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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Wandsworth LBC v Winder (No 1) [1984] UKHL 2 (29 November 1984)
Cite as: [1985] AC 461, [1984] UKHL 2

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    Parliamentary Archives,

    Mayor and Burgesses of the

    London Borough of Wandsworth



    Winder (A.P.) (Respondent)


    Die Jovis 29° Novembris 1984

    Upon Report from the Appellate Committee to whom was
    referred the Cause Mayor and Burgesses of the London Borough
    of Wandsworth against Winder (A.P.), That the Committee had
    heard Counsel on Tuesday the 30th and Wednesday the 31st days
    of October last and Thursday the 1st day of this instant
    November upon the Petition and Appeal of the Mayor and
    Burgesses of the London Borough of Wandsworth, The Town Hall,
    Wandsworth High Street, London SW18 2PU praying that the
    matter of the Order set forth in the Schedule thereto, namely
    an Order of Her Majesty's Court of Appeal of the 29th day of
    March 1984, might be reviewed before Her Majesty the Queen in
    Her Court of Parliament and that the said Order might be
    reversed, varied or altered or that the Petitioners might
    have such other relief in the premises as to Her Majesty the
    Queen in Her Court of Parliament might seem meet; as also
    upon the Case of Paul Winder lodged in answer to the said
    Appeal; and due consideration had this day of what was
    offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 29th day of March 1984 complained of in the
    said Appeal be, and the same is hereby, Affirmed and that the
    said Petition and Appeal be, and the same is hereby,
    dismissed this House: And it is further Ordered, That the
    Appellants do pay or cause to be paid to the said Respondent
    the Costs incurred by him in respect of the said Appeal, the
    amount thereof to be certified by the Clerk of the
    Parliaments; and that the Costs of the Respondent be taxed
    in accordance with Schedule 2 to the Legal Aid Act 1974.

    Cler: Parliamentor:




    WINDER (A.P.)

    Lord Eraser of Tullybelton
    Lord Scarman
    Lord Keith of Kinkel
    Lord Roskill
    Lord Brandon of Oakbrook


    My Lords,

    The question is this appeal is whether it is an abuse of
    process for an individual, who claims that his existing rights under
    a contract have been infringed by a decision of a public authority,
    to challenge the decision in defence to an action at the instance
    of the public authority for payment, instead of by judicial review
    under R.S.C. Ord.53. The appeal is a sequel to the decisions of
    this House in O'Reilly v. Mackman [1983] 2 AC 237, and Cocks
    v. Thanet District Council
    [1983] 2 AC 286.

    Immediately before 6 April 1981, the respondent was, and
    had been for some time, the tenant of a flat at Tangley Grove in
    Wandsworth on a weekly tenancy at a weekly rent of £12.06. He
    had a secure tenancy in the sense of section 28 of the Housing
    Act 1980. The landlords were the London Borough of Wandsworth,
    the appellants. On 2 March 1981, the appellants gave notice to
    the respondent under section 40(1), (4) of the Act of 1980 that,
    with effect from 6 April 1981, the rent would be increased to
    £16.56 per week. The respondent regarded the increase as
    unreasonable and he so informed the appellants. He refused to
    pay the increased rent; instead he paid the old rent of £12.06 and
    an increase of 8 per cent which he regarded as reasonable. The
    following year in March, the appellants gave notice of a further
    increase in the rent to £18.53 with effect from 5 April 1982. The
    respondent again refused to pay the increased rent and paid only
    such rent as he considered reasonable.

    On 16 August 1982, the appellants took proceedings against
    the respondent in Wandsworth County Court claiming arrears of
    rent, and also claiming possession of the premises on the ground
    that the rent lawfully due had not been paid. Non-payment of
    rent is ground 1 for recovery of possession under Schedule 4 to
    the Act of 1980. The respondent defended the action on the
    ground that the appellants' decisions to make the increases, and
    the increases themselves, were ultra vires and void as being
    unreasonable. He also counterclaimed for a declaration that the
    notices of increase of rent were ultra vires and void and of no
    effect, and for a declaration that the rent payable under his
    tenancy was £12.06 per week.

    The action has caused a considerable divergence of judicial
    opinion so far. The appellants applied to strike out the paragraphs

    - 1 -

    of the defence and counterclaim which asserted that the decisions
    and notices were void. Mr. Registrar Price dismissed the
    application to strike out. His Honour Judge White allowed the
    appellants' appeal against the registrar's order, and stayed the
    proceedings to allow the respondent to apply for leave to apply for
    judicial review out of time. The respondent did apply for such
    leave but his application was refused. He then appealed to the
    Court of Appeal and that court, by a majority (Robert Goff and
    Parker L.JJ., with Ackner L.J. dissenting) allowed his appeal
    against the order of Judge White.

