Agriculture (Miscellaneous Provisions) Act 1976 — Application for judicial review — Complaint about refusal of chairman of agricultural land tribunal to extend the time laid down by rule 33 of the rules in the Schedule to the Agricultural Land Tribunals (Rules) Order 1978 for requesting a reference to the High Court of a question of law — Question of law was whether the applicant occupied a commercial unit as a licensee only, for the purpose of determining eligibility under section 18(2)(c) of the 1976 Act — Submission that chairman of tribunal was bound to afford an oral hearing to the applicant in considering the application to extend time — Chairman’s power to extend time under rule 37 — Whether application to extend time was an interlocutory application — Held that it was not and that the chairman’s refusal to extend time was not contrary to the Agricultural Land Tribunals (Rules) Order and that in the circumstances there was no breach of the rules of natural justice — Applicant’s solicitors were able to put his case for an extension in writing and had the opportunity of considering the reasons why the application was opposed by the other side — Chairman was not under an obligation to afford an oral hearing on the application for an extension of time and he had not been shown to have exercised his discretion wrongly — Application for judicial review dismissed
The
proceedings were primarily an application for judicial review in which the
applicant, Richard Moss, sought an order of certiorari to quash a decision of
the Agricultural Land Tribunal for the East Midland Area, or the chairman
thereof, refusing the applicant an extension of time for requesting a reference
by the tribunal to the High Court of a question of law. The respondents were
the National Coal Board.
Paul Morgan
(instructed by Durrant Piesse, London agents for Freeth Cartwright &
Sketchley, of Nottingham) appeared on behalf of the applicant; Conrad Dehn QC
and B Levy (instructed by J G Tyrrell, solicitor for the National Coal Board)
represented the respondents.
Giving
judgment, STEPHEN BROWN J said: The court has before it an application for
judicial review made pursuant to leave granted by Glidewell J seeking an order
of certiorari to remove into this court and quash a decision made by the Agricultural
Land Tribunal for the East Midland Area, or the chairman thereof, on September
30 1981 whereby the chairman refused the application of the applicant for an
extension of the time provided for the making of a request for a reference by
the tribunal to the High Court of a question of law. That arose from the
determination by the tribunal after a hearing on July 20 1981 of a preliminary
point incidental to an application by the applicant under section 20 of the
Agriculture (Miscellaneous Provisions) Act 1976. The hearing of that
application took place on July 20 1981 and the decision was given on August 20
1981.
The court also
has before it a notice of motion of October 13 1981 whereby the same applicant,
Mr Richard Moss, seeks an order of this court directed to the Agricultural Land
Tribunal for the East Midland Area requiring it to state a case for this court
as a result of the same proceedings which were heard on July 20 1981.
Both counsel
in the case are agreed that, in point of fact, the application for judicial
review should be heard first and, indeed, that it is the real substantial
application which is before this court.
The facts
giving rise to this application are these. Mr Richard Moss is a farmer in
Nottinghamshire, and on January 16 1980 he submitted an application to the
agricultural land tribunal, under the provisions of the Agriculture
(Miscellaneous Provisions) Act 1976, for a direction of the tribunal entitling
him to a tenancy of a farm known as Linby Colliery Farm, Main Street, Linby, Nottinghamshire,
of which the respondent, the National Coal Board, is the owner. The application
was submitted by Mr Richard Moss following the death of his father in October
1979. His father had been the statutory protected tenant of that farm following
the grant of a yearly tenancy by the National Coal Board to him in February of
1970. As a result of the terms of that tenancy he was a protected tenant, that
is to say protected by the 1948 Agricultural Holdings Act. In due course, the
Coal Board served notice to quit on the personal representatives of the
deceased, which was due to expire on March 25 1981. On January 16 1980 Mr
Richard Moss, the applicant, applied to the agricultural land tribunal under
the provisions of the Agriculture (Miscellaneous Provisions) Act 1976 for the
direction of which I have referred.
