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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956)
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Cite as: [1956] UKHL 2, [1956] AC 736

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JISCBAILII_CASE_CONSTITUTIONAL

    Die Lunae, 26° Martii 1956

    Parliamentary Archives,
    HL/PO/JU/4/3/1039

    HOUSE OF LORDS

    SMITH


    v.
    EAST ELLOE RURAL DISTRICT COUNCIL AND OTHERS

    26th March, 1956.
    Viscount Simonds

    MY LORDS,

    Viscount
    Simonds

    Lord Morton
    of Henryton

    Lord Reid
    Lord Radcliffe

    Lord

    Somervell of
    Harrow

    On the 6th July, 1954. the Appellant, Kathleen Rose Smith, issued a writ
    against the East Elloe Rural District Council, Mr. Pywell, the Clerk to that
    Council, and the Ministry of Health, whose functions and obligations were
    subsequently transferred to the Ministry of Housing and Local Government,
    claiming as against the Council, (a) damages for trespass to the Appellant's
    land at Hallgate, Holbeach, in the County of Lincoln, (b) an injunction against
    further trespass, and (c) a declaration that a certain Compulsory Purchase
    Order dated the 27th August, 1948, was " wrongfully made and in bad faith " ;
    against the Ministry of Health a declaration that the said Order " was
    " wrongfully confirmed . . . and in bad faith"; against the Ministry of
    Housing and Local Government that " the said compulsory purchase order
    " and confirmation of the same are in bad faith "; and against Pywell a
    declaration that " he knowingly acted wrongfully and in bad faith procuring
    " the said Order and confirmation of the same "; and as against all the
    Defendants further or other relief and damages. The Ministry of Health is
    no longer a party to the proceedings; the present Respondents are the
    Council, Pywell and the Ministry of Housing and Local Government.

    All the Respondents entered conditional appearances to the writ and
    then applied to the Master in Chambers to have the writ set aside upon
    the ground that " the writ of summons in this action is invalid for lack of
    " jurisdiction, it being provided by paragraph 16 of Part IV of the First
    " Schedule to the Acquisition of Land (Authorisation Procedure) Act, 1946,
    " that save by the procedure specified in the said Schedule, a compulsory
    " purchase order confirmed in accordance with the provisions of the said Act
    " (as was here the case) shall not, either before or after it has been confirmed,
    " be questioned in any legal proceedings whatsoever. By reason whereof this
    " Honourable Court has no jurisdiction to grant the relief sought against
    " the said Defendants". Two summonses in similar terms were in fact
    taken out, one by the two Ministries, the other by the Council and their
    Clerk, but nothing at this stage of my Opinion turns on it.

    Orders as asked by the summonses having been made by the Master and
    an appeal from them having been dismissed by the Judge in Chambers, an
    appeal was taken to the Court of Appeal. That Court in turn dismissed
    the appeal. It is clear from the judgment of the Court, which was delivered
    by Lord Justice Parker, that the main question there argued was on a point
    of construction of the Schedule which was in the proceedings before this
    House relegated to the background. Before your Lordships the argument
    was almost wholly devoted to what was justifiably described by leading
    counsel for the Appellant as a matter of great public importance.

    In my statement of the application to strike out the writ I have indicated
    the nature of the question. I must now be more specific.

    The Compulsory Purchase Order challenged in these proceedings was made
    by the Respondent Council on the 26th August, 1948, and authorised them
    subject to its provisions to acquire compulsorily a house and some 8 1/2 acres
    of land described in the Schedule thereto of which the Appellant was the
    owner. The statutory public local enquiry having been duly held, the
    Minister of Health confirmed the Order on the 29th November, 1948, by
    an Order cited as the
    East Elloe (Holbeach) Housing Confirmation Order,
    1948, which was duly advertised on the 13th and 20th December. 1948. A
    notice to treat and a notice of entry were duly served on the Appellant,

    2

    and in due course the compulsory purchase price for the said house and
    land was fixed by the Lands Tribunal at £3,000. The Respondent Council
    caused a firm of builders to demolish the house and to erect on its site and
    on the said land a number of houses. The writ in this action was, as I have
    said, issued on the 6th July, 1954.

    I must now turn to a consideration of the provisions of the Acquisition of
    Land (Authorisation Procedure) Act, 1946. But I must preface it by two
    observations. First, I would remind your Lordships that the Act is applicable
    to a great
    variety of transactions, in which a large or small area of land is
    required by a national or local authority for public purposes, and, secondly,
    I do not forget that this Act is the last example of a long series of similar
    enactments, in which by one provision or another Parliament has sought to
    give finality and security from challenge to compulsory acquisitions of land.
    I have not myself been able to get any assistance from a comparison of
    the language of this enactment with that of its predecessors. Learned counsel
    on both sides craved such a comparison in aid. I shall be doing no injustice
    if I say it helps neither of them and base my opinion on the very words of
    the Act.

    Section I, subsection (1) of the Act enacts that "The authorisation of
    " any compulsory purchase of land—(a) by a local authority where, apart from
    " this Act, power to authorise the authority to purchase land compulsorily is
    " conferred by or under any enactment contained in a public general Act
    " and in force immediately before the commencement of this Act, other
    " than any enactment specified in subsection (4) of this section ;(b)....
    " shall, subject to the provisions of this and the next following section, be
    " conferred by an order (in this Act referred to as a ' compulsory purchase
    " ' order') in accordance with the provisions of the First Schedule to this
    " Act (being provisions which, subject to certain adaptations, modifications
    " and exceptions, correspond with provisions as to the authorisation of the
    " compulsory purchase of land of the Local Government Act, 1933)". Sub-
    section (2) of section 1 made provision for a special procedure in relation
    to the purchase of land to which Part III of the First Schedule of the Act
    applied. This does not affect the land the subject of this action. It has
    been observed that the language of subsection (1) is somewhat involved, but
    there appears to be no doubt that a local authority authorises its own
    authority to make a purchase.

    I need refer to no other section of the Act and come to the first Schedule,
    which, after making the familiar provisions in regard to advertisements,
    notices to persons affected, objections, local enquiry and confirmation, pro-
    vides as follows by paragraphs 15 and 16 of Part IV.

    " 15. (1) If any person aggrieved by a compulsory purchase order
    " desires to question the validity thereof, or of any provision contained
    " therein, on the ground that the authorisation of a compulsory purchase
    " thereby granted is not empowered to be granted under this Act or
    " any such enactment as is mentioned in subsection (1) of section one
    " of this Act, or if any person aggrieved by a compulsory purchase order
    " or a certificate under Part III of this Schedule desires to question the
    " validity thereof on the ground that any requirement of this Act or of
    " any regulation made thereunder has not been complied with in relation
    " to the order or certificate, he may, within six weeks from the date on
    " which notice of the confirmation or making of the order or of the
    " giving of the certificate is first published in accordance with the provi-
    " sions of this Schedule in that behalf, make an application to the High
    " Court, and on such application the Court—

    " (a) may by interim order suspend the operation of the compul-
    " sory purchase order or any provision contained therein, or of the
    " certificate, either generally or in so far as it affects any property
    " of the applicant, until the final determination of the proceedings ;

    " (b) if satisfied that the authorisation granted by the compulsory
    " purchase order is not empowered to be granted as aforesaid, or
    " that the interests of the applicant have been substantially pre-
    " judiced by any requirement of this Schedule or of any regulation

    3

    " made thereunder not having been complied with, may quash the
    " compulsory purchase order or any provision contained therein, or
    " the certificate, either generally or in so far as it affects any
    " property of the applicant."

    " 16. Subject to the provisions of the last foregoing paragraph, a
    " compulsory purchase order or a certificate under Part III of this
    " Schedule shall not, either before or after it has been confirmed, made
    " or given, be questioned in any legal proceedings whatsoever, and
    " shall become operative on the date on which notice is first published
    " as mentioned in the last foregoing paragraph ".

