To commemorate the fact that ICLR has been creating case history for the last 150 years, we’re putting together a special Anniversary Edition of the Law Reports, which will include the 15 top cases voted for by you, our readers. We divided our history into five periods, and allowed a month for you to vote for a case from each period. In this post, we look at the results from the third period, 1946-1970.
The top two cases are both clear winners, in first and second place, and are in a sense related: each in a different sense paved the way for the steady trickle of judicial review cases which grew to a flood in the ensuing three decades – really until the legal scrutiny of public authorities became rather easier through the medium of the Human Rights Act 1998.
The third place seems on the basis of this graphic a little more controversial. In the event of a tie – as here – we gave the Editor a casting vote, and he elected the High Trees case which, in a purely jurisprudential context, showed Lord Denning (then still a High Court judge) at his most creative.
These three will be included in the special Anniversary Edition, to be published next month to mark our sesquicentenary, or 150th anniversary. In this post we say a little more about them, and about the one that didn’t quite make the cut.
Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223, CA
The expression “Wednesbury unreasonable” has been so commonly used as to require no explanation among those of us with the least experience of administrative law; but to the layman encountering the expression, unanchored to its full case reference, it is just another of those phrases, like “Mareva injunction” or “Calderbank letter”, which seem to reinforce the idea of the law as a jungle of jargon.
The problem is that there is no simple way of replacing such words or phrases with the same precision in anything like the same concision. A Mareva injunction may now be called a freezing injunction (for a full discussion see Z Ltd v A-Z and AA-LL  QB 558); and a Calderbank letter may be described as a pretrial offer without prejudice but reserving the right to refer to the offer on the issue of costs: see Calderbank v Calderbank  Fam 93. Yet the threefold definition of “Wednesbury unreasonableness” to be derived from Greene MR’s judgment — taking into account what one should not, failing to take into account what one should, or just plain irrationality — cannot be more succinctly termed. What else could one call it? Unlawful unreasonableness? Judicially reviewable unreasonableness? In the end, the useful word is the one that has stuck, and here is the case for which it was named.
To deny children the pleasures of the cinema on Sundays may no longer seem like an issue worth going down in legal history for, but no doubt the borough councillors of Wednesbury had their reasons and as always it is the principle of the thing. The huge increase over the last 35 years in the categories of administrative decision-making that have been found to be susceptible to judicial review means that from this tiny forensic acorn, planted over six decades ago, a sturdy oak has grown.
At any rate, the case has fared rather better than the cinema, or provincial picture house, whose fate was discussed in an earlier post during the voting period.
Anisminic Ltd v Foreign Compensation Commission  2 AC 147, HL(E)
As with the Wednesbury case (above), the significance of this case has emerged only with the passage of time. In essence, the decision broke the spell which appeared to bar the court from looking into the validity of the decision of an inferior tribunal, cast by the magic of an ouster of jurisdiction clause. The House of Lords held that the provision that the tribunal’s decision “shall not be called in question in any court of law” was ineffective to oust the jurisdiction of the High Court to set aside a decision that was a nullity. Narrow as this subject matter might appear, reading the headnote of the law report, commentators now regard it as marking the foundation of modern judicial review. It marked a turning point in the development of administrative law and the willingness of the courts to intervene in a public authority’s decision-making process.
The claim was for a declaration (that the decision of the inferior tribunal was a nullity by reason of is misconstruction of an Order in Council), which was granted by the judge, denied on appeal but restored by the House of Lords. But the plaintiffs could equally have applied by way of judicial review, as Peter Pain J observed, commenting on this case in the later one of O’Reilly v Mackman  2 AC 237, 246. Where the Anisminic case fits into the development of administrative law can be gleaned from the judgment of Lord Denning MR when O’Reilly reached the Court of Appeal (on its way, eventually, to the House of Lords). His comments are expressed in his characteristically picturesque style, at pp 253–254 :
At one time there was a black-out of any development of administrative law. The curtains were drawn across to prevent the light coming in. The remedy of certiorari was hedged about with all sorts of technical limitations. It did not give a remedy when inferior tribunals went wrong, but only when they went outside their jurisdiction altogether. The black-out started in 1841 with R v Bolton (1841) 1 QB 66 and became darkest in 1922, R v Nat Bell Liquors Ltd  2 AC 128. It was not relieved until 1952, R v Northumberland Compensation Appeal Tribunal, Ex p Shaw  1 KB 338. Whilst the darkness still prevailed, we let in some light by means of a declaration. The most notable cases were Barnard v National Dock Labour Board  2 QB 18 and Anisminic Ltd v Foreign Compensation Commission  2 AC 147. I sat in the preliminary hearings of both of them. We allowed each of those cases to go forward. It was because otherwise persons would be without a remedy for an injustice: see Barnard v National Dock Labour Board  2 QB 18, 43 and the Anisminic case  2 AC. 147, 231B–C. In effect it was only by leave that the action for a declaration was allowed to proceed.
