Warwick Rural District Council v Miller-Mead; Miller-Mead v Warwick Rural District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,THE MASTER OF THE ROLLS |
| Judgment Date | 20 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1220-1 |
| Court | Court of Appeal |
| Date | 20 December 1961 |
[1961] EWCA Civ J1220-1
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Widgery
The Master of The Rolls
(Lord Evershed)
Lord Justice Willmer and
Lord Justice Danckwerts
MR R. E. MEGARRY, Q. C. and MR. JEREMIAH HARMAN (instructed by Messrs James & Charles Dodd) appeared as Counsel for the Appellat.
MR. H. E. FRANCIS, Q. C. and MR E. W.H. CHRISTIE (instructed by Messrs Devoshire & Co., Agents for Messrs Wright hassall & Co., Leamington Spa) appeared as Counsel for the Respondents.
LORD MASTER OF THE ROLLS: This is an appeal from the refusal of Mr Justice Widgery, sitting as Vacation Judge on the 15th August last, to make any order upon what is described in the Order under appeal as "the preliminary point raised by the defendant". writ had, on the 21st July, been issued in the name of the Plaintiff Council against the defendant seeking an injunction to restrain the defendant from committing a "statutory nuisance" at a caravan site at Kenilworth. The Indorsement on the writ prayed for other relief, but to this it is unnecessary to refer save to observe (for a reason later mentioned) that it included: : Damages". notice of motion bearing the same date (viz. 21st July) was also served in the action upon the defendant seeking interim relief of the kind prayed by the writ; and this motion was heard by the learned Judge on the 9th, 11th and 15th August. So far as concerns the relief sought by the motion, the learned Judge also mads no order, the defendant having by his Counsel given certain undertakings. But on the hearing of the motion the defendant's Counsel also raised the preliminary point referred to in the order which was, as I understand it, to the effect that, for reasons later stated, the Plaintiff Council, or those appearing on its behalf, had no locus standi; and the defendant, accordingly, sought an order from the learned Judge dismissing the action or staying all proceedings therein. I have deliberately expressed myself in somewhat; vague terms, since, as I venture to think, there was before Mr Justice Widgery and also in this Court during the opening of the appeal by Mr Megarry, some confusion. According to the report in the Weekly Law Reports of the hearing on the motion (see 1961, 3 Weekly Law Reports, p. 75?) the point taken on the defendant's part was that the Plaintiff Council had no capacity to sue, the writ having been issued in the Plaintiff Council's name without its authority. To this submission the Council's answer was that, even if the writ had been issued by the Council's solicitors without due authority, the act of the solicitors in so doing had been since effectively ratified by a resolution of the Council three days after the date of the writ, namely, on the 24th July. This answer was aooepted by the learned Judge who is recorded in the "weekly Law Reports as having said: "In my judgment this authority did not lack capacity to sue".
Similarly, in this Court Mr Megarry suggested in his argument that, the writ having been issued in the Council's name without its authority, such action on the part of the Council's solicitors was incapable of later ratification, and so the duty of the Court was to stay the proceedings and order the Council's solicitors to pay personally the defendant's costs. In support of this contention Mr Megarry cited a number of cases, including particularly that of Bower, Phllpott 5: Payne, Ltd. v. Mather, 1919, King's Bench Division, page 419. In that case certain proceedings had been taken by and in the name of the sanitary inspector of a local authority. It appeared that the necessary step had never been taken according the relevant statute by the local authority entitling the inspector as such the Institute the proceedings, and it was held by the Divisional Court that the action of the inspector could not later be ratified. Mr Justice Darling observed that if it were otherwise, the local authority might wait to see how successful upon their merits the proceedings proved to be and, according to the event, elect to ratify or not to ratify so as to avoid for itself liability in any case for costs to the other party to the proceedings.