The
circumstances of Mr Richard Moss in relation to his activities in the farming
of other adjacent holdings raised the question of his ‘eligibility’ under
section 18 of the Agriculture (Miscellaneous Provisions) Act 1976. In point of
fact, a preliminary issue was raised between the parties as to whether he could
bring himself within the provisions of section 18(2)(c), as being an ‘eligible
person’ who would be entitled to apply for the direction which he sought. That
issue was heard as a preliminary issue on July 20 1981. Mr Richard Moss was
present and was represented by solicitor and counsel, and so was the National
Coal Board. A hearing took place presided over by the deputy chairman of the
agricultural land tribunal. The tribunal reserved its decision, and that was
given on August 20 1981.
I should say
that the tribunal heard evidence and submissions of law, and on the preliminary
point decided that the applicant was the occupier of a commercial unit of
agricultural land within the meaning of Part II of the Agriculture Act 1967 and
did not occupy that unit as a licensee only and, accordingly, could not bring
himself within the provisions of section 18(2)(c) as an eligible person
entitling him to a direction under section 20 of the Agriculture (Miscellaneous
Provisions) Act 1976. That decision was given on August 20 1981.
The
Agricultural Land Tribunal Rules, which regulate the practice and procedure of
the agricultural land tribunals, were made by the Agricultural Land Tribunals
(Rules) Order 1978 (SI 1978 No 259). By rule 33(1) it is provided that:
A request for
the reference to the High Court of a question of law arising in the course of
proceedings before the tribunal shall, unless made at the hearing, be made in
writing to the secretary not later than 14 days from the date on which a copy
of the tribunal’s decision was sent to the party making the request, and shall
be accompanied by as many copies of the request as
request on every such party.
The rule then
goes on in subparagraph (2) to provide that in the event of the tribunal
refusing the request, the party applying can seek an order from the High Court
directing a case to be stated.
The applicant
did not make a request for such a reference at the hearing. Indeed, the
decision was reserved, as I have said, and notice of the decision was given in
writing. He did not, within 14 days from the date on which the tribunal’s
decision was sent to him, make a request in writing to the secretary for a
reference to the High Court as required by rule 33(1). As a result, he was out
of time. Rule 37 in Schedule 1 to the Agricultural Land Tribunals (Rules) Order
provides that ‘The time appointed by or under these Rules for doing any act or
taking any step in connection with any proceedings may be extended by the
chairman on such terms and conditions, if any, as appear to him just’. In my
judgment, the rule envisages that an extension of time in relation to this
particular matter, as in relation to other matters regulated by the rules, can
be given by the chairman. The terms of rule 37 would appear to give the
chairman a complete discretion in exercising that power. It is, of course, a discretion
which must be exercised judicially.
The applicant,
by his solicitor, wrote to the secretary of the tribunal on September 16 1981.
The letter asked, or ‘requested’ in the language of rule 33, that the tribunal
should refer to the High Court the following question of law arising in the
course of the proceedings, namely:
Whether on
the primary facts found by the tribunal and recorded in its decision dated
August 20 1981 the applicant occupies Top Wighay Farm as a licensee only as
contended by the applicant at the hearing in this matter, or whether the
applicant occupies Top Wighay Farm otherwise than as a licensee only as held by
the tribunal.
I should
explain that Top Wighay Farm is the relevant, although not the only, holding
comprised in the application, because of the question of eligibility under
section 18 and the applicant’s alleged interest in other adjacent holdings.
At the same
time, the letter went on:
We also
request that the tribunal exercises power under the Agricultural Land Tribunals
(Rules) Order 1978 article 37 to extend the time provided in article 33 of that
order for the making of the request for a case to be stated to the High Court
of Justice.
We request
that such an extension be granted, bearing in mind the following points:–
(a) The short period of time stipulated by the
rules compared with the 28 days allowed in the Tribunals and Enquiries Act for
appeal.
(b) The fact that the decision was made in the
holiday period immediately prior to a Bank Holiday when Counsel was unavailable
to advise.
(c) Both parties anticipated before the tribunal
at the original hearing, irrespective of the result, that the decision would be
taken further for the point of law to be clarified.
(d) The case involves a point of general
application which requires a decision of a higher court.
If the
Tribunal is not minded to extend the time for this request, we respectfully ask
for an oral hearing so that the reason for the short delay in requesting the
chairman to make this referral can be explained.
