Case Name: Barron (R on the application of) v Surrey County Council
Casetrack Heading Local Government
Property / Land Judgment Status Given
Outcome Appeal Allowed
Transcript Status Approved
Date 07/05/2002 Appellant
Division Civil Barrister
Solicitor Michael Fordham
Richard Buxton, 40 Clevedon Street, Cambridge, CB1 1JX
Case No C/2001/2326 Respondent
Neutral Citation  EWCA Civ 713
Court Appealed from: Queen's Bench Division Barrister
Solicitor James Finley
Surrey City Council, Legal Services County Hall, Kingston upon Thames, Surrey, KT1 2DN
Judge(s) Mummery LJ
Swinton Thomas LJ
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Neutral Citation Number:  EWCA Civ 713
IN THE SUPREME COURT OF JUDICATURE
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Stanley Burnton)
The Royal Courts of Justice
Tuesday 7 May 2002
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
SIR SWINTON THOMAS
on the application of
SURREY COUNTY COUNCIL
Transcript prepared from the Steno Notes
of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2HD
Tel: 0207 404 1400
MR M FORDHAM (instructed by Richard Buxton, 40 Clarendon Street, Cambridge) appeared on behalf of the Appellant
MR J FINDLAY (instructed by Legal Services, County Hall, Kingston upon Thames, Surrey) appeared on behalf of the Respondent
(As approved by the Court)
Tuesday 7 May 2002
1. LORD JUSTICE DYSON: This is an appeal from the decision of Stanley Burnton J on 1 October 2001 whereby he dismissed an appeal from the decision of Deputy Master Cousins on 15 May 2001 refusing to transfer these proceedings to the Administrative Court and whereby the judge ordered that the proceedings be stayed. That simple statement conceals a somewhat complex history, which I shall now describe.
2. On 17 April 1989 Surrey County Council ("the council") wrote letters (referred to as "Sayce" letters) to the then owners of the houses which abut Chobham Common in Surrey, confirming that the council acknowledged that these properties had acquired prescriptive rights of way (including vehicular access) over the common, and stating that the letters should be placed with the property deeds. At that time, the council was the owner of the common. In March 1999 the council decided to revise its policy in relation to these rights of way and require the owners of the properties to pay for them. On 30 July 1999 the council wrote to the owners notifying them of the change of policy and of its proposed scale of charges, which varied according to the period during which access had been previously enjoyed as well as the value of the houses. In the case of properties where a prescriptive right had been acquired by 1930, the owner was required only to pay the council's reasonable expenses of confirming the existence of that right. Where a prescriptive right was not proved to the satisfaction of the council and a Sayce letter had been written, the council would by concession allow the present owner to continue to have access, but it would recognise no right of way following sale of the property save on payment of the charge. The charge was substantial: up to £20,000 for a property valued up to £400,000 and "negotiable" higher amounts for more valuable properties.
3. The Sayce homeowners protested and formed an action group. They tried, but failed, to persuade the council to withdraw the policy. There are about 700 dwellings which abut or adjoin the common. Most of the property owners need to pass, and habitually pass, over tracks on the common, this being the only mode of vehicular access to their homes. Between 200 and 300 of these owners received Sayce letters. For about 30 years Mrs Barron has owned and lived in a freehold property which abuts the common. On 29 October 1999 she started proceedings in the Crown Office list challenging the policy to charge for the right of access over the common. The notice of application described the named claimant (Mrs Barron) as "Householder, and member of a group of householders whose homes adjoin .... Chobham Common". The remedy sought included:
"A Declaration that in respect of the category of householders to which the Applicant belongs, namely those in respect of whose properties the Council has sent letters specifically acknowledging the existence of prescriptive rights of way ... the imposition or levying of the charges or payment which have been set by the Council for the formal grant of such a right of way or access, or of any charges (other than a reasonable administrative charge for the preparation of the requisite Deed) is unlawful."
4. The grounds on which it was contended that the policy was unlawful were, in effect, that the letters of 17 April 1989 had given rise to a legitimate expectation in the owners which it was unfair to frustrate by the change of policy.
