Wednesbury
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Parties and outcome
- Claimant
- Associated Provincial Picture Houses Ltd (appellant)
- Defendant
- Wednesbury Corporation
- Outcome
- The Corporation won: the cinema company’s appeal was dismissed with costs.
Cited by
- Padfield
As the respondent states in his affirmation that he came to his decision for the reasons indicated in the two letters, it is primarily 12 [1948] 1 K.B. 223, 228; 63 T.L.R. 623; [1947] 2 All E.R. 680, C.A.
Questions arising at a 14 [1948] 1 K.B. 223, 229.
- Croydon
That is a plea to that part of the well-known case of Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, which is often referred to as being “Wednesbury perverse”.
- Dyer
The intended width of these discretions is made strikingly clear by the legislature: under section 5(5) , when determining whether to inititate, continue or discontinue an investigation, the Commissioner shall “act in accordance with his own discretion;” under section 7(2) , “the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case.” Bearing in mind too that the exercise of these particular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness ( Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 ).
- Coughlan
57 There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds ( Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 ). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318 ; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906 . (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 ) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.
One, not considered in the Wednesbury case [1948] 1 KB 223 (even though it was arguably what the case was about), was the use of a power for a collateral purpose.
72 A full century ago in the seminal case of Kruse v Johnson [1898] 2 QB 91 Lord Russell of Killowen CJ set the limits of the courts' benevolence towards local government byelaws at those which were manifestly unjust, partial, made in bad faith or so gratuitous and oppressive that no reasonable person could think them justified. While it is the latter two classes which reappear in the decision of this court in the Wednesbury case [1948] 1 KB 223 , the first two are equally part of the law. Thus in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545 a Divisional Court (Bingham LJ and Judge J) rejected on the facts a claim for the enforcement of a legitimate expectation in the face of a change of practice by the Inland Revenue. But having set out the need for certainty of representation, Bingham LJ went on, at pp 1569-1570: "In so stating these requirements I do not, I hope, diminish or emasculate the valuable, developing doctrine of legitimate expectation. If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness."
- Nadarajah
Having cited Wednesbury [1948] 1 KB 223 he said (1352C-D) that by the circular letter the Secretary of State had "stated those matters which he regarded as relevant and would consider in reaching his decision", and held (1352E-F) that the Secretary of State's decision had been unreasonable and unfair: "an unfair action can seldom be a reasonable one".