Smith v Cardiff Corporation

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS
Judgment Date04 November 1953
Judgment citation (vLex)[1953] EWCA Civ J1104-3
Docket Number1953. 8. No. 3323.
Date04 November 1953

[1953] EWCA Civ J1104-3

In The Supreme Court of Judicature

Court of Appeal

Before:

The Master of the Rolls (Sir Raymond Evershed) Lord Justice Jenkins and Lord Justice Morris

1953. 8. No. 3323.
Herbert William Smith, Trevor Spickett Roberts, John Waters, and William John Williams, (suing on behalf of themselves and all other tenants of houses provided by the Defendants under Part V of the Housing Act 1936)
and
The Lord Mayor, Aldermen and Citizens of the City of Cardiff

MR KENNETH DIPLOCK, Q.C., and MR RALPH MILLNER (instructed by Messrs Wrentmore & Son, agents for Messrs Thomas John & Co. Cardiff) appeared on behalf of the Appellants (Plaintiffs).

MR H. EDMUND DAVIES, Q.C., and MR DAVID PENNANT (instructed by Messrs Theodore Goddard & Co., agents for Mr Sydney Tapper Jones, Town Clerk, Cardiff) appeared on behalf of the Respondents (Defendants).

THE MASTER OF THE ROLLS
1

On the 22nd July in the present year a Writ was issued against the Lord Mayor, Aldermen and Citizens of the City of Cardiff, the Plaintiffs being described on the face of the Writ as follows: "Herbert William Smith, Trevor Spickett Roberts, John Waters, and William John Williams (suing on behalf of themselves and all other tenants of houses provided by the Defendants under Part V of the Housing Act, 1936)". The Writ claimed a declaration that a decision made on or about the 8th June, 1953, by the Defendants, purporting to authorise the introduction and operation of a scheme for certain specified increases of the rents payable by the tenants of Council houses, was ultra vires and void; and there was an alternative suggestion that it was in part, if not wholly, so void. By the second paragraph of the Writ the Plaintiff sought an injunction to restrain the Defendants their servants and agents from carrying out this scheme or from carrying it out so far as it was held to be ultra vires; and an interim injunction was sought on the face of the Writ.

2

The Defendants proceeded to apply, after entering a conditional appearance, to have the Writ struck out and all proceedings stayed on the ground that the action was not properly constituted as a representative action — that is to say, that the action was not one which fell within the ambit of Order 16, Rule 9. That Order reads: "Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue … on behalf of or for the benefit of all persons so interested". The question which now arises for our determination is whether, in the circumstances of this case, the conditions of that rule are satisfied — whether this is a case in which "there are numerous persons having the same interest in one cause or matter".

3

The problem is easy to state but has proved somewhat difficult to determine. As a foundation, however, for whatfollows, I must state a little more fully what are the relevant facts. We have been told that the total number of the tenants of houses provided by the Defendants in accordance with their obligations under the Housing Act, 1936, amounts to over 13,000. It is not proved what are the forms of the various tenancies; but it has been assumed during the course of the argument, and I will assume for the purposes of this Judgment, that the contracts of tenancy so far as relevant are in all 13,000 cases the same. The rents, of course, would vary according to the size and location of the premises, but otherwise I will assume that the conditions of the tenancy and the circumstances in which the tenancies may be determined are in all cases the same. Since the various tenants are tenants of a local authority they would not be entitled to the protection of the Rent Restrictions legislation; so that on the footing that all these are weekly tenancies (and again I so assume) the right of any tenant is to remain in these premises so long as he conforms with the conditions of the tenancy agreement, but subject to the right of the Council to determine his tenancy on giving a week's notice.