That letter
was sent on September 16 1981 to the secretary of the agricultural land
tribunal, and a copy of it was sent to the National Coal Board. On the same day
a second letter, which I think is bound to be read as it follows the letter to
which I have just referred, was also sent to the secretary of the tribunal, but
a copy of this letter was not sent to the National Coal Board. That letter
began:
We are
writing to you at the suggestion of Counsel to explain the reason for the delay
in requesting the Chairman to submit the case stated to the High Court.
Then it goes on
to set out the reasons for the delay, and the explanation for it which it was
desired to give.
The National
Coal Board, for their part, sent a letter to the tribunal with a copy to the
applicant dated September 21 1981, stating that they had received a copy of the
applicant’s letter to the tribunal and that they desired to oppose the request
for an extension of time. The writer, the solicitor for the Coal Board, said:
‘I feel that the request for an extension of time should not be granted for the
following reasons . . .’, and he set out a number of reasons which may be
summarised as indicating that he was submitting that there had already been
delay in the whole process relating to the Linby Colliery Farm and that further
delay should not be entertained. He also plainly indicated that in his view the
application to refer a question of law to the High Court was without intrinsic
merit. However, that letter was sent on September 21 1981 to the secretary of
the tribunal inviting the secretary to place it before the chairman. A copy was
sent to the applicant.
On September
30 1981 the secretary of the tribunal wrote to the applicant’s solicitors the
following letter:
We note the
lateness of the application for a case stated. In the absence of consent on the
part of the other party the chairman is unable to accede to your application.
As a result of
that letter the applicant submits that it is a decision which is a proper
subject for an application for judicial review, and he seeks an order of this
court of certiorari to remove that decision into this court and to quash it on
the grounds set out in his notice of application:
(1) The above-mentioned decision was contrary to
the Agricultural Land Tribunals (Rules) Order 1978, in particular rule 23(2),
in that it was reached without an oral hearing of the applicant’s application
and request as aforesaid;
(2) the above-mentioned decision was contrary to
the rules of natural justice in that it was reached without an oral hearing of
the applicant’s application and request as aforesaid;
(3) the said tribunal or the chairman thereof was
wrong in law in holding that it or he had no discretion to extend the time
provided by rule 33 of the said rules for the making of a request for the
reference of a question of law to the High Court by way of case stated or that
he was unable to accede to the said application and request in the absence of
the consent of the other party to the proceedings before the said Tribunal.
Mr Morgan, in
his careful and helpful submissions to this court, has first sought to
establish that the chairman was bound as a matter of law by statute to afford
an oral hearing of the applicant’s request or application to extend the time
for making the request under rule 33. He has submitted that the request for an
extension of time is, in effect, an interlocutory application within the terms
of rule 19 and that by the provisions of rule 23(2) it was the duty of the
chairman to fix a date, time and place for hearing that application. He accepts
that in order to succeed on the first ground on which he seeks judicial review,
he must satisfy the court that there is a statutory requirement that the
chairman shall afford an oral hearing for an application to extend the time for
making a request under rule 33. It is to be noted that rule 37 does not make
any provision, nor does any other rule, specifically for the making of any application
to the chairman or to the tribunal for an extension of time. Rule 37 provides
merely that ‘the time appointed by or under these Rules for doing any act or
taking any step in connection with any proceeding may be extended by the
Chairman on such terms and conditions, if any, as appear to him to be
just.’ It is, of course, a matter of
necessary inference that there would be likely to be a request made to him for
the extension of time.
Is it an
interlocutory application? Mr Morgan
submits, first of all, that it is, under rule 19. Rule 19 of the Agricultural
Land Tribunals (Rules) Order 1978 appears under the heading ‘Preparation for
Hearing: Interlocutory Applications’, and the body of the rule reads thus:
‘Unless the chairman otherwise orders, an application for directions on any
matter which the chairman has power to determine under these Rules shall be
made in writing stating the grounds of the application and shall be delivered
or sent to the secretary together with a sufficient number of copies for
service on the other party or parties.’
The next rule deals with the disclosure of documents. Earlier rules —
16, 17 and 18 — deal with the formal requirements of applications under the
1976 Act or any other Act which gives the tribunal jurisdiction upon any
matter, and the service of the documents, and so forth.
