Planning application — Committee reversing decision to grant planning permission — Claim of misfeasance in public office — Allegation of malice — Whether statement of claim disclosed cause of action against local authority for deceit
The plaintiff and A both sought planning permission
for their respective sites. The applications included consent for the
construction of an access to a third piece of land, which neither of them
owned, but which with access would have valuable development potential. The
person who obtained permission would then control the access and would be able
to extract a premium price for his land from the owner of the third piece of
land. The committee first approved A’s application and then the plaintiff’s.
Later at the same meeting the plaintiff’s application was rejected. In
proceedings brought by the plaintiff against the local planning authority, he
alleged, inter alia, that the local planning authority were guilty of
misfeasance in public office and that three members of the committee were
motivated by malice and the other five members were themselves deceived. The
judge in the court below refused to strike out part of the plaintiff’s
statement of claim as disclosing no cause of action. The local planning
authority appealed.
The plaintiff’s allegations fell very far short of
being anything that could be sufficient, bearing in mind the limited approach
in Jones v Swansea City Council [1990] 1 WLR 1453, to convict the
whole committee of malice. It was to be assumed that the members who were not
themselves malicious had directed their minds properly to the issues. None of
the deceits allegedly practised on them was in any way sufficiently fundamental
to offset that assumption. It was not arguable that the events alleged in the plaintiff’s
pleadings could found a claim for misfeasance or any other claim in tort
against the council.
Bourgoin SA v Ministry
of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 WLR 1027; [1985]
3 All ER 585
Calveley v
Chief Constable of the Merseyside Police [1989] AC 1228; [1989] 2 WLR 624;
[1989] 1 All ER 1025; (1989) 153 LGR 686, HL
Jones v Swansea
City Council [1990] 1 WLR 1453; [1990] 3 All ER 737; (1990) 89 LGR 90, HL;
[1990] 1 WLR 54; [1989] 3 All ER162, CA
Three Rivers District Council v Bank of England (No 3) [1996] 3 All ER 558
Appeal from the decision of Judge Thompson QC
This was an appeal by Restormel Borough Council
from a decision of Judge Thompson QC, who on June 30 1997 refused to strike out
part of John Brian Barnard’s claim as disclosing no cause of action.
Exeter) appeared for the appellants, Restormel Borough Council.
BUXTON LJ: The
defendants in these proceedings, Restormel Borough Council, appeal against the
decision of Judge Thompson QC on June 30 1997, in which he refused to strike
out part of the statement of claim as disclosing no cause of action. This
appeal is concerned with the allegations made by the plaintiff, Mr Barnard, in
the statement of claim and, for the purpose of this appeal only, it is assumed
that those allegations would be proved if the matter were to go to trial. It is
important that I should emphasise that nothing has so far been proved, either
against the council or against individuals criticised by Mr Barnard; nor has
any court yet considered whether the allegations made by him are in fact true.
The case concerns planning applications decided by
Restormel Borough Council. The plaintiff and a man called Adams were rivals for
planning permission, in this sense. They both submitted applications in respect
of different pieces of land. An important aspect of both of those applications
was that they included consent for the construction of access to a third piece
of land, which neither of them owned, but which with access would have valuable
development potential. This latter land was called the development land. If
only one of the plaintiff or Adams obtained permission, the person who then
controlled the access would be able to extract a premium price for his land
from the owner of the development land.
As we have said, for the purposes of this appeal
the court acts on the allegations in the statement of claim, though those have
not yet been proved.
I will summarise those allegations so far as I
can, but, because this is a striking-out case, it will be necessary to quote
verbatim some considerable parts of the pleadings that are under attack. To
assist in understanding, however, we say at this stage, purely by way of
summary, that Mr Barnard essentially complains of three things:
(i) the two applications were not considered
together;
(ii) the original vote approving his application
was retaken; and
(iii) when that vote was retaken the original
decision was reversed, so that, in the event, his application was not approved.