4

The scheme which is the subject of the attack in the Writ is to be found set out in a document dated the 26th. June, 1953, a copy of which, as I understand, was sent to every one of the 13,000 tenants. The Cardiff Corporation (as other local authorities) are under statutory obligation not only to provide housing accommodation but also, as has been pointed out, to try (in the common phrase) "to make ends meet", and they therefore came to the conclusion that their obligation in the latter respect could not be fulfilled unless there were some increases in the rents they were receiving for the Council dwellings. The scheme which they put forward is designed to give an increased rental income but to distribute the burden among the various tenants in accordance, not with the location or size of the premises, or not at any rate entirely so in accordance, but in part in accordance with the ability of the tenantsrespectively, having regard to their individual financial circumstances, to pay. Whether that is a just or fair arrangement it is not for this Court to say. It may involve problems of political or social philosophy which might be strongly debated — whether it is right (as was put in the course of the argument) that a millionaire should pay more for a loaf of bread than an old-age pensioner; but at any rate that is the principle which lies behind this scheme, that the increases which are to be imposed will depend (at any rate to some extent) on the ability of the tenants to pay. I gather that this is not the first occasion on which a scheme of this sort has been put forward by a local authority. It is, however, quite obvious that, assuming such a scheme to be fair and just, it must be justly administered; otherwise the conscientious and truthful would suffer at the hands of the less scrupulous; and for that reason the Council had to put forward some means whereby they could ascertain the exact circumstances of the individual tenants. I do not propose to read the document but only to say that the questionnaire which fair administration required to be answered involved a searching inquiry into the personal circumstances of all the individual tenants. They were required to state in great particularity the exact income which each of them was receiving from all sources except some excepted sources like National Insurance of Pension. They were required to give full information not only about their own financial circumstances but about the condition and earning capacity of their families, so far as they were resident with them; and in order, no doubt, to provide some form of sanction the document contains in leaded type the following statement which the tenant was required to sign: "I hereby declare that the above statement is true and correct and I understand that the giving of incorrect information herein or failure to notify any change which will affect the rent charge may be regarded as good reason forterminating the tenancy". They were also informed that if they did not choose to fill in the form they would be assumed to be liable for the maximum increase.

5

It is a common fact of human relations that ordinary men and women will always tend to dislike being charged more for something for which they have hitherto paid less. It is also a common fact of human relations that a great many people strongly dislike having to give information of this detailed character about themselves, their families and their financial circumstances; and it is therefore perhaps not surprising that this notice sent out to the 13,000 odd tenants of the Cardiff Corporation received a somewhat hostile reception. We have been informed that meetings took place, that a Tenants' Protection Committee was formed, and we have indeed evidence that no 1000 than 9,000 persons have signed a document expressing their approval of the present proceedings.

6

It was in those circumstances that the Writ was issued in the form which it takes. I might perhaps add this. The learned Junior Counsel who has appeared for the Plaintiffs, Mr Millner, was not entirely inexperienced in matters of this kind, for our attention was called to another case, ( Belcher and Others v. Reading Corporation 1950, 1 Chancery, page 380), in which tenants sought to challenge the validity of what the Reading Corporation had been disposed to do, and the form of action there selected was a representative action and Mr Millner appeared as Counsel for the Plaintiffs. In that case (as is apparent from what occurred before Mr Justice Harman during interlocutory proceedings) a question arose of the propriety of a representative action in circumstances such as the present. Learned Counsel for the Reading Corporation submitted that in strictness the case did not fall within the ambit of Order 16, Rule 9, but stated that the Reading Corporation were not disposed to object to the form of proceeding: it was obviously desirable that the matter that had been raised should be speedily determined; and, as thelearned Judge himself said, a representative form of action, as distinct from, or as an alternative to, what is called a test action, was a convenient form of proceeding. If Mr Millner expected the Cardiff Corporation to be as accommodating as the Reading Corporation he has proved to be mistaken.

7

There is no doubt that in other branches of the work of these Courts actions on behalf of a group of persons who all have similar rights are found convenient. My brother Morris in the course of the argument asked whether it was not a fact that actions are brought in this way by the owners of cargo in a particular ship; and he has since found an example in the books of such a case. See Morrison Steamship Company Limited v. Greystoke Castle ( Cargo Owners), 1947 Appeal Cases, page 265. The procedure in that class of litigation is no doubt of a somewhat special character; but I refer to it because I...

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17 cases
1 books & journal articles
  • Representative Procedures and the Future of Multi‐Party Actions
    • United Kingdom
    • The Modern Law Review Nbr. 62-4, July 1999
    • 1 July 1999
    ...8. Lord Morris and Killanin concurring, see 13. See also Lord Brampton at 22–23.24 n 22 above, 443. See also Smith vCardiff Corporation [1954] 1 QB 210, 225; John vRees [1970] Ch345, 370; Irish Shipping vCommercial Union Assurance Co [1991] 2 QB 206, 239, 241 (The IrishRowan).25 [1971] RPC ......

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