Rule 23
appears under the heading ‘Notice of hearing’. Rule 23(2) provides that ‘Where
rule 15(1) does not apply, the chairman shall fix a date, time and place for
the hearing as soon as practicable after receipt of the application.’ Rule 15(1) is a rule which provides for
opposed applications. Rule 23(2) would appear to provide the procedure which
the chairman shall adopt where an application to
for the secretary to the tribunal to send every party a notice in Form 13 of
the date, time and place of any hearing.
Mr Morgan’s
submission is that the applicant’s request contained in the letter of September
16 1981 to the secretary of the tribunal was an interlocutory application
within the terms of rule 19, and that by the terms thereof, the chairman should
have applied rule 23(2) and fixed a date, time and place for hearing that
application. It involves the finding, if it is to be successful, that rule 23
is designed to apply to applications other than applications which constitute
or form the substantive matter to be determined by the tribunal.
Mr Dehn, who
appears for the National Coal Board, submits that on reading the rules as a
whole and looking at the scheme of the rules, it is quite clear that the notice
of hearing referred to and provided for by rule 23 is solely referable to the
notice of hearing of the substantive application by the tribunal. He submits
that whereas, for example, in rule 19 provision is made for the chairman to
direct or give directions on interlocutory matters, rule 23(2) is to be
construed as referring to hearings by the tribunal, not just by the chairman.
Mr Dehn submits that it is a misunderstanding of the provisions of the rules to
seek to draw the inference from rule 23(2) that it involves, when read in
conjunction with rule 19, the requirement that there must be an oral hearing by
the chairman of an application to exercise his powers under rule 37 to extend
time.
I do not
consider that the application to extend the time is an interlocutory
application within the terms of rule 19. I think that that rule is intended to
apply to matters incidental to the preparation of the substantive case for
hearing by the tribunal and that it does not cover an application to the
chairman to exercise his power to extend the time for a request for the
reference of a case to the High Court. If I am wrong about that, I consider
that rule 23 is applicable only to hearings by the tribunal and that rule 23
does not involve the concept of a hearing by the chairman. Certainly, it
imposes no duty upon him to afford an oral hearing. It is possible, I suppose,
that a chairman might request submissions to be made to him orally, but I am
satisfied that there is no obligation laid upon him by the rules to deal with
matters — including interlocutory matters — which are within his own discretion
by means of an oral hearing. The whole scheme of the rules which govern the
procedure of the agricultural land tribunal provides for the making of written
applications to the tribunal and for the making of written requests and
applications to the chairman, for directions, and for the giving by him of
written directions. The rules quite plainly provide for a hearing by the
tribunal, as a body, of the substantive applications made to it, and the rules,
and in particular rule 23, provide for the practical arrangements and procedure
relating to such a hearing.
I am satisfied
that Mr Morgan’s application must fail on the first ground upon which he seeks
relief. I find that the chairman’s decision not to extend the time was not
contrary to the Agricultural Land Tribunals (Rules) Order of 1978 as has been
submitted. However, Mr Morgan’s next point, and perhaps his stronger point, is
that which is set out in his notice as the second ground upon which he seeks
relief. He submits that the chairman’s decision expressed in the letter of
September 30 1981 was contrary to the rules of natural justice in that it was
reached without affording an oral hearing of the applicant’s application and
request. Mr Morgan, for the purpose of his submissions, on this ground conceded
that an oral hearing as such is not an essential requirement. If there is no
statutory requirement, as I have found, then it cannot be submitted that there
must be an oral hearing of a request such as was made by the applicant’s
solicitors in this particular instance. But, says Mr Morgan, there was a breach
of the rules of natural justice because the chairman reached his decision
without affording the applicant the opportunity to be heard orally following
his request for such an oral hearing in the first of the two letters of
September 16 1981. He submits that having been asked for an oral hearing so
that the reason for the delay in requesting the chairman to make the reference
could be explained, it was incumbent upon the chairman to grant that oral
hearing or, at any rate, to give notice that he was not going to grant it and
to give some explanation.
Mr Morgan also
submits that in practice, the applicant was denied the opportunity of replying
to the National Coal Board’s submissions in their letter to the tribunal of
September 21 1981 against the granting of an extension of the 14-day period. In
point of fact, the letter of September 21 1981 was sent to the applicant’s
solicitors. That is confirmed by the letter, which is mis-dated August, in
fact, but which was September 21 1981.
