the writ and the
further relief claimed by
paragraphs 5, 6 and 7, in so far as that relief
6
affects
the Respondent Pywell, in no way call in question the validity of
the
Compulsory Purchase Order of 26th August, 1948, or of its
confirmation.
It is simply alleged, as against Mr. Pywell
personally, that he knowingly
acted wrongfully and in bad faith in
procuring the Order and the con-
firmation thereof. It is equally
clear that Claims 1, 2 and 4 do put in
issue the validity of the
Order, and it would appear that this distinction
between the claim
against Mr. Pywell and the other claims was overlooked
until the
appeal was being argued in this House. No such point was taken
in
any of the Courts below, or in the Appellant's Reasons, but it is
clear
that the Appellant is entitled to proceed against Mr.
Pywell, whatever view
your Lordships take on the main question
arising on this appeal, namely,
whether paragraph 16 of Part IV of
the First Schedule to the Act of 1946
deprives this House, and all
Courts, of jurisdiction to hear and determine
this action, so far
as it relates to the first and third Respondents. The
relevant
portions of the Act of 1946 are as follows :—
By section
1 (1) the Act makes provision for the compulsory purchase
of
certain lands in the following terms:—
" The
authorisation of any compulsory purchase of land—
" (a)
by a local authority where, apart from this Act, power to
"
authorise the authority to purchase land compulsorily is conferred
"
by or under any enactment contained in a public general Act and in
"
force immediately before the commencement of this Act, other than
"
any enactment specified in subsection (4) of this section ;
"...
shall, subject to the provisions of this and the next following
"
section, be conferred by an order (in this Act referred to as a
"
' compulsory purchase order') in accordance with the provisions of
"
the First Schedule to this Act (being provisions which, subject to
"
certain adaptations, modifications and exceptions, correspond with
"
provisions as to the authorisation of the compulsory purchase of
"
land of the Local Government Act, 1933)."
Section 1
(2) of the said Act provides that a special procedure set
out in
Part III of the First Schedule to the Act shall be followed
in
compulsory acquisition of such land as falls within its scope,
viz. :—
" (a)
which is the property of a local authority or which has been
"
acquired by statutory undertakers for the purposes of their under-
"
taking,
" (b)
forming part of a common, open space or fuel or field garden
"
allotment, or held inalienably by the National Trust, or
" (c)
being, or being the site of, an ancient monument or other
object
" or archaeological interest".
It is
plain that the land, the subject of this action, was not land
affected
by subsection (2) of section 1.
Paragraphs
15 and 16 of Part IV of the First Schedule to the Act of 1946
are
as follows :—
" 15.
(1) If any person aggrieved by a compulsory purchase order desires
"
to question the validity thereof, or of any provision contained
therein,
" on the ground that the authorisation of a
compulsory purchase thereby
" granted is not empowered to be
granted under this Act or any such
" enactment as is
mentioned in subsection (1) of section one of this Act, or
"
if any person aggrieved by a compulsory purchase order or a
certificate
" under Part III of this Schedule desires to
question the validity thereof
" on the ground that any
requirement of this Act or of any regulation made
"
thereunder has not been complied with in relation to the order or
certificate,
" he may, within six weeks from the date on
which notice of the con-
" firmation or making of the order
or of the giving of the certificate is
" first published in
accordance with the provisions of this Schedule in
" that
behalf, make an application to the High Court, and on any such
"
application the Court—
7
" (a)
may by interim order suspend the operation of the compulsory
"
purchase order or any provision contained therein, or of the
certificate,
" either generally or in so far as it affects
any property of the applicant,
" until the final
determination of the proceedings;
" (b)
if satisfied that the authorisation granted by the compulsory
"
purchase order is not empowered to be granted as aforesaid, or that
"
the interests of the applicant have been substantially prejudiced
by
" any requirement of this Schedule or of any regulation
made there-
" under not having been complied with, may quash
the compulsory
" purchase order or any provision contained
therein, or the certificate,
" either generally or in so far
as it affects any property of the applicant."
" 16.
Subject to the provisions of the last foregoing paragraph, a com-
"
pulsory purchase order or a certificate under Part III of this
Schedule
" shall not, either before or after it has been
confirmed, made or given,
" be questioned in any legal
proceedings whatsoever, and shall become
" operative on the
date on which notice is first published as mentioned in
" the
last foregoing paragraph."
For the
sake of brevity I shall hereafter refer to the paragraphs just
quoted
simply as "paragraph 15" or "paragraph 16".
Mr. Roy
Wilson for the Appellant puts forward propositions which I
summarise
as follows: —
Paragraph
15 gives no opportunity to a person aggrieved to
question
the validity of a Compulsory Purchase Order on the ground
that it
was made or confirmed in bad faith.
Although,
prima facie, paragraph 16 excludes the jurisdiction of
the
Court in all cases, subject only to the provision of paragraph
15,
it is inconceivable that the Legislature can have intended
wholly to
exclude all Courts from hearing and determining an
allegation that such
an Order was made in bad faith.
Therefore,
paragraph 16 should be read as applying only to an
Order or a
certificate made in good faith.
In support
of his second and third propositions, Mr. Wilson relied upon
a
general principle stated in the 10th edition of Maxwell on the
Interpretation
of Statutes, on observations made in a number of
cases dealing with statutory
powers, and on the case of Colder
v. Halket, 3 Moore P.C. 28. The Attorney-
General, on
behalf of the Respondents, contends that the opportunity of
objection
given by paragraph 15 extends to cases where bad faith is
alleged,
but whether or not this is so, if the person aggrieved fails to
apply
to the Court within the six weeks period there mentioned,
the jurisdiction
of the Court is completely ousted by paragraph
16, the terms whereof are
unambiguous.
