Davy v Spelthorne Borough Council

A common law claim for damages against a public authority may proceed by ordinary action where its essence is negligence and any public law question arises only in assessing the loss. The judicial review procedure does not govern merely because the defendant is a public authority or because valuation requires the court to estimate the claimant’s lost chance of resisting an administrative decision.

A statutory bar against questioning an enforcement notice on grounds available in the prescribed appeal does not exclude a negligence claim based on advice which caused that appeal opportunity to be lost. The general rule requiring direct challenges to public decisions to proceed by judicial review is therefore inapplicable where the claimant accepts the decision and seeks compensation for the lost opportunity to challenge it.

The respondent owned premises used as a concrete works. He alleged that officers of the appellant planning authority negligently advised him not to appeal against an enforcement notice, in reliance on an agreement that the notice would not be enforced for three years. The time for a statutory appeal expired.

The respondent commenced an ordinary action seeking an injunction, damages and an order setting aside the notice. The Court of Appeal struck out the claims for an injunction and to set aside the notice because they raised public law questions which could be pursued only by judicial review. It permitted the negligence claim to continue.

The authority appealed against that remaining decision. The central questions were whether section 243(1)(a) of the Town and Country Planning Act 1971 barred the claim and whether pursuing damages by ordinary action was an abuse of process under the principle in O’Reilly v Mackman [1982] 3 WLR 1096.

1. The appeal was dismissed unanimously. Lord Fraser of Tullybelton delivered the leading speech. Lord Roskill, Lord Brandon of Oakbrook and Lord Brightman expressly agreed with his reasons. Lord Wilberforce agreed in the result and gave additional reasons.

2. Per Lord Fraser, section 243(1)(a) of the Town and Country Planning Act 1971 did not bar the damages claim. Although “validity” in that provision extended to enforceability, the prohibition covered only grounds upon which an appeal could be brought under Part V. Negligent advice causing the respondent not to appeal was not a ground specified in section 88(2). The respondent also accepted that the notice remained valid and unappealable.

3. Per Lord Fraser, the surviving proceedings were an ordinary action in tort. They did not raise public law rights as a live issue. The respondent did not seek to overturn the enforcement notice; his case depended upon having lost the opportunity to do so. The rule in O’Reilly v Mackman [1982] 3 WLR 1096 was therefore inapplicable. Cocks v Thanet District Council [1982] 3 WLR 1121 was distinguishable because the claimant there had to overturn a subsisting public determination as a condition precedent to enforcing a private right.

4. Per Lord Wilberforce, characterising an issue as “public law” does not itself exclude an ordinary action. Before such proceedings can constitute an abuse, it must at least be shown that the claim could and should have been brought by judicial review. Judicial review could not provide the present negligence claim because damages under Order 53 rule 7 were consequential upon an available application for judicial review. Even if that procedure had been available, the peripheral need to assess the lost chance of resisting the notice did not require its exclusive use.

5. Per Lord Fraser and Lord Wilberforce, the damages claim had neither the purpose nor the effect of an injunction or quashing order. Its possible influence upon the authority’s future discretion did not convert it into a public law challenge. The Court of Appeal’s order allowing the negligence claim to continue was affirmed, and the authority was ordered to pay the respondent’s appeal costs.

• House of Lords: The authority’s appeal was dismissed unanimously. The Court of Appeal’s order permitting the negligence claim to continue was affirmed.
• Court of Appeal: Cumming-Bruce and Fox LJJ and Bush J struck out the claims for an injunction and to set aside the enforcement notice, but allowed the damages claim for negligence to continue.
• High Court: The Vice-Chancellor refused the authority’s application to strike out the writ and statement of claim as an abuse of process.