    I will dispose at once of the short point of construction which was the
    main topic of argument and judgment in the Court of Appeal. It was urged
    that paragraph 16 was limited in its application to cases of compulsory
    acquisition of land to which Part III of the Schedule referred. Briefly, it
    was said that the words " under Part III of this Schedule " qualified not
    only " a certificate " but also " a compulsory purchase order ". It is clear
    to me not only that for the reasons given by Lord Justice Parker such a
    construction would produce results so absurd that it should be avoided if
    fairly avoidable, but also that it is grammatically unsound in that the use
    of the indefinite article where it occurs for the second time indicates that
    the words " under Part III" qualify only the words " a certificate ".

    In this House a more serious argument was developed. It was that, as
    the Compulsory Purchase Order was challenged on the ground that it had
    been made and confirmed " wrongfully " and " in bad faith ", paragraph 16
    had no application. It was said that that paragraph, however general its
    language, must be construed so as not to oust the jurisdiction of the Court
    where the good faith of the local authority or the Ministry was impugned
    and put in issue. Learned counsel for the Appellant made his submission
    very clear. It was that where the words " compulsory purchase order"
    occur in these paragraphs they are to be read as if the words " made in good
    " faith " were added to them.

    My Lords, I think that anyone bred in the tradition of the law is likely
    to regard with little sympathy legislative provisions for ousting the jurisdic-
    tion of the Court whether in order that the subject may be deprived altogether
    of remedy or in order that his grievance may be remitted to some other
    tribunal. But it is our plain duty to give the words of an Act their proper
    meaning and for my part, I find it quite impossible to qualify the words
    of the paragraph in the manner suggested. It may be that the Legislature
    had not in mind the possibility of an Order being made by a local authority
    in bad faith or even the possibility of an Order made in good faith being
    mistakenly, capriciously or wantonly challenged. This is a matter of specula-
    tion. What is abundantly clear is that words are used which are wide
    enough to cover any kind of challenge which any aggrieved person may
    think fit to make. I cannot think of any wider words. Any addition would
    be mere tautology. But, it is said, let those general words be given their
    lull scope and effect, yet they are not applicable to an Order made in bad
    faith. But, my Lords, no one can suppose that an Order bears upon its
    face the evidence of bad faith. It cannot be predicated of any Order that
    it has been made in bad faith until it has been tested in legal proceedings,
    and it is just that test which paragraph 16 bars. How, then, can it be said
    that any qualification can be introduced to limit the meaning of the words?
    What else can " compulsory purchase order " mean but an act apparently
    valid in the law, formally authorised, made, and confirmed?

    It was urged by learned counsel for the Appellant that there is a deep-
    rooted principle that the Legislature cannot be assumed to oust the jurisdic-
    tion of the Court, particularly where fraud is alleged, except by clear words,
    and a number of cases were cited in which the Court has asserted its
    jurisdiction to examine into an alleged abuse of statutory power and, if
    necessary, correct it. Reference was made, too, to Maxwell on the Interpreta-
    tion of Statutes to support the
    view, broadly stated, that a statute is, if
    possible, so to be construed as to avoid in justice. My Lords, I do not refer
    in detail to these authorities only because it appears to me that they do not

    4

    override the first of all principles of construction, that plain words must be
    given their plain meaning. There is nothing ambiguous about paragraph 16 ;
    there is no alternative construction that can be given to it; there is in fact
    no justification for the introduction of limiting words such as " if made in
    " good faith ", and there is the less reason for doing so when those words
    would have the effect of depriving the express words " in any legal proceed-
    " ings whatsoever " of their full meaning and content.

    I have examined paragraph 16 by itself without reference to paragraph 15.
    But paragraph 16 opens with the words " Subject to the provisions of the
    " foregoing paragraph ". It is necessary, therefore, to see whether the earlier
    has any bearing upon the meaning of the later paragraph. I think that it
    has not, for in my opinion the width or narrowness of the grounds of
    challenge permitted by paragraph 15 does not touch the construction of
    paragraph 16. Be they wide or be they narrow, it is subject to them that
    the general bar to legal proceedings is imposed. I am, therefore, reluctant
    to express a final opinion upon a matter much agitated at your Lordships'
    bar, whether the words " is not empowered " were apt to include a challenge
    not only on the ground of
    vires but also on the ground of bad faith or any
    other ground which would justify the Court in setting aside a purported
    exercise of a statutory power. The inclination of my opinion is that they
    are, but I would prefer to keep the question open, until it arises in a case
    where the answer will be decisive, as it is not here.

    I come, then, to the conclusion that the Court cannot entertain this action
    so far as it impugns the
    validity of the Compulsory Purchase Order, and it
    is no part of my present duty to attack or defend such a provision of an
    Act of Parliament. But two things may, I think, fairly be said. First,
    if the validity of such an Order is open to challenge at any time within the
    period allowed by the ordinary Statute of Limitations with the consequence
    that it and all that has been done under it over a period of many years may
    be set aside, it is not perhaps unreasonable that Parliament should have
    thought fit to impose an absolute bar to proceedings even at the risk of
    some injustice to individuals. Secondly, the injustice may not be so great
    as might appear. For the bad faith or fraud upon which an aggrieved person
    relies is that of individuals, and this very case shows that, even if the validity
    of
    the Order cannot be questioned and he cannot recover the land that has
    been taken from him, yet he may have a remedy in damages against those
    individuals. Here the Appellant by her writ claims against the personal
    Defendant a declaration that he knowingly acted wrongfully and in bad
    faith in procuring the Order and its confirmation, and damages, and that
    is a claim which the Court clearly has jurisdiction to entertain. I am far
    from saying that the claim has any merit. Of that I know nothing. But
    because the Court can entertain it, I think that the Court of Appeal, to
    whose attention this particular aspect of the case appears not to have been
    called, were wrong in striking out the whole writ and I propose that their
    Order should be varied by striking out the Defendants other than Mr. Pywell
    and the claims other than claims 3, 5, 6 and 7. Against Mr. Pywell the
    action may proceed but upon the footing that the validity of the Order cannot
    be questioned. There will be no order as to costs.

    Lord Morton of Henryton

    MY LORDS,

    This appeal arises out of an action wherein the Appellant was the
    plaintiff, and it raises a question of general importance. The original
    defendants were the three Respondents and the Ministry of Health. By her
    writ issued on 6th July, 1954, the plaintiff claimed:

    1. Against the East Elloe Rural District Council:

    " (a) Damages for trespass to the Plaintiff's land of 8 613 acres situate
    " at Hallgate, Holbeach in the County of Lincoln together with the

    5

    " dwellinghouse known as 'Hall Hill House' and other buildings on
    " the said land or on some parts thereof.

    " (b) An injunction restraining them by their Officers, Servants and
    " Agents and each and every of them from trespassing upon the afore-
    " said land and premises of the Plaintiff or any part thereof or from
    " entering upon the said lands and premises without the consent of
    " the Plaintiff.

    " (c) A Declaration that the Compulsory Purchase Order dated 27th
    "August 1948 was wrongfully made and in Bad Faith."

    2. Against the Ministry of Health:

    " A Declaration that the said Compulsory Purchase Order was
    " wrongfully confirmed on the 29th November 1948 and in Bad Faith."

    3. Against the Respondent J. C. Pywell, who was Clerk to the said Rural
    District Council at the relevant dates:

    " A Declaration that he knowingly acted wrongfully and in Bad
    " Faith in procuring the said Order and Confirmation of the same."

    4. Against the Ministry of Housing and Local Government:

    " As having taken over the functions of the Ministry of Health a
    " Declaration that the said Compulsory Purchase Order and Confirma-
    " tion of the same are in Bad Faith."

    1. Further and other relief.

    2. Damages.

    3. Costs.

    The Compulsory Purchase Order referred to in the writ was made by the
    first named Respondent on the 26th (not the 27th) August, 1948, and
    purported to authorise that Respondent to purchase compulsorily the house
    and land mentioned in the writ, whereof the Appellant was the owner. After
    the statutory public local enquiry had been held, the Minister of Health
    confirmed the said Order on 29th November, 1948, by an Order (the
    East
    Elloe
    (Holbeach) Housing Confirmation Order, 1948), which was duly
    advertised. The relevant functions of the Minister of Health and the
    obligations of the Ministry of Health were subsequently transferred to the
    Minister and the Ministry of Housing and Local Government by a Transfer
    of Functions Order S.I. 1951 No. 142.