The submission
that there was a breach of natural justice must involve the finding that the
applicant was not given a fair and proper opportunity to present his
submissions. That is how Mr Morgan puts it. It is quite plain that an oral
submission is not essential to the making of representations. Indeed, I think
Mr Morgan, impliedly at any rate, conceded that when he conceded that an oral
hearing is not essential as a matter of practice. But the point is made clear
in the case of R v Amphlett (Judge) [1915] 2 KB 223. That case
involved a very different situation on its facts. It was an application made by
workmen under the Coal Mines (Minimum Wages) Act 1912 in relation to the
variation of the minimum wage rates. It was held that the applicants, who were
the workmen, had a right to present their own case in support of a variation to
the joint district board independently of, and not merely through, the medium
of their representatives upon the board. The relevant passage in the judgment
is to be found at p 239 in the judgment of Bray J. Near to the top of the page,
he says this: ‘I have dealt with it . . .’ — that is, the submission — ‘. . .
at some length as being the point of substance, but if it be the fact that the
board failed to deal with the application, I am not sure that it is necessary
to decide it. I wish to make clear what my decision is. It is that the
applicants had a right to present their case, but not in any particular way.
The board may regulate their own procedure, provided it gives those making such
an application a right to present fairly their case and arguments in support,
not necessarily orally, and that it is no answer to say that they have
representatives on the board.’
That passage
is cited in support of the submission made by Mr Dehn, for the respondent, that
there is no basic requirement that representations should be made orally in
order to satisfy the rules of natural justice. It is reinforced by the judgment
of Willis J in the case of Brighton Corporation v Parry (1972) 70
LGR 576. Again, the substance of that action was very different from the matter
raised in the application before this court. However, in the course of it,
Willis J had to consider whether the rule of natural justice of audi alteram
partem had been complied with. He put it this way: ‘Was the defendant given
a fair opportunity to present his own case?’
He referred to a number of authorities from which it is clear that each
case must depend upon its own facts.
There are,
however, certain observations which seem to me to be of general application and
to be helpful. He cited a judgment of Donaldson J in the case of R v Aston
University Senate, ex parte Roffey [1969] 2 QB 538. The passage in question
is to be found at p 554:
In such
circumstances, and with so much at stake, common fairness to the students,
which is all that natural justice is, and the desire of the examiners to
exercise their discretion upon the most solid basis, alike demanded that before
a final decision was reached, the students should be given an opportunity to be
heard either orally or in writing, in person or by their representatives as
might be most appropriate. It was, in my judgment, the examiners’ duty and the
students’ right that such audience be given. It was not given and there was a
breach of the rules of natural justice.
He then
referred to a passage in the judgment of Harman J in Byrne v Kinematograph
Renters’ Society Ltd [1958] 1 WLR 762:
What then are
the requirements of natural justice in a case of this kind? First, I think that the person accused should
know the nature of the accusation made: secondly, that he should be given an
opportunity to state his case: and thirdly, of course, that the tribunal should
act in good faith. I do not myself think that there really is anything more.
In a further
case cited, R v Gaming Board of Great Britain, ex parte Benaim
[1970] 2 QB 417, Lord Denning MR at p 430 dealt with the rules of natural
justice. He spoke of them in the context of the particular case which he was
hearing but in a passage which is helpful when considering the general approach
to the rules of natural justice. He said:
It is not
possible to lay down rigid rules as to when the principles of natural justice
are to apply: nor as to their scope and extent. Everything depends on
the subject-matter . . . . So let us sheer away from those distinctions and
consider the task of this gaming board and what they should do.
Mr Dehn, for
the National Coal Board, submits that there has been no breach of the rules of
natural justice in this instance, because having regard to the fact that
representations can be made in writing and not necessarily orally — and in this
case he submits the expectation is that under the relevant rules
representations to the chairman should be made in writing — the applicant did,
in fact, put his position fully and fairly to the chairman in the two letters
of September 16 1981.
It is to be
observed that the final paragraph of the first letter read (I have already read
it, but it is helpful to repeat it at this point): ‘If the tribunal is not
minded to extend the time for this request, we respectfully ask for an oral
hearing so that the reason for the short delay in requesting the chairman to
make this referral can be explained.’