    Until 6 April 1981, the respondent had a contractual right
    to occupy the flat, provided he paid the rent of £12.06 and
    complied with the other terms of the tenancy. That was an
    ordinary private law right under a contract. But by section 40 of
    the Act of 1980, the appellants were entitled to vary the terms of
    the tenancy unilaterally by a notice of variation, subject to certain
    conditions not here material. In addition to complying with the
    express statutory conditions, the appellants when they exercised
    their power under section 40(4) were also bound to act reasonably
    in the Wednesbury sense - see Associated Provincial Picture Houses
    Ltd, v. Wednesbury Corporation
    [1948] 1 KB 223. That is made
    clear beyond doubt by the Housing Act 1957, section 111(1), which
    provides as follows:

    "111(1) The general management, regulation and control of
    houses provided by a local authority under this Part of this
    Act shall be vested in and exercised by the authority, and
    the authority may make such reasonable charges for the
    tenancy or occupation of the houses as they may
    determine." (Emphasis added).

    In Luby v. Newcastle-under-Lyme Corporation [1964] 2 Q.B. 64, 72,
    Diplock L.J. (as my noble and learned friend then was) referring to
    this provision, said:

    '"Reasonable' in the context in which it appears in
    section 111(1) of the Housing Act 1957, is in my view to be
    construed as the converse of 'unreasonable' in the sense in
    which it is used by Lord Greene M.R. [in the Wednesbury
    case [1948] 1 KB 223, 229] ... The court's
    control over the exercise by a local authority of a
    discretion conferred upon it by Parliament is limited to
    ensuring that the local authority had acted within the
    powers conferred. It is not for the court to substitute its
    own view of what is a desirable policy in relation to the
    subject matter of the discretion so conferred. It is only if
    it is exercised in a manner which no reasonable man could
    consider justifiable that the court is entitled to interfere."

    The respondent seeks to show in the course of his defence
    in these proceedings that the appellants' decisions to increase the
    rent were such as no reasonable man could consider justifiable.
    But your Lordships are not concerned in this appeal to decide
    whether that contention is right or wrong. The only issue at this
    stage is whether the respondent is entitled to put forward the
    contention as a defence in the present proceedings. The
    appellants' say that he is not because the only procedure by which
    their decision could have been challenged was by judicial review

    - 2 -

    under R.S.C., Ord. 53. The respondent was refused leave to apply
    for judicial review out of time and (say the appellants) he has lost
    the opportunity to challenge the decisions. The appellants rely on
    the decisions of this House in O'Reilly v. Mackman [1983] 2 A.C.
    237 and Cocks v. Thanet District Council [1983] 2 AC 286. The
    respondent accepts that judicial review would have been an
    appropriate procedure for the purpose, but he maintains that it is
    not the only procedure open to him, and that he was entitled to
    wait until he was sued by the appellants and then to defend the
    proceedings, as he has done.

    In order to deal with these contentions, it is necessary to
    consider what was decided by the House in those two cases. The
    question raised in O'Reilly [1983] 2 AC 237 was the same as that
    in the present case, although of course, the circumstances were
    different. In O'Reilly, at p. 274, Lord Diplock said:

    "All that is at issue in the instant appeal is the procedure
    by which such relief ought to be sought. Put in a single
    sentence the question for your Lordships is: whether in 1980
    after R.S.C., Ord. 53 in its new form, adopted in 1977, had
    come into operation it was an abuse of the process of the
    court to apply for such declarations [sc. that a decision of a
    public authority was void] by using the procedure laid down
    in the Rules for proceedings begun by writ or by originating
    summons instead of using the procedure laid down by Ord.
    53 for an application for judicial review . . . ."

    In that case four prisoners in Hull prison had started proceedings,
    in three cases by writ and in one case by originating summons,
    each seeking to establish that a disciplinary award of forfeiture of
    remission of sentence made by the Board of Visitors of Hull Prison
    was void because the Board had failed to observe the rules of
    natural justice. This House held that the proceedings were an
    abuse of the process of the court, and that the only proper
    remedy open to the prisoners was by way of judicial review under
    Ord. 53. There are two important differences between the facts
    in O'Reilly and those in the present case. First, the plaintiffs in
    O'Reilly had not suffered any infringement of their rights in
    private law; their complaint was that they had been ordered to
    forfeit part of their remission of sentence but they had no right in
    private law to such a remission, which was granted only as a
    matter of indulgence. Consequently, even if the Board of Visitors
    had acted contrary to the rules of natural justice when making the
    award, the members of the Board would not have been liable in
    damages to the prisoners. In the present case what the respondent
    complains of is the infringement of a contractual right in private
    law. Secondly, in O'Reilly the prisoners had initiated the
    proceedings, and Lord Diplock, throughout in his speech, treated
    the question only as one affecting a claim for infringing a right of
    the plaintiff while in the present case the respondent is the
    defendant. The decision on O'Reilly is therefore not directly in
    point in the present case, but the appellants rely particularly on a
    passage in a speech of Lord Diplock, with whose speech the other
    members of the Appellate Committee agreed, at p. 285D to the
    following effect:

    "Now that those disadvantages to applicants [for judicial
    review] have been removed and all remedies for

    - 3 -

    infringements of rights protected by public law can be
    obtained on an application for judicial review, as can also
    remedies for infringements of rights under private law if
    such infringements should also be involved, it would in my
    view as a general rule be contrary to public policy, and as
    such an abuse of the process of the court, to permit a
    person seeking to establish that a decision of a public
    authority infringed rights to which he was entitled to
    protection under public law to proceed by way of an
    ordinary action and by this means to evade the provisions of
    Ord. 53 for the protection of such authorities.

    "My Lords, I have described this as a general rule; for
    though it may normally be appropriate to apply it by the
    summary process of striking out the action, there may be
    exceptions, particularly where the invalidity of the decision
    arises as a collateral issue in a claim for infringement of a
    right of the plaintiff arising under private law, or where
    none of the parties objects to the adoption of the procedure
    by writ or originating summons. Whether there should be
    other exceptions should, in my view, at this stage in the
    development of procedural public law, be left to be decided
    on a case to case basis - a process that your Lordships will
    be continuing in the next case in which judgment is to be
    delivered today [Cocks v. Thanet District Council [1983] 2
    A.C. 2861."

    The last paragraph in that quotation shows that Lord Diplock was
    careful to emphasise that the general rule which he had stated in
    the previous paragraph might well be subject to exceptions. The
    question for your Lordships is whether the instant appeal is an
    exception to the general rule. It might be possible to treat this
    case as failing within one of the exceptions suggested by Lord
    Diplock, if the question of the invalidity of the appellants' decision
    had arisen as a collateral issue in a claim by the respondent(as
    defendant) for infringement of his right arising under private law
    to continue to occupy the flat. But I do not consider that the
    question of invalidity is truly collateral to the issue between the
    parties. Although it is not mentioned in the appellants' statement
    of claim, it is the whole basis of the respondent's defence and it
    is the central issue which has to be decided. The case does not
    therefore fail within any of the exceptions specifically suggested in
    O'Reilly v. Mackman [1983] 2 AC 237.

    Immediately after the decision in Q'Reilly, the House
    applied the general rule in the case of Cocks [1983] 2 A.C. 286.
    The proceedings in O'Reilly had begun before the Supreme Court
    Act 1981 (especially section 31) was passed. The proceedings in
    Cocks were begun after that Act was passed, but for the present
    purpose nothing turns on that distinction. Cocks was an action by
    a homeless person claiming that the local housing authority had a
    duty to provide permanent accommodation for him. The council
    resolved that the plaintiff had become homeless "intentionally" in
    the sense of the Housing (Homeless Persons) Act 1977.
    Consequently the plaintiff had no right in private law to be
    provided with permanent housing accommodation by the authority.
    The plaintiff raised an action in the county court claiming, inter
    alia, a declaration that the council were in breach of their duty to
    him in not having provided him with permanent accommodation.

    - 4 -

    In order to proceed in his action he had to show as a condition
    precedent that the council's decision was invalid. This House held
    that the plaintiff was not entitled to impugn the council's decision
    in public law otherwise than by judicial review, notwithstanding
    that the effect of the decision was to prevent him from
    "establishing a necessary condition precedent to the statutory
    private law right which he [was seeking] to enforce." See per my
    noble and learned friend, Lord Bridge of Harwich, at p. 294E. The
    essential difference between that case and the present is that the
    impugned decision of the local authority did not deprive the
    plaintiff of a pre-existing private law right; it prevented him from
    establishing a new private law right. There is also the same
    distinction as in O'Reilly [1983] 2 AC 237, namely, that the party
    complaining of the decision was the plaintiff.

