Victoria Oluremi George v The Secretary of State for The Environment (First Respondent) The Council of The London Borough of Greenwich (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL |
| Judgment Date | 30 January 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0130-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1977 No. SJ 200 |
| Date | 30 January 1979 |
[1979] EWCA Civ J0130-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
(Sir Douglas Frank. Q.C. sitting as a Deputy Judge of The Queen's Bench Division)
The Master of The Rolls
(Lord Denning)
Lord Justice Roskill and
Lord Justice Cummins-Bruce
MR. M. HOWARD (instructed by Messrs. Antony Steel & Co., Solicitors, London) appeared on behalf of the Applicant (Respondent).
MR. H.K. WOOLF (instructed by the Treasury Solicitor-) appeared on behalf of the First Respondent (Appellant).
MR. D. KEANE (instructed by A.A. Child, Esq., LL.B Solicitor to the Council) appeared on behalf of the Second Respondent (Appellant).
Some time ago Mr. and Mrs. George came from Nigeria. He came to be a student of law. At one time he was said to be a barrister of Lincoln's Inn, but that was not right. He was a student at Newcastle. In 1967 Mr. and Mrs. George bought a three storied terrace house 15 Brookhill Road, S.E.18. They bought with the aid of a mortgage from the local council (now the Borough of Greenwich). The house was registered in their joint names. But they did not manage it properly. The house got very badly out of repair. They filled it with many, many people from overseas. It became overcrowded. They did not pay the rates. It presented (in the words of an inspector later) "a massive housing problem for the local council". The council summoned Mr. and Mrs. George from time to time for not doing this, that and the other. The house presented such a problem to the council that in November 1974 they decided it was a case where they ought compulsorily to purchase the house because it was so overcrowded and so out of repair. According to his statements, Mr. George was earning good money. So was his wife. Nevertheless they looked after the house so badly that the council thought the only solution was to acquire the house compulsorily.
The council passed a resolution under the Housing Act to acquire it. In accordance with the requirements of the Housing Act, they sent out notices so as to find out who were the owners of the house. By this time the local council were not the mortgagees. There had been a redemption of their mortgage. It had been replaced by a mortgage to Barclays Bank. The local council sent out the statutory notices to find out who were the owners or who was interested. They sent out a notice both to Mr. George and to Barclays Bank. They received back clear and unequivocable statements, not only from Mr. George but also fromthe bank saying that Mr. George was the owner of the premises. So they only served Mr. George with the notice of compulsory acquisition.
The council overlooked one source of information. They could have looked up the property register - to see who was registered as the owner - but they did not. It would have shown that both Mr. and Mrs. George were joint owners. Hot having inspected the property register, the council believed quite honestly and, I think, quite reasonably that Mr. George was the sole owner. So, after making their compulsory purchase order, they only served it on Mr. George. They did not serve it on his wife. They put all the proper notices in the newspapers. They did everything in proper order, but they unwittingly made one mistake. They did not serve the compulsory purchase order on Mrs. George.
The order was made in May 1975. The notice was served on Mr. George only on the 28th May. Mr. George resisted the order. He made objection to it. He said he would repair the house, and he would look after it properly. So the Minister decided there should be an inquiry.
As it turned out there were three inquiries. The first was in August 1975, but the inspector fell ill and could not make his report. There was another inquiry in April 1976; and, eventually, an inquiry in 1977. As a result of those inquiries, the inspector was quite satisfied that the only way to solve this massive housing problem was for the compulsory purchase order to be confirmed. On the 19th May, 1977 the Secretary of State in his decision letter accepted the recommendation and confirmed the compulsory purchase order.
