George v Secretary of State for the Environment and another

Compulsory purchase of house which had become a ‘massive housing problem’–House owned jointly by husband and wife–Wife not served with separate notice of the order–Validity of order challenged under the Acquisition of Land (Authorisation Procedure) Act 1946, Schedule 15, para 1–Wife’s affidavit–Whether wife could be cross-examined on affidavit–Deputy judge allowed cross-examination ‘de bene esse,’ but later ruled that she should not have been cross-examined–General rule that deponents should not be cross-examined in proceedings for judicial review or in applications such as the present–Judge’s discretion to allow it should be exercised only in most exceptional cases–Affidavit evidence in present case should have been rejected without cross-examination–No substantial prejudice or breach of natural justice established–Judge’s order in favour of applicant set aside This was an appeal by the Secretary of State for the Environment and Greenwich London Borough Council from a decision of Sir Douglas Frank QC, sitting as a deputy judge of the Queen’s Bench Division, on May 25 1978 in favour of Mrs Victoria Oluremi George, who had applied to quash a compulsory purchase order in respect of a house owned jointly by Mrs George and her husband at 15 Brookhill Road, London SE18. Mrs George claimed that she had never been served with the compulsory purchase order. Sir Douglas Frank’s decision was reported at (1978) 248 EG 49, [1978] 2 EGLR 8. H K Woolf (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of State; Desmond Keane (instructed by A A Child, solicitor to the council) represented the Greenwich Borough Council; M Howard (instructed by Anthony Steel & Co) represented Mrs George, the respondent to the present appeal. Giving judgment, LORD DENNING MR said: Some time ago Mr and Mrs George came from Nigeria. He came to be a student of law. At one time he was said to be a barrister of Lincoln’s Inn, but that was not right. He was a student at Newcastle. In 1967 Mr and Mrs George bought a three-storey terrace house, 15 Brookhill Road, London SE18. They bought with the aid of a mortgage from the local council (now the Borough of Greenwich). The house was registered in their joint names. But they did not manage it properly. The house got very badly out of repair. They filled it with many, many people from overseas. It became overcrowded. They did not pay the rates. It presented (in the words of an inspector later) ‘a massive housing problem for the local council.’  The council summoned Mr and Mrs George from time to time for not doing this, that and the other. The house presented such a problem to the council that in November 1974 they decided it was a case where they ought compulsorily to purchase the house because it was so overcrowded and so out of repair. According to his statements, Mr George was earning good money. So was his wife. Nevertheless they looked after the house so badly that the council thought the only solution was to acquire the house compulsorily. The council passed a resolution under the Housing Act to acquire it. In accordance with the requirements of the Housing Act, they sent out notices so as to find out who were the owners of the house. By this time the local council were not the mortgagees. There had been a redemption of their mortgage. It had been replaced by a mortgage to Barclays Bank. The local council sent out the statutory notices to find out who were the owners or who was interested. They sent out a notice both to Mr George and to Barclays Bank. They received back clear and unequivocal statements, not only from Mr George but also from the bank saying that Mr George was the owner of the premises. So they served only Mr George with the notice of compulsory acquisition. The council overlooked one source of information. They could have looked up the property register–to see who was registered as the owner–but they did not. It would have shown that both Mr and Mrs George were joint owners. Not having inspected the property register, the council believed quite honestly and, I think, quite reasonably that Mr George was the sole owner. So, after making their compulsory purchase order, they served it only on Mr George. They did not serve it on his wife. They put all the proper notices in the news-31 papers. They did everything in proper order, but they unwittingly made one mistake. They did not serve the compulsory purchase order on Mrs George. The order was made in May 1975. The notice was served on Mr George only on May 28. Mr George resisted the order. He made objection to it. He said he would repair the house, and he would look after it properly. So the minister decided there should be an inquiry. As it turned out there were three inquiries. The first was in August 1975, but the inspector fell ill and could not make his report. There was another inquiry in April 1976; and, eventually, an inquiry in 1977. As a result of those inquiries, the inspector was quite satisfied that the only way to solve this massive housing problem was for the compulsory purchase order to be confirmed. On May 19 1977 the Secretary of State in his decision letter accepted the recommendation and confirmed the compulsory purchase order. Under the statute there is a period of six weeks during which the order can be challenged. Schedule 1, para 15, of the Acquisition of Land (Authorisation Procedure) Act 1946 provides: (1)  If any person aggrieved by a compulsory purchase order desires to question the validity thereof . . . 