My Lords,
I accept Mr. Wilson's first proposition. I cannot construe
paragraph
15 as covering a case in which all the requirements expressly
laid
down by statute have been observed, but the person aggrieved
has discovered
that in carrying out the steps laid down by statute
the authority has been
actuated by improper motives. It is to be
observed that both in the
earlier and in the later part of
paragraph 15 there is only one ground
upon which the validity of
the Order can be questioned. In the earlier
part, that ground is "
that the authorisation of a compulsory purchase
" thereby
granted is not empowered to be granted under this Act or any
"
such enactment as is mentioned in subsection (1) of section one of
this
" Act". In the later part it is " that any
requirement of this Act or of any
" regulation made
thereunder has not been complied with in relation to the
"
order or certificate ". These words seem to me to restrict the
complainant
to alleging non-compliance with some requirement to be
found in the relevant
statutes or regulations. If paragraph 15 had
been intended to apply to
cases of bad faith, surely the
restrictive words " on the ground that ", etc.,
would
have been left out in both parts. If, however, the words of
para-
graph 15 leave the point in any doubt, that doubt is
removed, to my mind,
by comparing the words of section 162 (1) of
the Local Government Act,
8
1933, with
the words of paragraph 15. It will be remembered that in
section 1
(1) of the Act of 1946, already quoted, the provisions of the
First
Schedule to that Act (which provisions include paragraph 15)
are
described as " provisions which, subject to certain
adaptations, modifications
" and exceptions, correspond with
provisions as to the authorisation of
" the compulsory
purchase of land of the Local Government Act, 1933."
The
provision in the Act of 1933 which corresponds to paragraph 15
is
contained in section 162 (1) which begins as follows:—"If
any person
" aggrieved by a compulsory purchase order . . .
desires to question its
" validity, he may, within two months
after the publication of the notice
" of confirmation . . .
make an application for the purpose to the High
" Court,"
etc. One " modification " of this provision which is made
by
paragraph 15 consists in altering the wide words, "
desires to question its
" validity ", to the strictly
limited words already quoted. It is, I think,
inconceivable that,
if the Legislature had intended paragraph 15 to cover
cases where
bad faith was alleged, it would have made this striking alteration
in
the language of section 162 of the 1933 Act. I would add that if
para-
graph 15 had been intended to cover such cases, there would
seem to be
no good reason why the earlier part thereof should not
have been applied
to a certificate as well as to an Order, since
the later part applies to both.
The reason for this difference was
explained by Parker, L.J. in the Court
of Appeal, and I agree with
his explanation ; but the difference remains
wholly unexplained if
paragraph 15 covers cases where bad faith is alleged.
My Lords,
having accepted Mr. Wilson's first proposition, for the reasons
I
have stated, I reject his second and third propositions, on the short
and
simple ground that the words of paragraph 16 are clear, and
deprive all
Courts of any jurisdiction to try the issues raised by
paragraphs 1, 2 and 4
of the writ, whereby the Appellant
undoubtedly seeks to question the validity
of the Order of 26th
August, 1948.
Turning
first to counsel's second proposition, it does not seem to
me
inconceivable, though it does seem surprising, that the
Legislature should
have intended to make it impossible for anyone
to question in any Court
the validity of a Compulsory Purchase
Order on the ground that it was
made in bad faith. It may have
been thought that the procedure which
has to be followed before
such an Order is made and confirmed affords
sufficient opportunity
for allegations of bad faith to be ventilated, and it
may have
been thought essential, if building schemes were to be carried
out,
that persons alleging bad faith in the making of an Order, after
the
Order has been made, should be limited to claims sounding in
damages
against the persons who, in bad faith, caused or procured
the Order to be
made. The present action started nearly six years
after the Order now in
question was made and confirmed, and
illustrates the difficulty which might
arise if no such limit were
imposed, since houses have already been erected
on the land which
was the subject of the Order.
I fully
realise that certain strange results follow if my construction
of
paragraphs 15 and 16 is correct. For instance, a Compulsory
Purchase Order
is made whereby a man is compelled to sell a house
which has been his
home, and the home of his family, for many
years. After the Order is
made, evidence comes into his hands
which shows that the Order was
made because the local district
council wished to gratify a grudge against
him, or for other
reasons even more sinister. That man is for ever pre-
cluded from
going to any Court to have the Order set aside. However, it is,
of
course, within the powers of Parliament to achieve this result, and
in
my opinion it has been achieved by paragraphs 15 and 16. In
making
this comment, I am not, of course, casting any reflection
upon any of the
Respondents to this appeal.
Effect can
only be given to counsel's third proposition if some words
are
read into paragraph 16. Counsel suggested that the words " made
in
" good faith " should be read in after " order "
and also after " certificate ".
I cannot accept this
suggestion. It would be impossible to predicate of
any Order or
certificate that it was made in good faith until the Court had
9
inquired
into the matter, and that is just what paragraph 16 prohibits.
Mr.
Wilson relied upon certain passages in the tenth edition of
Maxwell on
the Interpretation of Statutes and especially on the
following passage, which
appears on p. 122 and also appeared, in
substantially the same terms, in the
first edition published in
1875:-
"
Enactments which confer powers are so construed as to meet all
"
attempts to abuse them, either by exercising them in cases not
"
intended by the statute, or by refusing to exercise them when the
"
occasion for their exercise has arisen. Though the act done was
"
ostensibly in execution of the statutory power and within its
letter,
" it would nevertheless be held not to come within
the power if done
" otherwise than honestly and in the spirit
of the enactment."
My Lords,
this is a well-known principle; it is illustrated by many cases,
and
Mr. Wilson made an excellent selection of them, beginning with
Ex
parte Cowan (1867) L.R. 2 Ch. App. 563. In my opinion,
however, neither
the passage in Maxwell nor this line of cases
assists your Lordships in
construing paragraph 16. That paragraph
does not confer a power. If it
did, I should apply the principle
stated in Maxwell without any hesitation.
What the
paragraph does is to enact, in terms which seem to me very
clear,
that when a certain type of Order or certificate has been made,
it
shall not be questioned in any Court, except in the limited
type of case and
for the limited period specified in paragraph 15.
Mr. Wilson
also relied upon the case of Colder v. Halket, 3 Moore P.C.
28.
