Smith v East Elloe Rural District Council (1956)

A landowner said the order compulsorily acquiring her house had been procured in bad faith. The statute allowed a challenge to such an order only within six weeks, and then said it "shall not ... be questioned in any legal proceedings whatsoever". She sued nearly six years later. The majority held that the ouster clause meant what it said: the order itself could not be challenged, however grave the alleged bad faith.

But — and this is why a torts student reads it — all five Law Lords agreed that her claim for damages against the council's clerk personally, for knowingly acting wrongfully and in bad faith in procuring the order, could go on. Viscount Simonds put the point directly: even if the order cannot be questioned and the land cannot be recovered, the aggrieved person "may have a remedy in damages against those individuals." The case is therefore cited in discussions of misfeasance in public office — the tort of a public officer who abuses his power in bad faith — as showing that a personal damages remedy survives even where the administrative act is immune from challenge.

The East Elloe Rural District Council made a compulsory purchase order over the appellant's house and about 8½ acres of land at Holbeach, Lincolnshire. After a public local inquiry, the Minister of Health confirmed it on 29 November 1948, and it was advertised in December 1948. The Lands Tribunal fixed the price at £3,000. The council demolished the house and built a number of houses on the land.

On 6 July 1954 the appellant, Kathleen Rose Smith, issued a writ against the council, Mr Pywell (the clerk to the council) and the Ministry. She claimed damages for trespass, an injunction, declarations that the order was "wrongfully made and in bad faith" and wrongfully confirmed in bad faith, and against Pywell a declaration that "he knowingly acted wrongfully and in bad faith procuring" the order and its confirmation, with damages.

The defendants applied to set the writ aside for want of jurisdiction, relying on paragraph 16. The Master, the Judge in Chambers and the Court of Appeal struck out the whole writ. She appealed to the House of Lords.

(The judgment gives the date of the order both as 26 August 1948 and, in the writ and in Lord Morton's speech, as 27 August 1948; nothing turns on it.)

1. Does paragraph 16 — that a compulsory purchase order shall not "be questioned in any legal proceedings whatsoever" except under paragraph 15 within six weeks — bar a challenge to an order alleged to have been made in bad faith?
2. Can the claim for damages against the clerk personally, for procuring the order in bad faith, proceed?

The appeal was allowed only in part. The writ was struck out against all defendants except Mr Pywell; against him the claims for a declaration of bad faith and damages could proceed, "upon the footing that the validity of the Order cannot be questioned."

The majority: the ouster clause is absolute

Viscount Simonds accepted that lawyers regard ouster clauses with little sympathy: "anyone bred in the tradition of the law is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the Court". But he held that "it is our plain duty to give the words of an Act their proper meaning". The words used "are wide enough to cover any kind of challenge which any aggrieved person may think fit to make."

His central reasoning: "no one can suppose that an Order bears upon its face the evidence of bad faith. It cannot be predicated of any Order that it has been made in bad faith until it has been tested in legal proceedings, and it is just that test which paragraph 16 bars."

Lord Morton agreed, acknowledging the "strange results" — a man whose home is taken out of a grudge "is for ever precluded from going to any Court to have the Order set aside" — but held that "it is, of course, within the powers of Parliament to achieve this result". Reading in an exception for bad faith "would be legislation, not interpretation."

Lord Radcliffe added that an order made in bad faith is not simply a nullity that the statute does not reach: "An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead."

The remedy in damages survives

Viscount Simonds explained why the injustice "may not be so great as might appear": "For the bad faith or fraud upon which an aggrieved person relies is that of individuals, and this very case shows that, even if the validity of the Order cannot be questioned and he cannot recover the land that has been taken from him, yet he may have a remedy in damages against those individuals." The claim against Pywell was "a claim which the Court clearly has jurisdiction to entertain", and the Court of Appeal was wrong to strike out the whole writ. He added that he was "far from saying that the claim has any merit."

Lord Radcliffe noted that "all your Lordships are agreed upon the latter point" — the claim against Pywell.

1. A statutory clause providing that an order "shall not ... be questioned in any legal proceedings whatsoever", save by a statutory challenge within a fixed time, bars any later challenge to the validity of the order, including one alleging bad faith; plain words must be given their plain meaning.
2. Such a clause does not bar a personal action for damages against an individual officer who is alleged to have knowingly acted wrongfully and in bad faith in procuring the order; that action proceeds on the footing that the order itself is valid.

• Misfeasance in public office: Discuss the liability of a public officer who abuses his power in bad faith. Use this case for the proposition that a personal damages claim against the officer survives even where the order itself cannot be challenged. In Indian answers, cite it as persuasive English authority, alongside the Indian cases on abuse of public power.
• Ouster clauses: Can a statute exclude the courts even in cases of fraud or bad faith? Contrast the majority (Viscount Simonds on plain words; Lord Radcliffe's "no brand of invalidity") with the dissents of Lord Reid and Lord Somervell.
• Remember: it is a House of Lords decision, 3–2 on the ouster point, unanimous on the claim against the clerk.