Wandsworth London Borough Council v Winder

JurisdictionUK Non-devolved
JudgeLord Fraser of Tullybelton,Lord Scarman,Lord Keith of Kinkel,Lord Roskill,Lord Brandon of Oakbrook
Judgment Date29 November 1984
Judgment citation (vLex)[1984] UKHL J1129-1
Date29 November 1984
CourtHouse of Lords
Mayor and Burgesses of the London Borough of Wandsworth
Winder (A.P.)

[1984] UKHL J1129-1

Lord Fraser of Tullybelton

Lord Scarman

Lord Keith of Kinkel

Lord Roskill

Lord Brandon of Oakbrook

House of Lords

Lord Fraser of Tullybelton

My Lords,


The question is this appeal is whether it is an abuse of process for an individual, who claims that his existing rights under a contract have been infringed by a decision of a public authority, to challenge the decision in defence to an action at the instance of the public authority for payment, instead of by judicial review under R.S.C. Ord.53. The appeal is a sequel to the decisions of this House in O'Reilly v. Mackman [1983] 2 A.C. 237, and Cocks v. Thanet District Council [1983] 2 A.C. 286.


Immediately before 6 April 1981, the respondent was, and had been for some time, the tenant of a flat at Tangley Grove in Wandsworth on a weekly tenancy at a weekly rent of £12.06. He had a secure tenancy in the sense of section 28 of the Housing Act 1980. The landlords were the London Borough of Wandsworth, the appellants. On 2 March 1981, the appellants gave notice to the respondent under section 40(1), (4) of the Act of 1980 that, with effect from 6 April 1981, the rent would be increased to £16.56 per week. The respondent regarded the increase as unreasonable and he so informed the appellants. He refused to pay the increased rent; instead he paid the old rent of £12.06 and an increase of 8 per cent which he regarded as reasonable. The following year in March, the appellants gave notice of a further increase in the rent to £18.53 with effect from 5 April 1982. The respondent again refused to pay the increased rent and paid only such rent as he considered reasonable.


On 16 August 1982, the appellants took proceedings against the respondent in Wandsworth County Court claiming arrears of rent, and also claiming possession of the premises on the ground that the rent lawfully due had not been paid. Non-payment of rent is ground 1 for recovery of possession under Schedule 4 to the Act of 1980. The respondent defended the action on the ground that the appellants' decisions to make the increases, and the increases themselves, were ultra vires and void as being unreasonable. He also counterclaimed for a declaration that the notices of increase of rent were ultra vires and void and of no effect, and for a declaration that the rent payable under his tenancy was £12.06 per week.


The action has caused a considerable divergence of judicial opinion so far. The appellants applied to strike out the paragraphs of the defence and counterclaim which asserted that the decisions and notices were void. Mr. Registrar Price dismissed the application to strike out. His Honour Judge White allowed the appellants' appeal against the registrar's order, and stayed the proceedings to allow the respondent to apply for leave to apply for judicial review out of time. The respondent did apply for such leave but his application was refused. He then appealed to the Court of Appeal and that court, by a majority (Robert Goff and Parker L.JJ., with Ackner L.J. dissenting) allowed his appeal against the order of Judge White.


Until 6 April 1981, the respondent had a contractual right to occupy the flat, provided he paid the rent of £12.06 and complied with the other terms of the tenancy. That was an ordinary private law right under a contract. But by section 40 of the Act of 1980, the appellants were entitled to vary the terms of the tenancy unilaterally by a notice of variation, subject to certain conditions not here material. In addition to complying with the express statutory conditions, the appellants when they exercised their power under section 40(4) were also bound to act reasonably in the Wednesbury sense — see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223. That is made clear beyond doubt by the Housing Act 1957, section 111(1), which provides as follows:

"111(1) The general management, regulation and control of houses provided by a local authority under this Part of this Act shall be vested in and exercised by the authority, and the authority may make such reasonable charges for the tenancy or occupation of the houses as they may determine." (Emphasis added).


In Luby v. Newcastle-under-Lyme Corporation [1964] 2 Q.B. 64, 72, Diplock L.J. (as my noble and learned friend then was) referring to this provision, said:

"'Reasonable' in the context in which it appears in section 111(1) of the Housing Act 1957, is in my view to be construed as the converse of 'unreasonable' in the sense in which it is used by Lord Greene M.R. [in the Wednesbury Corporation case [1948] 1 K.B. 223, 229] … The court's control over the exercise by a local authority of a discretion conferred upon it by Parliament is limited to ensuring that the local authority had acted within the powers conferred. It is not for the court to substitute its own view of what is a desirable policy in relation to the subject matter of the discretion so conferred. It is only if it is exercised in a manner which no reasonable man could consider justifiable that the court is entitled to interfere."


The respondent seeks to show in the course of his defence in these proceedings that the appellants' decisions to increase the rent were such as no reasonable man could consider justifiable. But your Lordships are not concerned in this appeal to decide whether that contention is right or wrong. The only issue at this stage is whether the respondent is entitled to put forward the contention as a defence in the present proceedings. The appellants' say that he is not because the only procedure by which their decision could have been challenged was by judicial review under R.S.C., Ord. 53. The respondent was refused leave to apply for judicial review out of time and (say the appellants) he has lost the opportunity to challenge the decisions. The appellants rely on the decisions of this House in O'Reilly v. Mackman [1983] 2 A.C. 237 and Cocks v. Thanet District Council [1983] 2 A.C. 286. The respondent accepts that judicial review would have been an appropriate procedure for the purpose, but he maintains that it is not the only procedure open to him, and that he was entitled to wait until he was sued by the appellants and then to defend the proceedings, as he has done.


In order to deal with these contentions, it is necessary to consider what was decided by the House in those two cases. The question raised in O'Reilly [1983] 2 A.C. 237 was the same as that in the present case, although of course, the circumstances were different. In O'Reilly, at p. 274, Lord Diplock said:

"All that is at issue in the instant appeal is the procedure by which such relief ought to be sought. Put in a single sentence the question for your Lordships is: whether in 1980 after R.S.C., Ord. 53 in its new form, adopted in 1977, had come into operation it was an abuse of the process of the court to apply for such declarations [sc. that a decision of a public authority was void] by using the procedure laid down in the Rules for proceedings begun by writ or by originating summons instead of using the procedure laid down by Ord. 53 for an application for judicial review …."


In that case four prisoners in Hull prison had started proceedings, in three cases by writ and in one case by originating summons, each seeking to establish that a disciplinary award of forfeiture of remission of sentence made by the Board of Visitors of Hull Prison was void because the Board had failed to observe the rules of natural justice. This House held that the proceedings were an abuse of the process of the court, and that the only proper remedy open to the prisoners was by way of judicial review under Ord. 53. There are two important differences between the facts in O'Reilly and those in the present case. First, the plaintiffs in O'Reilly had not suffered any infringement of their rights in private law; their complaint was that they had been ordered to forfeit part of their remission of sentence but they had no right in private law to such a remission, which was granted only as a matter of indulgence. Consequently, even if the Board of Visitors had acted contrary to the rules of natural justice when making the award, the members of the...

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