In that case the Judicial Committee had to construe section 24
of the Act
21 Geo. III cap. 70, which was in the following terms :
—
" And
whereas it is reasonable to render the Provincial Magistrates,
"
as well natives as British subjects, more safe in the execution of
their
" office, be it enacted, That no action for wrong or
injury shall lie in
" the Supreme Court against any person
whatsoever, exercising a judicial
" office in the Country
Courts, for any judgment, decree, or order of
" the said
Court, nor against any person for any act done by or in
"
virtue of the order of the said Court."
Baron
Parke, delivering the judgment of the Board, said :
" Three
meanings may be attributed to this clause.
"
First. It may mean that no action should lie against one exercising
"
a judicial office, in the Country Courts, for any judgment, decree,
or
" order of the Court, whether in a matter in which the
Court had a
" jurisdiction or not, or whether the Judge
wilfully and knowingly
" gave judgment or made an order in a
matter out of his jurisdiction
" or not; so that the fact of
the existence of a judgment, decree, or
" order, should
preclude all inquiry.
"
Secondly. It may mean to protect the Judge only where he
gives
" judgment, or makes an order, in the bona fide
exercise of his office,
" and under the belief of his
having jurisdiction, though he may not
" have any.
"
Thirdly. The object may have been to put the Judges of the
"
Native Courts on the footing of Judges of the Superior Courts of
"
Record, or Courts having similar jurisdiction to the Native Courts
"
here, protecting them from actions for things done within their
juris-
" diction, though erroneously or irregularly done, but
leaving them
" liable for things done wholly without
jurisdiction.
" It
seems to us, that the first of these constructions is inadmissible.
"
It never could have been intended to give such unlimited power to
the
" Judges of the Native Courts, and reason points out that
the general
" words of the clause must be qualified in the
manner stated in one of
" the two latter modes of
construction.
" We
think that the third is the right mode, and that the true meaning
"
of the section in question was to put the Judges of Native Courts
of
" Justice on the same footing as those of English Courts
of similar
" jurisdiction. There seems no reason why they
should be more or
10
"
less protected than English Judges of general or limited
jurisdiction,
" under the like circumstances."
In that
case it was possible, as a matter of construction, to read in
the
words " made within its jurisdiction " after the words "
the said Court",
and the decision may have been justified,
having regard to the context
and the surrounding circumstances;
but it is impossible to read the words
"made in good faith"
into paragraph 16, for the reasons I have already
stated. I think
that the decision in Calder v. Halket would have
been
different if the section had read: "No judgment, decree
or order of the
" said Court shall be questioned in any legal
proceedings whatsoever".
Such words would, I think, clearly "
preclude all inquiry " by preventing any
complainant from
raising the question whether the order had or had not
been made
without jurisdiction.
The only
other way of giving effect to counsel's third proposition would
be
to insert after the word " whatsoever" in paragraph 16 some
such
words as " unless it is alleged that the order or
certificate was made in
" bad faith "; but I can find no
justification for inserting these words. To
do so would be
legislation, not interpretation. For these reasons, I am of
opinion
that paragraph 16 operates to oust the jurisdiction of the Courts
in
the present case, except in regard to the claims against Mr.
Pywell. I should
add that Mr. Collier, junior counsel for the
Appellant, submitted that in
paragraph 16 the words " under
Part III of this Schedule" qualify " a
" compulsory
order " as well as " a certificate ", and as the Order
in the
present case was not made under Part III of the First
Schedule, paragraph 16
has no application to the present case.
That submission was rejected by
the Court of Appeal, and I shall
only say that in my opinion it was rightly
rejected, for the
reasons given by Parker, L.J.
I would
allow the writ in this action to stand only in so far as it
claims
relief against the Respondent Pywell by Claims 3, 5, 6 and
7. The writ
should, in my view, be set aside for want of
jurisdiction in so far as it
claims relief against the other
Respondents. The appeal should, therefore,
be allowed to the
extent just mentioned.
Lord
Reid
MY LORDS,
In this
action the Appellant sues the East Elloe Rural District Council
and
the Ministry of Health, now the Ministry of Housing and Local
Government,
and seeks declarations that a Compulsory Purchase
Order made by that local
authority and confirmed by the Minister
was made and confirmed wrongfully
and in bad faith. The Appellant
also seeks consequential relief. The writ
of summons has been set
aside before a statement of claim was lodged, and
so we do not
know the nature of the bad faith alleged. But the argument
for the
Respondents is that it matters not how serious the bad faith
might
be: even if conspiracy and corruption were involved the
action could not
proceed because Parliament has deprived the
Courts of jurisdiction to
entertain it.
The
jurisdiction of the Courts is said to be ousted by two paragraphs
of
the First Schedule to the Acquisition of Land (Authorisation
Procedure) Act,
1946. Those paragraphs are as follows: —
''15 (1).
If any person aggrieved by a compulsory purchase order
"
desires to question the validity thereof, or of any provision
contained
" therein, on the ground that the authorisation of
a compulsory purchase
" thereby granted is not empowered to
be granted under this Act or any
" such enactment as is
mentioned in subsection (1) of section one of this
" Act, or
if any person aggrieved by a compulsory purchase order or a
"
certificate under Part III of this Schedule desires to question the
"
validity thereof on the ground that any requirement of this Act or
of
" any regulation made thereunder has not been complied
with in relation
11
" to
the order or certificate, he may, within six weeks from the date on
"
which notice of the confirmation or making of the order or of the
"
giving of the certificate is first published in accordance with the
pro-
" visions of this Schedule in that behalf, make an
application to the
" High Court, and on any such application
the Court—
" (a)
may by interim order suspend the operation of the com-
"
pulsory purchase order or any provision contained therein, or of
"
the certificate, either generally or in so far as it affects any
"
property of the applicant, until the final determination of the
"
proceedings;
" (b)
if satisfied that the authorisation granted by the compulsory
"
purchase order is not empowered to be granted as aforesaid, or
"
that the interests of the applicant have been substantially
"
prejudiced by any requirement of this Schedule or of any regula-
"
tion made thereunder not having been complied with, may quash
"
the compulsory purchase order or any provision contained therein,
"
or the certificate, either generally or in so far as it affects any
"
property of the applicant."