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 provisions of this Schedule in that behalf, make an application to the High Court, and on any such application the Court . . . (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 . . ., may quash the compulsory purchase order. . . . On the very last day of the six weeks Mrs George came along. She challenged the validity of the compulsory purchase order. She said: ‘I was the co-owner. I was never served with this compulsory purchase order. It is therefore bad as against me.’  She put in an affidavit in support of her application, in which she said: ’15 Brookhill Road, London SE18, which is the subject of the above mentioned compulsory order, is jointly owned by my husband and myself. We bought the property in November 1967 with the help of a loan. . . . My husband and I lived in the property for about 3 years from the time of the purchase but later moved (to another address).’  Later on–and this is the crucial paragraph–she said: ‘Last month it came to my notice by reading a local paper that a compulsory purchase order had been made and confirmed in respect of our property. This surprised me because at no time was I served with any notice in relation to the same.’  She followed that up by two or three further affidavits in which she elaborated her complaint and grievance. On March 3 1978 she swore an affidavit in which she said: ‘In May 1975 I was in Oxford doing my training at the Fairmile Hospital. I only came down to London when I had a long day off which was usually once a month. When I came down at the end of May my husband told me that the council wrote to say that a compulsory purchase order had been made in respect of 15 Brookhill Road SE18, but assured me that he would be going to the council to sort things out. . . . Had I been served with the notice I would not have relied on my husband’s assurance that everything was alright. I would have sought for legal advice.’ Her application came before Sir Douglas Frank, sitting as a deputy judge of the High Court. The case took several days. One day in March, two days in April and eventually a judgment in May. One question which arose was whether Mrs George could be cross-examined on her affidavits. The council wished to cross-examine her. They said she kept quiet about being a joint owner. She said nothing to anyone about it until the order was about to be confirmed. Then she came out into the open at last and said: ‘I have not been served, and therefore the order should be set aside.’ It is a practical point of some interest. In such a case as this ought the court to allow cross-examination on affidavits?  Only one reported case has been found in the books where there has been any cross-examination on affidavits in cases such as this or in the parallel cases on judicial review: it was R v Stokesley, Yorkshire, Justices, ex parte Bartram [1956] 1 WLR 254. Lord Goddard said: ‘This is probably the first case in recent history in which application has been made in Crown proceedings for leave to cross-examine on affidavits.’  He only allowed it in that case because it was a case of a ‘very remarkable’ character. It is to be noticed that in Franklin v Minister of Town and Country Planning [1947] 1 All ER 612 both Lord Oaksey and Morton LJJ indicated that if application had been made to cross-examine the minister in that case, it might have been allowed, but no application was made. It seems to me that, in general, cross-examination shall not be allowed in prerogative writ proceedings or in proceedings for judicial review or in applications like this for compulsory purchase orders. There are very good reasons for this rule. First, usually the affidavits speak as to what took place before the determining body. It may be before a planning inspector, a magistrate or someone of that kind. He may have to make an affidavit as to what took place before him. It is undesirable that he should be subjected to cross-examination. We said so in a recent case about a certification officer. If he is not to be subject to cross-examination, neither should the applicant. Secondly, experience shows that on these procedural questions there is very little conflict on the affidavits. Thirdly, one party or the other might, by means of cross-examination, try to undermine the actual findings of the inspector or other officer holding the inquiry. In general, therefore, cross-examination should not be allowed, but I would stress that there is nothing in law to prohibit it. It is undoubtedly permissible under the rules. It is covered by Order 53, rule 8(1), which brings in Order 38, rule 2(3), which in terms provides for cross-examination on