Brownsea Haven Properties v Poole Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROMER,LORD JUSTICE ORMEROD |
| Judgment Date | 16 December 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1216-3 |
| Date | 16 December 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J1216-3
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Justice Romer And
Lord Justice Ormerod.
The Hon. DENYS B. BUCKLEY (instructed by the Treasury Solicitor) appeared on behalf of the Appellants (Defendants).
Mr. G. D. SQ, Q. C. and Mr. R. D. HARMAN (instructed by Messrs, Cripps, Harries Hall & Co.) Appeared on behalf of the Respondents (Plaintiffs).
THE MASTER OF THE ROLLS (Judgment read by Lord Justice Romer):
This is an appeal against a Judgment of Mr. Justice Vaisey declaring ultra virus and void an Order made by the Defendants on the 5th March of this year under powers which they claim to be available to them under section 21 of the Town Police Clauses Act, 1847. Omitting formal parts, the terms of that Order, the intended effect of which was to make, for the period of six months specified therein, the thoroughfare described in the Order what is commonly called a "one-way street," were as follows: "Where? The streets to which this Order applies are during certain seasons of the year thronged and liable to be obstructed unless upon the direction or with permission of a police officer in uniform from the Nineteenth day of April One thousand nine hundred and Fifty seven to the Nineteenth day of October One thousand nine hundred and Fifty-seven (both dates inclusive) the route to be observed by all vehicles in (I) Banks Road between its junctions with Panorama Road shall be towards their south western junction and (ii) Panorama Road shall be towards its north eastern junction with Banks Road. For the purposes of this Order "vehicle" includes bicycles and similar machines whether mechanically propelled or not. All constables are hereby directed to enforce the provisions of this Order…. "
Before Mr. Buckley could begin to open the appeal on the Defendants' behalf, Mr. Squibb for the Plaintiff-Respondents toe: a preliminary objection which, in the form as it was first presented, was that Mr. Buckley's instructions came from a solicitor who had no practicing certificate in accordance with the Solicitors Act, '1956. The real substance, however, of the objection was directed to the fact that the Treasury Solicitor (who, being in fact a member of the bar is incapable of obtaining a practicing certificate) was representing the Defendants for the purpose of the appeal. The office of Treasury Solicitor is derived from the Revenue Solicitors Act, 1828. He normally acts for her Majesty or for Ministers of the Crown or other persons in the service of her Majesty. But he may also, in certain circumstances, be instructed by or on behalf of the Crown to offer his services to a private individual in the course of litigation and, if his services are accepted, may thenceforward act for each private individual. The circumstances which justify such instruction and such a result are that the Crown has an interest in the subject matter of the litigation: See the decision of this Court in The ( King v. Archbishop of Canterbury 1903, 1 King's Bench, page 289).
So far there was no contest between Mr. Squibb and Mr. Berkley. But it was Mr. Squibb's contention that the Crown had in truth no interest whatever in the subject-matter of the present appeal, which was one exclusively between the Poole Corporation on the one hand and the Plaintiff company, a property owner within the local jurisdiction of the Corporation, on the other; and Mr. Squibb sought particular support for his submission from the circumstance that the Order of March, 1957, had in any case expired on the 19th October last, so that (as he claimed) the only live issue between the Plaintiffs and Defendants was that of the by Mr. Justice Vaisey to the Plaintiffs of the costs of the action.
After hearing arguments from Mr. Squibb and Mr. Buckley, we intimated that we were not disposed to accept the objection as to the appeal in ; and we proceeded to hear the substance of the appeal accordingly. In the result, I have for my part been strongly confirmed in the view which I had been earlier disposed to take, videlicet, that the Crown has in the present case an interest in the subject-matter amply sufficient to support and justify its intervention.