The history in more detail, as set out in the
statement of claim, is that, at their meeting on September 11 1990, both
applications were on the agenda of the development committee. It is alleged
that the planning officer recommended that the two applications should be
looked at
that ‘the access and layout remain largely as shown on’ a previous application
that had apparently been made for permission in respect of the Adams land. In respect
of the plaintiff’s application, he had noted that, if the committee considered
that the development land should be served through the plaintiff’s land, it
would be necessary to defer a decision in order to permit negotiations. The
plaintiff alleges that those two notations set out factors that required, it
would seem, in the interests of good planning practice, that the two
applications should be considered together. I was not able to satisfy myself as
to why that followed.
Be that as it may, the pleading further alleges,
as to the handling of the Adams application, as follows:
After the chief planning officer had finished
directing the committee to deal with both planning applications together, the
Mayor Ken Hughes said to the committee ‘that the applicants had complied with
the concerns of the Committee as discussed at the February 1990 meeting, the
access shown on the TC Adams application was the preferred access as a result
of the site visit in January and as recommended at the February meeting’. This
was deception, as what was being discussed was the TC Adams application, the committee were being deceived into
thinking the preferred access being described was on the TC Adams drawing, when
in fact the access on the drawing being discussed had been refused previously,
not preferred at the site visit and clearly refused by the highways officer’s
report and the planning officer’s report and refused by the committee at the February 1990 planning
meeting. If the true facts had been reported verbally concerning access then
there is no doubt the truth would have been acted on and the two planning
applications would have been properly and lawfully considered together as
directed by the chief planning officer. As a result of this deception the
councillors’ application was granted without proper consideration of their
access.
The Adams application was thus approved. It does
not appear to be argued, and, in any event, I do not see grounds on which it
could be argued, that the granting of the Adams application was unlawful or
even, I would think, unreasonable.
To continue with the pleaded allegations, one and
a half hours later the plaintiff’s application came up, was voted on and
passed. Councillor Hughes then intervened as alleged the pleadings:
Then Ken Hughes the Mayor of Restormel at that
time, then said, ‘but we have already passed the other access earlier. We
cannot pass this one as well.’ Mrs Court the vice chairman then spoke to the
chairman alleging confusion and asked for a re-vote. Councillor Burdon rephrased
the vote by saying ‘all those in favour of a refusal’, the vote was cast,
illegally reversing the clear vote for approval to a refusal.
It appears that of the some 20 councillors present
at the meeting, only eight voted on the revote; that is, councillors Burdon,
Hughes and Mrs Court, of whom specific complaint is made, and five others. Some
12 other councillors must have abstained.
We should say that we cannot see that the mere
fact of reversal of the original decision was unlawful, being, we think, within
the powers of the committee, and even less can we see how that reversal itself
could ground any cause of action in private law on behalf of Mr Barnard. He,
however, told us in argument that the nub of his complaint was the way in
which, and the motives for which, the original decision on his application was
reversed.
The criticisms of the three councillors whom we
have already named, who are said to have been malicious or dishonest in respect
of that reversal, and the way in which it was allegedly achieved, are set out
in the statement of claim as follows:
1. Contrary to the law and standing orders,
National Code of Local Government conduct and Restormel Code of Conduct for
members, Cedric Burdon the chairman of the planning committee is guilty of improper
practices as he was an agent for TC Adams and deliberately failed to declare an
interest or leave the meeting when discussing TC Adams’ and JB Barnard’s
applications. The reason for failing to declare an interest was to make sure
that both applications were dealt with separately, so that JB Barnard’s access
would not be conditioned on TC Adams’ application, to be the means of access to
TC Adams’ proposed development.
3. When discussing the access on TC Adams’
application drawing Mayor Ken Hughes negligently and fraudulently described the
access as being recommended at the site meeting and at the previous planning
meeting in February which was a blatant deceitful lie, said to deceive
councillors into thinking what was on the drawing was the preferred access,
when in fact what was actually on the drawing was the previously refused
access.