affidavits. It is a matter for the discretion of the court. It seems to me that in these proceedings cross-examination should not be allowed except where the court believes it is necessary in order that justice may be done between the parties. I am inclined to think that this was not a case which needed cross-examination. The affidavits are (if I may put it this way) open to suspicion. They are untrustworthy. I would not be prepared to accept Mrs George’s statements at face value. Furthermore, I see no substantial prejudice to Mrs George by reason of her not being served with this order. She was the joint owner. She knew she was the joint owner. On her own statement in the affidavit of May 1975, her husband had told her that a compulsory purchase order had been served. She was looking to him to take care of his own interest. No doubt that would include her interest too. I do not mean to suggest that it is unnecessary to serve a joint owner. Every joint owner should be served, when he or she is known. A wife should be served as well as her husband. In this case the council, if they had known that the wife was a joint owner, ought to have sent out two separate letters, one to her and one to him. But the failure to do it does not mean that she is automatically entitled to have the order set aside. Under the second limb of paragraph 15(1)(b), which I have read, the burden was on her to show that her interests had been ‘substantially prejudiced’ by reason of the omission to serve her. It seems to me that she has not established that in the least. Her husband had been served. He took every objection that was open to either of them. Everything was heard at the inquiry. He looked after her interest as well as his. She was not prejudiced, substantially or at all. As it happened, Sir Douglas Frank did allow Mrs George to be cross-examined. He took it de bene esse as she was going off to Nigeria. But he afterwards ruled that she should not have been cross-examined. So he put it out of his consideration. But if it is taken into account it is plain that she contradicted herself time after time. She gave different dates and different circumstances in several places. Her evidence32 was, as Sir Douglas Frank said, somewhat unsatisfactory. The one thing she seemed able to concentrate on was ‘I was not served with the notice’ as though that was all that mattered. If her evidence is looked at, it shows that she was not substantially prejudiced, or prejudiced at all, by the failure to serve the order on her in the beginning. That brings me to the second point in the case which Mr Howard put in by his cross-appeal. He relied on the failure to serve the order on her as being a breach of natural justice. He relied on the first limb of paragraph 15(1)(b) where the ground of invalidity is said to be that the compulsory purchase order was ‘not empowered to be granted’ under the Act. It is said that an order is not empowered to be granted if the steps which have been taken have resulted in a breach of the rules of natural justice. I agree. Lord Russell said recently in the case of Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 at p 1263: . . . if the true conclusion is that the course which events followed resulted in that degree of unfairness to Fairmount that is commonly referred to as a departure from the principles of natural justice it may equally be said that the order is not within the powers of the Act and that a requirement of the Act has not been complied with. For it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles. Accepting that a breach of natural justice (which results in unfairness to the applicant) is a ground for challenging the order, it is necessary to consider the meaning of ‘a breach of natural justice’ in this regard. We have been referred once more to the many cases upon this subject, particularly to the case of Hibernian Property Co Ltd v Secretary of State for the Environment (1973) 27 P&CR 197, the judgment of Browne LJ at pp 217 to 218, together with the later case of Performance Cars Ltd v Secretary of State for the Environment (1977) 34 P&CR 92. On reading those cases, it seems to me that there is no such thing as a ‘technical breach of natural justice.’  In the unreported case of Lake District Special Planning Board v The Secretary of State for the Environment* given on February 13 1975, Kerr J said at p 15F of the transcript: I therefore accept the submission of Mr Woolf that a breach of natural justice is not made out ipso facto by the mere receipt by the Secretary of State of some further representations after the close of the inquiry and the failure to circulate these to everyone concerned so as to give them an opportunity to make further representations thereon, and so on. I also accept the submission that there can be no such thing as a ‘technical’ breach of the rules of natural justice, since the concept of natural justice is not concerned with the observance of technicalities but with matters of substance. *Summary report at (1975) 236 EG 417, [1975] 2 EGLR 50. The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice. On