Wilson v Liverpool Corporation
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 24 November 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1124-1 |
| Date | 24 November 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J1124-1
The Master of the Rolls
Lord Justice Wtdgery, and
Lord Justicf Megaw
In The Supreme Court of Judicature
Court of Appeal
(On appeal from the Lands Tribunal. 23. 2. 70.)
MR. T. H. PIGOT, Q. C.andMR. J. TURNER (instructed "by Benjamin Kay & Berman, Solicitors, Liverpool, by their agents Gregory Rowcliffe & Co., London) appeared on "behalf of the Appellants.
MR.D. McNEILL, Q. C.and MR.F. REYNOLD (instructed by Stanley Homes, Town Clerk, Liverpool) appeared on behalf of the Respondents.
| (Appeal dismissed with costs) |
(As revised)
In this case the Liverpool Corporation have used their compulsory powers to acquire 74 acres of land for housing purposes. The Lauds Tribunal assessed its value as at the date of the notice to treat, the 20th May, 1965. They valued it at £543,500. The landowners appeal. They say that the land should have been valued as at the date when the Corporation entered upon the land, namely, 26th June, 1966. During the intervening 13 months there had been a very rapid increase of land values, especially in this part of Liverpool. The value at the later date, it is said, would be over £400,000.
The Liverpool Corporation take a preliminary objection. They say that, before the Lands Tribunal, the parties conducted the inquiry on the basis that the proper date was the date of the notice to treat, the 20th May, 1965: and that the landowners should not now be allowed to turn round and say that it should have been the date of entry, the 26th June, 1966.
On this point it is necessary to keep in mind the changing law. In 1867 in Penny v. Penny (1867) L. R. 5 Equity, at page 236, Vice-Chancellor Page-Wood said that "Every man's interest shall be valued, rebus sic stantitma, just as it occurs at the very moment when the notice of treat was given". That was accepted as correct for the next 100 years. The valuation was always made as at the date of the notice to treat.
Just 100 years later in 1967 the Court of Appeal threw great doubt on that proposition. In West Midland Baptist Trust v. Birmingham Corporation. 1968, 1 Queen's Bench, page 188, Lord Justice Salmon said (at page 212): "I have great doubts whether the open market prices prevailing at the date of the service of the notice to treat from the correct basis for assessing compensation. "Lord Justice Sachs agreed with that view (at page 218.) Lord Justice Sellers. thought that it was not open to the Court of Appeal to change the law but "the House of Lords may have greater freedom" (p. 206).
Those doubts were expressed on 27th October, 1967, and reported in the Weekly Law Reports about April, 1968.
On 31st May, 1968, the Liverpool Corporation referred this present case to the Lands Tribunal for it to fix the value to be placed on the land. The advisers on each side proceeded on the footing that the value was to be accessed as at the date of the notice to treat. They paid no regard to the doubts expressed in the Court of Appeal. The valuers submitted theirfigures in at the date of the notice to treat. In April 1969 the case was heard by the Lands Tribunal. It took 12 days between 21st April. 1969, and 6th May, 1969. It was conducted on the basis that the date of valuation was the date of the notice to treat. On the 12th day (the last day) in the final reply on behalf of the landowners counsel said that he wanted to keep open the point whether the date of the notice to treat was the proper date. Otherwise nothing was said about it.
The Tribunal reserved its decision.
Soon afterwards, whilst the Tribunal was still considering its decision, the House of Lords, between 12th and 21st May, 1969, heard the argument in the appeal in the West Midland Baptist case. The House reserved its decision. Before the House gave its decision the Lands Tribunal on 11th July, 1969, gave its award in the present case. They said "It is common ground between the parties (for the purpose of this hearing at any rate) that the valuation should be made as at the date of the accepted notice to treat, namely 20th May, 1965." They awarded £343,500.
Five days later on 18th July, 1969, the House of Lords gave its decision. It was reported in the Times newspaper on the next day, and is now in the Law Reports, 1970, Appeal Cases, 874. The House said that the practice which had prevailed for over 100 years was wrong. Although Rule 5(2) did not come up directly for decision, the House expressed their opinion on it: Lord Reid said: "Sometimes possession is taken before compensation is assessed. Then it would seem logical to fix the market value of the land as at that date… The present practice with regard to Rule 2 is wrong." Lord Morris of Borth-y-Gest said: "The date of reference to which the value of land should be assessed under Rule 2 is the date when the value is being agreed or is being assessed by the appropriate tribunal, or if it is earlier, the date when possession was taken."
In consequence of those observations, it was plain that, in the present case, the valuation ought, in point of law, to have been taken as at the date of entry into possession, namely 26th June, 1966, and not at the date of the notice to treat.
When the landowners appreciated this, they gave notice to appeal. The Tribunal stated a case in which they set out the position: "At the hearing the valuations relied on by both parties purported to quantify the compensation as at the date of the notice to treat. The Claimants' case was opened and presented on the baas that compensation was to be quantified as at the date of the Noticeto Treat and no alternative valuations were submitted: there was therefore no issue between the parties as to what was the right date to take for valuation purposes, and our Decision proceeded on the same basis, that is to say we assessed compensation as at the date of the Notice to Treat (see page 10 of our Decision). At the date of our hearing the appeal in the case of Birmingham City Council v. West Midlands Baptist (Trust) Association Incorporated had not been heard in the House of lords. It was known, however, that this appeal was to be heard shortly and Counsel for the Claimants told us in his closing address that because of this he wished to reserve the question of what was the right date to take for the assessment of compensation. We have been asked by "the Claimants to record this matter and accordingly do no."
On this appeal Mr. Pigot asks that the case should be sent back to the Lands Tribunal so that the valuation can be taken as at the proper date, the 26th June, 1966. He cites Lissenden v. C. A. V. Bosch Limited (1940 Appeal Cases, page 412) where a man, who had not got enough compensation under the Workmen's Compensation Act, was allowed to appeal on the ground that compensation should have been larger.
It is, of course, within the jurisdiction of this Court, to remedy errors made in point of law by a tribunal of first instance. It has sometimes happened that the law has been changed by a subsequent decision of this Court or of the House of Lords: and this Court has extended the time for appeal so as to allow the previous decision to be corrected, see In re Berkeley, 1945, Chancery 1. But it is a matter for the discretion of the Court. In this case I do not think that we should allow this valuation to be re-opened. The advisers of the landowners must have known of the West Midland Baptist Trust case. They must have seen the judgments given in this Court in October 1967 long before the Lands Tribunal entered upon this reference. Anyone, reading that case could have seen there was a big question mark about the date of the notice to treat. If the advisers of the landowners had desired to keep that as a live point, they should have asked the valuers to have made alternative valuations and to have put them before the Tribunal. The Tribunal would then have given an award in an alternative form such as is contemplated by the Lands Tribunal Rules, 1963, rule 49 sub-rule (5): and was done in the West Midland Baptist Trust case. Instead of asking for an alternative award, the landowners went before the Tribunal asking for one valuation on a single date, the date of the notice to treat. They conducted a long, detailed hearing for twelve days at great expense on that basis. They...
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