    All the Respondents entered conditional appearances to the writ, and on
    the 27th July, 1954, the Respondents and the Minister of Health (who is no
    longer a party to these proceedings) applied by two separate summonses to
    Master Clayton under O. 12, R. 30, of the Rules of the Supreme Court for
    an Order that the writ and all subsequent proceedings in the action be set
    aside. The grounds upon which the claim in each summons was based
    were " That the Writ of Summons in this action is invalid for lack of
    " jurisdiction it being provided by paragraph 16 of Part IV of the First
    " Schedule to the Acquisition of Land (Authorisation Procedure) Act 1946
    " that save by the procedure specified in the said Schedule a compulsory
    " purchase order confirmed in accordance with the provisions of the said
    " Act (as was here the case) shall not. either before or after it has been
    " confirmed be questioned in any legal proceedings whatsoever by reason
    " whereof this Honourable Court has no jurisdiction to grant the relief
    " sought against the said Defendants."

    Master Clayton made an Order on each summons setting aside the writ
    and all subsequent proceedings in the action, and his decision was affirmed
    by Havers, J. and by the Court of Appeal (Hodson and Parker, L.JJ.) That
    Court refused leave to appeal, but leave was subsequently granted by the
    Appeal Committee of your Lordships' House.

    My Lords, I think there can be no doubt that the Respondents were never
    entitled to have the writ set aside so far as it claims relief against the
    Respondent Pywell. The relief claimed by paragraph 3 of the writ and the
    further relief claimed by paragraphs 5, 6 and 7, in so far as that relief

    6

    affects the Respondent Pywell, in no way call in question the validity of
    the Compulsory Purchase Order of 26th August, 1948, or of its confirmation.
    It is simply alleged, as against Mr. Pywell personally, that he knowingly
    acted wrongfully and in bad faith in procuring the Order and the con-
    firmation thereof. It is equally clear that Claims 1, 2 and 4 do put in
    issue the validity of the Order, and it would appear that this distinction
    between the claim against Mr. Pywell and the other claims was overlooked
    until the appeal was being argued in this House. No such point was taken
    in any of the Courts below, or in the Appellant's Reasons, but it is clear
    that the Appellant is entitled to proceed against Mr. Pywell, whatever view
    your
    Lordships take on the main question arising on this appeal, namely,
    whether paragraph 16 of Part IV of the First Schedule to the Act of 1946
    deprives this House, and all Courts, of jurisdiction to hear and determine
    this action, so far as it relates to the first and third Respondents. The
    relevant portions of the Act of 1946 are as follows :—

    By section 1 (1) the Act makes provision for the compulsory purchase
    of certain lands in the following terms:—

    " The authorisation of any compulsory purchase of land—

    " (a) by a local authority where, apart from this Act, power to
    " authorise the authority to purchase land compulsorily is conferred
    " by or under any enactment contained in a public general Act and in
    " force immediately before the commencement of this Act, other than
    " any enactment specified in subsection (4) of this section ;

    "... shall, subject to the provisions of this and the next following
    " section, be conferred by an order (in this Act referred to as a
    " ' compulsory purchase order') in accordance with the provisions of
    " the First Schedule to this Act (being provisions which, subject to
    " certain adaptations, modifications and exceptions, correspond with
    " provisions as to the authorisation of the compulsory purchase of
    " land of the Local Government Act, 1933)."

    Section 1 (2) of the said Act provides that a special procedure set
    out in Part III of the First Schedule to the Act shall be followed in
    compulsory acquisition of such land as falls within its scope,
    viz. :—

    " (a) which is the property of a local authority or which has been
    " acquired by statutory undertakers for the purposes of their under-
    " taking,

    " (b) forming part of a common, open space or fuel or field garden
    " allotment, or held inalienably by the National Trust, or

    " (c) being, or being the site of, an ancient monument or other object
    " or archaeological interest".

    It is plain that the land, the subject of this action, was not land affected
    by subsection (2) of section 1.

    Paragraphs 15 and 16 of Part IV of the First Schedule to the Act of 1946
    are as follows :—

    " 15. (1) If any person aggrieved by a compulsory purchase order desires
    " to question the
    validity thereof, or of any provision contained therein,
    " on the ground that the authorisation of a compulsory purchase thereby
    " granted is not empowered to be granted under this Act or any such
    " enactment as is mentioned in subsection (1) of section one of this Act, or
    " if any person aggrieved by a compulsory purchase order or a certificate
    " under Part III of this Schedule desires to question the validity thereof
    " on the ground that any requirement of this Act or of any regulation made
    " thereunder has not been complied with in relation to the order or certificate,
    " he may, within six weeks from the date on which notice of the con-
    " firmation or making of the order or of the giving of the certificate is
    " first published in accordance with the provisions of this Schedule in
    " that behalf, make an application to the High Court, and on any such
    " application the Court—

    7

    " (a) may by interim order suspend the operation of the compulsory
    " purchase order or any provision contained therein, or of the certificate,
    " either generally or in so far as it affects any property of the applicant,
    " until the final determination of the proceedings;

    " (b) if satisfied that the authorisation granted by the compulsory
    " purchase order is not empowered to be granted as aforesaid, or that
    " the interests of the applicant have been substantially prejudiced by
    " any requirement of this Schedule or of any regulation made there-
    " under not having been complied with, may quash the compulsory
    " purchase order or any provision contained therein, or the certificate,
    " either generally or in so far as it affects any property of the applicant."

    " 16. Subject to the provisions of the last foregoing paragraph, a com-
    " pulsory purchase order or a certificate under Part III of this Schedule
    " shall not, either before or after it has been confirmed, made or given,
    " be questioned in any legal proceedings whatsoever, and shall become
    " operative on the date on which notice is first published as mentioned in
    " the last foregoing paragraph."

    For the sake of brevity I shall hereafter refer to the paragraphs just quoted
    simply as "paragraph 15" or "paragraph 16".

    Mr. Roy Wilson for the Appellant puts forward propositions which I
    summarise as follows: —

    1. Paragraph 15 gives no opportunity to a person aggrieved to
      question the
      validity of a Compulsory Purchase Order on the ground
      that it was made or confirmed in bad faith.

    2. Although, prima facie, paragraph 16 excludes the jurisdiction of
      the Court in all cases, subject only to the provision of paragraph 15,
      it is inconceivable that the Legislature can have intended wholly to
      exclude all Courts from hearing and determining an allegation that such
      an Order was made in bad faith.

    3. Therefore, paragraph 16 should be read as applying only to an
      Order or a certificate made in good faith.

    In support of his second and third propositions, Mr. Wilson relied upon a
    general principle stated in the 10th edition of Maxwell on the Interpretation
    of Statutes, on observations made in a number of cases dealing with statutory
    powers, and on the case of Colder
    v. Halket, 3 Moore P.C. 28. The Attorney-
    General, on behalf of the Respondents, contends that the opportunity of
    objection given by paragraph 15 extends to cases where bad faith is
    alleged, but whether or not this is so, if the person aggrieved fails to apply
    to the Court within the six weeks period there mentioned, the jurisdiction
    of the Court is completely ousted by paragraph 16, the terms whereof are
    unambiguous.

