Re Grosvenor Hotel, London (No. 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE SALMON |
| Judgment Date | 30 July 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0730-1 |
| Date | 30 July 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0730-1
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Ungoed-Thomas
The Master of the Rolls
(Lord Denning)
Lord Justice Harman and
Lord Justice Salmon
MR. S. E. BRODIE (instructed by Messrs Menasse, Ralph Freeman & Tobin) appeared as Counsel for the Appellants, Gordon Hotels Ltd.
THE ATTORNEY-GENERAL (SIR JOHN HOBSON, Q. C.), MR. NIGEL BRIDGE and MR. BRYAN CLAUSON (instructed by the Treasury Solicitor) appeared as Counsel for the Respondent, the Minister of Transport.
MR. A. C. GOODALL (instructed by Mr. M. H. B. Gilmour) appeared as Counsel for the Respondents, the British Railways Board.
The Grasvenor Hotel at Victoria Station is well known. In 1900 it was owned by the London, Brighton & South Coast Railway Company. They let it on long lease to Gordon Hotels, Ltd. Since that time the ownership has changed hands to the Southern Railway Company, thence to the British Transport Commission, and now to the British Railways Board. Nothing turns on those changes and I will refer to the landlords throughout as the Railways Board. The tenants have been the Gordon Hotels Ltd. all the time. They have run it for their business as hotel keepers.
The long lease was due to expire on the 31st December, 1962. It must have been apparent to all concerned that, sooner or later, the Victoria Station area would be reconstructed entirely. Early in 1962 the parties took up their positions. The Railways Board desired to get possession. Gordon Hotels Ltd. wanted a new lease. On 3lst May, 1962, the Railways Board (in accordance with Section 25 of the Landlord and Tenant Act, 1954) gave notice to Gordon Hotels, Ltd. pointing out that the tenancy was due to come to an end on 3lst December, 1962: and they said they would oppose a new tenancy on the ground that, on the termination of the current tenancy, they intended to occupy the holding for the purpose of a business to be carried on by them therein. (Note: They did not oppose it on the ground that they intended to demolish the Grosvenor Hotel, presumably because that was not their immediate intention at the end of the tenancy. It might be their intention to do it later, but not then). On 18th July, 1962, Gordon Hotels, Ltd. gave a counter-notice saying they were not willing to give up possession: and on 20th September 1962 they made application to the High Court for a new lease. This application has not yet been heard, pending the question of discovery which we have before us.
It is to be noticed that, in these proceedings under the Landlord and Tenant Act, 1954, the rights of the parties have to be determined as at the date of the hearing. TheRailways Board must establish that, at that date, they intend to occupy the premises for a business to be carried on by them, see Betty's Cafe v. Phillips Furnishing Store Ltd. 1959 Appeal Cases, p. 20. But they have been put into something of a quandary on this score. After the Railways Board gave their notice on 31st May, 1962, a new situation was created by the Transport Act, 1962, which was passed on 1st August, 1962. Under Section 33 of that Act the Commission (now the Railways Board) was required, as soon as practicable, to arrange for their hotels to be transferred to a subsidiary company. The Railways Board have formed this subsidiary called the British Transport Hotels Ltd. (which I will call the Transport Hotels Company); and they must, as soon as practicable, transfer their hotels (including the Grosvenor Hotel) to this subsidiary in return for shares. But in this context the Railways Board have to keep in touch with the Minister of Transport. The Railways Board must tell the Minister what they propose to do: and they must obey his directions. Section 33 of the Transport Act, 1962, is in these terms: "The Minister may give to the Commission directions as to what is to be included in the property and interests to be transferred to the subsidiary (which is in the Act referred to as "the Hotel Company") and the Commission shall before concluding any arrangements give to the Minister particulars of the property and interests which they propose to transfer under the arrangement".