5. On 31 January 2000 Mrs Barron amended her grounds by adding a claim that she had acquired a prescriptive right of way by 1930. It is convenient to describe the claim based on legitimate expectation as "the public law claim", and the claim based on her assertion of a right acquired by prescription as "the private law claim". Her application for permission came before Keene J on the papers. He refused permission on the grounds that the public law claim would fail, and that the private law claim was not appropriate for judicial review, but should be the subject of proceedings in the Chancery Division.
6. Mrs Barron renewed her application for permission. On 19 May 2000 Sullivan J granted permission for judicial review and transferred the proceedings to the Chancery Division. He made it clear that "the full breadth of the case" (ie both the public law and private law claims) should be dealt with. He referred specifically to the fact that a small number of owners had already paid sums to the council under the new policy. He said that it should not be administratively impossible for any sums already paid to be kept in a separately identifiable account, and for the council to repay them, or at least consider doing so, if Mrs Barron's application were to succeed.
7. On 7 July 2000 the council wrote to Mr Buxton, Mrs Barron's solicitor, conceding her private law claim and saying, "It follows, of course, that the action is no longer necessary and need not proceed". On 2 August Mr Buxton replied disagreeing since:
"... although it may be of academic interest only so far as Mrs Barron is concerned now (except if we cannot reach agreement as to her costs) the public law issue does need to be resolved. As is made clear in the Form 86A, there are a large number of other people who are affected by the Council's policy on this issue .... .
We confirm that we have instructions on behalf of several other applicants to join Mrs Barron or to substitute for her in the proceedings as representative applicants for judicial review purposes."
8. He went on to assert that Mrs Barron was entitled to her costs of the (now conceded) private law claim. On 17 August 2000 the council replied saying that it did not accept that others could join in Mrs Barron's claim, and denying that Mrs Barron was entitled to any costs.
9. On 6 November Mr Buxton wrote, saying, "We are taking instructions, which we anticipate to involve an application to join further applicants." On 15 December he wrote again confirming that he now had instructions for four named pairs of owners to be joined as parties to Mrs Barron's application. These included Mr and Mrs Brown, who are successors in title of an owner who received a Sayce letter. Mr Buxton asked the council whether it would consent to the joinder. Meanwhile, the Countryside and Rights of Way Bill had been passing through Parliament, which, it was thought by Mr Buxton, might resolve the public law claim. By letter dated 9 January 2001 the council stated that it refused to agree to any joinder of other parties since it was not "proper" for the proceedings to revert to being a public law challenge several months after the decision of Sullivan J that the matter should proceed "as a civil action". On 31 January Mr Buxton sent to the council an application on behalf of Mrs Barron to transfer the proceedings back to the Crown Office, now named the Administrative Court, with the intention that the joinder issue be dealt with in that court. The council indicated that it would not consent to the transfer. Part C to the form of application served by Mr Buxton included the following:
"Evidence was before Sullivan J that others were in the same position as the defendant, and as a matter of public law, the court clearly has jurisdiction to join them and allow the matter to proceed. However it is at an end, so far as the claimant is concerned, as a Chancery matter. The defendant's consent to this transfer has been sought expressly on the basis that it is without prejudice to any argument that the defendant may wish to advance before the Administrative Court that further applicants should not be joined. However, that is a matter for the Administrative Court. This transfer is necessary purely for administrative reasons."
10. Thus it was that the application to transfer came before Deputy Master Cousins. On 15 May 2001 he dismissed the application. There is only a brief record of his reasons. This shows that he said that he was not willing to allow others to join the proceedings: this was not a representative action; Mrs Barron's claim was at an end except in relation to costs and the finalising of the right of way; there had been delay in any event; and this was an attempt to breathe life into a defunct claim. Mrs Barron appealed. On 1 October 2001 Mr Brown applied for an order that he be joined to Mrs Barron's proceedings as a co-claimant.
The judgment of Stanley Burnton J
11. On 12 October 2001 Stanley Burnton J dismissed Mrs Barron's appeal. It is necessary to analyse his judgment in a little detail. The judge noted (paragraph 17) that the deputy master did not expressly consider the public law implications of the case. The judge first considered the procedural position as at July 2000 (ie immediately after the council's concession of the private law claim). He said that it had been argued before him that there were four bases on which an order could have been made enabling Mrs Barron's proceedings to continue in July 2000.