    My Lords, I accept Mr. Wilson's first proposition. I cannot construe
    paragraph 15 as covering a case in which all the requirements expressly laid
    down by statute have been observed, but the person aggrieved has discovered
    that in carrying out the steps laid down by statute the authority has been
    actuated by improper motives. It is to be observed that both in the
    earlier and in the later part of paragraph 15 there is only one ground
    upon which the
    validity of the Order can be questioned. In the earlier
    part, that ground is " that the authorisation of a compulsory purchase
    " thereby granted is not empowered to be granted under this Act or any
    " such enactment as is mentioned in subsection (1) of section one of this
    " Act". In the later part it is " that any requirement of this Act or of any
    " regulation made thereunder has not been complied with in relation to the
    " order or certificate ". These words seem to me to restrict the complainant
    to alleging non-compliance with some requirement to be found in the relevant
    statutes or regulations. If paragraph 15 had been intended to apply to
    cases of bad faith, surely the restrictive words " on the ground that ", etc.,
    would have been left out in both parts. If, however, the words of para-
    graph 15 leave the point in any doubt, that doubt is removed, to my mind,
    by comparing the words of section 162 (1) of the Local Government Act,

    8

    1933, with the words of paragraph 15. It will be remembered that in
    section 1 (1) of the Act of 1946, already quoted, the provisions of the
    First Schedule to that Act (which provisions include paragraph 15) are
    described as " provisions which, subject to certain adaptations, modifications
    " and exceptions, correspond with provisions as to the authorisation of
    " the compulsory purchase of land of the Local Government Act, 1933."
    The provision in the Act of 1933 which corresponds to paragraph 15 is
    contained in section 162 (1) which begins as follows:—"If any person
    " aggrieved by a compulsory purchase order . . . desires to question its
    " validity, he may, within two months after the publication of the notice
    " of confirmation . . . make an application for the purpose to the High
    " Court," etc. One " modification " of this provision which is made by
    paragraph 15 consists in altering the wide words, " desires to question its
    " validity ", to the strictly limited words already quoted. It is, I think,
    inconceivable that, if the Legislature had intended paragraph 15 to cover
    cases where bad faith was alleged, it would have made this striking alteration
    in the language of section 162 of the 1933 Act. I would add that if para-
    graph 15 had been intended to cover such cases, there would seem to be
    no good reason why the earlier part thereof should not have been applied
    to a certificate as well as to an Order, since the later part applies to both.
    The reason for this difference was explained by Parker, L.J. in the Court
    of Appeal, and I agree with his explanation ; but the difference remains
    wholly unexplained if paragraph 15 covers cases where bad faith is alleged.

    My Lords, having accepted Mr. Wilson's first proposition, for the reasons
    I have stated, I reject his second and third propositions, on the short and
    simple ground that the words of paragraph 16 are clear, and deprive all
    Courts of any jurisdiction to try the issues raised by paragraphs 1, 2 and 4
    of the writ, whereby the Appellant undoubtedly seeks to question the
    validity
    of
    the Order of 26th August, 1948.

    Turning first to counsel's second proposition, it does not seem to me
    inconceivable, though it does seem surprising, that the Legislature should
    have intended to make it impossible for anyone to question in any Court
    the
    validity of a Compulsory Purchase Order on the ground that it was
    made in bad faith. It may have been thought that the procedure which
    has to be followed before such an Order is made and confirmed affords
    sufficient opportunity for allegations of bad faith to be ventilated, and it
    may have been thought essential, if building schemes were to be carried
    out, that persons alleging bad faith in the making of an Order, after the
    Order has been made, should be limited to claims sounding in damages
    against the persons who, in bad faith, caused or procured the Order to be
    made. The present action started nearly six years after the Order now in
    question was made and confirmed, and illustrates the difficulty which might
    arise if no such limit were imposed, since houses have already been erected
    on the land which was the subject of the Order.

    I fully realise that certain strange results follow if my construction of
    paragraphs 15 and 16 is correct. For instance, a Compulsory Purchase Order
    is made whereby a man is compelled to sell a house which has been his
    home, and the home of his family, for many years. After the Order is
    made, evidence comes into his hands which shows that the Order was
    made because the local district council wished to gratify a grudge against
    him, or for other reasons even more sinister. That man is for ever pre-
    cluded from going to any Court to have the Order set aside. However, it is,
    of course, within the powers of Parliament to achieve this result, and in
    my opinion it has been achieved by paragraphs 15 and 16. In making
    this comment, I am not, of course, casting any reflection upon any of the
    Respondents to this appeal.

    Effect can only be given to counsel's third proposition if some words
    are read into paragraph 16. Counsel suggested that the words " made in
    " good faith " should be read in after " order " and also after " certificate ".
    I cannot accept this suggestion. It would be impossible to predicate of
    any Order or certificate that it was made in good faith until the Court had

    9

    inquired into the matter, and that is just what paragraph 16 prohibits. Mr.
    Wilson relied upon certain passages in the tenth edition of Maxwell on
    the Interpretation of Statutes and especially on the following passage, which
    appears on p. 122 and also appeared, in substantially the same terms, in the
    first edition published in 1875:-

    " Enactments which confer powers are so construed as to meet all
    " attempts to abuse them, either by exercising them in cases not
    " intended by the statute, or by refusing to exercise them when the
    " occasion for their exercise has arisen. Though the act done was
    " ostensibly in execution of the statutory power and within its letter,
    " it would nevertheless be held not to come within the power if done
    " otherwise than honestly and in the spirit of the enactment."

    My Lords, this is a well-known principle; it is illustrated by many cases,
    and Mr. Wilson made an excellent selection of them, beginning with Ex
    parte Cowan
    (1867) L.R. 2 Ch. App. 563. In my opinion, however, neither
    the passage in Maxwell nor this line of cases assists your Lordships in
    construing paragraph 16. That paragraph does not confer a power. If it
    did, I should apply the principle stated in Maxwell without any hesitation.
    What the paragraph does is to enact, in terms which seem to me
    very
    clear,
    that when a certain type of Order or certificate has been made, it
    shall not be questioned in any Court, except in the limited type of case and
    for the limited period specified in paragraph 15.

    Mr. Wilson also relied upon the case of Colder v. Halket, 3 Moore P.C. 28.
    In that case the Judicial Committee had to construe section 24 of the Act
    21 Geo. III cap. 70, which was in the following terms : —

    " And whereas it is reasonable to render the Provincial Magistrates,
    " as well natives as British subjects, more safe in the execution of their
    " office, be it enacted, That no action for wrong or injury shall lie in
    " the Supreme Court against any person whatsoever, exercising a judicial
    " office in the Country Courts, for any judgment, decree, or order of
    " the said Court, nor against any person for any act done by or in
    " virtue of the order of the said Court."

    Baron Parke, delivering the judgment of the Board, said :
    " Three meanings may be attributed to this clause.

    " First. It may mean that no action should lie against one exercising
    " a judicial office, in the Country Courts, for any judgment, decree, or
    " order of the Court, whether in a matter in which the Court had a
    " jurisdiction or not, or whether the Judge wilfully and knowingly
    " gave judgment or made an order in a matter out of his jurisdiction
    " or not; so that the fact of the existence of a judgment, decree, or
    " order, should preclude all inquiry.

    " Secondly. It may mean to protect the Judge only where he gives
    " judgment, or makes an order, in the bona fide exercise of his office,
    " and under the belief of his having jurisdiction, though he may not
    " have any.

    " Thirdly. The object may have been to put the Judges of the
    " Native Courts on the footing of Judges of the Superior Courts of
    " Record, or Courts having similar jurisdiction to the Native Courts
    " here, protecting them from actions for things done within their juris-
    " diction, though erroneously or irregularly done, but leaving them
    " liable for things done wholly without jurisdiction.

    " It seems to us, that the first of these constructions is inadmissible.
    " It never could have been intended to give such unlimited power to the
    " Judges of the Native Courts, and reason points out that the general
    " words of the clause must be qualified in the manner stated in one of
    " the two latter modes of construction.

    " We think that the third is the right mode, and that the true meaning
    " of the section in question was to put the Judges of Native Courts of
    " Justice on the same footing as those of English Courts of similar
    " jurisdiction. There seems no reason why they should be more or

    10

    " less protected than English Judges of general or limited jurisdiction,
    " under the like circumstances."

    In that case it was possible, as a matter of construction, to read in
    the words " made within its jurisdiction " after the words " the said Court",
    and the decision may have been justified, having regard to the context
    and the surrounding circumstances; but it is impossible to read the words
    "made in good faith" into paragraph 16, for the reasons I have already
    stated. I think that the decision in Calder
    v. Halket would have been
    different if the section had read: "No judgment, decree or order of the
    " said Court shall be questioned in any legal proceedings whatsoever".
    Such words would, I think, clearly " preclude all inquiry " by preventing any
    complainant from raising the question whether the order had or had not
    been made without jurisdiction.

