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Smith Vs. East Elloe Rural District Council and Others - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case NumberNo.
Judge
AppellantSmith
RespondentEast Elloe Rural District Council and Others
Excerpt:
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.....
Judgment:

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,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, provides 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 provisions 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 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 regulationmade 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 jurisdiction 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 speculation. 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 jurisdiction 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 Interpretation 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 notoverride 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 proceedings 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 thedwellinghouse 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.

5. Further and other relief.

6. Damages.

7. 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 reliefaffects 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 confirmation 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 undertaking,

(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 confirmation 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—

(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 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."

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: —

1. 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.

2. 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.

3. 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 paragraph 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,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 precluded 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 hadinquired 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 jurisdiction, 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 orless 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 relationto 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 provisions 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 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 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, modifications 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 conclusion 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. Ishall, 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 provisions 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 confirmation, 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 Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 K..B. 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 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 Parliament 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 distinction 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 paragraph 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 lyingbehind 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 uestion is whether this use of general words necessarily leads to the conclusion that the jurisdiction of the Court is entirely excluded in all cases of misuse 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 deliberately 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 advantage 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 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. 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 beembarrassing 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 consequence 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 proceedings 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 orby 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 unreasonableness, 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 authorisation 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 ostensible 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.

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 Government, 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 happilyremained 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 applications 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 paragraph16 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 substituted, 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.


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