Smith v East Elloe Rural District Council

Under paragraphs 15 and 16 of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act 1946, the prescribed challenge in the High Court is the exclusive means of questioning a compulsory purchase order. The statutory prohibition against questioning an order in any legal proceedings is unambiguous. By a majority, the House held that it cannot be qualified by implying an exception for an order allegedly made or confirmed in bad faith.

The prohibition concerns the order’s validity. It does not prevent a personal claim for damages against an individual alleged to have procured the order wrongfully and in bad faith, provided that the claim can proceed without impeaching the order.

In Smith v East Elloe Rural District Council, the council made and obtained ministerial confirmation of a compulsory purchase order covering the appellant’s house and land. The purchase price was fixed, the house was demolished and new houses were built. Nearly six years after confirmation, the appellant issued a writ alleging that the order had been made and confirmed wrongfully and in bad faith. She sought declarations, damages for trespass, an injunction and personal relief against the council’s clerk, Mr Pywell.

Master Clayton set aside the entire writ for want of jurisdiction. Havers J and the Court of Appeal upheld that decision. The central issue before the House was whether paragraphs 15 and 16 of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act 1946 prevented the courts from questioning the order on grounds of bad faith, and whether the personal claim against Mr Pywell could nevertheless continue.

1. Disposition. By a majority of three to two, the House held that the claims which challenged the validity of the compulsory purchase order were barred. Viscount Simonds, Lord Morton of Henryton and Lord Radcliffe formed the majority on that issue. Lord Reid and Lord Somervell of Harrow dissented. All five Law Lords agreed that the personal claim against Mr Pywell could proceed without questioning the order.

2. The statutory prohibition. Per Viscount Simonds, in the leading speech, paragraph 16 of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act 1946 used the widest possible language. Its prohibition against questioning an order in any legal proceedings applied to a challenge based on alleged bad faith. Bad faith could not be determined from the face of an order. Establishing it would require the very legal proceedings which paragraph 16 prohibited.

   Lord Morton and Lord Radcliffe agreed that the words could not be qualified by inserting a condition that the order must have been made in good faith. Lord Radcliffe added that an apparently valid order remains capable of producing legal consequences unless proceedings permitted by Parliament are taken to quash or set it aside.

3. Paragraph 15. No common majority construction emerged concerning whether the six-week procedure under paragraph 15 could itself accommodate a bad-faith challenge. Viscount Simonds left the question open, although he inclined towards inclusion. Lord Morton considered that paragraph 15 was confined to the statutory grounds expressly stated and excluded improper motives. Lord Radcliffe considered that its reference to authorisation which was not empowered to be granted included every ground on which the order lacked statutory authority, including bad faith. All three nevertheless agreed that paragraph 16 barred the present proceedings.

4. Scope of the protection. The words “under Part III of this Schedule” qualified a certificate, not a compulsory purchase order. Paragraph 16 therefore was not confined to compulsory purchase orders concerning the special categories of land governed by Part III.

5. Personal liability. Per Viscount Simonds and Lord Morton, the statutory protection secured the order’s validity but did not immunise an individual alleged to have acted wrongfully and in bad faith in procuring it. The claim against Mr Pywell could proceed on the footing that the order’s validity could not be questioned.

6. Dissent. Lord Reid and Lord Somervell would have held that general statutory words did not exclude the courts’ jurisdiction over deliberate dishonesty, corruption or fraud without a specific indication that Parliament intended that consequence. They would therefore have permitted the bad-faith challenge to the order itself.

7. The Court of Appeal’s order was varied. The writ stood only against Mr Pywell in respect of claims 3, 5, 6 and 7. There was no order as to costs.

1. House of Lords: The appeal was allowed in part. The Court of Appeal’s order was varied so that the writ remained effective only against Mr Pywell in respect of claims 3, 5, 6 and 7. The order’s validity could not be questioned.
2. Court of Appeal: Hodson and Parker LJJ dismissed the appellant’s appeal from Havers J and refused leave to appeal.
3. High Court: Havers J affirmed Master Clayton’s orders setting aside the writ and all subsequent proceedings for want of jurisdiction.