And then on p25, paras 3–5:
The second vote was illegal contrary to the
Law and standing orders, National Code of Local Government Conduct.
4. Those members of the planning committee named
as taking part in voting illegally on the second vote to reverse a clear legal
approval are as follows:
There are then named councillors Burdon, Mrs Court
and Hughes, and five other persons. It continues:
5. Those members of the planning committee named
as illegally manipulating both TC Adams’ and JB Barnard’s planning applications
during debate are as follows: Cedric Burdon — the chairman, Hilda Court — vice
chairman, Ken Hughes — Mayor.
On the basis of these alleged facts, damages are
claimed on the bases of negligence and breach of statutory duty. Those heads of
claim have been struck out and there is no appeal against that ruling. We are
concerned now with whether the pleadings disclose an arguable case in the less
common tort of misfeasance in public office and what is described as deceit or
fraud. The particular difficulty in the case is how those torts, with their
limited definitions in law, can be established against a local authority,
when the factual allegation, as in this case, is that some, but not a majority,
of those who took the decision complained of were actuated by what we will
briefly, for present purposes, describe as malice. To explain the point, it is
necessary to look, first, at the elements of the torts relied on by the
plaintiff, turning first to the tort of misfeasance in a public office, which
is the main issue with which this case is concerned.
We turn to the detailed and thorough judgment of
Clarke J in Three Rivers District Council v Bank of England (No 3)
[1996] 3 All ER 558. In that case the judge was concerned with a close
consideration of the elements of the tort of misfeasance in a public office as
laid down by this court in Bourgoin SA v Ministry of Agriculture,
Fisheries and Food [1986] QB 716. In my judgment, Clarke J accurately
summarised the elements of the tort as laid down by this court in Bourgoin.
In particular, he said, at p582e:
(1) The tort of misfeasance in public office is
concerned with a deliberate and dishonest wrongful abuse of the powers given to
a public officer. It is not to be equated with torts based on an intention to
injure, although, as suggested by the majority in … [an Australian authority
cited to the judge], it has some similarities to them.
(2) Malice, in the sense of an intention to
injure the plaintiff or a person in a class of which the plaintiff is a member,
and knowledge by the officer both that he has no power to do the act complained
of and that the act will probably injure the plaintiff or a person in a class
of which the plaintiff is a member are alternative, not cumulative, ingredients
of the tort. To act with such knowledge is to act in a sufficient sense
maliciously …
I would venture to make two important points in
respect of Clarke J’s summary. First, the judge adopts the language of whether
the officer has ‘power’ to do the act complained of. In one sense, in our case,
the committee necessarily did have power to adjudicate on the planning
application and, as I think, to change their mind about the decision. The case
was not the same as that of the minister in the Bourgoin case, who, on
the case put by the applicants, though again it never proceeded to final trial,
had no legal power to impose restrictions that were alleged to be contrary to
the law of the European Union. But that, in my view, would be a very artificial
restriction and not one that the spirit of tort intends. Nor would it be
consistent with the case of Jones v Swansea City Council [1990] 1
WLR 1453, to which I shall shortly come, where there is no doubt that the city
council had, in this sense, power to let out the city council’s property,
though that was never suggested as in itself an answer to the action.
In my judgment, it is helpful in this connection
to refer to what was said by Lord Bridge of Harwich in the case of Calveley
v Chief Constable of the Merseyside Police [1989] AC 1228, at p1240,
cited by Clarke J in the judgment in the previous case, at p571c. Lord Bridge
indicated that he was not seeking to describe the precise limits of the tort of
misfeasance in public office, but said:
It suffices for present purposes to say that it
must at least involve an act done in the exercise or purported exercise by the
public officer of some power or
is done in bad faith or (possibly) without reasonable cause.
I cite that passage subject to noting that the Three
Rivers case and Bourgoin itself make it clear that it is bad faith
or dishonesty that is the operative requirement.