    The only other way of giving effect to counsel's third proposition would
    be to insert after the word " whatsoever" in paragraph 16 some such
    words as " unless it is alleged that the order or certificate was made in
    " bad faith "; but I can find no justification for inserting these words. To
    do so would be legislation, not interpretation. For these reasons, I am of
    opinion that paragraph 16 operates to oust the jurisdiction of the Courts in
    the present case, except in regard to the claims against Mr. Pywell. I should
    add that Mr. Collier, junior counsel for the Appellant, submitted that in
    paragraph 16 the words " under Part III of this Schedule" qualify " a
    " compulsory order " as well as " a certificate ", and as the Order in the
    present case was not made under Part III of the First Schedule, paragraph 16
    has no application to the present case. That submission was rejected by
    the Court of Appeal, and I shall only say that in my opinion it was rightly
    rejected, for the reasons given by Parker, L.J.

    I would allow the writ in this action to stand only in so far as it claims
    relief against the Respondent Pywell by Claims 3, 5, 6 and 7. The writ
    should, in my
    view, be set aside for want of jurisdiction in so far as it
    claims relief against the other Respondents. The appeal should, therefore,
    be allowed to the extent just mentioned.

    Lord Reid

    MY LORDS,

    In this action the Appellant sues the East Elloe Rural District Council and
    the Ministry of Health, now the Ministry of Housing and Local Government,
    and seeks declarations that a Compulsory Purchase Order made by that local
    authority and confirmed by the Minister was made and confirmed wrongfully
    and in bad faith. The Appellant also seeks consequential relief. The writ
    of summons has been set aside before a statement of claim was lodged, and
    so we do not know the nature of the bad faith alleged. But the argument
    for the Respondents is that it matters not how serious the bad faith might
    be: even if conspiracy and corruption were involved the action could not
    proceed because Parliament has deprived the Courts of jurisdiction to
    entertain it.

    The jurisdiction of the Courts is said to be ousted by two paragraphs of
    the First Schedule to the Acquisition of Land (Authorisation Procedure) Act,
    1946. Those paragraphs are as follows: —

    ''15 (1). If any person aggrieved by a compulsory purchase order
    " desires to question the
    validity thereof, or of any provision contained
    " therein, on the ground that the authorisation of a compulsory purchase
    " thereby granted is not empowered to be granted under this Act or any
    " such enactment as is mentioned in subsection (1) of section one of this
    " Act, or if any person aggrieved by a compulsory purchase order or a
    " certificate under Part III of this Schedule desires to question the
    " validity thereof on the ground that any requirement of this Act or of
    " any regulation made thereunder has not been complied with in relation

    11

    " to the order or certificate, he may, within six weeks from the date on
    " which notice of the confirmation or making of the order or of the
    " giving of the certificate is first published in accordance with the pro-
    " visions of this Schedule in that behalf, make an application to the
    " High Court, and on any such application the Court—

    " (a) may by interim order suspend the operation of the com-
    " pulsory purchase order or any provision contained therein, or of
    " the certificate, either generally or in so far as it affects any
    " property of the applicant, until the final determination of the
    " proceedings;

    " (b) if satisfied that the authorisation granted by the compulsory
    " purchase order is not empowered to be granted as aforesaid, or
    " that the interests of the applicant have been substantially
    " prejudiced by any requirement of this Schedule or of any regula-
    " tion made thereunder not having been complied with, may quash
    " the compulsory purchase order or any provision contained therein,
    " or the certificate, either generally or in so far as it affects any
    " property of the applicant."

    " 16. Subject to the provisions of the last foregoing paragraph, a
    " compulsory purchase order or a certificate under Part III of this
    " Schedule shall not, either before or after it has been confirmed, made
    " or given, be questioned in any legal proceedings whatsoever, and shall
    " become operative on the date on which notice is first published as
    " mentioned in the last foregoing paragraph."

    Compulsory Purchase Orders can be made under a number of different
    statutes, and before 1946 there was no uniform procedure: for example,
    the procedure under the Housing Act, 1936, differed in some respects from the
    procedure under the Local Government Act, 1933. Section 1 of the 1946 Act
    provides for the authorisation of any compulsory purchase by a local authority
    being confirmed by order in accordance with the provisions of the First
    Schedule, " (being provisions which, subject to certain adaptations, modifica-
    " tions and exceptions, correspond to provisions as to the authorisation of
    " the compulsory purchase of land of the Local Government Act, 1933) ".
    I shall have to refer to these words later. The provisions of the 1946 Act
    now apply to a wide
    variety of Orders made by many different types of
    authority, and the question how far the jurisdiction of the Courts has been
    ousted by this Act is, therefore, of very great importance. The Order by
    which the Appellant is aggrieved was made under the Housing Act, 1936, but
    nothing turns on that.

    Paragraph 15 of the First Schedule allows the validity of an Order to be
    questioned on two grounds, first, that the authorisation of the compulsory
    purchase " is not empowered to be granted " under the Act under which the
    Order is made, and secondly, that any requirement of the 1946 Act has not
    been complied with. In either case he may make application to the Court
    within six weeks from publication of confirmation of the Order. Paragraph
    16 provides that save as aforesaid a Compulsory Purchase Order shall not be
    questioned in any legal proceedings whatsoever either before or after it has
    been confirmed.

    If the words of these paragraphs are held to have their ordinary meanings,
    then an Order can never be questioned or attacked in any Court on the ground
    that it has been obtained by corrupt or fraudulent means, no matter how
    serious the corruption or how wide the conspiracy by which it has been
    obtained. Admittedly no other tribunal is given jurisdiction to deal with such
    a case, and the Minister has no power to act if, after he has confirmed an
    Order, it were found that the making of the Order had been due to corruption
    or malice. The only reason suggested for depriving the subject of redress
    in such a case is administrative convenience, and I find it necessary to examine
    these paragraphs narrowly to see whether I am forced to reach the conclu-
    sion that that must be held to have been the intention of Parliament. I may
    say at once that I have found nothing in the Act beyond the phraseology of
    these two paragraphs to indicate that Parliament had such an intention. I

    12

    shall, therefore, examine the phraseology of these paragraphs to see whether
    either of them is susceptible of an interpretation which would avoid that
    result.

    I take a case like the present case where the purpose of the acquisition of
    the land is plainly stated in the Order and is plainly intra
    vires and where all
    the required steps of procedure have been duly taken, and I must first examine
    paragraph 15 to see whether the present Appellant could have questioned the
    Order on any ground of bad faith, malice, corruption or conspiracy if she had
    raised her action within six weeks of the Order being confirmed. It is not
    said that this could have been brought within the second of the grounds set
    out in paragraph 15, but it is argued that it could be brought within the first
    because an authorisation obtained in bad faith is not " empowered to be
    granted ".

    I have quoted the passage in section 1 of the 1946 Act, which states that
    the provisions of its First Schedule correspond to provisions of the 1933 Act
    subject to adaptations and modifications, and I therefore begin by examining
    the provisions of the earlier Act which correspond to paragraphs 15 and 16
    of the First Schedule. Those provisions are contained in section 162 of the
    1933 Act. Subsection (1) provides, with regard to a Compulsory Purchase
    Order, that if a person aggrieved " desires to question its
    validity, he may,
    " within two months after the publication of the notice of confirmation . . .
    " make an application for the purpose to the High Court". The Court may
    then quash the Order, but when the invalidity arises from procedural provi-
    sions the Court must be satisfied that the interests of the applicant have been
    substantially prejudiced. Subsection (2) provides that subject to the provisions
    which I have mentioned an Order shall not, either before or after its confirma-
    tion, be questioned by prohibition or certiorari or in any legal proceedings.

    The 1933 Act does not in any way restrict the grounds on which a person
    may question the
    validity of an Order, but the 1946 Act specifies two grounds.
    I can see no other possible reason for this change and the more elaborate
    drafting which it entails, than an intention to limit the grounds on which a
    person aggrieved can make application to the Court, and in order to determine
    how far the 1946 Act has limited the jurisdiction of the Courts I must see
    what were the grounds on which the Court could give relief under the
    ordinary law or the 1933 Act. I think that in the past there has been some
    confusion about this, and I fear that I must try as best I can to unravel the
    matter. It seems to me that there were four grounds on which the Courts
    could give relief. First, informality of procedure; where, for example, some
    essential step in procedure had been omitted. Secondly, ultra vires in the
    sense that what was authorised by the Order went beyond what was authorised
    by the Act under which it was made. Thirdly, misuse of power in bona fide.
    And. fourthly, misuse of power in mala fide. In the last two classes the
    Order is intra vires in the sense that what it authorises to be done is within the
    scope of the Act under which it is made, and every essential step in procedure
    may have been taken: what is challenged is something which lies behind
    the making of the Order. I separate these two classes for this reason. There
    have been few cases where actual bad faith has even been alleged, but in the
    numerous cases where misuse of power has been alleged judges have been
    careful to point out that no question of bad faith was involved and that
    bad faith stands in a class by itself.