12. The first was that the proceedings were in substance representative proceedings. As the judge pointed out (paragraph 20), if these had been representative proceedings, the concession of the private law claim would have been irrelevant to their continuation. Although he did not make a clear finding on the point, the thrust of paragraph 20 of his judgment is that these were not representative proceedings either in form or in substance.
13. The second basis was that the public law claim did not depend on the individual interest of Mrs Barron as an individual claimant, and that it could continue despite the concession of Mrs Barron's private law claim. He continued (paragraph 21):
"In a case such as the present, as indeed I have already indicated, the public law remedy, if granted, would benefit a class of people. In my judgment, where there is a public law claim, but an individual claimant who is the only claimant has achieved his or her individual benefit sought by the proceedings, as was the case for Mrs Barron, the court has a discretion whether or not to permit the proceedings to continue. The continuing standing of the claimant at that stage is no doubt a relevant consideration, but it is not a decisive consideration. If the continuation of proceedings is academic and the issue is not one of general public concern, normally the court will not permit the proceedings to continue. To do so would involve a waste of court time and the costs of the parties. The question whether the proceedings had been pursued diligently on behalf of the claimant will also be a relevant factor to consider when deciding whether to permit what for the claimant is an academic claim to be pursued."
14. The third basis was that the issue of costs had not been resolved. As to this, the judge said that the court had jurisdiction to allow the claim to proceed in order to determine the question of costs, but it had a discretion not to allow the claim to continue for that sole purpose. There was also a discretion to stay the proceedings and to make an appropriate order for costs without a court determination of the merits of the underlying dispute. He said (paragraph 23) that if there were no other persons "interested in the proceedings", and if application had been made to him in August 2000, he would have stayed the proceedings. He would not have allowed the proceedings to continue solely for the purpose of deciding costs in the light of a determination of the merits of the public law claim. He would simply have made no order for costs of that issue.
15. The final ground that the judge had to consider as a possible basis for allowing the proceedings to continue in July 2000 was to permit joinder of other interested persons. He described this as "the real issue", as recognised in the correspondence to which I have referred (paragraph 24). Having stated that the question whether joinder is permitted is a matter for the discretion of the court, he said that if an application to join had been made to him in July 2000, he would have granted it.
16. He then considered the fact that no such application was made in July or August 2000 and that Mrs Barron took no steps to progress the public law claim until December 2000, when Mr Buxton wrote saying that he had instructions to apply for the four named pairs of owners to be joined. The judge held (paragraph 26) that the explanation for the delay in the second half of 2000 (the Countryside and Rights of Way Bill) was inadequate. The five months' delay had to be seen in the light of the requirement that public law proceedings should be brought promptly within the three months' period laid down in CPR Part 54, and the fact that the decision under challenge had been made in 1999. He took into account that (a) it was open to the council during the period of delay to apply to dismiss the proceedings or seek a stay; (b) the council was itself in default in failing to serve a defence; and (c) the prejudice caused to the council by the delay and the prejudice to the other owners who wished to sell their houses. He concluded that all those considerations led him to hold that the principle of expedition laid down by Part 54 "requires me to conclude that the claimant should not be permitted to pursue her public law claim in the present circumstances and that no order for joinder should be made."
17. Mr Fordham has mounted a sustained and detailed attack on the judge's decision. He submits as follows. Underpinning these proceedings is an important issue as to the legality of the council's conduct. It was perfectly proper not to have commenced a series of judicial review claims, or a single composite claim with multiple claimants: see R v Hertfordshire County Council, ex parte Cheung ("The Times" 4 April 1986). Similarly, a case can in principle remain appropriate for the resolving of an issue even if the named claimant no longer needs a remedy. Principal considerations are (a) whether there is some remedy which would be of value in providing guidance as the legality of the public authority's conduct; and (b) whether the proceedings remain an appropriate vehicle for providing it: see R v BBC, ex parte Quintavelle  10 Admin LR 425, 426E-427C.
18. Sullivan J expressly kept the public law claim in the proceedings that he transferred to the Chancery Division. Against this background, it was wrong in principle to treat the claim as if it was solely about Mrs Barron and whether she should be given a remedy. It was also wrong in principle to approach the matter as though, absent a formal joinder of other parties, there was no issue of legality requiring disposal which affected others. Moreover, some at least of the other interested parties can start private law claims based on proprietary or promissory estoppel which would traverse much of the same ground as that which would have to be covered in the public law proceedings. In those circumstances, it is highly unsatisfactory to stay Mrs Barron's proceedings.