" 16.
Subject to the provisions of the last foregoing paragraph, a
"
compulsory purchase order or a certificate under Part III of this
"
Schedule shall not, either before or after it has been confirmed,
made
" or given, be questioned in any legal proceedings
whatsoever, and shall
" become operative on the date on which
notice is first published as
" mentioned in the last
foregoing paragraph."
Compulsory
Purchase Orders can be made under a number of different
statutes,
and before 1946 there was no uniform procedure: for example,
the
procedure under the Housing Act, 1936, differed in some respects from
the
procedure under the Local Government Act, 1933. Section 1 of
the 1946 Act
provides for the authorisation of any compulsory
purchase by a local authority
being confirmed by order in
accordance with the provisions of the First
Schedule, "
(being provisions which, subject to certain adaptations, modifica-
"
tions and exceptions, correspond to provisions as to the
authorisation of
" the compulsory purchase of land of the
Local Government Act, 1933) ".
I shall have to refer to these
words later. The provisions of the 1946 Act
now apply to a wide
variety of Orders made by many different types of
authority, and
the question how far the jurisdiction of the Courts has been
ousted
by this Act is, therefore, of very great importance. The Order
by
which the Appellant is aggrieved was made under the Housing
Act, 1936, but
nothing turns on that.
Paragraph
15 of the First Schedule allows the validity of an Order to
be
questioned on two grounds, first, that the authorisation of the
compulsory
purchase " is not empowered to be granted "
under the Act under which the
Order is made, and secondly, that
any requirement of the 1946 Act has not
been complied with. In
either case he may make application to the Court
within six weeks
from publication of confirmation of the Order. Paragraph
16
provides that save as aforesaid a Compulsory Purchase Order shall not
be
questioned in any legal proceedings whatsoever either before or
after it has
been confirmed.
If the
words of these paragraphs are held to have their ordinary
meanings,
then an Order can never be questioned or attacked in any
Court on the ground
that it has been obtained by corrupt or
fraudulent means, no matter how
serious the corruption or how wide
the conspiracy by which it has been
obtained. Admittedly no other
tribunal is given jurisdiction to deal with such
a case, and the
Minister has no power to act if, after he has confirmed an
Order,
it were found that the making of the Order had been due to
corruption
or malice. The only reason suggested for depriving the
subject of redress
in such a case is administrative convenience,
and I find it necessary to examine
these paragraphs narrowly to
see whether I am forced to reach the conclu-
sion that that must
be held to have been the intention of Parliament. I may
say at
once that I have found nothing in the Act beyond the phraseology
of
these two paragraphs to indicate that Parliament had such an
intention. I
12
shall,
therefore, examine the phraseology of these paragraphs to see
whether
either of them is susceptible of an interpretation which
would avoid that
result.
I take a
case like the present case where the purpose of the acquisition
of
the land is plainly stated in the Order and is plainly intra
vires and where all
the required steps of procedure have been
duly taken, and I must first examine
paragraph 15 to see whether
the present Appellant could have questioned the
Order on any
ground of bad faith, malice, corruption or conspiracy if she
had
raised her action within six weeks of the Order being
confirmed. It is not
said that this could have been brought within
the second of the grounds set
out in paragraph 15, but it is
argued that it could be brought within the first
because an
authorisation obtained in bad faith is not " empowered to
be
granted ".
I have
quoted the passage in section 1 of the 1946 Act, which states
that
the provisions of its First Schedule correspond to provisions
of the 1933 Act
subject to adaptations and modifications, and I
therefore begin by examining
the provisions of the earlier Act
which correspond to paragraphs 15 and 16
of the First Schedule.
Those provisions are contained in section 162 of the
1933 Act.
Subsection (1) provides, with regard to a Compulsory Purchase
Order,
that if a person aggrieved " desires to question its validity,
he may,
" within two months after the publication of the
notice of confirmation . . .
" make an application for the
purpose to the High Court". The Court may
then quash the
Order, but when the invalidity arises from procedural provi-
sions
the Court must be satisfied that the interests of the applicant have
been
substantially prejudiced. Subsection (2) provides that
subject to the provisions
which I have mentioned an Order shall
not, either before or after its confirma-
tion, be questioned by
prohibition or certiorari or in any legal proceedings.
The 1933
Act does not in any way restrict the grounds on which a person
may
question the validity of an Order, but the 1946 Act specifies two
grounds.
I can see no other possible reason for this change and
the more elaborate
drafting which it entails, than an intention to
limit the grounds on which a
person aggrieved can make application
to the Court, and in order to determine
how far the 1946 Act has
limited the jurisdiction of the Courts I must see
what were the
grounds on which the Court could give relief under the
ordinary
law or the 1933 Act. I think that in the past there has been
some
confusion about this, and I fear that I must try as best I
can to unravel the
matter. It seems to me that there were four
grounds on which the Courts
could give relief. First, informality
of procedure; where, for example, some
essential step in procedure
had been omitted. Secondly, ultra vires in the
sense that
what was authorised by the Order went beyond what was authorised
by
the Act under which it was made. Thirdly, misuse of power in bona
fide.
And. fourthly, misuse of power in mala fide. In
the last two classes the
Order is intra vires in the sense
that what it authorises to be done is within the
scope of the Act
under which it is made, and every essential step in procedure
may
have been taken: what is challenged is something which lies
behind
the making of the Order. I separate these two classes for
this reason. There
have been few cases where actual bad faith has
even been alleged, but in the
numerous cases where misuse of power
has been alleged judges have been
careful to point out that no
question of bad faith was involved and that
bad faith stands in a
class by itself.
Misuse of
power covers a wide variety of cases, and I am relieved
from
considering at length what amounts to misuse of power in bona
fide because
I agree with the analysis made by Lord Greene,
M.R. in Associated Provin-
cial Picture Houses, Limited v.