In my judgment the case of Bowyer v. Mather and the other cases to the same effect cited by Mr Megarry are of no relevance to the present case or to the real point with which we are now concerned. We are not, as I think, here concerned with the authority of some person or persons to institute proceedings on behalf of the Council or in the Council's name, but with the much narrower and distinct point not covered by any direct authority, namely, whether the cause of action which the Plaintiff Council asserted in the indorsement of the writ was a cause of action which the Council could have possessed at any relevant time . Since the writ was issued in the Plaintiff Council's name by I ts duly constituted solicitors, no such question arises as that debated in Bpwyer v. Mather, and if the only question was as to the solicitors' authority to institute proceedings in the Council's name which the Council was itself perfectly competent to bring, then it would in my judgment be clear upon principle and authority (as the learned Judge held) that subsequent ratification of the solicitors' action by the Council would relate back Co the date of the issue of the writ. I am, therefore, with all respect to my brother Wlllmer's opposite view, unable to regard the present case as indistinguishable from that of St. Leonard's Vestry v. Holmes, 50 Justice of the Peace, page 132, cxted by Mr Megarry in support of his appeal. I add that no question here arises of the authority of the solicitors acting for the Plaintiff Council to issue a writ in the Council's name, for no ovidence before the Court was directed to that point. For my part I accept Mr Franois' submission that the Plaintiff Council, being a "persona ficta" established by Section 32 of the Local Government Act, 1933, is competent in the ordinary course to institute legal oroceedings in it own name and the solicitors for the Council regularly appointed as such are entitled prima facie to act in that capacity in connexion with such proceedings; and I do not find in Section 276 of the same Act anything to qualify the general rule. I add also that, as it seems to me, it was unfortunate and (strictly) quite wrong that the point taken by the defendant in the present proceedings - whether it was in effect a mere challenge of the solicitors' authority to issue the writ in the Plaintiff Council's name or whether it was the real point involved in the present appeal, as it emerged in this Court and as I shall later formulate it - was taken by way of 'preliminary objection" on the hearing of the motion. In my judgment if the defendant sought to stay the present proceedings or have them dismissed aa disclosing no cause of action (which is the real point now raised by the defendant), and equally if the defendant sought to challenge the solicitors' authority to initiate the present action in the Council's name and make the solicitors personally liable to pay the defendant's costs, then in either case the defendant should have issued an appropriate summons' or process in the action for the purpose.
Having said so much, now proceed to formulate and explain what, in my judgment, is the real question (and it is not an easy question, ungoverned as it is by any recorded authority) which has emerged for consideration in the present appeal. The question turns upon the language of Section 100 of the Public Health Act, 1936, which is in the following terms: "If in the oase of any statutory nuisance the local authority arc of opinion that summary proceedings would afford an inadequate remedy, they may in their own name take proceedings in the High Court for the purpose of securing the abatement or prohibition of that nuisance, and such proceedings shall be maintainable notwithstanding that the authority have suffered no damage from the nuisance". The expression "statutory nuisance" is expounded in Section 268 of the Act. My brother Willmer in his Judgment has referred to that section and the other relevant provisions of the Act. For the purposes of the present case "statutory nuisance" may, therefore, be taken to be equivalent to "public nuisance". So much was not in dispute before us. It is also not in doubt that, by the general law, proceedings for the abatement of a public nuisance may not be taken otherwise than at the relation of the Attorney-General unless the person taking such proceedings can prove that he has, in consequence of the nuisance, suffered special damage. In this respect a local authority was, until the passing of the Act of 1936, in no different position from that of any other litigant. The purpose of Section 100 of the 1936 Act (which replaced Section 107 of the Public Health Act, 1875) was in this respect to place a local authority in a special position and to give to it the power to initiate and prosecute proceedings for the abatement of a statutory nuisance" (that is, for press nit purposes, a public nuisance) in the absence of proof of special damage, provided that the condition stated in the section was satisfied. That this was the purpose of the section I can entertain no doubt; nor, indeed, was it contested before us. What then is the condition"? It is that expressed in the language of the section, which 1 repeat: "If.… the local authority are of opinion that summary proceedings would afford an inadequate remedy", I have already referred to the misfortune (to put it no higher) that the defendant's objeotion to the proceedings was taken before Mr Justice Widgery "by way of preliminary objection" and not upon the issue of some appropriate process in the; ction; and I add...
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...considered the criteria of the section, can those proceedings be subsequently ratified and validated? On the authority of Warwick Rural District Council v. Miller-Mead [1962] Ch. 441, the answer is in the affirmative. In that case, the statutory power relied upon by the local authority was ......
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