19. As for delay, Mr Fordham submits that the judge focused on the wrong starting-point, since he treated the proceedings as solely affecting Mrs Barron unless and until other interested parties were joined. The result was that the judge did not properly balance the relevant considerations. First, Mrs Barron never said that she was withdrawing her claim, and she was not in default of any rule or direction. The letter of 15 December 2000 was merely a confirmation of a refusal to discontinue, and of an intention to clarify the position by applying for certain named persons to be joined. Secondly, the council was out of time for its defence, and took no steps to advance the case or have it listed for disposal. Nor did it complain of or identify any prejudice. Thirdly, there was the public interest in the council not maintaining an unlawful scheme: the claim has merit and engages an important issue of legal propriety. The fact that, as held by Sullivan J, the claim is arguable should have been an important factor in the balancing exercise.
20. It was wrong in principle and unjust in its consequences to shut out the public law claim. It was unmistakably unjust from the point of view of Mr Brown. On 1 October 2001, he filed an application to be joined. Mr Fordham submits that it is wrong that his claim, which is based on the same case as Mrs Barron's public law claim, should be excluded. He is not a latecomer, since the public law claim was referable to those in his position, and Mr Fordham makes the point that Mr Brown had submitted a witness statement at an early stage of Mrs Barron's proceedings.
21. Mr Findlay submits that the judge arrived at the right answer and for the right reasons. The decision which the judge made was one which it was open to him to make in the exercise of his discretion. He did not treat the claim as though it was solely about Mrs Barron and whether she should be granted a remedy. As regards the balancing of relevant considerations, there is no substance in the criticisms made by Mr Fordham. The judge was alive to the fact that Mrs Barron's public law claim encompassed the claims of others. He took into account the council's inactivity in the litigation, and was aware of the fact there was a public interest in the council not maintaining an unlawful scheme (paragraph 23 of the judgment). A private law claim based on estoppel would not be coterminous with a public law claim based on legitimate expectation. There is a public interest in achieving the certainty that would flow from the judge's decision to stay the proceedings, since the council's policy could not thenceforth be challenged. More generally, Mr Findlay relies on well-known authority that this court should only interfere with the exercise of a discretion in limited circumstances, and not merely because it would have exercised the discretion differently. He also submits that the public law claim, although arguable, is not strong, and that the judge was entitled to take this into account when exercising his discretion. Finally, the judge was entitled to treat the claim in effect as having been abandoned and to attach a good deal of importance to the considerable delay that occurred in this case.
22. He refers to a passage in the third edition of Mr Fordham's Judicial Review Handbook, paragraph 17.2:
"Public law cases frequently involve the Courts adhering to a strict approach to procedural control. Such an approach is supported by the culture signified by the Civil Procedure Rules. It is also explicable by reference to the enormous caseload under which the Court operates."
23. I would allow this appeal largely for the reasons advanced by Mr Fordham. The starting-point is that these proceedings did not only involve a claim by Mrs Barron. It is true that this was not a representative action in the formal sense referred to in CPR part 19.6. But the claim form made it clear that Mrs Barron was a member of a "group", and the remedies that she sought expressly encompassed the position of other similar owners. In substance, this was a test case. It was perfectly proper not to have commenced a series of judicial review claims, or a single composite claim with multiple claimants: see Lord Donaldson MR in R v Hertfordshire County Council ex parte Cheung.
24. In R v BBC ex parte Quintavelle, the claimant sought to challenge the decision of the BBC not to allow certain material to be included in a party political broadcast. Permission to apply for judicial review was refused. A renewed application was made to this court, but it was not heard until well after the election. It was submitted on behalf of the claimant that the decision of the BCC was wrong in principle, and it was one in relation to which there was need for guidance from the Court of Appeal. At page 426E Lord Woolf MR said this:
" ... it seems to me that our decision should be governed by two principal considerations. First, whether there is any relief which the applicant could appropriately be granted in this context, which would be of value to those who have to decide matters such as this. Secondly, whether the present application is an appropriate vehicle for providing that guidance. Normally, the approach which this court adopts on renewed applications for judicial review is very different from that which I have just indicated. The court is concerned with the merits of the particular application before it, and will determine the application on the basis of the prospects of the application succeeding, assuming leave is granted.