Wednesbury Corporation [1948] 1 KB 223.
There the local
authority had power to grant licences for cinema performances
"
subject to such conditions as the authority think fit to impose ".
They
allowed Sunday performances subject to the condition that no
child should
be admitted and were held entitled to do this. I
quote what seem to me
the leading passages in Lord Greene's
judgment. He said (p. 228): " The
" exercise of such a
discretion must be a real exercise of the discretion.
" If.
in the statute conferring the discretion, there is to be found
expressly or
" by implication matters which the authority
exercising the discretion ought
13
" to
have regard to, then in exercising the discretion it must have regard
to
" those matters. Conversely, if the nature of the
subject-matter and the
" general interpretation of the Act
make it clear that certain matters would
" not be germane to
the matter in question, the authority must disregard
" those
irrelevant collateral matters ... (p. 229) a person entrusted with
a
" discretion must, so to speak, direct himself properly in
law. He must call
" his own attention to the matters which he
is bound to consider. He must
" exclude from his
consideration matters which are irrelevant to what he has
"
to consider. If he does not obey those rules, he may truly be said,
and
" often is said, to be acting ' unreasonably' . . . (p.
230) it is true to say that,
" if a decision in a competent
matter is so unreasonable that no reasonable
" authority
could ever have come to it, then the courts can interfere. That. I
"
think, is quite right; but to prove a case of that kind would require
some-
" thing overwhelming ... (p. 233) The court is entitled
to investigate the
" action of the local authority with a
view to seeing whether they have taken
" into account matters
which they ought not to have taken into account, or,
"
conversely, have refused to take into account or neglected to take
into
" account matters which they ought to take into account.
Once that question
" is answered in favour of the local
authority, it may be still possible to say
" that, although
the local authority have kept within the four corners of the
"
matters which they ought to consider, they have nevertheless come to
a
" conclusion so unreasonable that no reasonable authority
could ever have
" come to it. In such a case, again, I think
the court can interfere. The
" power of the court to
interfere in each case is not as an appellate authority
" to
override a decision of the local authority, but as a judicial
authority
" which is concerned, and concerned only, to see
whether the local authority
" have contravened the law by
acting in excess of the powers which Parlia-
" ment has
confided in them." None of those cases need involve mala
fides.
A local authority may have had regard to quite
irrelevant considerations or
may have acted quite unreasonably but
yet be entirely innocent of dishonesty
or malice.
I can draw
no other conclusion from the form in which paragraph 15 is
now
enacted than that Parliament intended to exclude from the scope of
this
paragraph the whole class of cases referred to in the
passages which I have
quoted. No doubt in one sense it might be
said that in none of these cases
is authority " empowered to
be granted ", but that would be a strained and
unnatural
reading of these words only to be accepted if there were in the
Act
some clear indication requiring it. But to my mind all the
indications
are the other way, and this part of the paragraph only
refers to cases of
ultra vires in the narrow sense in which
I have used it.
If other
cases of misuse of power in bona fide are excluded, can a
distinc-
tion be made where mala fides is in question? As I
shall explain when I come
to paragraph 16, I am of opinion that
cases involving mala fides are in a
special position in
that mere general words will not deprive the Court
of jurisdiction
to deal with them, and if that is so then no question
would
arise under paragraph 15. But if I am wrong about cases of
mala fides being
in this special position, I do not see how
there can be a distinction under para-
graph 15 between cases of
bona fide and mala fide misuse of power. I can
see
nothing to indicate any intention to that effect, and if Parliament
intended
to treat bad faith as a special case it would be very
strange to introduce the
exception here. The time limit under
paragraph 15 is six weeks, which is
appropriate for grounds which
appear from the terms of the Order but not
appropriate for grounds
based on facts lying behind the Order which may not
be
discoverable for some time after it is confirmed ; and I find another
strong
indication that the first ground of challenge was not
intended to apply to
such cases in the fact that that ground is
not available to a person aggrieved
by the granting of a
certificate: only the second ground is available to him.
This is
intelligible if the first ground only applies to ultra vires
because I
cannot see how a certificate could be ultra
vires. But if the first ground was
intended to apply where
mala fides is alleged I cannot imagine any reason
why it
was not also made available when a certificate is challenged.
In my
view, the question whether authority is empowered to be granted
is
intended to be capable of immediate answer: if it can depend on
facts lying
14
behind the
Order, then neither the Minister nor the owner could know for
certain
at the time of confirmation whether any Order is empowered to
be
granted or not because facts shewing misuse of power might
subsequently
emerge. Accordingly, in my opinion, the Appellant
could not have brought
her case within paragraph 15 even if she
had raised it immediately after the
Order was confirmed.
I turn to
paragraph 16. Not only does it prevent recourse to the Court
after
six weeks in cases to which paragraph 15 does apply, but on
the face of it, it
prevents any recourse to the Court at all in
cases to which paragraph 15 does
not apply. It uses words which
are general and emphatic and to my mind the
question is whether
this use of general words necessarily leads to the conclu-
sion
that the jurisdiction of the Court is entirely excluded in all cases
of mis-
use of powers in mala fide where those acting in
mala fide have been careful
to see that the procedure was
in order and the authority granted by the Order
was within the
scope of the Act under which it was made. A person deliber-
ately
acting in bad faith would naturally be careful to do this. In my
judgment
paragraph 16 is clearly intended to exclude and does
exclude entirely all cases
of misuse of power in bona
fide. But does it also exclude the small minority
of cases
where deliberate dishonesty, corruption or malice is involved?
In
every class of case that I can think of the Courts have always
held that general
words are not to be read as enabling a
deliberate wrongdoer to take advan-
tage of his own dishonesty.
Are the principles of statutory construction so
rigid that these
general words must be so read here? Of course, if there were
any
other indications in the statute of such an intention beyond the
mere
generality of the words that would be conclusive: but I can
find none.
