Blue Circle Industries plc v West Midlands County Council

Lands tribunal — Case stated — Whether notes of evidence of member should be produced to parties and court In December 1988 the Lands Tribunal determined that the respondent county council should pay the appellants just over £1m compensation for the compulsory acquisition in 1981 of 18 ha of disused sand and gravel quarry land. The award was remitted by the Court of Appeal in 1991 to the tribunal for redetermination of the figure to be deducted from the overall sum as the annual operating costs identified in the valuations. The original decision had been that of two members, one of whom had retired; the surviving member consulted the retired member and determined that the same deduction as before should be made. The appellants appealed that second decision on the grounds that the tribunal wrongly and in breach of the rules of natural justice did not give the parties an opportunity of being heard and that the redetermination was wrong in law. The respondents agreed that there had been a breach of procedure. In the present application, the respondents sought production by the tribunal of the members’ notes of evidence to seek to resist the appellants’ attack upon the decision. In January 1994 the registrar of the tribunal informed the parties of the president’s views that: both members were retired; neither had personally retained any notes of evidence; any notes in the tribunal’s files were personal to the members and could not be released save by order of the court. Held: The application was allowed. It would not be appropriate and standard practice for notes of evidence to be annexed to the case stated. In the circumstances of the present case, where there had been long delays and where both parties were hoping to avoid a further remission, it was proper to order that the members’ notes now in the possession of the tribunal are made available to the parties and to the court in advance of the hearing. In future it would be unnecessary for a full court to consider such applications. There was some doubt whether it was proper to regard the members’ notes as the personal property of the member in question. No cases were referred to in this case. This was an interlocutory application by the respondents, West Midlands County Council, for an order directing the Lands Tribunal to produce notes of evidence in an appeal by case stated of the appellants, Blue Circles Industries plc, against a decision of the Lands Tribunal awarding compensation to the appellant. Robin Purchas QC and Andrew Tait (instructed by the solicitor to Birmingham City Council) appeared for West Midlands County Council; Jeffrey Burke QC (instructed by Pickering Kenyon) represented Blue Circle Industries plc. Giving judgment, SIR THOMAS BINGHAM MR said: This is an application made by the West Midlands County Council, otherwise apparently known as Birmingham City Council, and it arises out of a compulsory purchase of land which the council made in 1981. The land comprised 18 ha of a disused sand and gravel quarry. The former owners of the land were Blue Circle Industries plc. There was a difference between the council and the former owners as to the compensation payable on the compulsory acquisition and that was a difference which in due course came before the tribunal. The tribunal consisted of two members, who heard evidence and argument on this question on a series of dates beginning on February 15 1988 and continuing intermittently until June. In December 1988 the tribunal gave a decision in which they decided that a sum of a little over £1m was payable by way of compensation. The claimants challenged that assessment and it immediately became clear that there were certain errors in the figure at which the tribunal had arrived, some of which the tribunal were able to correct under the slip rule, but others of which they felt unable to correct. In September 1989 a case stated was settled for the claimants’ appeal on a point of law under section 3(4) of the Lands Tribunal Act 1949. That came before the Court of Appeal in July 1991. The Court of Appeal’s decision then was that the matter should be remitted to the tribunal for redetermination (on the evidence which had been given before the tribunal) of the figure to be deducted from the overall sum of compensation as the annual operating cost attributable to this operation. The tribunal had originally fixed this figure at £225,000, but there were grounds for criticising the way in which that determination had been reached and accordingly that question was remitted. The tribunal, which had originally consisted of two members, had altered in composition by this stage in that one of the two members who had previously dealt with this matter had retired. The surviving member, however, addressed himself to the question which had been remitted, discussed it with the original other member and issued a decision on May 30 1992 in which the same annual operating figure of £225,000 was given, and details were given of how that figure had been reached. Unhappily that decision also has in its turn been the subject of challenge by the claimants on the ground that it was flawed in law. So we now have a second appeal to this court by way of case stated. The first basis upon which the appeal is put is that there was a breach of natural justice in the procedure by which the tribunal reached its second decision. Put very shortly, the complaint is that representations were made to the tribunal that the claimants wished to be heard with reference to the calculation of the annual operating figure and indications were given by the tribunal that a hearing would be arranged. That did not, however, take place and the decision was issued without any opportunity for the claimants or the council to make representations to the tribunal. It appears to be common ground between the parties that there was a breach of the procedure which should have been followed and that on that basis the claimants have good ground for challenging this second decision of the tribunal. Although, therefore, the appeal to this court has not yet been heard, there appears to be no issue between the parties, but that the claimants are entitled to succeed on that ground. There is, however, a second ground of challenge and it is that which gives rise to this application. The claimants contend that the figure of £225,000, which appeared in the first decision and reappeared