The proposed transfer of the Grosvenor Hotel to the new Hotel Company puts the Railways Board in this difficulty about the new lease: If the Railways Board should transfer the Grosvenor Hotel to the Transport Hotel Company before the date of the hearing the relevant intention (to occupy for their own business) will be not the intention of the Railways Board, but the intention of the new Transport Hotel Company; and the intention of that Company will not suffice to defeat the claim, for that Company will have acquired its interest within the last five years, see Section 30(2). But if the Railways Board do nottransfer the Grosvanor Hotel to the Transport Hotel Company, they will have to prove that it is their own intention to occupy the premises for their own business: and it may be a question whether they intend to occupy it long enough to satisfy the statute. We discussed some of these questions in Willis v. Association of Universities of the British Commonwealth, 1964, 2 Weekly Law Reports, p. 946. It is apparent, therefore, that the intentions of the Railways Board are of very great importance in the litigation.
The present question arises on what discovery should be given on this question of intention. The Secretary of the Railways Board has made two affidavits of documents dated 12th March, 1963, and 14th May, 1963, in which the Railways Board have disclosed a great many documents as to their arrangements for transferring their hotels to the new Hotel Company; and also as to their proposals for the development of Victoria Station. I should have thought these documents would give a very good guide to the intentions of the Railways Board. But in these affidavits the Secretary of the Railways Board objects to producing documents which fall into two categories: (l) those which are protected by legal professional privilege (as to which no question arises): and (2) those said to be protected by Crown privilege, as to which the whole debate arises.
The documents are not all listed in detail but they are described as follows: (a) Official letters by the Secretary of the Commission (now the Railways Board) to the Minister of Transport on 26th October, 1962, and 21st December, 1962. (b) The reply of the Minister of Transport of 21st December, 1962. (c) Correspondence passing between the Commission (now the Railways Board) and the members of the staff of the Minister (and the Treasury Solicitor), (d) Memoranda made by the officers and servants of the Railways Board relating to discussions with the officers of the Ministry of Transport and the Treasury Solicitor's Department. (e) Certain additional memoranda passing betweenthe officers and servants of the Railways Board referring to such documents or to drafts thereof.
In objecting to producing these documents the Secretary of the Railways Board on 12th March, 1963, said in his affidavit that they "cannot be disclosed without injury to the public interest". The Minister of Transport on 21st May, 1963, said in his first affidavit: "I have carefully considered the said documents and memoranda and I have formed the view that they belong to a class of documents which on grounds of public interest ought to be withheld from production". This was held insufficient by Mr. Justice Cross who, on 31st July, 1963, ordered that the documents were to be produced "unless before the 1st November, 1963, a further affidavit claiming privilege of a specified class of documents is filed". On 29th October, 1963, the Minister of Transport made this further affidavit: "(1) I did not as a mere formality confirm the decision already taken by my officials. The whole of the material was submitted to me in full. I considered the whole matter afresh and I came to my independent decision. (2) All the documents…relate to the framing of the policy of Her Majesty's Government, particularly in respect of the exercise of powers conferred upon me by Section 33(3) of the Transport Act, 1962, and as such are within a class of documents which in my opinion on the grounds of public interest ought to be withheld from production".
This affidavit is rather ambiguous, but in the course of the discussion before the Judge it was accepted that it was to be treated as though it read: "All the documents for which Crown privilege is claimed relate to the framing of the policy of Her Majesty's Government in respect of the exercise of powers conferred upon me by Section 33(3) of the Transport Act, 1962, and as such are within a class of document which in my opinion on the grounds of public interest, namely, the proper functioning of the public service, ought to be withheld from production". Even that statement is to my mind incomplete. It does not tell uswhy disclosure would be injurious to the public interest. But in the course of the discussion, the Attorney General gave the reasons why. It was not because the disclosure of any of the contents of the documents would be injurious to the public interest. The Attorney General told us that if we, the Judges, saw the documents, we would not see anything in them which would be injurious to the public interest. The reason for nondisclosure was because in this class of document, it was necessary to secure freedom and candour of communication. The Minister had to take his decision on the best advice and with the fullest information. He could only get it if those giving advice or information, or receiving it, could rest assured that it was confidential and would not be disclosed in...
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