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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
  17. Chapter sixteen: Locus standi
    1. Boyce v Paddington Borough Council [1903] 1 Ch 109
    2. Gregory and Another v London Borough of Camden [1966] 2 All ER 196
    3. R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129
    4. R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
    5. Supreme Court Act 1981
    6. Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
    7. R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551
    8. R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754
    9. R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd [1994] 4 All ER 329 (No 2)
    10. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
  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

R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129

DENNING L.J: This case concerns two street traders in Goulston Street, Stepney, who both wanted a pitch which had become vacant. The question for us is whether this contest between two street traders, once it had been decided by the Borough Council, can be made the subject of an appeal to a metropolitan magistrate.

The one trader is Mr. Gritzman, who trades in jellied eels and- shellfish. For many years he has had a pitch in Goulston Street, outside Cardigan House. He has, so to speak, worked his way up the street. Some pitches are better than April, 1956, for his newspapers and periodicals on pitches Nos. 8 and 10, on pitch which a trader shall have; and in the ordinary way a trader who has been there a long time can work his way up the queue. He is given a better pitch on account of his long trading in the street. Mr. Gritzman, for his jellied eels, had had pitch No. 4 for five days in the week, and pitch No. 8 for the other two. He had his annual licence renewed on 1st January, 1956, for that year.

The other trader is Mr. Greenbaum, who trades in magazines and newspapers. For many years he had a pitch outside Aldgate East Station; but that station was going to be demolished and he could no longer trade on his pitch there. So in 1956 he managed to move into Goulston Street. He got a licence on 25th April, 1956, for his newspapers and periodicals on pitches Nos. 8 and 10, on pitch No. 8 for two days of the week, and on pitch No. 10 for the other days of the week. Having got a licence for a pitch only from 25th April, 1956, he was, so to speak, a newcomer in the street.

It so happened that about this time a much better pitch in Goulston Street became vacant, pitch No. 2. The previous trader became ill and died about May, 1956. Thereupon both Mr. Gritzman and Mr. Greenbaum wanted to get that pitch. In addition, 26 other peOple wanted to get it. Both Mr. Greenbaum and Mr. Gritzman applied for the grant of a licence and in their applications each asked for a "transfer"- that is, each wanted to give up his own existing licence and get a new licence for pitch No. 2. The borough council considered all the 28 applications - they were in the form of applications for a new licence - and eventually they decided in favour of Mr. Greenbaum; the newcomer, who had been turned out of the Aldgate East pitch. They decided that he should have the licence for pitch No. 2 and they refused all the others, including Mr. Gritsman, the old trader in the street, who had been working his way up. They accordingly granted him a new licence in which they prescribed pitch No 2 for Mr. Greenbaum and left Mr. Gritzman still with his pitches 4 and 8.

Thereupon, Mr. Gritzman, who thought that Mr. Greenbaum had "jumped the queue," appealed to the metropolitan magistrate. He could not appeal against the grant of a licence to Mr. Greenbaum, but only against the refusal to grant a licence to himself. So when he put in his complaint to come before the magistrate, his complaint was simply that he had been refused a licence; and he duly gave notice of appeal to the borough council as required by the statute. On the face of the matter he was in some difficulty because he still held his licence for pitches 4 and 8. He had not been refused a licence altogether, but only a prescription for a particular pitch. When Mr. Gritzman went to the metropolitan magistrate, the borough council were on the other side opposing him. The borough council called Mr. Greenbaum as a witness, but Mr Greenbaum was not a party to the appeal. In the result, the magistrate held that the council were wrong to refuse the licence for pitch No. 2 to Mr. Gritzman: and he held that Mr. Gritzman ought to have pitch No. 2. The council thereupon made out a licence for Mr. Gritzman for pitch No. 2, and they wrote to Mr. Greenbaum saying that his licence had been wrongly issued. Mr. Greenbaum was aggrieved about that. He wanted to. appeal to quarter sessions, and there

were a lot of proceedings in the courts which I need not recite, because the real point in the case which we have to consider is whether the metropolitan magistrate had any jurisdiction to hear the appeal which Mr. Gritzman had brought from the local authority. We have nothing to do with the merits as between Mr. Gritzman and Mr. Greenbaum: we do not know enough to say anything about them. We have only to decide whether the magistrate had jurisdiction to hear this appeal.

This point depends on the wording of the London County Council (General Powers) Act, 1947. We have been all through these sections, and I do not propose to read them all through, because I think that the scheme of this Act is reasonably plain. A street trader can apply to the local authority for a licence to trade in a particular street market, specifying the kind of goods he is going to deal with, and so forth, in that street. If he is refused a licence he can appeal from that refusal, but only on specific grounds which do not concern other traders but concern himself. For instance, if the council refuse him a licence because he has been guilty, of misconduct or is an unsuitable person, he can appeal. Or suppose the council say: "There is so much traffic in this street that there is no room for another stall: it is full up already," he can appeal on the ground that there is room for him without impeding traffic. Or he can appeal if the council say: "You have not paid your charges," or "You have not been there for four weeks." He can appeal on any of those grounds, which, be it noted, involve in every case a contest between him and the borough council - a point which is borne out by the fact that notice of appeal is only to be given to the borough council. But it is a very different thing if there is a contest between himself and another trader as to which of them should have a particular pitch. So far as I can see, the people to decide that contest are the local council. Under the Statute the prescription of a particular pitch is for them. If they refuse a particular prescription, there is no provision in the Act for an appeal against the refusal. There is an appeal against the refusal of a licence, but not against the refusal of a particular prescription. Mr. Gritzman was never refused a licence. He had it all the time for pitches 4 and 8. All he was refused was a particular prescription for pitch No. 2. From that refusal there is no appeal. Any other view would lead to great complications. Take this very case. The local council had granted Mr. Greenbaum the licence for pitch No. 2. Once they granted it they could not revoke it except on certain specified grounds, which did not exist. Indeed, the magistrate could not revoke it. I ask myself, how could it be supposed that the magistrate could grant pitch No. 2 to Mr. Gritzman when the council had already given it irrevocably to Mr. Greenbaum? The magistrate could not put one street trader on the top of another on that pitch.

