Wandsworth London Borough Council v Winder

A defendant sued by a public authority for payment may challenge, by way of defence, the validity of the administrative decision on which the claim depends where that decision is said to infringe a pre-existing private law right. The challenge is not an abuse of process merely because judicial review was available, even where invalidity is the central issue rather than a collateral one.

The general requirement that a claimant use judicial review to enforce public law rights does not silently remove the ordinary right to defend proceedings. Order 53 of the Rules of the Supreme Court and section 31 of the Supreme Court Act 1981 were procedural reforms. They could not diminish substantive rights without clear words. A statutory local authority rent decision remained subject to Wednesbury reasonableness.

The local authority increased the rent payable by a secure tenant under section 40 of the Housing Act 1980. The tenant paid only the former rent plus increases which he considered reasonable. The authority brought county court proceedings for arrears and possession. The tenant pleaded that the rent decisions and notices were ultra vires because they were unreasonable, and counterclaimed for declarations to that effect.

A registrar refused to strike out those pleadings. A county court judge allowed the authority's appeal and stayed the proceedings so that the tenant could seek leave to apply for judicial review. Leave was refused. The Court of Appeal, by a majority, then allowed the tenant's appeal from the county court judge.

The central issue before the House was whether a defendant's challenge to a public authority's decision was an abuse of process because it was raised in an ordinary defence rather than by judicial review under Order 53.

1. Disposition. Lord Fraser of Tullybelton delivered the leading speech. Lord Scarman, Lord Keith of Kinkel, Lord Roskill and Lord Brandon of Oakbrook expressly agreed with it. The House unanimously dismissed the authority's appeal, affirmed the Court of Appeal's order and ordered the authority to pay the tenant's costs.
2. The ordinary right to defend. Per Lord Fraser, a person sued by a public authority for payment could defend the action by alleging that the administrative decision producing the claimed liability was ultra vires. The tenant had not selected the procedure and was exercising the ordinary right to deny liability for the sum claimed. It was inappropriate to characterise that conduct as an abuse of process. This remained so although the invalidity of the rent decisions was the central issue rather than a collateral one.
3. Earlier judicial-review decisions distinguished. Per Lord Fraser, O'Reilly v Mackman [1983] 2 AC 237 concerned claimants who initiated proceedings to vindicate public law rights and had no infringed private law rights. Cocks v Thanet District Council [1983] 2 AC 286 concerned a claimant who had to invalidate an administrative decision as a condition precedent to establishing a new statutory private law right. Neither decision governed a defendant relying on invalidity to protect a pre-existing contractual right. The general rule in O'Reilly v Mackman allowed exceptions to be developed case by case.
4. Effect of procedural reform. Per Lord Fraser, Order 53 of the Rules of the Supreme Court was a procedural reform and could not extinguish an existing substantive right to defend proceedings. Section 31 of the Supreme Court Act 1981, which referred to an application for judicial review, likewise did not limit a defendant's rights by implication. The public interest in speedy certainty and good administration had to be balanced against the ordinary rights of citizens. Clear statutory words were required to exclude recourse to the courts. Any wider restriction was a matter for Parliament.
5. Underlying public law challenge. Per Lord Fraser, the authority's exercise of its rent-variation power under the Housing Act 1980 was subject to Wednesbury reasonableness by virtue of section 111(1) of the Housing Act 1957. The court could not substitute its preferred housing policy. It could intervene only if no reasonable authority could regard the decision as justifiable. The House decided only that the tenant could advance that defence; it expressed no view on whether the rent increases were in fact unreasonable.

1. House of Lords: In Wandsworth London Borough Council v Winder [1984] UKHL 2, [1985] AC 461, the authority's appeal was dismissed unanimously and the Court of Appeal's order was affirmed.
2. Court of Appeal: On 29 March 1984, Robert Goff and Parker LJJ, Ackner LJ dissenting, allowed the tenant's appeal from the order of Judge White.
3. Judicial review application: The tenant's application for leave to apply for judicial review out of time was refused.
4. Wandsworth County Court: Registrar Price dismissed the authority's application to strike out the relevant defence and counterclaim. Judge White allowed the authority's appeal and stayed the proceedings to permit an application for judicial review.