However, there are cases where the court's role on an application for judicial review is wider than I have just indicated. I accept that the present case raises issues which come within that wider role. The question as to what should be the BBC's approach to applications for transmission, particularly at a time of an imminent general election, is a matter of great public importance."
25. Lord Woolf decided that permission to apply for judicial review should not be granted in that particular case because it was unnecessary: "It seems to me that there is no need for clarification of the law on this subject. It has now been enunciated very clearly in a series of cases ... " The importance of this case is that it illustrates the principle that it may be appropriate to allow public law proceedings to continue even if the claimant no longer requires a remedy to vindicate his or her own rights. I accept Mr Fordham's submission that the principal considerations that will determine whether it is appropriate to allow proceedings to continue in such circumstances are whether there is some remedy which would be of value in providing guidance as to the lawfulness of the public authority's conduct; and whether the proceedings remain a suitable vehicle for providing it.
26. As we have seen, the judge first assessed the position as at July 2000, and considered four different bases on which it might have been appropriate to allow the proceedings to continue at that time. He held that the only basis on which it would have been proper to do so would have been following a formal and successful application by other interested parties to be joined in the proceedings. The second possible basis that he identified was that the continuation of the proceedings should have been allowed in order to vindicate Mrs Barron's public law claim, since it did not depend on her individual interest. It is significant that the judge did not say whether he would or would not have permitted the proceedings to continue on that basis if he had been deciding the matter in July 2000. In my judgment, applying the principles to which I have just referred, the second basis was the most obvious basis on which to allow the proceedings to continue. The public law claim raised an important issue as to the legality of the council's change of policy which affected the property interests potentially of a large number of people. If Mrs Barron wished to continue with the proceedings in order to obtain a determination by the court of that issue, then, provided that she prosecuted the claim properly, in my judgment she was entitled to do so. The compromise of the private law claim did not make her public law claim academic since it affected other people.
27. When the judge addressed the question whether Mrs Barron should be permitted to pursue her public law claim in December 2000, he approached the matter as if the principal issue was whether, as a matter of discretion, other interested parties should now be permitted to be joined. He held that there had been too much delay to justify joinder at this late stage. In other words, he focused exclusively on the fourth basis. In my view, he was wrong to do so. As I have already said, the most obvious basis for allowing these proceedings to continue was the second basis. Mrs Barron wished to be allowed to continue to prosecute her public law claim. The proceedings were properly constituted to enable her to do that. It was not necessary for other people to be joined to enable her to do so.
28. It is important to bear in mind that the sole issue before the deputy master was whether the proceedings should be transferred to the Administrative Court. There was no application by the council to strike out or stay the proceedings for want of prosecution or as an abuse of process. By his letter of 31 January 2001 Mr Buxton informed the council that he had instructions to transfer the matter back to the Administrative Court "and to apply to add new names to the action. This has to be done in two stages, the first of which is the purely administrative point of getting the matter back into the Administrative Court." He enclosed an application form which applied only to transfer. I have already cited a passage from Part C of that form.
29. Mr Buxton made it quite clear that Mrs Barron wished to continue to remain in the proceedings, and not only for the purpose of obtaining a favourable order for costs in relation to the (now settled) private law claim. As the application form said, the matter was at an end so far as the private law claim was concerned, but not otherwise. The sole question for the deputy master was whether, in view of the fact that the private law claim had been settled, the proceedings should be transferred. In my judgment, this application to transfer was unnecessary. I do not accept Mr Fordham's submission that it was somehow forced upon Mrs Barron by the council. The public law claim could have been dealt with in the Chancery Division. Be that as it may, instead of answering that simple question, transfer or no, the deputy master wrongly concluded that the application was no more than an attempt to breathe life into a defunct claim, save for the purpose of dealing with costs.
30. Before the judge, the position had changed only to a very limited extent, in that Mrs Barron had now issued an application to join Mr Brown. In Mr Buxton's skeleton argument in support of the appeal, he summarised the grounds of appeal as follows:
"In summary, Mrs Barron's reasons for appeal are:
- There is still a live dispute in relation to the alleged unlawful conduct of the Defendant. Mrs Barron maintains an interest in pursuing it. She has not lost standing to do so.
