Bedford (Duke of) v Ellis

May 8, 10. Levett, Q.C., and Danckwerts, Q.C., for the appellant. The respondents claim to sue as representatives of the growers, relying upon Order XVI., r. 9, which provides that “where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued …. on behalf or for the benefit of all persons so interested.” But this only extends “to persons who have or claim some beneficial proprietary right which they are asserting or defending in the cause or matter”: Temperton v. Russell.^F2 The respondents have no such right, and there is not here “one cause or matter.” If any respondent has a personal injury owing to a breach of the statutory obligations he can sue for himself, but he cannot sue for such a vague and indefinite class as all growers: see per Lord Eldon in Weale v. West Middlesex Waterworks Co.^F3; Jones v. Garcia del Rio.^F4 There is no precedent in the books for such an action.

The cases relied on by Lindley M.R. – Beeching v. Lloyd^F5 and Warrick v. Queen's College, Oxford^F6 – are quite different. Shareholders in a company, tenants of a manor, creditors of a debtor, can all be ascertained. Growers cannot: they number many thousands, and exist all over the country and abroad. Any one may become a grower at any time. If there be any such right as is claimed for growers, it is a right which can only be enforced (if at all) by the Attorney-General representing the public. If any one has suffered special damage he can sue, but must sue alone. But in truth he can have no right of action under this statute unless he has a lease. Every one has a right to resort to a public market, and this statute confers no right on growers as such. The clauses relied on by the respondents are simply for regulating the market and appropriating particular spaces to particular things — potatoes, fruit, flowers, &c. – and the necessary stands. No action lies for a public nuisance without proof of special damage: if there be any right of action at all here it is in tort for excluding the plaintiffs, but the procedure in Chancery does not apply to actions in tort. Romer J. decided that the Attorney-General alone could sue for the class of growers, and said that the rest of the public might be represented by the Solicitor-General. This was doubted by Lindley M.R., who said he had never heard of such a proceeding. It was adopted in Attorney-General v. Dean and Canons of Windsor^F7, where the Attorney-General appeared for the informant and the Solicitor-General for the Crown. Secondly, this is a joinder of several plaintiffs for several distinct causes of action. It is not allowed by Order XVI., r. 1; the rights do not “arise out of the same transaction or series of transactions”: Stroud v. Lawson.^F8

Asquith, Q.C., and J. T. Prior, for the respondents. The right to sue in a representative capacity is not confined to “a beneficial proprietary right.” That is given as an instance, but it is not exclusive. A body of persons having a common interest in a subject-matter may when that interest is threatened be represented by one or more on behalf of the whole. Here the rights and the common interest are created by statute. It is true that in the case of the yearly pitching stands the letting is permissive, not compulsory; but they can only be let to growers. The yearly cart stands must be exclusively appropriated to the growers' carts, and must be let to them at the schedule tariff. The Duke refused to obey this requirement, and for that there is a cause of action. The statute, no doubt, appropriates and regulates places and stands, but it also imposes an obligation on the Duke to carry out the requirements for the benefit of the growers. This is, no doubt, a large and fluctuating class, but it is one capable of being ascertained, and it has rights antagonistic to that of the general public, and could not therefore be properly represented by the Attorney-General. Rights are claimed in respect of each of the three classes, casual cart stands, yearly cart stands, and yearly pitching stands, and the plaintiffs may succeed in one or two of these and fail in the other; but that is no reason why the claims should not be joined. It is enough that the plaintiffs have a right or rights as a class and against a common enemy.

Secondly, Order XVI., r. 1, embraces this case. There is no reason why each plaintiff should bring a separate action; the claims all arise out of the same transaction or series of transactions, the management of the market.

Levett, Q.C., in reply. Where a grievance complained of is common to a body of persons too numerous to be all made parties, the Court allows one or more to sue for all, provided all the parties have an interest identical with that of the plaintiffs; if what is asked may by possibility be injurious to any of them, those parties must be made defendants, because each of them may have a case to make adverse to the interest of the parties suing. If indeed they are so numerous that it is impossible to make them all defendants, that is a state of things for which no remedy has yet been provided. The words of Lord Cottenham in Mozley v. Alston^F9 are applicable here. The growers are too numerous to be made all defendants. The relief claimed in this action might be injurious to some of the class.