There are
many cases where general words in a statute are given a
limited
meaning. That is done not only when there is something in
the statute itself
which requires it, but also where to give
general words their apparent meaning
would lead to conflict with
some fundamental principle. Where there is ample
scope for the
words to operate without any such conflict it may very well be
that
the draftsman did not have in mind and Parliament did not realise
that
the words were so wide that in some few cases they could
operate to subvert
a fundamental principle. In general, of course,
the intention of Parliament
can only be inferred from the words of
the statute, but it appears to me to be
well established in
certain cases that, without some specific indication of an
intention
to do so, the mere generality of words used will not be regarded
as
sufficient to shew an intention to depart from fundamental
principles. So
general words by themselves do not bind the Crown,
they are limited so as not
to conflict with international law,
they are commonly read so as to avoid
retrospective infringement
of rights, and it appears to me that they can equally
well be read
so as not to deprive the Court of jurisdiction where bad faith
is
involved. If authority be needed for reading general words so as not
to
deprive the Court of jurisdiction in such a case, I find it in
Colder v. Halket.
3 Moore P.C. 28, where general
words in 21 Geo. III c. 60 s. 24 were even
farther limited without
there being anything in the statute to indicate that
they should
be read in a limited sense. The words were: " No action for
"
wrong or injury shall lie in the Supreme Court against any person
whatso-
" ever exercising a judicial office in the Country
Courts for any judgment
" decree or order of the said Court
nor against any person for any act done
" by or in virtue of
the Order of the said Court ". Two limited readings
were
suggested—to exclude acts in mala fide or
to exclude proceedings wholly
without jurisdiction. In their
Lordships' judgment (p. 75) it is said: "It
" never can
have been intended to give such unlimited powers to Judges of
"
the Native Courts and reason points out that the general words of the
clause
" must be qualified in the manner stated in one of the
two latter modes of
" construction." I think that there
is still room for reason to point out that
the general words in
this case must be limited so as to accord with the
principle, of
which Parliament cannot have been ignorant, that a wrongdoer
cannot
rely on general words to avoid the consequences of his own
dishonesty.
As I have said, we must take this case on the footing
that the Appellant
might allege deliberate dishonesty of the
grossest kind.
It is said
that Parliament may have intended that even cases of gross
dishonesty
should be excluded from redress because otherwise it would be
15
embarrassing
to deal with allegations of this kind after a long interval, and
if
the case were proved a local authority and ultimately the
ratepayers might be
involved in grievous loss. I am not entirely
satisfied that the law is powerless
to deal justly with such a
situation. But even if that were a possible conse-
quence I would
hesitate to attribute to Parliament the view that considerations
of
that kind justify hushing up a scandal.
In my
judgment this appeal should be allowed.
Lord
Radcliffe
MY LORDS,
I think
that this appeal must fail except so far as the action against
the
defendant Pywell is concerned. As I understand that all your
Lordships
are agreed upon the latter point, I will confine what I
have to say to the
case against the defendants East Elloe Rural
District Council, Ministry of
Health and Ministry of Housing and
Local Government.
The relief
that the Appellant seeks against them in her action depends
wholly
on her ability to establish that a Compulsory Purchase Order
dated
27th August, 1948, made by the Rural District Council and
confirmed by
the Minister was invalid. I do not wish to beg any
question by using the
word " invalid ". I mean that she
has to show that in the eyes of the law
this Compulsory Purchase
Order was not effective to confer upon the Rural
District Council
the authority to enter upon her land, which they certainly
would
not have possessed without the making of the Order. It
follows,
therefore, that her action must stand or fall by her
ability to question this
Compulsory Purchase Order in the legal
proceedings.
But the
act of questioning a Compulsory Purchase Order in legal proceed-
ings
is what is dealt with under those very words in paragraphs 15 and 16
of
Part IV of the First Schedule of the Acquisition of Land
(Authorisation
Procedure) Act, 1946: and the defendants say that
having regard to the
provisions of those paragraphs it is not open
to the Appellant by a writ
issued in July, 1954, to question a
Compulsory Purchase Order made in
August, 1948.
The
provisions of the two paragraphs in question have been set out
in
full in the speech of the noble Lord on the Woolsack, and I do
not repeat
them. If, as is obvious, her proceedings are not within
the brief measure
of time allowed by paragraph 15, I am bound to
say that I think that
she faces a very great difficulty in showing
that what appears to be the
absolute prohibition, " shall not
... be questioned in any legal proceedings
" whatsoever ",
is to be understood in a Court of Law as amounting to
something
much less than such a prohibition. It is quite true, as is said,
that
these are merely general words : but then, unless there is some
compelling
reason to the contrary, I should be inclined to regard
general words as the
most apt to produce a corresponding general
result.
Now, the
Appellant says that the reason for an exception being made in
her
case lies in the fact that, as her writ shows, she intends to
establish
that the Compulsory Purchase Order in question was made
and confirmed
" in bad faith " ; and that, when such a
plea is raised, it is the duty of a Court
of Law so to interpret
the apparently general words used by Parliament as
not to apply
them to legal proceedings that are designed to determine that
issue.
It is because I do not think that the law either requires or entitles
us to
adopt such a method of construing an Act of Parliament that,
in my opinion,
the Appellant's action must be stopped.
Of course,
it is well known that Courts of Law have always exercised a
certain
authority to restrain the abuse of statutory powers. Such powers
are
not conferred for the private advantage of their holders. They
are
given for certain limited purposes, which the holders are not
entitled to
depart from : and if the authority that confers them
prescribes, explicitly or
16
by
implication, certain conditions as to their exercise, those
conditions
ought to be adhered to. It is, or may be, an abuse of
power not to observe
the conditions. It is certainly an abuse of
power to seek to exercise it
when the statute relied upon does not
truly confer it, and the invalidity
of the act does not depend in
any way upon the question whether the
person concerned knows or
does not know that he is acting ultra vires.