Under the statute there is a period of six weeks daring which the order can be challenged. Schedule 1, paragraph 15 of theacquisition of Land (Authorisation Procedure) Act 1946 provides: "If any person aggrieved by a compulsory purchase order desires to question the validity thereof … he may, within six weeks from the date on which notice of the confirmation or making of the order or the giving of the certificate is first published in accordance with the provisions of this Schedule in that behalf, make an application to the High Court, and on any such application the Court (b) if satisfied that the authorisation granted by the compulsory purchase order is not empowered to be granted or that the interests of the applicant have been substantially prejudiced … may quash the compulsory purchase order".
On the very last day of the six weeks Mrs. George came along. She challenged the validity of the compulsory purchase order. She said: "I was the co-owner. I was never served with this compulsory purchase order. It is therefore bad as against me". She put in an affidavit in support of her application, in which she said: "15 Brookhill Road, London SB 18, which is the subject of the above mentioned Compulsory Order is jointly owned by my husband and myself. We bought the property in November 1967 with the help of a loan … My husband and I lived in the property for abut 3 years from the time of the purchase but later moved (to another address)"-. Later on - and this is the crucial paragraph - she said: "Last month it came to my notice by reading a local paper that a compulsory purchase order had been made and confirmed in respect of our property. This surprised me because, at no time was I served with any notice in relation to the same". She followed that up by two or three further affidavits in which she elaborated her complaint and grievance. On the 3rd March, 1978 she swore an affidavit in which she said: "In May 1975 I was in Oxford doing my training at the Fairmile Hospital. I only camedown to London when I bad a long day-off which was usually once a month. When I came down at the end of May my husband told me that the Council wrote to say that a compulsory purchase order had been made in respect of 15 Brookhill Road S.E.18, but assured me that he would be going to the Council to sort things out … Had I been served with the notice I would not have relied on my husband's assurance that everything was alright. I would have sought for legal advice".
Her application came before Sir Douglas Frank, sitting as a deputy judge of the High Court. The case took several days. One day in March, two days in April and eventually a judgment in May. One question which arose was whether Mrs. George could be cross-examined on her affidavits. The council wished to cross-examine her. They said she kept quiet about being a joint owner. She said nothing to anyone about it until the order was about to be confirmed. Then she came out into the open at last and said: "I have not been served, and therefore the order should be set aside"
It is a practical point of some interest. In such a case as this ought the court to allow cross-examination on affidavits? Only one reported case has been found in the books where there has been any cross-examination on affidavits - in cases such as this - or in the parallel cases on judicial review. It was Regina v. Stokesley. Yorkshire. Justices. Ex parte Bartram (1956) 1 Weekly Law Reports 254. Lord Goddard said: "This is probably the first case in recent history in which application has been made in Crown proceedings for leave to cross-examine on affidavits' He only allowed it in that case because it was a case of a "very remarkable" character. It is to be noticed that in Franklin v. Minister of Town and Country Planning (1947) 1 All England 612, both Lord Oaksey and Lord Morton indicated that if applicationhad been made to cross-examine the minister in that case, it might have been allowed, but no application was made.
It seems to me that, in general, cross-examination shall not he allowed in prerogative writ proceedings or in proceedings for judicial review or in applications like this for compulsory purchase orders. There are very good reasons for this rule. First usually the affidavits speak as to what took place before the determining body. It may be before a planning inspector, a magistrate or someone of that kind. He may have to make an affidavit as to what took place before him. It is undesirable that he should be subjected to cross-examination. We said so in a recent case about a certification officer. If he is not to be subject to cross-examination, nor should the applicant. Secondly, experience shows that on these procedural questions there is very little conflict on the affidavits. Thirdly, one party or the other might, by means of cross-examination, try to undermine the actual findings of the inspector or other officer holding the inquiry.
In general, therefore, cross-examination should not be allowed, but I would stress that there is nothing in law to prohibit it. It is undoubtedly permissible under the rules. It is covered by order 53, rule 8(1), which brings in order 58, rule 2(3), which in terms provides for cross-examination on affidavits. It is a matter for the discretion of the court. It seems to me that in these proceedings cross-examination should not be allowed except where the court believes it is necessary in order that justice may be done between the parties.
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