    Misuse of power covers a wide variety of cases, and I am relieved from
    considering at length what amounts to misuse of power in bona fide because
    I agree with the analysis made by Lord Greene, M.R. in Associated Provin-
    cial Picture Houses, Limited
    v. Wednesbury Corporation [1948] 1 KB 223.
    There the local authority had power to grant licences for cinema performances
    " subject to such conditions as the authority think fit to impose ". They
    allowed Sunday performances subject to the condition that no child should
    be admitted and were held entitled to do this. I quote what seem to me
    the leading passages in Lord Greene's judgment. He said (p. 228): " The
    " exercise of such a discretion must be a real exercise of the discretion.
    " If. in the statute conferring the discretion, there is to be found expressly or
    " by implication matters which the authority exercising the discretion ought

    13

    " to have regard to, then in exercising the discretion it must have regard to
    " those matters. Conversely, if the nature of the subject-matter and the
    " general interpretation of the Act make it clear that certain matters would
    " not be germane to the matter in question, the authority must disregard
    " those irrelevant collateral matters ... (p. 229) a person entrusted with a
    " discretion must, so to speak, direct himself properly in law. He must call
    " his own attention to the matters which he is bound to consider. He must
    " exclude from his consideration matters which are irrelevant to what he has
    " to consider. If he does not obey those rules, he may truly be said, and
    " often is said, to be acting ' unreasonably' . . . (p. 230) it is true to say that,
    " if a decision in a competent matter is so unreasonable that no reasonable
    " authority could ever have come to it, then the courts can interfere. That. I
    " think, is quite right; but to prove a case of that kind would require some-
    " thing overwhelming ... (p. 233) The court is entitled to investigate the
    " action of the local authority with a view to seeing whether they have taken
    " into account matters which they ought not to have taken into account, or,
    " conversely, have refused to take into account or neglected to take into
    " account matters which they ought to take into account. Once that question
    " is answered in favour of the local authority, it may be still possible to say
    " that, although the local authority have kept within the four corners of the
    " matters which they ought to consider, they have nevertheless come to a
    " conclusion so unreasonable that no reasonable authority could ever have
    " come to it. In such a case, again, I think the court can interfere. The
    " power of the court to interfere in each case is not as an appellate authority
    " to override a decision of the local authority, but as a judicial authority
    " which is concerned, and concerned only, to see whether the local authority
    " have contravened the law by acting in excess of the powers which Parlia-
    " ment has confided in them." None of those cases need involve mala fides.
    A local authority may have had regard to quite irrelevant considerations or
    may have acted quite unreasonably but yet be entirely innocent of dishonesty
    or malice.

    I can draw no other conclusion from the form in which paragraph 15 is
    now enacted than that Parliament intended to exclude from the scope of this
    paragraph the whole class of cases referred to in the passages which I have
    quoted. No doubt in one sense it might be said that in none of these cases
    is authority " empowered to be granted ", but that would be a strained and
    unnatural reading of these words only to be accepted if there were in the
    Act some clear indication requiring it. But to my mind all the indications
    are the other way, and this part of the paragraph only refers to cases of
    ultra
    vires in the narrow sense in which I have used it.

    If other cases of misuse of power in bona fide are excluded, can a distinc-
    tion be made where mala fides is in question? As I shall explain when I come
    to paragraph 16, I am of opinion that cases involving mala fides are in a
    special position in that mere general words will not deprive the Court
    of jurisdiction to deal with them, and if that is so then no question would
    arise under paragraph 15. But if I am wrong about cases of mala fides being
    in this special position, I do not see how there can be a distinction under para-
    graph 15 between cases of bona fide and mala fide misuse of power. I can
    see nothing to indicate any intention to that effect, and if Parliament intended
    to treat bad faith as a special case it would be
    very strange to introduce the
    exception here. The time limit under paragraph 15 is six weeks, which is
    appropriate for grounds which appear from the terms of the Order but not
    appropriate for grounds based on facts lying behind the Order which may not
    be discoverable for some time after it is confirmed ; and I find another strong
    indication that the first ground of challenge was not intended to apply to
    such cases in the fact that that ground is not available to a person aggrieved
    by the granting of a certificate: only the second ground is available to him.
    This is intelligible if the first ground only applies to ultra vires because I
    cannot see how a certificate could be ultra vires. But if the first ground was
    intended to apply where mala fides is alleged I cannot imagine any reason
    why it was not also made available when a certificate is challenged.

    In my view, the question whether authority is empowered to be granted is
    intended to be capable of immediate answer: if it can depend on facts lying

    14

    behind the Order, then neither the Minister nor the owner could know for
    certain at the time of confirmation whether any Order is empowered to be
    granted or not because facts shewing misuse of power might subsequently
    emerge. Accordingly, in my opinion, the Appellant could not have brought
    her case within paragraph 15 even if she had raised it immediately after the
    Order was confirmed.

    I turn to paragraph 16. Not only does it prevent recourse to the Court after
    six weeks in cases to which paragraph 15 does apply, but on the face of it, it
    prevents any recourse to the Court at all in cases to which paragraph 15 does
    not apply. It uses words which are general and emphatic and to my mind the
    question is whether this use of general words necessarily leads to the conclu-
    sion that the jurisdiction of the Court is entirely excluded in all cases of mis-
    use of powers in mala fide where those acting in mala fide have been careful
    to see that the procedure was in order and the authority granted by the Order
    was within the scope of the Act under which it was made. A person deliber-
    ately acting in bad faith would naturally be careful to do this. In my judgment
    paragraph 16 is clearly intended to exclude and does exclude entirely all cases
    of misuse of power in bona fide. But does it also exclude the small minority
    of cases where deliberate dishonesty, corruption or malice is involved? In
    every class of case that I can think of the Courts have always held that general
    words are not to be read as enabling a deliberate wrongdoer to take advan-
    tage of his own dishonesty. Are the principles of statutory construction so
    rigid that these general words must be so read here? Of course, if there were
    any other indications in the statute of such an intention beyond the mere
    generality of the words that would be conclusive: but I can find none.

    There are many cases where general words in a statute are given a limited
    meaning. That is done not only when there is something in the statute itself
    which requires it, but also where to give general words their apparent meaning
    would lead to conflict with some fundamental principle. Where there is ample
    scope for the words to operate without any such conflict it may
    very well be
    that the draftsman did not have in mind and Parliament did not realise that
    the words were so wide that in some few cases they could operate to subvert
    a fundamental principle. In general, of course, the intention of Parliament
    can only be inferred from the words of the statute, but it appears to me to be
    well established in certain cases that, without some specific indication of an
    intention to do so, the mere generality of words used will not be regarded
    as sufficient to shew an intention to depart from fundamental principles. So
    general words by themselves do not bind the Crown, they are limited so as not
    to conflict with international law, they are commonly read so as to avoid
    retrospective infringement of rights, and it appears to me that they can equally
    well be read so as not to deprive the Court of jurisdiction where bad faith
    is involved. If authority be needed for reading general words so as not to
    deprive the Court of jurisdiction in such a case, I find it in Colder v. Halket.
    3 Moore P.C. 28, where general words in 21 Geo. III c. 60 s. 24 were even
    farther limited without there being anything in the statute to indicate that
    they should be read in a limited sense. The words were: " No action for
    " wrong or injury shall lie in the Supreme Court against any person whatso-
    " ever exercising a judicial office in the Country Courts for any judgment
    " decree or order of the said Court nor against any person for any act done
    " by or in virtue of the Order of the said Court ". Two limited readings were
    suggested—to exclude acts in mala fide or to exclude proceedings wholly
    without jurisdiction. In their Lordships' judgment (p. 75) it is said: "It
    " never can have been intended to give such unlimited powers to Judges of
    " the Native Courts and reason points out that the general words of the clause
    " must be qualified in the manner stated in one of the two latter modes of
    " construction." I think that there is still room for reason to point out that
    the general words in this case must be limited so as to accord with the
    principle, of which Parliament cannot have been ignorant, that a wrongdoer
    cannot rely on general words to avoid the consequences of his own dishonesty.
    As I have said, we must take this case on the footing that the Appellant
    might allege deliberate dishonesty of the grossest kind.