So on the whole reading of this Act, I find myself in entire agreement with the Lord Chief Justice and the other members of the Divisional Court. In such a case as the present the decision of the borough council is an administrative matter for them and not a justiciable matter so as to be the subject of an appeal to the magistrate.

We were told that this will mean a complete alteration of the practice in these matters The metropolitan magistrates have for a long time been deciding which of two traders should have a particular pitch, but, nevertheless, now that the matter has been investigated on the interpretation of the Act, it is I think plain that they have no jurisdiction to decide the question.

There is one other matter which was taken before us, and that is this. It was said. that Mr. Greenbaum had no locus standi to come before the Court of Queen's Bench because (it was said) he was not a party to the proceedings before the magistrate: that the only people before the magistrate were Mr. Gritzman and the borough council, and, therefore, Mr. Greenbaum had no place from which to come before the Court and ask for a certiorari to quash the magistrate's decision. Upon that matter I would say that the remedy by certiorari is not confined to the parties before the lower court. It extends to any person aggrieved, and, furthermore, to any stranger. The Court of Queen's Bench, by virtue of its inherent jurisdiction over inferior tribunals, has always the right to interfere if it sees that the lower tribunal is going or has gone beyond its jurisdiction, or has acted in a way contrary to law, or appears from the record to have fallen into error in point of law: and it can so interfere, not only at the instance of a party or a person aggrieved but also at the instance of a stranger if it thinks proper. When application is made to it by a party or a person aggrieved, it will intervene (as it is said) ex debito justitiae, in justice to the applicant. When application is made by a stranger it considers, whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court. In this regard 1 would refer to Reg. v. Justices of Surrey (1870) L.R. 5 Q.B. 466.

I should have thought that in this case Mr. Greenbaum was certainly a person aggrieved; and not a stranger.. He was affected by the magistrate's order because the magistrate ordered another person to be put on his pitch. It is a proper case for the intervention of the Court by means of certiorari. I find myself, therefore, in agreement with the Divisional Court on both the points which were taken, and I would dismiss the appeal.

Parker LJ:.... As regards the second point, that certiorari will not lie here, in that Mr. Greenbaum was not a person aggrieved, I am unable to accept Mr. Lawson's argument. One starts with this, that the remedy by way of certiorari is a discretionary remedy. Anybody can apply for it - a member of the public who has been inconvenienced, or a particular party or a person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary. Where, however, it is made by a person who has a particular grievance of his own, whether as a party or otherwise, then the remedy lies ex debito justitiae, and that, I think, has always been the position from 1869 (cf. Reg. v. Surrey Justices (supra) and Reg. v. Manchester Local1 AUT Committee, ex parte R. A. Brand and Co., Ltd. [1952] 2 Q.B. 413). The remedy will be granted whenever the applicant has shown a particular grievance of his own beyond some inconvenience suffered by the general public.

Applying those tests, I should have thought that in this case it was clear beyond doubt that Mr. Greenbaum was a person with a particular grievance of his own. Mr. Lawson, however, says that the run of cases from Reg. v. Surrey Justices onwards is dealing with tribunals, or bodies exercising administrative functions and is not applicable in the case of purely judicial proceedings. He says that in the case of an inferior court dealing with a purely judicial matter no person can be a party aggrieved unless he be a party to that litigation, or somebody who could have been made a party to it. For my part, I think that that is a novel proposition. I can see no reason why a third party should not be permitted

to move in either case. No doubt in purely judicial proceedings it will be only be the parties themselves who in general have a particular grievance; but it seems to me that this case itself shows how somebody can be clearly a party aggrieved who has not been a party to the litigation and who could not have been brought before a court as a party.

It is true that there is apparently no case dealing specifically with this point; but in Rex v. Williams, ex parte Phillips [1914] 1 K.B. 608, Channell J. (for whom one always has great respect) says in perfectly general terms (at p. 6l3) - in a passage, it is true, unnecessary to the decision - "When objection to a conviction is taken merely by a member of the public and not by a party more particularly aggrieved the granting of a certiorari is discretionary; where the objection is by a party aggrieved, then, as a rule, the writ issues ex debito justitiae; but a party aggrieved may by his conduct preclude himself from taking objection to the jurisdiction of an. inferior Court." It is clear, therefore, that in that general statement Hannell J. is applying the principle to judicial proceedings as well as to .the form of proceedings which are referred to by Mr. Lawson as "administrative."

Finally, Brett J. in a case dealing with prohibition,. Worthington v. Jeffries (1875) L.R 10 C.P. 379, refers quite clearly (I need not read the passage) to case where in judicial proceedings the application for the writ (now the order of prohibition) could be moved, not only by either of the parties to the suit, but by a stranger

I think that Mr Lawson's argument on this head also fails, and I would dismiss the appeal.