It is an abuse
of power to exercise it for a purpose different from that for
which
it is entrusted to the holder, not the less because he may be
acting
ostensibly for the authorised purpose. Probably most of the
recognised
grounds of invalidity could be brought under this head:
the introduction of
illegitimate considerations, the rejection of
legitimate ones, manifest unreason-
ableness, arbitrary or
capricious conduct, the motive of personal advantage
or the
gratification of personal ill-will. However that may be, an
exercise
of power in bad faith does not seem to me to have any
special pre-eminence
of its own among the causes that make for
invalidity. It is one of several
instances of abuse of power and
it may or may not be involved in several
of the recognised grounds
that I have mentioned. Indeed, I think it plain
that the Courts
have often been content to allow such circumstances, if
established,
to speak for themselves rather than to press the issue to a
finding
that the group of persons responsible for the exercise of the
power
have actually proceeded in bad faith.
It must be
assumed that the Legislature which enacted the Acquisition
of Land
(Authorisation Procedure) Act, 1946, was aware that the law
protected
persons disturbed by an exercise of statutory powers in that
it
allowed them to come to the Courts to challenge the validity of
the exercise
on any of such grounds. But, if so, I do not see how
it is possible to treat
the provisions of paragraphs 15 and 16 of
Part IV of the First Schedule
of the Act as enacting anything less
than a complete statutory code for
regulating the extent to which
and the conditions under which Courts of
Law might be resorted to
for the purpose of questioning the validity of a
Compulsory
Purchase Order within the protection of the Act. I should
myself
read the words of paragraph 15 (1), " on the ground that the
authorisa-
" tion of a compulsory purchase thereby granted is
not empowered to be
" granted under this Act", as
covering any case in which the complainant
sought to say that the
Order in question did not carry the statutory authority
which it
purported to. In other words, I should regard a challenge to
the
Order on the ground that it had not been made in good faith as
within the
purview of paragraph 15. After all. the point which
concerns the aggrieved
person is the same in all cases: an Order
has been made constituting an osten-
sible exercise of statutory
power and his purpose in resorting to the Courts is
to show that
there is no statutory authority behind the Order. I do not see
any
need to pick and choose among the different reasons which may
support
the plea that the authorisation ostensibly granted does
not carry the powers of
the Act. But even if I did not think that
an Order could be questioned under
paragraph 15 on the ground that
it had been exercised in bad faith and I
thought, therefore, that
the statutory code did not allow for an Order being
questioned on
this ground at all, I should still think that paragraph 16
concluded
the matter and that it did not leave to the Courts any
surviving
jurisdiction.
The
Appellant's argument for an exception rests on certain
general
reflections which do not seem to me to make up into any
legal principle
of construction as applied to an Act of
Parliament. It is said that the
six weeks which are all the grace
that, on any view, paragraph 15 allows
an aggrieved person for his
taking action, are pitifully inadequate as an
allowance of time
when bad faith, which may involve concealment or
deception, is
thought to be present. And indeed they are. Further, it is
said
that it would be an outrageous thing if a person who by ordinary
legal
principles would have a right to upset an Order affecting
him were to be
precluded from coming to the Courts for his right,
either absolutely or after
six weeks, when the Order is claimed by
him to have been tainted by bad
faith. And perhaps it is. But
these reflections seem to me to be such as
must or should have
occurred to Parliament when it enacted paragraph 16.
17
They are
not reflections which are capable of determining the construction
of
the Act once it has been passed, unless there is something that one
can
lay hold of in the context of the Act which justifies the
introduction of the
exception sought for. Merely to say that
Parliament cannot be presumed to
have intended to bring about a
consequence which many people might think
to be unjust is not, in
my opinion, a principle of construction for this purpose.
In point
of fact, whatever innocence of view may have been allowable to
the
lawyers of the 18th and 19th centuries, the 20th century
lawyer is entitled
to few assumptions in this field. It is not
open to him to ignore the fact
that the Legislature has often
shown indifference to the assertion of rights
which Courts of Law
have been accustomed to recognise and enforce and
that it has
often excluded the authority of Courts of Law in favour of
other
preferred tribunals.
At one
time the argument was shaped into the form of saying that an
Order
made in bad faith was in law a nullity and that consequently
all
references to compulsory purchase orders in paragraphs 15 and
16 must be
treated as references to such Orders only as had been
made in good faith.
But this argument is in reality a play on the
meaning of the word nullity.
An Order, even if not made in good
faith, is still an act capable of legal
consequences. It bears no
brand of invalidity upon its forehead. Unless the
necessary
proceedings are taken at law to establish the cause of invalidity
and
to get it quashed or otherwise upset it will remain as effective for
its
ostensible purpose as the most impeccable of Orders. And that
brings us
back to the question that determines this case: Has
Parliament allowed the
necessary proceedings to be taken?
I am
afraid that I have searched in vain for a principle of
construction
as applied to Acts of Parliament which would enable
the Appellant to
succeed. On the other hand, it is difficult not
to recall in the Respondents'
favour the dictum of Bacon: "
non est interpretatio, sed divinatio, quae
recedit a litera ".
Lord
Somervell of Harrow
MY LORDS,
Objections
to a Compulsory Purchase Order by the vendor or other
person
aggrieved would, I think, normally fall under one or other
of the following
heads—(1) merits, (2) ultra vires, or
(3) mala fides. There may be debatable
frontiers.
So far as
the merits are concerned, the Act provides for publication,
notices
and objections, if any. Objectors may be heard before a
local inquiry
or individually as provided in the Act. Subject to
the procedures there
laid down, the " merits " are
finally decided by the local authority, subject
to confirmation by
the Minister.
Ultra
vires and mala fides are, prima facie, matters for
the Courts. If the
jurisdiction of the Courts is to be ousted it
must be done by plain words.
A good
example of ultra vires came before the Courts while
this appeal
was being argued. The Act of 1946 provides for a
special parliamentary
procedure if the land covered by the Order
is, inter alia, a common or open
space. The local authority
and the Minister had, bona fide, proceeded
on the basis
that the land was not a common or open space and had not,
therefore,
operated the special procedure. By the time the case came on
the
Minister conceded that the land covered was an open space and
the
Order was quashed (Richardson v. Minister of Housing
and Local Govern-
ment, Times newspaper, February 24, 1956).