this approach, the position under the first limb is almost indistinguishable from that under the second limb. You should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made. In this case there was no substantial prejudice. I do not think there was any prejudice at all to Mrs George by the fact that she herself was not served with this initial order in May 1975. Her husband knew all about it: and neither her husband nor the bank ever told the council about her interest. She was in touch with her husband at the time, even if she was away working as a nurse. In all probability she decided not to take any steps of her own, but left it to her husband to do all the fighting, which is a natural thing for a wife to do. It was only after the order had been made, after it had been confirmed, on the last day of the six weeks that she said, ‘I was not served with a notice.’  It seems to me that there was no prejudice to her whatever. It is now far, far too late for her to question the validity of the order. I think the appeal should be allowed and the confirmation of the minister upheld. Agreeing, ROSKILL LJ said: It is now 4 1/2 years since the respondent authority resolved to acquire this property. Judging from the inspector’s report at the third inquiry which had to be held with regard to the proposal compulsorily to acquire this property, compulsory acquisition was the only way in which the disturbing housing conditions which were prevailing there could be remedied. That compulsory purchase order was made on May 8 1975–3 years and 8 months ago. There were then, as I have said, three planning inquiries. One became abortive because the inspector was ill; and it was not until June 2 1977, some 21 months ago, that the department concerned confirmed that compulsory purchase order. The whole of this delay has been occasioned first by an understandable but unfortunate slip which was made by the acquiring authority to which the respondent’s husband must undoubtedly have been a party by giving inaccurate information to the authority. He was required by notice given by the authority to state who the owners were. He failed to state the fact that his wife was a joint owner with him. As a result, the authority did not, as my Lord has said, serve both the joint owners with the notice; and the husband and now the wife have been quick to seize upon every possible argument, good, bad and indifferent–and mainly, if I may say so, bad–in an effort to avoid the consequences of that compulsory purchase order. I hope I do no injustice to Mr Howard’s admirable argument if I say that I find myself unable to agree with the reasoning of the learned deputy judge. First, as to the question of cross-examination, I respectfully agree with all that has fallen from my Lord, and in general I accept Mr Woolf’s submission on that issue. If one looks at Order 94, rule 3, one sees that the relevant rule of the High Court applicable to an appeal of this kind under the statute reads thus: ‘Without prejudice to the powers of the Court under Order 38, rule 2(3), evidence at the hearing of a motion under rule 1 shall be by affidavit.’  When one goes back to Order 38, rule 2(3), one sees that that subrule expressly gives the court the power to order cross-examination in appropriate circumstances. It has long been the practice in the Divisional Court not to allow–and this is for good and obvious reasons–cross-examination of deponents upon affidavits. There is, so far as we have been told by counsel, only one recorded case in the last 30 or 40 years of this being allowed to happen. So far as the present type of proceeding is concerned, there seems to be no recorded case of cross-examination of the kind now in question being sought. I think it would be most undesirable save in the most exceptional case that this type of cross-examination should be allowed, for it would encourage applicants against whom a ministerial decision has been given to seek to reopen on a statutory appeal (which is a supervisory or controlling jurisdiction of the High Court) matters of fact which are not within the province of the High Court in such proceedings. Nevertheless there is a limited residual jurisdiction in the exceptional case to order cross-examination. In the present case, when one looks at this lady’s affidavit, with the greatest respect to Sir Douglas, I find that it stretches my credulity too far to take them at their face value. I think if I had been in his position I would have rejected this appeal out of hand on the ground that those affidavits are quite incapable of establishing on the balance of probabilities that she has suffered any substantial prejudice. If that were so, that would be an end to this appeal. But if I had had any doubt and had regarded this case as exceptional, then I might have permitted cross-examination, as he did, de bene esse. Had I done so, my judicial incredulity would have been converted, I suspect, into total judicial disbelief of her evidence, because one only has to read the transcript to see, as my Lord has said, that her evidence is unworthy of belief in any relevant