However, a
second letter of the same date followed, which began in these terms, and was
again addressed to the secretary of the tribunal: ‘We are writing to you at the
suggestion of counsel to explain the reason for the delay in requesting the
chairman to submit the case stated to the High Court.’ It then goes on to set out at length the
circumstances in which the delay had occurred. It does not repeat the request
to be heard orally. Indeed, it seems to me, on reading the whole of this
correspondence, that the secretary of the tribunal was being given in that
second letter the substantive reasons which the applicant wished to submit to
explain the delay which had occurred. I should say that the delay was of the
order of 13 days.
A copy of that
letter was not sent to the National Coal Board, so they did not see it and did
not have any opportunity of commenting upon it, but since they are not the
applicants in this matter, one is not required to consider any prejudice to
them on that ground.
Mr Dehn also
submits that since the applicant’s solicitors received a copy of the National
Coal Board’s letter of September 21 1981 indicating their opposition to the
request for the extension of time, they had a full opportunity, if they wished
to do so, to send their comments upon it to the tribunal, or indeed, to seek
again some further indication as to whether or not they might be afforded an
opportunity of commenting orally upon those matters. They did not in fact do
so.
The
representations of the Coal Board were made plain and the applicant was given
full notice of them. The applicant had put his reasons fully before the
chairman, so that the chairman had his explanation before him when considering
the request that he should extend the time.
I am not able
to find that there was any denial of natural justice or any breach of the rules
of natural justice in this instance. Rule 37 gives the chairman full discretion
to extend the time appointed under the rules for doing any act or taking any
steps in connection with any proceedings upon such terms and conditions, if any
appear to him to be just. I do not consider that the exercise of his discretion
has been shown to have been unfair. The question is not whether this court
might have exercised its discretion in a different way from that in which the
chairman exercised his, but whether it can be shown that he failed to observe
the rules of natural justice or erred in law in exercising the discretion given
to him.
Accordingly, I
hold that there was no breach of the rules of natural justice. It has to be
borne in mind that, harsh though it might seem on occasions, the rules which
provide for time-limits are mandatory. Rule 33 is mandatory in its terms: ‘A
request for the reference to the High Court of a question of law arising in the
course of proceedings before the tribunal shall, unless made at the hearing, be
made in writing to the secretary not later than fourteen days from the date on
which a copy of the tribunal’s decision was sent to the party making the
request . . .’. Of course, the purpose of such a time-limit is to set a limit
on litigation and to speed up the whole process.
Having placed
himself outside the ambit of rule 33, it was incumbent upon the applicant to
satisfy the chairman, if he could, that there was a ground upon which he might
exercise his discretion, and he duly made his representations. I do not believe
that there was any denial of natural justice, and I do not think that it was
incumbent upon the chairman in this instance to afford an oral hearing to the
applicant.
The third
ground upon which relief is sought is that the chairman was wrong in law in
holding that he had no discretion to extend the time provided by rule 33. Mr
Morgan founded this submission upon the terms of the letter of September 30
1981, which reads:
We note the
lateness of the application for a case stated. In the absence of consent on the
part of the other party the chairman is unable to accede to your application.
Mr Morgan’s
submission is that that necessarily implies that the chairman did not think he
had got any discretion, or that if there was lack of consent by the opposing
party, that he then had no discretion to extend the time. I do not read it in
that way. I think that it may be read as indicating that, having regard to the
fact that there is no consent, he is not proposing to extend the time. The use
of the phrase ‘unable to accede to your application’ is not to be read, in my
judgment, as meaning that he had no power to do so.
It is
significant that in the letter of September 16 1981, in which the applicant
sought the exercise of the chairman’s discretion, he specifically referred both
to rule 33 and to rule 37. In this case the chairman — or the deputy chairman,
I think it was — of the tribunal is an experienced, qualified member of the
Bar, and the tribunal has a secretary whom one must presume to be familiar with
the rules. I do not believe that that letter can or should be read as an
indication that the chairman believed that he had no power to grant an
extension if he thought it just and right to do so.
In the
circumstances, I find that the applicant has failed to substantiate the grounds
upon which he seeks relief, and accordingly, the application must be dismissed.
Application
was dismissed with costs.