Second, negligence on the part of the public
officer is not enough. That is clear from the summary of the judgment of Clarke
J already cited and from the issue that was debated in the Three Rivers
case and decided by the judge in the sense already described. It is also
particularly clear from the judge’s further exposition of the requirements of
the tort at p581j, where he said:
misfeasance consists in the purported exercise of
a power otherwise than in an honest attempt to perform the relevant duty. It is
that lack of honesty which makes the act an abuse of power.
As I have said, the difficulty in our case stems
from applying the above law to the acts or decisions of a body like a local
authority. Here, of the eight councillors who voted against the plaintiff’s
application, only three are accused of dishonesty: councillors Burdon, Mrs
Court and Hughes. The plaintiff’s case is not that the rest, the majority, were
themselves dishonest or realised that they were voting in the private interests
of Adams, but that they were themselves deceived.
There is no doubt that if a majority of those who
took the decision were malicious in the relevant sense, that would make the
decision itself malicious: see what was said by Lord Lowry in Jones v Swansea
City Council at p1458H. That, however, was not the case in this case. The
judge below considered that it was arguable that this problem could be solved
by pointing to what he held to be the particularly serious nature of the fraud
alleged against the three councillors. He said, at p6D of his judgment:
What it comes down to in this case is this. Mr
Jordan says that in the instant case the allegation at most is made against
three members of the planning committee, the three whom I have mentioned, and,
they being less than a majority, there being eight members of the committee,
this action is doomed to fail. However, I think that may be something of an
over-simplification. What is alleged here by Mr Barnard, in my judgment, goes
further, so far as the allegation is concerned. Whether it can be proved or not
is another matter. But so far as the allegation is concerned, it seems to me it
goes further than the position in Jones v Swansea City Council
because here it is not simply a question of the suggestion that Mr Burdon, Mrs
Court and the Mayor, councillor Hughes, were activated by malice. He goes
further than that and says that in fact Mr Burdon was the agent for TC Adams
and in those circumstances this was really a grave deceit or fraud. It goes
much further than simply somebody wanting to vote against or do down another
party, that Mr Burdon should have taken no part whatever in these proceedings.
He also raises the question as to the circumstances in which the vote was
retaken.
For my part I would have thought it is probably
open to a planning committee to revote that evening before the issue has been
perfected. I have not been referred to any authority on that and at this stage
certainly I would not be prepared to decide that point one way or the other,
although, as I say, my inclination is that until the end of the committee
meeting it is probably open to the committee to revise a decision which it has
made earlier if it thinks it was inconsistent or inappropriate. But that is not
the burden of the present matter.
In my judgment it would not be right to drive Mr
Barnard from the judgment seat at this stage. I think he has got an arguable
case in deceit and fraud if he can prove that Mr Burdon was indeed the agent
for TC Adams and that on this occasion Mr Burdon was feathering his own nest
rather than considering the matter as a genuine planning application.
I regret that I cannot agree with that approach.
If it is necessary to show that both A and B were malicious, the seriousness or
intensity of A’s malice does not establish anything against B unless it can be
shown that in some way B partook of that malice. I do not think, therefore,
that the judge’s ruling can be upheld on the basis that he adopted. However,
because this is a striking-out application, and in deference to the interests
of Mr Barnard, who represents himself, the court did not stop there, but
anxiously considered with counsel for the defendants whether it was possible to
argue, on the basis of the matters alleged in the pleadings, that the whole
decision was indeed infected by malice in the relevant sense: however little
such an allegation featured in the argument that Mr Barnard himself sought to
advance, which, as we have said, was based on the contention that the balance
of the councillors were not malicious but negligent.
We therefore turn to consider in more detail such
guidance as exists as to the application of the tort of misfeasance, which is
usually discussed in the context of an individual or of a conscious corporate
decision, to a committee decision. We bear in mind the need to establish
dishonesty; and that in this case it is the local authority themselves, not
councillors Burdon, Hughes and Mrs Court, who are the defendants, and who must
therefore be shown to have acted in bad faith. We also bear in mind the
specific ways in which it is alleged that the malice of the three named
councillors operated on the other councillors. The case as to what may be
called, in this context, operative deceit must, it seems, rest on what was
allegedly said by Mr Hughes as to the access provisions on the Adams site, and
possibly on Mr Burdon’s act in putting the second question in an improper form.
