Procedure — Judicial review — Test case — Local council devising scheme to charge householders for deed recognising right of way — Appellant bringing judicial review proceedings challenging scheme — Appellant’s private law claim to right of way settled — Judge refusing application to join other claimants and staying judicial review proceedings — Whether appellant entitled to pursue judicial review proceedings — Whether joinder necessary — Appeal allowed
In the late 1980s, the respondent council wrote formal letters to the owners of a number of properties abutting Chobham Common, including the appellant, stating that the council, as owners of the common, acknowledged that those properties had acquired a prescriptive right of vehicular access over the common. The council later took the view that they should not have recognised the rights of way unless the owners could show use dating from before 1930. They devised a scheme to charge a substantial sum for a deed recognising the right of way to those owners who could not show pre-1930 use.
The appellant sought permission to bring judicial review proceedings to challenge the legality of the scheme on the ground, inter alia, that it breached a legitimate expectation of the affected property owners. She was described in her claim form as a “member of a group of householders”, and the relief sought was a declaration that the council’s actions were unlawful “in respect of the category of householders to which the Applicant belongs”. The appellant contended that she herself could show pre-1930 use. Permission was granted, and the judge transferred the case to the Chancery Division.
In July 2000, the council conceded the appellant’s claim based upon pre-1930 use, and asserted that her action was no longer necessary. The appellant’s solicitor announced its intention to apply to join further claimants to continue the challenge to the legality of the council’s scheme. In December 2000, the appellant made an application to transfer the case to the Administrative Court and to have B joined as a claimant. A deputy master refused that application. His decision was upheld on appeal by a judge, who also stayed the action on the ground of the five-month delay in applying for joinder. The appellant appealed.
Held: The appeal was allowed.
The public law claim, challenging the legality of the council’s scheme, could continue even though the appellant’s private law claim to a right of way had been settled. The proceedings were not confined to her individual claim. The claim form made it clear that she was part of a group, and the declaration sought was framed in terms of the whole group, so that the appellant’s action was, in substance, a test case. The appellant had never abandoned her public law claim, and the action had not become purely academic. It could provide a remedy that would be of value in giving guidance as to the legality of the council’s conduct, and it remained an appropriate vehicle for providing that remedy: R v Hertfordshire County Council, ex parte Cheung The Times 4 April 1986 and R v BCC, ex parte Quintavelle (1998) 10 Admin LR 425 applied. Accordingly, the appellant could continue with the action without the need to join further claimants.
It followed that the judge had erred in approaching the matter on the basis that a refusal of the joinder application necessarily prevented the case from continuing. In reality, neither the joinder application nor the application to transfer to the Administrative Court had been necessary, and the Chancery Division remained an appropriate forum for determining the claim. The judge should not have used those applications as a vehicle for considering whether to stay the proceedings. The council had made no application to stay, and there was insufficient information before the judge to enable him to carry out the balancing exercise necessary to decide whether to take such a draconian step. Moreover, a stay was a disproportionate measure in the instant case. The action was to continue in the Chancery Division before a nominated judge with Administrative Court experience, and B was to be joined as a claimant for the sake of convenience.
Michael Fordham (instructed by Richard Buxton, of Cambridge) appeared for the appellant; James Findlay (instructed by the solicitor to Surrey County Council) appeared for the respondents.
Sally Dobson, barrister