    Although neither O'Reilly nor Cocks [1983] 2 AC 286 is an
    authority which directly applies to the facts of the instant appeal,
    it is said on behalf of the appellants that the principle underlying
    those decisions applies here, and that, if the respondent is
    successful, he will be evading that principle. My Lords, I cannot
    agree. The principle underlying those decisions, as Lord Diplock
    explained in O'Reilly [1983] 2 AC 237, 284, is that there is a
    "need, in the interest of good administration and of third parties
    who may be indirectly affected by the decision, for speedy
    certainty as to whether it has the effect of a decision that is
    valid in public law." The main argument urged on behalf of the
    appellants was that this is a typical case where there is a need
    for speedy certainty in the public interest. I accept, of course,
    that the decision in this appeal will indirectly affect many third
    parties including many of the appellants' tenants, and perhaps most
    if not all of their ratepayers because if the appellants' impugned
    decisions are held to be invalid, the basis of their financial
    administration since 1981 will be upset. That would be highly
    inconvenient from the point of view of the appellants, and of their
    ratepayers, and it would be a great advantage to them if persons
    such as the respondent who seek to challenge their decision were
    limited to doing so by procedure under Ord. 53. Such procedure is
    speedy and avoids prolonged uncertainty about the validity of
    decisions. An intending applicant for judicial review under Ord. 53
    has to obtain leave to apply, so that unmeritorious applications can
    be dismissed in limine and an application must normally be made
    within a limited period of three months after the decision which
    has impugned, unless the court allows an extension of time in any
    particular case. Procedure under Ord. 53 also affords protection
    to public authorities in other ways, which are explained in O'Reilly
    and which I need not elaborate here. It may well be that such
    protection to public authorities tends to promote good
    administration. But there may be other ways of obtaining speedy
    decisions; for example in some cases it may be possible for a
    public authority itself to initiate proceedings for judicial review.
    In any event, the arguments for protecting public authorities
    against unmeritorious or dilatory challenges to their decisions have
    to be set against the arguments for preserving the ordinary rights
    of private citizens to defend themselves against unfounded claims.

    It would in my opinion be a very strange use of language to
    describe the respondent's behaviour in relation to this litigation as
    an abuse or misuse by him of the process of the court. He did
    not select the procedure to be adopted. He is merely seeking to

    - 5 -

    defend proceedings brought against him by the appellants. In so
    doing he is seeking only to exercise the ordinary right of any
    individual to defend an action against him on the ground that he is
    not liable for the whole sum claimed by the plaintiff. Moreover
    he puts forward his defence as a matter of right, whereas in an
    application for judicial review, success would require an exercise
    of the court's discretion in his favour. Apart from the provisions
    of Ord. 53 and section 31 of the Supreme Court Act 1981, he
    would certainly be entitled to defend the action on the ground
    that the plaintiff's claim arises from a resolution which (on his
    view) is invalid - see for example Cannock Chase District Council
    v. Kelly
    [1978] 1 W.L.R. 1, which was decided in July 1977, a few
    months before Ord. 53 came into force (as it did in December
    1977). I find it impossible to accept that the right to challenge
    the decision of a local authority in course of defending an action
    for payment can have been swept away by Ord. 53, which was
    directed to introducing a procedural reform. As my noble and
    learned friend Lord Scarman said in Regina v. Inland Revenue
    Commissioners, Ex parte Federation of Self Employed [1982] A.C.
    617, 6^7G "The new R.S.C., Ord. 53 is a procedural reform of
    great importance in the field of public law, but it does not -
    indeed, cannot - either extend or diminish the substantive law. Its
    function is limited to ensuring 'ubi jus, ibi remedium.'" Lord
    Wilberforce spoke to the same effect at p. 631 A. Nor, in my
    opinion, did section 31 of the Supreme Court Act 1981 which
    refers only to "an application" for judicial review have the effect
    of limiting the rights of a defendant sub silentio. I would adopt
    the words of Viscount Simonds in Pyx Granite Co.Ltd. v. Ministry
    of Housing and Local Government
    [I960] A.C. 260, 286 as follows:-

    "It is a principle not by any means to be whittled down that
    the subject's recourse to Her Majesty's courts for the
    determination of his rights is not to be excluded except by
    clear words."

    The argument of the appellants in the present case would be
    directly in conflict with that observation.

    If the public interest requires that persons should not be
    entitled to defend actions brought against them by public
    authorities, where the defence rests on a challenge to a decision
    by the public authority, then it is for Parliament to change the

    I would dismiss the appeal.


    My Lords,

    I agree with the speech delivered by my noble and learned
    friend, Lord Fraser of Tullybelton. For the reasons he gives I
    would dismiss the appeal.

    - 6 -


    My Lords,

    I agree with the speech of my noble and learned friend Lord
    Fraser of Tullybelton, which I have had the opportunity of reading
    in draft, and for the reasons he gives I too would dismiss the

    My Lords,

    I have had the advantage of reading in draft the speech
    delivered by my noble and learned friend. Lord Fraser of
    Tullybelton. I agree with it, and for the reasons which he gives I
    would dismiss this appeal.


    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Fraser of
    Tullybelton. I agree with it, and for the reasons which he gives I
    would dismiss the appeal.

    - 7 -

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