It is difficult to see how Mr Burdon’s failure to declare an interest can
advance any allegation of corporate misfeasance; and no details are given of
any actual fault by Mrs Court save for her wanting the vote to be taken again.
We therefore turn immediately to the speeches in Jones
v Swansea City Council. That case concerned the reversal at a council
meeting of a decision previously taken under different political control. The
principal complaint centred on councillor Lewis, the new leader of the council
and the leader of the majority Labour group. It was, however, pleaded that all
28 members of that Labour group who took part in that decision had been
activated by malice. The trial judge held that, although councillor Lewis had
animosity towards the plaintiff, he had not been motivated by malice in the
relevant sense. Further, he accepted the evidence of three other councillors
that they did not know of Lewis’ attitude to the plaintiff, did not vote in
accordance with Lewis’ instructions and did not vote according to a party whip,
whether imposed at the instigation of councillor Lewis or otherwise.
The Court of Appeal ordered a new trial, because
they thought it open to the court at the new trial to find that Lewis was
activated by malice and that the majority of the councillors voting against the
plaintiff’s interests were infected by that malice, by the exercise of the whip
or by party solidarity. The House of Lords held that that approach was wrong.
There were two points. First of all, what was called the pleading point, set
out in the speech of Lord Lowry in the House of Lords at p1468H of the report.
He pointed out that the plaintiff had set out to prove that all the councillors
were malicious and that the council had rebutted that as a matter of fact,
against which there was no appeal. Second, what might be called the ‘bare
majority’ case; that is to say, as Lord Lowry put it referring to the judgment
of Slade LJ in the court below, at p1469D:
Slade LJ, moreover, although he considered that
the plaintiff, in order to succeed, would have had to prove that all 28 Labour
councillors were motivated or infected by malice, went on to consider the claim
on the further assumption that a bare majority (22) of malicious or infected
councillors would have been enough. And even on this basis he held, rightly in
my view, that the plaintiff could not succeed.
What then was the case that it was sufficient for
the plaintiff to prove where it is alleged that the council and not individual
members of that council were malicious in a public office? I have looked at Jones
with care, conscious that the House of Lords was to some considerable extent
concerned with pleadings in that case, and with the course that the case had
taken in the courts below. In this court the defendant council principally rely
on a number of passages. First of all, a passage in Lord Lowry’s speech, at
p1458H, where his lordship said:
Accordingly, I do not propose on this occasion to
discuss the bounds of misfeasance committed by a body such as a local council
or to compare the remedy for that tort with an application for judicial review,
but I consider that, generally speaking, if a plaintiff alleges and proves that
a majority of the councillors present, having voted for a resolution, did so
with the object of damaging the plaintiff, he thereby proves against the
council misfeasance in a public office.
Second, this passage, at p1473E:
Moreover (depending on the view which your
Lordships take of the pleading point) the plaintiff had to prove either that
all the Labour councillors or that at least 22 of them failed to exercise their
own judgment and vote in good faith on the merits.
For my part, I doubt whether either of those
statements was intended in itself to be a complete account of the circumstances
in which a council might be guilty of misfeasance. Lord Lowry accepted that
what might be called the ‘infection’ of an innocent majority by the malicious
minority might suffice.
