Graigola Merthyr Company v Swansea Corporation
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Viscount Dunedin |
| Judgment Date | 31 January 1929 |
| Judgment citation (vLex) | [1929] UKHL J0131-1 |
| Date | 31 January 1929 |
| Court | House of Lords |
[1929] UKHL J0131-1
House of Lords
Lord Chancellor.
Viscount Dunedin.
Lord Shaw.
Lord Buckmaster.
Lord Carson.
After hearing Counsel for the Appellants, as well on Tuesday the 27th, as on Thursday the 29th days of November last, upon the Petition and Appeal of the Graigola Merthyr Company, Limited, whose registered office is situate at Cambrian Place, Swansea, in the County of Glamorgan, praying: That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 15th of December, 1927, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of the Mayor, Aldermen and Burgesses of the Borough of Swansea, lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled. That the said Order of His Majesty's Court of Appeal, of the 15th day of December, 1927, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be. and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Lord Chancellor desires me to say that he has read this opinion, which I have committed to writing, and that he agrees with its conclusions.
My Lords, the facts of this case necessary to disclose the question upon which the appeal depends need not be dealt with historically but can be summarised in a few sentences. The Appellants are the owners of a colliery and at the material dates were working a seam of coal called the Graigola Seam, which extends under the site of a reservoir constructed by the Respondents, who are the Urban Sanitary Authority for the District and Borough of Swansea. By arrangement between the parties, the reservoir had been emptied but on the 12th January, 1920, the Town Clerk of the Respondents sent a letter to the Appellants stating that it should be refilled. No act, in fact, was done towards the filling, but the Appellants, apprehending that it could only take place at the imminent risk of damage to their colliery workings and of possible loss of life, instituted the proceedings out of which this appeal arose asking for an injunction to restrain the Respondents from filling the reservoir. This proceeding was in its essence a Chancery suit for a Quia Timet Injunction. After a prolonged hearing the action failed and was dismissed with costs, but the Appellants' liability was limited to two-thirds of the total amount. No express reference was made in the actual judgment to the costs being as between Solicitor and client. The Minutes of the Order prepared by the Registrar introduced this provision upon the ground that Section 1 of the Public Authorities Protection Act, 1893, applied. The costs are said to have been brought in at the sum of £70,000 and the Appellants, not unnaturally being anxious to limit as far as possible their liability, moved to vary the Minutes by omitting the words "as between Solicitor and client." This Motion was refused by Mr. Justice Tomlin and his judgment was affirmed by the Court of Appeal.
Section 1 of the Public Authorities Act of 1893 is in the following terms:—
"1. Where after the commencement of this Act any action (prosecution or other proceeding) is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty or authority, the following provisions shall have effect:—
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within 6 months next after the ceasing thereof;
(b) Wherever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client."
The Appellants urge that the terms of this Section can have no application to such proceedings as those they instituted, that the relief they sought was a relief against the immediate intention to do something and that it was not an action to restrain the repetition or continuance of a definite wrongful act. Consequently, they contend that it would be impossible to assign the "act done" referred to in Section 1 and that it is only in respect of ah action for an act done that the protection in Sub-section (b) applies. They enforce this argument by saying that the period of limitation for the action is six months after the act done and that it is impossible to convert an intention to do something into something actually done. They further point out that this House in the case of the Bradford Corporation v. Myers, 1916 A.C., page 242, has declared that the Act applies only to a definite class of action and that the words need careful and strict scrutiny. There is no need to enlarge upon the principle there laid down. An Act conferring privileges such as these upon a special class of person certainly needs strict examination,...
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