In the Archbishop of Canterbury's case, the question at issue had been whether upon the election of a bishop objections could be put forward on doctrinal grounds after confirmation of the election by the Archbishop; and the Court had no difficulty in holding that the Crown had a sufficient interest in the matter to justify the Treasury Solicitor's appearance for and representation of the Archbishop. He exposition is to be found in the Judgments of what constitutes a sufficient "interest" for present purposes? Mr. Buckley submitted that it sufficed if the Crown or some Minister of the Crown or perhaps the Treasury Solicitor himself asserted the existence of an "interest" in the Crown. The argument does not appear to have been advanced by the then Solicitor-General, Sir Edward Carson, in the Archbishop's case, and the language, at any rate of Lord Justice Sir Robert Romer at pages 294 and 295 of the report, seems clearly to avoid so deciding. At page 294 he said; "Under those circumstances, the Crown, for what appear to me good and sufficient reasons, came to the conclusion that it was to the interest of the Crown that it should at its own expense, defend on behalf of the archbishop". And, at page 295, "It appears to me that where the Crown for good and sufficient reasons thinks it is for it s in that the defense of an individual, in an action or proceeding against him, should be undertaken, and the Treasury Solicitor is delegated by the Treasury authorities to act as solicitor for that individual, that is within the rights of the Crown, and is within the purview of the ordinary duties of the solicitor.
No doubt in 99 cases out of 100 the view of a Minister of the Crown that the Crown was "interested" in any given subject matter would at the least strongly support the conclusion that it has; but I should not, as at present advised, be disposed to hold that in such cases the ipse dixit of a Minister or his representative was itself conclusive. In the present case, however, I feel no doubt at all that the Crown has an "interest," according to the ordinary acceptation of that word, in the subject-matter in dispute. Traffic control is notoriously a matter of national concern; and the real question at issue in the action is whether a broad class of local authorities, of which the Defendant Corporation is one, by virtue of the 1847 Act, power, of its own motion, to regulate traffic within the ambit of its jurisdiction by means of Orders of the kind so far successfully impugned in this action; or whether such Orders can only competently be made under the much more recent Road Traffic legislation which requires their confirmation by the Minister of Transport. In my judgment, it is impossible sensibly to deny that the Crown, and particularly the Minister of Transport, has an interest in that question. Nor can I accept Mr. Squibb's argument that the expiry of the Defendants' Order of March according to its terms makes the matter purely academic or that the only "live issue" is one of costs, in which (as such) the Crown could legitimately have no interest at all. The question of the scope and availability to the Defendants of section 21 of the 1847 Act for the purposes of traffic regulation remains, in my view, a "live issue" notwithstanding the expiry of the March Order by effluxion of time. It is not in doubt that the Defendant Corporation wishes to avail itself of the powers of the 1847 Act (if they subsist) for the purposes of traffic regulation as occasion may require; and we were informed that the decision of the Court below has similarly affected other municipal authorities. Put conversely, it is not suggested that the Order of last March exhausted the intended invocation by the Defendants of the powers of the 1847 Act for regulating the traffic of Banks Road and Panorama Road, let alone other thoroughfares within their jurisdiction: still less that (as in the Sun Life Assurance case. 1944 Appeal Cases, page III) the result of this appeal could be said to be a matter of indifference to the Plaintiff-Respondents.
I turn, therefore, to the substance of the appeal itself. Section 21 of the Town Police Clauses Act, 1847 (of the powers conferred by which the Defendants' recited Order of March last purported to be an exercise) reads as follows: "The commissioners may from time to time make orders for the route to be observed by all carts, carriages, horses, and persons, and for preventing obstruction of the streets, within the limits of the special Act, in all times of public processions, rejoicings, or illuminations, and in any case when the streets are thronged or liable to be obstructed, and may also give directions to the constables for keeping order and preventing any obstruction of the streets in the neighbourhood of theatres and other places of public resort; and every wilful breach of any such order shall be deemed a separate offence against this Act, and every person committing any such offence shall be liable to a penalty not exceeding forty shillings'.
It was the contention of Mr. Squibb and Mr. Harman which they put in the forefront of their case in support of the conclusion of Mr. Justice Vaisey, that the Defendants' Order, the declared intention and effect of which was to make of Banks Road and Panorama Road (as defined in the Order) a "one-way street was outside the scope of the section since, notwithstanding the express use therein of the five vital words, the Order did not amount to an order for "the route to be observed" by...
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