Another
example is White and Collins v. Minister of Health [1939]
2 K.B.
838. There was no suggestion of bad faith.
Mala
fides is a phrase often used in relation to the exercise of
statutory
powers. It has never been precisely defined as its
effects have happily
18
remained
mainly in the region of hypothetical cases. It covers fraud
or
corruption. As the Respondents have moved before the bad faith
has been
particularised, one must assume the worst.
It has
been said that bad faith is an example of ultra vires, and
observations
to this effect are relied on by the Respondents in
support of their submission
that the words " not empowered to
be granted " in paragraph 15 of Part IV of
the First Schedule
to the Act cover cases where fraud or corruption is relied
on,
although on the face of it there is no irregularity. The following
passage
from Warrington, L.J., as he then was, is perhaps the most
favourable to
this argument. (Short v. Poole Corporation
[1926] 1 Ch. 66 at p. 91.)
" My
view then is that the only case in which the Court can interfere
"
with an act of a public body which is, on the face of it, regular and
within
" its powers, is when it is proved to be in fact ultra
vires, and that the
" references in the judgments in the
several cases cited in argument to bad
" faith, corruption,
alien and irrelevant motives, collateral and indirect objects,
"
and so forth, are merely intended when properly understood as
examples
" of matters which if proved to exist might
establish the ultra vires character
" of the act in
question." This way of describing the effect of bad faith
should
not be used to blur the distinction between an ultra vires act
done
bona fide and an act on the face of it regular but
which will be held to be
null and void if mala fides is
discovered and brought before the Court. The
division in law is
clear and deep. No party would be allowed to raise
fraud under an
allegation of ultra vires simpliciter. In Demetriades
v.
Glasgow Corporation [1951] 1 A.E.R. 457 the
plaintiff complained of acts
done on his land after requisition.
He alleged inter alia that trees had been
unlawfully
cut. If there had been mala fides the cutting would, as I
follow
it, have been unlawful, but the House would not consider
the possibility
of bad faith in the absence of an express
averment. This is stated by
Lord Normand at the end of his
Opinion. My noble and learned friend,
Lord Morton of Henryton. at
p. 461, said this: "The position would be
" different if
there were any allegation of fact that the competent authority.
"
through his agents the respondents, had acted in bad faith and with
some
" ulterior motive in carrying out this work on the
trees. The truth or
" falsity of such an allegation could be
investigated by a court of law ".
But no such investigation
could take place in a case in which there was a
claim for a
declaration that the cutting had been unlawful.
In
Carltona, Ltd. v. Commissioners of Works and Others (19431
2 A.E R.
560 the writ claimed a declaration that the Commissioners
of Works were not
entitled to take possession of the plaintiffs'
premises and that a notice on which
the Commissioners relied was
invalid. Lord Greene, M.R., held bad faith
could not be raised
under a writ in this form. The words of paragraph 15 are
plainly
appropriate to ultra vires in the ordinary sense. They do not
in their
ordinary meaning, in my opinion, cover Orders which "
on the face of it"
are proper and within the powers of the
Act, but which are challengeable
on the ground of bad faith. The
wording of the paragraph itself supports
this view. If mala
fides is within the paragraph it must be within the
earlier
words " is not empowered to be granted under this Act".
These
words do not apply to a certificate under Part III. If the
paragraph was
to cover mala fides it would have covered it
in relation to a certificate as
well as to an Order. It has not
done so.
This
construction is strengthened by the context. The jurisdiction of
the
Court under paragraph 15 is ousted after six weeks. If
Parliament had
intended that this should apply in the case of a
person defrauded it would
have made it plain, and not left it to
be derived from a doubtful syllogism
which would certainly not
occur to a layman and would not, I think, occur
ordinarily to a
lawyer unless he happened to have had recently to familiarise
himself
with passages such as that I have cited from Lord Warrington.
The
limited right under paragraph 15, therefore, does not apply to
applica-
tions based on bad faith. Pausing there, the victim of
mala fides would have
his ordinary right of resort to the
Courts. It is said, however, that paragraph
19
16 takes
away this right. In other words, Parliament, without ever using
words
which would suggest that fraud was being dealt with, has
deprived a victim
of fraud of all right of resort to the courts
while leaving the victim of a
bona fide breach of a
regulation with such a right. If Parliament has done
this it could
only be by inadvertence. The two paragraphs fall to be
construed
together. Mala fides being, in my opinion, clearly excluded
from
paragraph 15, it should not, I think, be regarded as within
the general
words of paragraph 16. Construing general words as not
covering fraud
is accepted as right in many contexts. This seems
to me an appropriate
context for that principle. The Act, having
provided machinery for access
to the Courts in cases of ultra
vires, cannot have intended to exclude altogether
a person
defrauded. General words, therefore, should not be construed
as
effecting such an exclusion.
The
Respondents sought to rely on the word " whatsoever ". It
is a word
which in certain contexts may bring comfort to those who
seek to include
fraud under general words. Here it is applied, not
to the grounds of challenge,
but to the legal proceedings. Orders
of this kind may be challenged in
various ways, by injunction, by
prerogative writ or the procedure now sub-
stituted, or, as here,
by an ordinary writ. The word " whatsoever " is apt
to
cover this multiplicity.
It is
finally said there might be great inconvenience if after, say,
houses
had been built the validity could be challenged. There are
two grounds
which lead me to give little weight to this. First,
there is a possibility of
fraud in the subsequent proceedings
following on a notice to treat. No one
suggests there is any
ouster or special limitation of jurisdiction in that case.
Further,
if there is a possibility of bad faith in matters of this kind, I
would
think it much more inconvenient to the administration,
national and local,
as a whole that a person defrauded should be
deprived of any remedy
in the Courts. I, therefore, would allow
the appeal.
(31992r)
Wt 8124-124 35 4/56 D.L.JPA/19