    It is said that Parliament may have intended that even cases of gross
    dishonesty should be excluded from redress because otherwise it would be

    15

    embarrassing to deal with allegations of this kind after a long interval, and if
    the case were proved a local authority and ultimately the ratepayers might be
    involved in grievous loss. I am not entirely satisfied that the law is powerless
    to deal justly with such a situation. But even if that were a possible conse-
    quence I would hesitate to attribute to Parliament the
    view that considerations
    of that kind justify hushing up a scandal.

    In my judgment this appeal should be allowed.

    Lord Radcliffe

    MY LORDS,

    I think that this appeal must fail except so far as the action against the
    defendant Pywell is concerned. As I understand that all your Lordships
    are agreed upon the latter point, I will confine what I have to say to the
    case against the defendants
    East Elloe Rural District Council, Ministry of
    Health and Ministry of Housing and Local Government.

    The relief that the Appellant seeks against them in her action depends
    wholly on her ability to establish that a Compulsory Purchase Order dated
    27th August, 1948, made by the Rural District Council and confirmed by
    the Minister was invalid. I do not wish to beg any question by using the
    word " invalid ". I mean that she has to show that in the eyes of the law
    this Compulsory Purchase Order was not effective to confer upon the Rural
    District Council the authority to enter upon her land, which they certainly
    would not have possessed without the making of the Order. It follows,
    therefore, that her action must stand or fall by her ability to question this
    Compulsory Purchase Order in the legal proceedings.

    But the act of questioning a Compulsory Purchase Order in legal proceed-
    ings is what is dealt with under those
    very words in paragraphs 15 and 16 of
    Part IV of the First Schedule of the Acquisition of Land (Authorisation
    Procedure) Act, 1946: and the defendants say that having regard to the
    provisions of those paragraphs it is not open to the Appellant by a writ
    issued in July, 1954, to question a Compulsory Purchase Order made in
    August, 1948.

    The provisions of the two paragraphs in question have been set out in
    full in the speech of the noble Lord on the Woolsack, and I do not repeat
    them. If, as is obvious, her proceedings are not within the brief measure
    of time allowed by paragraph 15, I am bound to say that I think that
    she faces a
    very great difficulty in showing that what appears to be the
    absolute prohibition, " shall not ... be questioned in any legal proceedings
    " whatsoever ", is to be understood in a Court of Law as amounting to
    something much less than such a prohibition. It is quite true, as is said,
    that these are merely general words : but then, unless there is some compelling
    reason to the contrary, I should be inclined to regard general words as the
    most apt to produce a corresponding general result.

    Now, the Appellant says that the reason for an exception being made in
    her case lies in the fact that, as her writ shows, she intends to establish
    that the Compulsory Purchase Order in question was made and confirmed
    " in bad faith " ; and that, when such a plea is raised, it is the duty of a Court
    of Law so to interpret the apparently general words used by Parliament as
    not to apply them to legal proceedings that are designed to determine that
    issue. It is because I do not think that the law either requires or entitles us to
    adopt such a method of construing an Act of Parliament that, in my opinion,
    the Appellant's action must be stopped.

    Of course, it is well known that Courts of Law have always exercised a
    certain authority to restrain the abuse of statutory powers. Such powers
    are not conferred for the private advantage of their holders. They are
    given for certain limited purposes, which the holders are not entitled to
    depart from : and if the authority that confers them prescribes, explicitly or

    16

    by implication, certain conditions as to their exercise, those conditions
    ought to be adhered to. It is, or may be, an abuse of power not to observe
    the conditions. It is certainly an abuse of power to seek to exercise it
    when the statute relied upon does not truly confer it, and the invalidity
    of the act does not depend in any way upon the question whether the
    person concerned knows or does not know that he is acting ultra
    vires.
    It is an abuse of power to exercise it for a purpose different from that for
    which it is entrusted to the holder, not the less because he may be acting
    ostensibly for the authorised purpose. Probably most of the recognised
    grounds of invalidity could be brought under this head: the introduction of
    illegitimate considerations, the rejection of legitimate ones, manifest unreason-
    ableness, arbitrary or capricious conduct, the motive of personal advantage
    or the gratification of personal ill-will. However that may be, an exercise
    of power in bad faith does not seem to me to have any special pre-eminence
    of its own among the causes that make for invalidity. It is one of several
    instances of abuse of power and it may or may not be involved in several
    of the recognised grounds that I have mentioned. Indeed, I think it plain
    that the Courts have often been content to allow such circumstances, if
    established, to speak for themselves rather than to press the issue to a
    finding that the group of persons responsible for the exercise of the power
    have actually proceeded in bad faith.

    It must be assumed that the Legislature which enacted the Acquisition
    of Land (Authorisation Procedure) Act, 1946, was aware that the law
    protected persons disturbed by an exercise of statutory powers in that it
    allowed them to come to the Courts to challenge the
    validity of the exercise
    on any of such grounds. But, if so, I do not see how it is possible to treat
    the provisions of paragraphs 15 and 16 of Part IV of the First Schedule
    of the Act as enacting anything less than a complete statutory code for
    regulating the extent to which and the conditions under which Courts of
    Law might be resorted to for the purpose of questioning the validity of a
    Compulsory Purchase Order within the protection of the Act. I should
    myself read the words of paragraph 15 (1), " on the ground that the authorisa-
    " tion of a compulsory purchase thereby granted is not empowered to be
    " granted under this Act", as covering any case in which the complainant
    sought to say that the Order in question did not carry the statutory authority
    which it purported to. In other words, I should regard a challenge to the
    Order on the ground that it had not been made in good faith as within the
    purview of paragraph 15. After all. the point which concerns the aggrieved
    person is the same in all cases: an Order has been made constituting an osten-
    sible exercise of statutory power and his purpose in resorting to the Courts is
    to show that there is no statutory authority behind the Order. I do not see
    any need to pick and choose among the different reasons which may support
    the plea that the authorisation ostensibly granted does not carry the powers of
    the Act. But even if I did not think that an Order could be questioned under
    paragraph 15 on the ground that it had been exercised in bad faith and I
    thought, therefore, that the statutory code did not allow for an Order being
    questioned on this ground at all, I should still think that paragraph 16
    concluded the matter and that it did not leave to the Courts any surviving
    jurisdiction.

    The Appellant's argument for an exception rests on certain general
    reflections which do not seem to me to make up into any legal principle
    of construction as applied to an Act of Parliament. It is said that the
    six weeks which are all the grace that, on any
    view, paragraph 15 allows
    an aggrieved person for his taking action, are pitifully inadequate as an
    allowance of time when bad faith, which may involve concealment or
    deception, is thought to be present. And indeed they are. Further, it is
    said that it would be an outrageous thing if a person who by ordinary legal
    principles would have a right to upset an Order affecting him were to be
    precluded from coming to the Courts for his right, either absolutely or after
    six weeks, when the Order is claimed by him to have been tainted by bad
    faith. And perhaps it is. But these reflections seem to me to be such as
    must or should have occurred to Parliament when it enacted paragraph 16.

    17

    They are not reflections which are capable of determining the construction
    of the Act once it has been passed, unless there is something that one can
    lay hold of in the context of the Act which justifies the introduction of the
    exception sought for. Merely to say that Parliament cannot be presumed to
    have intended to bring about a consequence which many people might think
    to be unjust is not, in my opinion, a principle of construction for this purpose.
    In point of fact, whatever innocence of
    view may have been allowable to the
    lawyers of the 18th and 19th centuries, the 20th century lawyer is entitled
    to few assumptions in this field. It is not open to him to ignore the fact
    that the Legislature has often shown indifference to the assertion of rights
    which Courts of Law have been accustomed to recognise and enforce and
    that it has often excluded the authority of Courts of Law in favour of other
    preferred tribunals.