in the second decision with reasons given as to how it had been reached, is open to attack on grounds of law. The legal ground42 upon which it is sought to base that challenge has not been at all fully investigated on the hearing of this application. For my part, I am very far from satisfied from the very brief, and necessarily brief, introduction which Mr Jeffrey Burke QC has given to this ground of appeal that it is in truth a ground of law at all. Therefore, for my part, I would wish to leave open any decision as to whether this second ground is properly open to the claimants as a ground of law under the Act. There is, however, a dispute as to the basis upon which that figure was calculated. The council say that the evidence to which the tribunal refer in their second decision is accurate and correct and they seek to resist any attack upon it. In support of that ground they further seek to obtain possession and sight of the notes of the evidence taken by the tribunal, since there was evidently no transcript made of the evidence as it was given. The claimants for their part do not resist that application, but neither do they support it. When the approach was originally made to the tribunal for the supply of the notes made by the members, a letter was written on behalf of the tribunal, over the signature of the registrar, dated January 5 1994. In the letter it was said that the notes taken by the sitting members at the hearing were their personal property although it made clear that certain of those notes were in fact retained in the tribunal’s file. The penultimate paragraph of the letter reads as follows: The President takes the view that these steps — that is the obtaining of the notes and the approach to the members of the tribunal — would not be justified on the basis of a unilateral request from one party. It is of course his wish to be co-operative in placing this matter back before the Court of Appeal expeditiously and economically, but for the reasons indicated he is not prepared to comply with your request unless and until either the appellants concur or the Court of Appeal so directs. A copy of that letter was sent to the claimants’ solicitors and they did concur in the request which the council made for the release of the members’ notes in the possession of the tribunal. Accordingly, the council wrote again on January 12 indicating that concurrence had been received and repeating the request for the notes. The tribunal answered on January 14 1994 and reported that steps were now being taken to ascertain from the required members whether they had retained their notes and whether they were prepared to make them available. The letter continued: I am to make it plain that the tribunal has not undertaken to produce any notes, and would not be prepared to do so save by order of the Court of Appeal. As was pointed out earlier, any such notes are the personal property of the member concerned, and it is not the normal practice for the Court of Appeal to consider any material upon a case stated apart from the written decision of the tribunal. The letter of 5 January 1994 was written upon the President’s directions, and as there stated, was limited to requesting information from the members concerned if the parties wished this to be done. A further letter followed on January 17 1994 in which it was reported: . . . the President has asked me to let you know that he has now been able to contact the members previously concerned in this case, both of whom, are now in retirement. Neither Mr Mallett nor Mr Rees has retained any notes in his personal possession. As to such notes as may have been deposited in the tribunal’s files, I am to repeat that they remain the personal property of the member in question and were made only for his own use. In line with previous invariable practice, both Members decline to make their notes available to the parties, unless required to do so by order of the Court of Appeal. I have to say that, for my part, I entertain some doubt whether it is proper to regard the members’ notes as the personal property of the member in question. It would seem to me that they fall very much within the same category as the notes made by a county court judge in the days when hearings in the county court were not transcribed, and it was standard practice for those notes to be made available, either in a photostat copy of the original or in typed form. However, I am quite sure that it would not be the appropriate and standard practice for notes of evidence to be annexed to a case stated. Indeed, in cases stated from magistrates’ courts, for example, that practice has always been frowned upon. I would not, therefore, wish to countenance the suggestion that as a regular course notes should be made available. Moreover, for reasons that I have already indicated, I have real doubt whether the notes in this particular case would bear on any issue which it is proper for the court to entertain. This is, however, a matter which has dragged on for an appallingly lengthy period. Both parties, I think, are anxious, if it can be achieved, to ensure that the forthcoming hearing before the Court of Appeal is the last hearing in this matter and that there is not a remission and the need for a further hearing by the tribunal. Accordingly it seems to me proper to order that the members’ notes now in the possession of the tribunal are made available both to the parties and to the court in advance of that hearing, while reserving to the court the decision as to whether it regards it as appropriate to look at the notes or pay attention to them. The application in this case has been brought before the full court since it seems to be a novel question and one that called for some consideration, but in any future case, should, improbably, any similar application be made, it would seem to me quite unnecessary for the full court to have to consider the matter in advance of an appeal. The standard rule should be that notes of evidence made by members of the tribunal should not be required for purposes of this court’s ruling on an appeal by way of case stated and if, in an exceptional case, it is thought necessary for the notes to be made available, then a direction by the Registrar of Civil Appeals should be made to that effect. I wish to emphasise that in the ordinary way the notes will not be produced. STEYN and ROSE LJJ agreed and did not add anything. Application allowed. Costs in the appeal.