It is, however, clear that he thought that such
infection can only operate in limited circumstances. That, with respect, must
plainly be right, bearing in mind, in particular, that what has to be proved
against the council, not just against the individuals, is a state of mind of
the very serious nature as described by Clarke J in the Three Rivers
case and by this court in Bourgoin. Such a case was indeed essayed by
the plaintiff in the Jones case. Lord Lowry described as follows, at
p1459D:
The plaintiff relied on negligence as well as
misfeasance. This was rightly regarded as a hopeless mission and she did not
persevere with negligence in the Court of Appeal. Her main point on misfeasance
in the statement of claim as amended was that:
‘the
controlling party voted en bloc … and each member thereof was affected by
malice the principal instigators whereof were E Tyssul Lewis; A Lloyd; and L
Hopkins. Their intended victims were Benjamin Jones and through him, his wife,
the plaintiff.’
The plaintiff’s counsel at the trial and also in
the Court of Appeal put the case of malice against the councillors as a body in
several different ways, but at all times they stuck tenaciously to the
allegation that all the councillors were infected by malice. This stand
combined both logic and weakness; logic because, once the plaintiff was forced
to concede that there could have been councillors who voted for the resolution
without being so infected, the blanket effect of her case would disappear;
weakness because three councillors called as witnesses said that they voted for
what they considered to be good reasons, that they had not been instructed by
Councillor Tyssul Lewis …
Lord Lowry said of this argument as follows, at
p1459H:
Giving judgment Roch J said:
‘In
his closing submissions, Mr Macdonald put the plaintiff’s case on this issue in
this way: that Councillor Tyssul Lewis was malicious and as a consequence
everybody who voted for the resolution on 28 June 1979 was affected by his
malice, he being the leader of the Labour Party, the majority party, on the
Swansea City Council in June 1979. I do not accept the soundness of that
submission. In my judgment, if one councillor is activated by malice, then that
councillor’s malice will only taint the actions of fellow councillors if either
they know of that malice and acquiesce in it or the councillor who is malicious
is in a position to — and does — apply a party whip so that the whole of his
party group votes in the way he desires at his direction.’
In my opinion that statement did at least full
justice to the plaintiff’s legal position and, as your Lordships have seen, the
facts as found by the judge did not match the plaintiff’s requirements for a
decision in her favour.
In terms, that observation of Lord Lowry may
appear to say no more than that the plaintiff could not prove what she alleged,
but in the Jones
went to some trouble to see if the case could be extended beyond that which had
originally been pleaded, that the plaintiff could succeed by establishing less
than she there alleged; or that Roch J took too narrow a view of the
application of the tort to a local authority.
It is also important to note that on these issues
Lord Lowry approved in full the judgment of Slade LJ in the Court of Appeal. I
venture to quote from that judgment only one, but an important, passage. That
is conveniently to be found in the same volume of the Weekly Law Reports:
[1990] 1 WLR 54.
I turn to p83D. Slade LJ said:
(4) Even if the evidence had established that all
the Labour members who voted for the resolution both knew of the resolution and
on 28 June would have regarded it as subjecting themselves to an informal party
whip, they would still have been entitled and bound to have regard to their
personal responsibility and to vote in accordance with their beliefs and
consciences. The decision of this court in R v Waltham Forest London
Borough Council, ex parte Baxter [1988] QB 419 shows that this would have
been their duty as councillors, even if there had been a party whip.
Slade LJ went on as follows, at p83G:
On what basis could the judge have properly
inferred that the other members of the Labour group, or even a majority of
them, were not motivated by their beliefs and consciences? I can see no
sufficient basis. I accept that as a matter of common sense and political
reality, he could readily have inferred that, all other things being equal,
members of the Labour group would be likely to follow their leader and deputy
leader in casting their votes as a matter of ‘group discipline’ … whether or
not they considered that rule 7(c) applied so as to place them under a party
whip. Nevertheless, I do not see on what basis the judge, even if he had made
this inference, and even if he had found personal malice on the part of
Councillors Tysell Lewis and McDonald-Murray, would have been entitled to find
(either as a matter of fact or of law or of mixed fact and law) that such malice
affected all (or even a majority) of the other members of the Labour group
concerned. It had not been shown that all (or any) such other members were
personally malicious or knew of the (assumed) malice of their leader and deputy
leader. It had not been shown that, in the words of paragraph 4 of the amended
notice of appeal:
‘the
proper inference from the evidence was that all Labour councillors at the said
meeting of 28 June 1979 [or even a majority of them] knew that they had to vote
in the way desired by Councillor Tysell Lewis in order to redeem the said
pledge and that they did so thus being tainted by the malice complained of.’