    At one time the argument was shaped into the form of saying that an
    Order made in bad faith was in law a nullity and that consequently all
    references to compulsory purchase orders in paragraphs 15 and 16 must be
    treated as references to such Orders only as had been made in good faith.
    But this argument is in reality a play on the meaning of the word nullity.
    An Order, even if not made in good faith, is still an act capable of legal
    consequences. It bears no brand of invalidity upon its forehead. Unless the
    necessary proceedings are taken at law to establish the cause of invalidity
    and to get it quashed or otherwise upset it will remain as effective for its
    ostensible purpose as the most impeccable of Orders. And that brings us
    back to the question that determines this case: Has Parliament allowed the
    necessary proceedings to be taken?

    I am afraid that I have searched in vain for a principle of construction
    as applied to Acts of Parliament which would enable the Appellant to
    succeed. On the other hand, it is difficult not to recall in the Respondents'
    favour the dictum of Bacon: " non est interpretatio, sed divinatio, quae
    recedit a litera ".

    Lord Somervell of Harrow

    MY LORDS,

    Objections to a Compulsory Purchase Order by the vendor or other person
    aggrieved would, I think, normally fall under one or other of the following
    heads—(1) merits, (2) ultra vires, or (3) mala fides. There may be debatable
    frontiers.

    So far as the merits are concerned, the Act provides for publication, notices
    and objections, if any. Objectors may be heard before a local inquiry
    or individually as provided in the Act. Subject to the procedures there
    laid down, the " merits " are finally decided by the local authority, subject
    to confirmation by the Minister.

    Ultra vires and mala fides are, prima facie, matters for the Courts. If the
    jurisdiction of the Courts is to be ousted it must be done by plain words.

    A good example of ultra vires came before the Courts while this appeal
    was being argued. The Act of 1946 provides for a special parliamentary
    procedure if the land covered by the Order is, inter alia, a common or open
    space. The local authority and the Minister had, bona fide, proceeded
    on the basis that the land was not a common or open space and had not,
    therefore, operated the special procedure. By the time the case came on
    the Minister conceded that the land covered was an open space and the
    Order was quashed (Richardson v. Minister of Housing and Local Govern-
    ment,
    Times newspaper, February 24, 1956).

    Another example is White and Collins v. Minister of Health [1939] 2 K.B.
    838. There was no suggestion of bad faith.

    Mala fides is a phrase often used in relation to the exercise of statutory
    powers. It has never been precisely defined as its effects have happily

    18

    remained mainly in the region of hypothetical cases. It covers fraud or
    corruption. As the Respondents have moved before the bad faith has been
    particularised, one must assume the worst.

    It has been said that bad faith is an example of ultra vires, and observations
    to this effect are relied on by the Respondents in support of their submission
    that the words " not empowered to be granted " in paragraph 15 of Part IV of
    the First Schedule to the Act cover cases where fraud or corruption is relied
    on, although on the face of it there is no irregularity. The following passage
    from Warrington, L.J., as he then was, is perhaps the most favourable to
    this argument. (Short v. Poole Corporation [1926] 1 Ch. 66 at p. 91.)

    " My view then is that the only case in which the Court can interfere
    " with an act of a public body which is, on the face of it, regular and within
    " its powers, is when it is proved to be in fact ultra vires, and that the
    " references in the judgments in the several cases cited in argument to bad
    " faith, corruption, alien and irrelevant motives, collateral and indirect objects,
    " and so forth, are merely intended when properly understood as examples
    " of matters which if proved to exist might establish the ultra vires character
    " of the act in question." This way of describing the effect of bad faith
    should not be used to blur the distinction between an ultra vires act done
    bona fide and an act on the face of it regular but which will be held to be
    null and void if mala fides is discovered and brought before the Court. The
    division in law is clear and deep. No party would be allowed to raise
    fraud under an allegation of ultra vires simpliciter. In Demetriades v.
    Glasgow
    Corporation [1951] 1 A.E.R. 457 the plaintiff complained of acts
    done on his land after requisition. He alleged inter alia that trees had been
    unlawfully cut. If there had been mala fides the cutting would, as I follow
    it, have been unlawful, but the House would not consider the possibility
    of bad faith in the absence of an express averment. This is stated by
    Lord Normand at the end of his Opinion. My noble and learned friend,
    Lord Morton of Henryton. at p. 461, said this: "The position would be
    " different if there were any allegation of fact that the competent authority.
    " through his agents the respondents, had acted in bad faith and with some
    " ulterior motive in carrying out this work on the trees. The truth or
    " falsity of such an allegation could be investigated by a court of law ".
    But no such investigation could take place in a case in which there was a
    claim for a declaration that the cutting had been unlawful.

    In Carltona, Ltd. v. Commissioners of Works and Others (19431 2 A.E R.
    560 the writ claimed a declaration that the Commissioners of Works were not
    entitled to take possession of the plaintiffs' premises and that a notice on which
    the Commissioners relied was invalid. Lord Greene, M.R., held bad faith
    could not be raised under a writ in this form. The words of paragraph 15 are
    plainly appropriate to ultra vires in the ordinary sense. They do not in their
    ordinary meaning, in my opinion, cover Orders which " on the face of it"
    are proper and within the powers of the Act, but which are challengeable
    on the ground of bad faith. The wording of the paragraph itself supports
    this view. If mala fides is within the paragraph it must be within the
    earlier words " is not empowered to be granted under this Act". These
    words do not apply to a certificate under Part III. If the paragraph was
    to cover mala fides it would have covered it in relation to a certificate as
    well as to an Order. It has not done so.

    This construction is strengthened by the context. The jurisdiction of the
    Court under paragraph 15 is ousted after six weeks. If Parliament had
    intended that this should apply in the case of a person defrauded it would
    have made it plain, and not left it to be derived from a doubtful syllogism
    which would certainly not occur to a layman and would not, I think, occur
    ordinarily to a lawyer unless he happened to have had recently to familiarise
    himself with passages such as that I have cited from Lord Warrington.

    The limited right under paragraph 15, therefore, does not apply to applica-
    tions based on bad faith. Pausing there, the
    victim of mala fides would have
    his ordinary right of resort to the Courts. It is said, however, that paragraph

    19

    16 takes away this right. In other words, Parliament, without ever using words
    which would suggest that fraud was being dealt with, has deprived a victim
    of
    fraud of all right of resort to the courts while leaving the victim of a
    bona fide breach of a regulation with such a right. If Parliament has done
    this it could only be by inadvertence. The two paragraphs fall to be
    construed together. Mala fides being, in my opinion, clearly excluded from
    paragraph 15, it should not, I think, be regarded as within the general
    words of paragraph 16. Construing general words as not covering fraud
    is accepted as right in many contexts. This seems to me an appropriate
    context for that principle. The Act, having provided machinery for access
    to the Courts in cases of ultra vires, cannot have intended to exclude altogether
    a person defrauded. General words, therefore, should not be construed
    as effecting such an exclusion.

    The Respondents sought to rely on the word " whatsoever ". It is a word
    which in certain contexts may bring comfort to those who seek to include
    fraud under general words. Here it is applied, not to the grounds of challenge,
    but to the legal proceedings. Orders of this kind may be challenged in
    various ways, by injunction, by prerogative writ or the procedure now sub-
    stituted, or, as here, by an ordinary writ. The word " whatsoever " is apt
    to cover this multiplicity.

    It is finally said there might be great inconvenience if after, say, houses
    had been built the
    validity could be challenged. There are two grounds
    which lead me to give little weight to this. First, there is a possibility of
    fraud in the subsequent proceedings following on a notice to treat. No one
    suggests there is any ouster or special limitation of jurisdiction in that case.
    Further, if there is a possibility of bad faith in matters of this kind, I would
    think it much more inconvenient to the administration, national and local,
    as a whole that a person defrauded should be deprived of any remedy
    in the Courts. I, therefore, would allow the appeal.

    (31992r) Wt 8124-124 35 4/56 D.L.JPA/19



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