Burrells Wharf Freeholds Ltd v Galliard Homes Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dyson |
| Judgment Date | 01 July 1999 |
| Judgment citation (vLex) | [1999] EWHC J0701-9 |
| Docket Number | Case No: HT99000037 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 July 1999 |
[1999] EWHC J0701-9
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY and CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Dyson
Case No: HT99000037
Paul Infield (instructed by Fairweather Stephenson for the Applicant)
Michael Stimpson (instructed by Howard Kennedy for the Respondent)
Approved by the Court for handing down (subject to editorial corrections) I direct pursuant to RSC Ord.68 r.1 that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Dyson
Introduction
This is an application for pre-action discovery of the documents set out in the Schedule annexed to the Application Notice. It is made under CPR 31.16, which so far as material provides:
"(1) This rule applies where an application is made to the court under
any Act for disclosure before proceedings have started.
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(3) The court may make an order under this rule only where -
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent's duty by way of standard
disclosure, set out in rule 31.6, would extend to the documents or
classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to-
(i.) dispose fairly of the anticipated proceedings;
(ii.) assist the dispute to be resolved without proceedings; or
(iii.) save costs."
Before 26 April 1999 the right to make an order for pre-action disclosure was restricted to actions
in which claims were made in respect of personal injury or death. However, on that date sections
33 and 34 of the Supreme Court Act 1981 were purportedly amended by article 5 of The Civil
Procedure (Modification of Enactments) Order 1998, SI 1998/2940 ("the Order") so as to remove
the restriction. On behalf of Galliard Homes Ltd ("Galliard") , Mr Stimpson submits that article 5 of
the Order is ultra vires, and that I should declare it to be null and void. I shall deal with this point
first.
Ultra vires
The relevant primary legislation which needs to be considered is to be found in the Civil Procedure
Act 1997, which, so far as material, provides as follows:
"1. Civil Procedure Rules
(1) There are to be rules of court (to be called " Civil Procedure Rules") governing
the practice and procedure to be followed in-
(a) the civil division of the Court of Appeal,
(b) the High Court, and
(c) county courts.
(2) Schedule I (which makes further provision about the extent of the power to make
Civil Procedure Rules) is to have effect.
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4. Power to make consequential amendments
(1) The Lord Chancellor may by order amend, repeal or revoke any enactment to the extent he considers necessary or desirable in consequence of�
(a) section 1 or 2, or
(b) Civil Procedure Rules.
(2) The Lord Chancellor may by order amend, repeal or revoke any enactment passed or made before the commencement of this section to the extent he considers necessary or desirable in order to facilitate the making of Civil Procedure Rules.
(3) Any power to make an order under this section is exercisable by statutory instrument.
(4) A statutory instrument containing an order under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) No order may be made under subsection (2) unless a draft of it has been laid before and approved by resolution of each House of Parliament.
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8. Disclosure etc of documents before action begun
(1) The Lord Chancellor may by order amend the provisions of section 33(2) of the Supreme Court Act 1981, or section 52(2) of the County Courts Act 1984 (power of
court to order disclosure etc of documents where claim may be made in respect of
personal injury or death) , so as to extend the provisions -
(a) to circumstances where other claims may be made, or
(b) generally.
(2) The power to make an order under this section is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
So far as material, the Order provides as follows:
"The Lord Chancellor, in exercise of the powers conferred on him by section 4(2) of the Civil Procedure Act 1997, hereby makes the following Order of which a draft has, in accordance with section 4(5) of that Act, been laid before and approved by resolution of each House of Parliament -
1. This Order may be cited as the Civil Procedure (Modification of Enactments) Order
1998 and shall come into force at the same time as the first Civil Procedure Rules made
under section 2 of the Civil Procedure Act 1997.
2. The amendments set out in this Order shall have effect.
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5. The Supreme Court Act 1981 is amended as follows �
(a) in section 33 (powers of High Court exercisable before commencement of action) , in subsection (2) , omit "in which a claim in respect of personal injuries to a person, or in respect of a person's death, is likely to be made,"; and
(b) in section 34 (power of High Court to order disclosure of documents, inspection of property etc.) -
(i) omit subsection (1) ; and
(ii) in each of subsections (2) and (3) , omit "to which this subsection applies".
Mr Stimpson's argument is simplicity itself. He submits that article 5 of the Order should have been made under sections 8(1) and (2) of the 1997 Act, and not under section 4(2) . Section 4 does not cover the same ground as section 8. The express reference in section 8 to the power to amend earlier legislation concerning pre-action disclosure shows that it was not intended that such a power be conferred by section 4. Moreover, article 5 of the Order could not reasonably be said to be necessary or desirable in order to facilitate the making of Civil Procedure Rules" as required by section 4(2) of the 1997 Act.
In my judgment, this argument must be rejected for the two following reasons:
(i) the Order was made on 27 November 1998, some 5 months before the Civil Practice Rules ("CPR") came into force. The Lord Chancellor wished to include in the new rules a provision which would give the court the discretion to order pre-action disclosure in all classes of case, thereby abrogating the rule which restricted such orders to actions involving claims for damages for personal injury or death. In the absence of an amendment of sections 33 and 34 of the 1981 Act, that wish would have been thwarted. Thus, it was necessary to amend those sections of the 1981 Act in order to facilitate the making of CPR 31.16, 50 as to ensure that it did apply in all cases, and not merely in actions for damages for personal injury or death. As for Mr Stimpson's argument based on the existence of section 8 of the 1997 Act, that section clearly could not prevent the Lord Chancellor from coming to the conclusion that it was necessary and/or desirable to amend sections 33 and 34 of the 1981 Act in order to facilitate the making of CPR 31.16. Once he reached that conclusion (as plainly he must have done) , it was open to the Lord Chancellor to invoke section 4(2) of the 1997 Act. No doubt, he could equally have made article 5 of the Order pursuant to section 8 of the 1997 Act. There are situations in which the express inclusion of a power in one provision of an instrument impliedly excludes that power from another provision. But whether such implied exclusion is to be imputed to the draftsman must depend on an examination of the particular instrument in question. There is nothing unusual in drafting a general provision, and then also (for the avoidance of doubt) making a specific provision which covers the same ground. In this case, section 4(2) confers the general power. In my view, the generality of its application is not prejudiced or undermined by the existence of the specific power granted in section 8.
(ii) Even if there were no power to include article in the Order pursuant to section 4(2) of the 1997 Act, that would not avail Mr Stimpson. He accepts that the Lord Chancellor had the power under section 8 to include article 5 in the Order that he made. Thus, it is common ground that the substance of article 5, which is included in the operative part of the order, was valid and lawful. In my view, if there was a mistaken reference in the recital to the source of the power to make that part of the order, it was of no consequence, and could not affect its validity. On this hypothesis, the situation would be analogous to situations which have been previously considered by the courts where a public authority or person exercising a public law power purports to do so by reference to the wrong legislation.
Thus, in Finbow v Air Ministry [1963] 1 WLR 697 at 709, a Minister mistakenly exercised a formal power of approval of a licence to occupy land under a repealed section of a statute, instead of its re-enacted successor. It was argued that this was not an effective approval, and was therefore a nullity. McNair J held that to hold that the misdescription of his powers rendered the document a nullity would defeat the plain intention of the Minister. He continued in an explosion of Latin:
"It is, in my judgment, a plain case for the application of the maxim falsa
demonstratio non nocet and of the principle embodied in the maxim magis
valeat quam valeat. There is a total inconsistency and repugnancy between
the minister's manifest intention and the...
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