Trader’s objection before a jury to corporation’s decision to stop up street–Finding in trader’s favour can be upset only if perverse–Verdict one which 12 reasonable men could reach–Corporation’s appeal fails
This was an
appeal by Manchester Corporation from a decision of Manchester Crown Court on
November 13 1973 allowing an appeal by Mr Cecil Simon, of Harris Simon & Co
Ltd, Jubilee Street, Manchester, against the stopping-up of two streets giving
access to the rear of his premises.
Mr S J Fawcus
(instructed by Church Adams Tatham & Co, agents for Cobbetts, of
Manchester) appeared for the appellants. The respondent did not appear and was
not represented.
Giving
judgment, LORD WIDGERY said that the appeal arose out of a somewhat unusual
jurisdiction. By virtue of the Manchester General Improvement Act 1851, power
was given to Manchester Corporation to stop up roads. Under the Act, anyone
could appeal to quarter sessions if he thought he would be aggrieved by the
stopping-up of any street, court, alley, way or passage, and quarter sessions
were to empanel a jury of 12 disinterested people to decide whether the street,
etc, was unnecessary or might beneficially to the public be stopping-up of the
streets. Counsel for the corporation was or aggrieved thereby. Manchester
Corporation had recently decided to stop up Brewery Street and Briddon Street,
Manchester. These two streets, approaching each other at right angles, formed
alternative means of access to a private right of way enjoyed by Mr Simon
leading through to his furniture-manufacturing premises, which fronted on to
Jubilee Street. Therefore Mr Simon had two routes whereby he could approach his
private right of way. He objected, as he was entitled to do. At the hearing,
the corporation raised the question whether he should or should not be regarded
as a person who would be injured or aggrieved by virtue of the stopping of the
streets. Counsel for the corporation was endeavouring to play down the
consequences which the stopping-up of the streets would have on Mr Simon, and
Mr Simon was resolutely asserting that he would be aggrieved. What had been
proposed was that on his losing his public right of way over the two streets he
should be given a private right of way by agreement in lieu, and there were
arrangements of a complicated nature as to the provision of keys, either
personally to Mr Simon or in the hands of a janitor who would be in attendance
on the gates to ensure they could be opened whenever Mr Simon wished his
vehicles to go through. The corporation asserted that any injury to Mr Simon
would be very small indeed: Mr Simon, on the other hand, said that he would be
seriously inconvenienced by the gates and fences. He asked the jury if they
would like to have to unlock gates before they could get into their own homes.
He said that the two streets were the only access to the ground floor of his
premises. His firm had enjoyed free access to their premises for more than 75
years and he wanted the position to remain so. He maintained that in any event
his firm would be worse off, because the arrangement with the gates and keys
would be an encumbrance or, at all events, an obstacle.
The judge,
summing up to the jury, left them with three questions to answer: (a) whether
Brewery Street and Briddon Street were unnecessary for public thoroughfare; (b)
whether the stopping-up of these streets would be beneficial to the public; and
(c) whether Mr Simon would be injured or aggrieved by the stopping-up of the
streets. The jury answered yes to question (a), gave no answer to question (b),
which they had been told arose only if their answer to (a) was negative, and
answered yes to (c). As they decided that Mr Simon would be injured or
aggrieved by the stopping-up of the streets, his appeal was allowed by the
Crown Court. The corporation had a right of appeal to the Divisional Court if
they could show that the decision below was wrong in law or in excess of
jurisdiction. The right was exercisable by way of case stated. The case here
did not include any evidence from the court below, but the appellants de
bene esse were allowed to read some of the evidence. Counsel contended on
their behalf that the jury’s verdict should be treated in the same way as the
judgment in a civil case. He invited the court to say that the real test was
whether the jury’s conclusions, particularly on question (c), were conclusions
which reasonable men might come to. He (his Lordship) did not accept that that
was the right approach to the problem. The right of appeal by way of case
stated was not one which involved a rehearing. There was no power in the
Divisional Court to concern itself with the matter at all unless it could be
said that the decision of the court below was wrong in law or in excess of jurisdiction.
The situation
appeared to be unique, in the sense that the court could not think of a case
where a jury verdict was open to appeal by way of case stated on a point of
law. He (Lord Widgery) thought that there were only two ways in which an error
of law could be said to arise in such a way as to justify the interference of
the court under the powers of section 10 of the Courts Act 1971: if the judge
when addressing the jury had himself made an error in law, or if it could be
said that the verdict was perverse in the true sense, that was to say, was a
conclusion which no reasonable jury could have reached. The latter test was the
one applied by the Divisional Court in appeals by way of case stated from
magistrates’ courts, and he (his Lordship) thought it would be wrong to apply
some looser test, because the whole concept of appeal by rehearing was foreign
to appeal by way of case stated. If the normal test were applied, and the
question was ‘Was the conclusion of the jury on question (c) a conclusion which
no reasonable jury could have arrived at?’
the answer, as he thought, was no. It seemed that the 12 disinterested
people on the jury might well have been impressed by Mr Simon’s argument that
he was losing something, an unrestricted right, and receiving a restricted
right. He (the Lord Chief Justice) was not prepared to say that no reasonable
jury could have come to the conclusion that Mr Simon was aggrieved.
MAIS and
CROOM-JOHNSON JJ agreed, and the appeal was accordingly dismissed.