- Even if she still had no such interest, there is an issue as to costs, which may in turn require resolution of the underlying dispute.
- If it is necessary to join parties, such as Mr Brown, that (rather than starting separate actions) is the preferred route.
- In so far as the Deputy Master relied on Mrs Barron's delay in making the application to transfer the matter to the Administrative Court, and in so far as it is in any event relevant, that view was made in ignorance of the reason for this.
- In so far as the Deputy Master relied on Mrs Barron apparently bringing the action on her own account and not explicitly as representative proceedings, that view failed to have regard to the express terms of the Form 86A. In any event it is not in practice necessary for judicial review proceedings to be brought expressly in a representative capacity - being as they are for resolution of public wrongs, not private rights."
31. It was, therefore, made clear to the judge that Mrs Barron wished to continue with her public law claim because she wished to obtain a decision from the court as to the lawfulness of the council's change of policy. If it was necessary to add Mr Brown as a party, that would be her preferred route, but she wished to proceed even if no other interested party was joined.
32. In my view the judge should have appreciated that there were before him two applications which were quite unnecessary for the successful prosecution of this litigation. For the reasons already mentioned, Mrs Barron was able to pursue the public law claim in the Chancery Division and without joining Mr Brown. In my judgment, the judge should have dismissed both applications, or, possibly, dismissed the application to transfer, but allowed the application to join Mr Brown on the ground that it was convenient, although not strictly necessary, to add him as a co-claimant - convenient because it can be said that good case management required his joinder in the context of this test case. But what he should not have done was to use these two applications as a vehicle, in effect, for entertaining an application to stay the whole proceedings for delay. There was no such application before him. I doubt whether he had the material that was necessary to enable him satisfactorily to perform the balancing exercise that would have to be performed before taking the draconian step of staying the proceedings. I say "draconian step" because the effect of a stay was that the lawfulness of the policy could never be challenged on public law grounds, a consequence with potentially serious implications for the other interested persons. It seems to me that he did not consider the prejudice to the council of the five-month delay which he fixed upon, and weigh that against the prejudice to other interested persons in staying the proceedings and thereby shutting out for ever their ability to challenge the policy on public law grounds. On the material before this court, I would hold that the decision to stay was disproportionate to the delay in this case. I emphasise that the delay in question is the period of five months between July and December 2000, Sullivan J having already granted an extension of time by his judgment of 19 May.
33. It is, I think, significant that the council did not see fit to apply for a stay. Its concern was to resist the application to transfer and the application to join Mr Brown. There was delay on both sides in this case. If this had not been in the nature of a test case, and if Mrs Barron had no more than a truly academic interest in her public law claim, the position might have been otherwise. But it is fundamental that this was in the nature of a test case. In these circumstances the stay will have an adverse effect on the interests of others that that is disproportionate to the gravity of the delay during the five-month period. I would add that there is a large degree of overlap between any private law claim based on estoppel and a public law claim, since it is conceded by Mr Findlay that other interested persons would be able to bring such private law claims. That is a further reason for saying that a stay should not have been imposed in this case.
34. I would therefore allow this appeal. I have earlier said that I do not think the application to join Mr Brown was necessary. Nevertheless, I can see some advantages in his joinder. I would therefore direct that he be joined as co-claimant and seek the assistance of council as to any further directions that may be given at this stage.
35. SIR SWINTON THOMAS: I agree and I have nothing further to add.
36. LORD JUSTICE MUMMERY:I agree.
ORDER: The appeal is allowed; Mr Brown is to be joined as co-claimant and permission is granted for him to amend his proceedings within 35 days; the stay is removed; the action is to remain in the Chancery Division, to be heard by a nominated Administrative Court Judge who is a judge of the Chancery Division; and within 35 days of the expiration of the 35 days for the amendment of the claim form in the proceedings, the council are to serve a defence and are to serve their written evidence.
Costs of this appeal to be paid by the defendant council. Costs of the hearings before Stanley Burnton J and before the deputy master to be costs in the cause.
(Order not part of approved judgment) Crown Copyright