In 1977 the black-out was lifted. It was done by RSC, Ord 53. The curtains were drawn back. The light was let in. Our administrative law became well-organised and comprehensive. It enabled the High Court to review the decisions of all inferior courts and tribunals and to quash them when they went wrong. And what is more, it enabled the High Court to award damages and grant declarations. No longer is it necessary to bring an ordinary action to obtain damages or declarations. It can all be done by judicial review. This new remedy (by judicial review) has made the old remedy (by action at law) superfluous.”
The change to the Rules of the Supreme Court followed the recommendations of the Law Commission’s Report Remedies in Administrative Law (1976) (Law Com No 73). The new Order 53 allowed applicants not only to seek a prerogative remedy of certiorari, mandamus or prohibition, but also to claim a declaration or injunction where, in the view of the court, it would be just and convenient. The new rule ushered in a rapid and gathering expansion in the number and scope of applications for judicial review, as a perusal of the subject matter section of the Consolidated Index for the next three decades will testify. But, as Lord Denning MR explained, it was Anisminic which helped draw back the curtains and allow the sunlight of forensic scrutiny to begin working its disinfecting magic on the decision-making processes of public bodies.
Central London Property Trust Ltd v High Trees House Ltd  KB 130, Denning J
“Few landmark cases have been decided so economically. The case occupied only six and a half pages of the Law Reports. The entire hearing appears to have been completed within a day, and Denning J’s judgment was unreserved.”
So comments Robert Pearce QC (“A Promises is a Promise”, in McDougall, Cases That Changed Our Lives (2010), p 91), on the case in which Denning J (as he then was) single-handedly created from the long-mixed genetic pools of equity and the common law a new hybrid of promissory estoppel.
Though the principle was restated by the Court of Appeal in Combe v Combe  2 KB 215, in which Denning LJ (as he had by then become) gave one of the judgments, Pearce notes that it has never been reviewed by the House of Lords or the Supreme Court. One aspect of the decision which he thinks might merit such a review is Denning’s insistence that the doctrine of promissory estoppel could not give rise to a separate cause of action.
Be that as it may, the case remains one of a number on which the late Tom Denning’s reputation, as a judge not afraid to make – and shake up – the law, is based. It is not a quality for which he retains universal admiration, and you could say his star has waned in some respects. But while his hymn of praise for the noble virtues of village cricket (in priority over a householder’s right of quiet enjoyment) in Miller v Jackson  QB 966 and his celebration of the glories of the season (“It was bluebell time in Kent…”) in Hinz v Berry  QB 40 are now just as likely to evoke snorts of derision at the supreme self-confidence with which he legislated from the Bench, the decision in High Trees appears from our readers’ (and Editor’s) votes to have retained the lofty position it has earned in the canon.
During the voting period, it looked as though the case in third place would be Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465, HL(E). This landmark case concerned the test for the existence of a duty of care, in the context of financial advice, for the purposes of establishing liability in the tort of negligence. Although highly influential in its time, it was superseded by other cases, one of which, Caparo Industries plc v Dickman  2 AC 605, was selected as one of the top three cases in the next voting period, and will be more fully discussed in a later post.
Instead the runner up is Fagan v Commissioner of Police of the Metropolis  1 QB 439, a decision of the Queen’s Bench Divisional Court on the intentionality of an assault. The case at this remove seems slightly comical, involving a motorist apparently by accident driving his car onto the policeman’s foot. By the time he was in a position to form a malicious intention to perpetuate the assault, the actus reus was complete. He therefore appealed against his conviction on the ground that the absence of a connection between whatever mens rea was eventually formed and the actus reus precluded a finding of deliberate assault. But the court did not buy it. It was not necessary, the majority of the court held, for the mens rea to be present at the inception of the actus reus, and it could be superimposed on an existing and continuing act. The case seems to call for a cheeky seaside postcard depicting a fat red-faced policeman with one of his big feet all squashed out flat, and a shifty looking motorist in a little open-topped motor car turning his *innocent face* to the viewer with a wink – but perhaps that would be rather unfair to the actual parties.
We’ll continue to explore the cases voted for by you, the readers, in further posts in this category (Historic Cases) on the ICLR blog over the next month or so. And you can read the judgments and PDFs of the original law reports of all the shortlisted historic cases on BAILII here.
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