Bedford (Duke of) v Ellis

JurisdictionUK Non-devolved
Judgment Date1901
CourtHouse of Lords
Date1901
[HOUSE OF LORDS.] THE DUKE OF BEDFORD APPELLANT; AND ELLIS AND OTHERS RESPONDENTS. 1900 Dec. 10. EARL OF HALSBURY L.C., LORD MACNAGHTEN, LORD MORRIS AND KILLANIN, LORD SHAND, LORD BRAMPTON, and THE LORD CHANCELLOR.

Practice - Parties - Representative Action - Action on behalf of a Class of the Public - Joinder of Plaintiffs - Joinder of several Causes of Action - Rules of Supreme Court, Order XVI., rr. 1, 9.

Order XVI., r. 9, which provides for persons suing or being sued as representing a class, is not confined to persons who have or claim some beneficial proprietary right which they are asserting or defending. To justify a person suing in a representative character it is enough that he has a common interest with those whom he claims to represent.

Several plaintiffs sued on behalf of themselves and all others the growers of fruit, flowers, vegetables, roots and herbs within the meaning of the Covent Garden Market Act, 1828, to enforce various preferential rights to stands in the market, which they alleged to have been given to the class of growers by the Act. The defendant was the lord of the market:—

Held, that without prejudging the construction of the Act the plaintiffs had an interest in common, and that the defendant was not entitled to have the action stayed either on the ground that the plaintiffs had no beneficial proprietary right, or that the joinder of plaintiffs claiming separate and different rights under the Act, both personally and as representing a class, would embarrass or delay the trial.

The decision of the Court of Appeal, [1899] 1 Ch. 494, affirmed by Lords Macnaghten, Morris and Killanin, and Shand, the Earl of Halsbury L.C. and Lord Brampton dissenting.

Temperton v. Russell, [1893] 1 Q. B. 435, reflected on.

Quære, whether it was necessary to join the Attorney-General as a defendant.

THE respondents, Ellis and five other persons, on behalf of themselves and all others the growers of fruit, flowers, vegetables, roots or herbs within the meaning of the 9 Geo. 4, c. cxiii., brought an action against the appellant, the Duke of Bedford.

By the statement of claim they set forth certain provisions of the Covent Garden Market Act, 1828 (9 Geo. 4, c. cxiii., a public Act), which they alleged gave various preferential rights in respect of the use of the market to the class of growers. They alleged that the Duke in his management of the market as owner did not comply with the provisions of the Act in certain particulars, and had (inter alia) exacted excessive tolls from the growers. They claimed declarations that they were entitled to the alleged preferential rights, an injunction to restrain the Duke from doing any acts contrary to declarations so claimed, and an account of the sums charged in excess during the six years preceding the issue of the writ. The material parts of the statement of claim and the Act are fully set out in the report of the decision belowF1 and are closely discussed in the judgment of Lord Brampton.

The Duke having taken out a summons to set aside the writ and all other proceedings, Romer J., being of opinion that the plaintiffs were not entitled to sue on behalf of themselves and all others the growers of fruit, &c., within the meaning of the Act, nor to sue together as co-plaintiffs in one action in respect of the alleged causes of action respectively alleged by them personally and otherwise than in their capacity as representing themselves and all other growers, ordered that the action be stayed in respect of all matters and causes alleged in a representative capacity, and that unless the plaintiff should within fourteen days elect one of them to proceed as sole plaintiff and only in respect of his individual and personal causes of action, the action should be dismissed with costs.

The Court of Appeal (Lindley M.R. and Rigby L.J., Vaughan Williams L.J. dissenting), upon the plaintiffs undertaking to add the Attorney-General as a defendant, ordered that the plaintiffs be at liberty to amend the writ and statement of claim accordingly, and to amend the statement of claim as they might be advised, and that the order of Romer J. be discharged.

The Duke appealed.

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. LloydF5 and Warrick v. Queen's College, OxfordF6 – 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 WindsorF7, 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. AlstonF9 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.

The House took time for consideration.

Aug. 6. EARL OF HALSBURY L.C. My Lords, in this case I feel some difficulty about the judgment that I ought to pronounce. It is not a judgment upon the merits of the cause, but it is in an interlocutory proceeding claiming that the action is improperly constituted and insisting upon the necessity of selecting some one or more plaintiffs who shall represent the same rights. My Lords, I have read the judgment proposed to be...

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145 cases
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    • Court of Appeal
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    ...the decided cases to which our attention has been drawn. The leading case is the case of the ( Duke of Bedford v. Ellis and Others 1901 Appeal Cases, page 1) in the House of Lords. That was a case in which a number of persons, a class ofpersons — there were in fact two or three classes, but......
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64 books & journal articles
  • Rethinking the Approval of Class Counsel's Fees in Ontario Class Actions
    • Canada
    • Irwin Books The Canadian Class Action Review No. 4-1, July 2007
    • 1 July 2007
    ...of Lords that historically the representative action was “a simple rule resting merely upon convenience.” See Duke of Bedford v. Ellis, [1901] A.C. 1 at 10 (H.L.). For a lengthy discussion of the history of the class action, see John A. Kazanjian, “Class Actions in Canada” (1973) 11 Osgoode......
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    • 1 October 2011
    ...reversed the progressive trend and narrowed the application of class actions in Canada and the United Kingdom for decades. 34 35 36 37 38 [1901] AC 1 (HL) [Duke of Bedford]. Ontario Law Reform Commission, above note 10 at 11. Duke of Bedford, above note 34 at 8. [1901] AC 426 at 443 (HL). [......
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    • Irwin Books The Canadian Class Action Review No. 14-1, December 2018
    • 1 December 2018
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    • United States
    • US Code 2023 Edition Title 28 Appendix Federal Rules of Civil Procedure Title IV. Parties
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