respect. There is nothing but repetitive adherence to the contention that33 she need not have done anything at all because she had never been served. To borrow my Lord Cumming-Bruce LJ’s phrase, it looks to me as if at all material times this lady ‘kept her head well down’ in order to take advantage of the possible benefit which might accrue as a result of this unfortunate failure on the part of Greenwich Council. That is enough to dispose of this case, but on the question of the construction of the statute I respectfully agree with everything that has fallen from my Lord. The second point on which I venture to disagree with Sir Douglas is on what he said on the question of onus of proof. One has only to look at the relevant provisions in paragraph 15(1) of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act 1946 to see that the onus is, as I have said throughout the case, on the person seeking to oppose the order. The manner in which the onus is discharged will of course vary from case to case, but I respectfully disagree with Sir Douglas when he said: ‘I think in an ordinary case where it was admitted that the order had not been served that would amount to res ipsa loquitur and the burden would then pass to the acquiring authority’; later he said: ‘I have reached the conclusion that it is not sufficient evidence to establish Mr Keane’s’–Mr Keane appeared for the authority–‘proposition that the applicant made a conscious decision not to object to the order and I think that the failure to serve the order deprived the applicant of the chance of objecting to it.’  In both those passages, with respect to Sir Douglas, I think he put the onus of proof the wrong way round. I think it was for the applicant, under whichever limb the case was put, to show on a balance of probabilities that she was entitled to relief. For the reasons my Lord has given, I do not believe for one single moment that she has suffered any substantial injustice or prejudice. I do not believe that she has been in any way prejudiced or has lost the chance of appearing at one of these many inquiries which her husband’s conduct has necessitated. For those reasons, and also agreeing whole-heartedly with what my Lord has said, I would allow this appeal. Also agreeing. CUMMING-BRUCE LJ said: The first issue is the question whether the learned deputy judge was right in deciding that the cross-examination which he had already heard de bene esse was admissible. The test which he applied was as follows: ‘It seems to me that cross-examination should be permitted only to determine a clear-cut issue of fact on a procedural matter, as was the case in Stokesley.’  Like my Lords, I take the view that in relation to the Acquisition of Land (Authorisation Procedure) Act 1946 procedure, which is governed by Order 94, rule 3, it is only in extremely rare cases that it is likely to be appropriate to permit or order cross-examination. The kind of situation in which I would expect cross-examination to be ordered is where the affidavits of one party are so unsatisfactory that, although they cannot be regarded without cross-examination as worthless evidence, they cannot be confidently accepted as evidence of fact without cross-examination. On the facts of this case, on the affidavits, I share the surprise of Roskill LJ that the learned deputy judge, on reading the affidavit of the applicant, was able to convince himself that that evidence, although not altogether satisfactory and although giving ground for suspicion, was yet to be accepted without cross-examination as evidence of fact on which judgment could be founded. I would have thought, on reading the affidavits, that there was an overwhelming inference that the evidence was both ingenuous and ingenious and so suspicious that without cross-examination it should anyway be rejected. But, if the learned judge had not been prepared, as he was not, to go as far as that, it was in my view his duty to admit the cross-examination in order to determine whether the evidence was reliable. On the substantive question arising on the cross-appeal as to whether there is shown to be any breach of natural justice. I do not for a moment accept that on the authorities there is any ground for the view that there is such a concept known to the law as a technical breach of natural justice. A breach of natural justice means that because of what has happened–something that has been done or has failed to be done–somebody has either actually suffered injustice or there is a real risk that somebody has suffered injustice. Therefore, the starting point is to look at the evidence of fact and see whether the evidence points to the inference either that the applicant did suffer injustice or that there was a real risk that the applicant did. On the facts of this case–as I would have thought on the evidence was manifest–there was no injustice suffered by the applicant and no risk that the applicant suffered any injustice. For those reasons I agree with the orders proposed. The appeal was allowed, the judgment below set aside and the minister’s confirmation of the CPO upheld.