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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
    1. Barnard and Others v National Dock Labour Board and Another [1953] 1 All ER 1113
    3. Heywood v Hull Prison Board of Visitors and another [1980] 3 All ER 594
    4. Supreme Court Act 1981
    5. O'Reilly v Mackman and others and other cases [1982] 3 All ER 1124
    6. Wandsworth London Borough Council v Winder [1984] 3 All ER 976
    7. Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300
    8. R v East Berkshire Health Authority, ex parte Walsh [1984] 3 All ER 425
    9. R v Secretary of State for the Home Department, ex parte Benwell [1984] 3 All ER 854
    10. R v Panel on Take-overs and Mergers, ex parte Datafin plc and another (Norton Opax plc and another intervening) [1987] 1 All ER 564
    11. Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 All ER 705
    12. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    13. Boddington v British Transport Police [1998] 2 All ER 203
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Wandsworth London Borough Council v Winder [1984] 3 All ER 976

LORD FRASER OF TULLYBELTON. My Lords, the question in 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 RSC Ord 53. The appeal is a sequel to the decisions of this House in O'Reilly v Mackman... and Cocks v Thanet DC [1982] 3 All ER 1135, [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 s 28 of the Housing Act 1980. The landlords were Wandsworth London Borough Council, the appellants. On 2 March 1981 the appellants gave notice to the respondent under s 40(1) and (4) of the 1980 Act 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% 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.... 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 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 LJJ, Ackner LJ dissenting) ([1984] 3 All ER 83, [1984] 3 WLR 563) 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 s 40 of the 1980 Act 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 s 40(4) were also bound to act reasonably in the Wednesbury sense...

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 under RSC Ord 53....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.....

[I]n O'Reilly v Mackman....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 falling 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 fall within any of the exceptions specifically suggested in O'Reilly v Mackman.

Immediately after the decision in O'Reilly v Mackman, the House applied the general rule in Cocks v Thanet DC [1982] 3 All ER 1135, [1983] 2 AC 286. ... Cocks v Thanet DC 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. 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.... 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 right law. There is also the same distinction as in O'Reilly v Mackman, namely that the party complaining of the decision was the plaintiff.... 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 directly 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.... Procedure under Ord 53 also affords protection to public authorities in other ways.... 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....

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 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.... 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.....

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 law.