Thus, even if, contrary to my view, the pleadings
did not make it incumbent on the plaintiff to show that all the members
of the Labour group who voted in favour of the relevant resolutions were in
some way or other affected by the (assumed) malice of their two leaders, the
evidence adduced at the trial would not, in my view, have established that even
the majority of such members were thus affected. The pleading point is
therefore far from being the only reason for my ultimate conclusion.
Far from it being suggested in our case that the
five councillors who voted with councillors Burdon, Hughes and Mrs Court, or
the some 12 who abstained, were themselves malicious or acted under direction,
the allegation here is only that they were deceived. The only deceit alleged in
respect of the vote in the Adams application is that councillor Hughes told the
committee that the Adams access was the preferred access. The only deceit
alleged in respect of the plaintiff’s application is that councillor Hughes and
Mrs Court suggested a revote and that councillor Burdon put the question in a
muddled way. I do not exclude the possibility that in some circumstances a
maliciously induced mistake could infect the whole committee, and not just the
malicious councillors, with misfeasance, though that would not be easy in view
of the strong emphasis placed in the tort of misfeasance on the requirement of
subjective bad faith. However, in my view, what is alleged here falls very far
short of being anything that could be sufficient, bearing in mind the limited
approach in Jones v Swansea City Council, to convict the whole
committee of malice. It is to be assumed, as Slade LJ said, that the members
who were not themselves malicious directed their minds properly to the issues.
None of the deceits allegedly practised on them were in any way sufficiently
fundamental to offset that assumption. None of them deprived them of free
judgment, in the terms used by Roch J in his judgment in Jones that were
approved by Lord Lowry in that case.
As I have already said, while I am clear that the
judge’s reasoning cannot be upheld, the court did think it incumbent on it to
investigate at some length whether the pleadings might be upheld on the basis
of infection of innocent councillors through deceit. It is that investigation
that has caused the close scrutiny of Jones v Swansea City Council,
the results of which I have endeavoured to set out. For the reasons that I have
given, in my judgment, the claim cannot be saved on that basis nor would it be
susceptible to improvement by further amendment, given the very full statement
of the basic facts relied on that it already contains.
The claim is also put on the basis of what is
generally described as fraud or, more technically, deceit. The judge upheld
this claim also, on the same basis as he approached the claim for misfeasance.
I agree that they stand or fall together. But there is a further difficulty in
this case, that the facts alleged do not themselves start to found a claim
outside the tort of misfeasance. In our law there is no tort of fraud. The
plaintiff must bring himself within the tort of deceit, for which it is necessary
to establish those criteria set out in para 14–01 in the current edition of Clerk
and Lindsell on Tort:
The tort involves a false representation made by
the defendant who knows it to be untrue, or has no belief in its truth, or who
is reckless as to its truth. If the defendant intended that the plaintiff
should act in reliance on such a representation and the plaintiff in fact does
so, the defendant will be liable in deceit for the damage caused.
Here, there is no representation alleged to the
plaintiff nor anything that he relied on nor, indeed, in any event, anything
represented by the
claim therefore falls on that point, as well as on the question that it has not
been possible to attribute the dishonesty alleged against the three councillors
to the council as a whole.
For those reasons this appeal must succeed and the
application to strike out the claim in its entirety must be granted. I would
add only this. A citizen who finds himself in the position that Mr Barnard
alleges himself to be in does have some potential remedies available to him,
including, most conspicuously, the possibility of making an application for
judicial review. In my judgment, however, it is not arguable that the events
alleged in this pleading can found a claim for misfeasance or any other claim
in tort against the defendant council.
SIR JOHN KNOX: I
agree.
Appeal allowed with costs.
