London and Clydeside Estates v Aberdeen District Council: HL 8 Nov 1979

Identifying ‘maandatory’ and ‘regulatory’

The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House considered the consequences of a failure to comply with a procedural requirement, and the different classes of such requirements: ‘The contention was that in the categorisation of statutory requirements into ‘mandatory’ and ‘directory’, there was a subdivision of the category ‘directory’ into two classes composed (i) of those directory requirements ‘substantial compliance’ with which satisfied the requirement to the point at which a minor defect of trivial irregularity could be ignored by the court and (ii) those requirements so purely regulatory in character that failure to comply could in no circumstances affect the validity of what was done.’
Lord Hailsham LC said: ‘When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. ‘ and ‘though language like ‘mandatory,’ ‘directory,’ ‘void,’ ‘voidable,’ ‘nullity’ and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.’

Lord Hailsham of Saint Marylebone LC, Lord Wilberforce, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Keith of Kinkel
[1980] SC (HL) 1, [1980] 1 WLR 182, [1979] UKHL 7
Bailii
Land Compensation (Scotland) Act 1963 25
Scotland
Citing:
AppliedBrayhead (Ascot) Ltd v Berkshire County Council CA 1964
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A notice of assessment to a levy which was served by the appellant Board failed to provide an address for service of a notice of appeal as required.
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CitedRayner v Stepney Corporation 1911
. .
CitedJames v Secretary of State for Wales HL 1968
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CitedEdwick v Sunbury-on-Thames Urban District Council 1962
. .
CitedJames v Minister of Housing and Local Government 1966
The appellant challenged the validity of a conditional planning permission which had been granted after the expiry of the period statutorily prescribed for doing so. It is unnecessary to examine the cases in detail.
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CitedCalvin v Carr PC 15-Jan-1979
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Held: The stewards were entitled to use the evidence of their eyes and their . .

Cited by:
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AppliedCredit Suisse v Allerdale Borough Council CA 20-May-1996
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The authority’s demand notice was served later than was practicable. The company now appealed against a liability order.
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CitedAttorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
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Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
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The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
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The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .
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The three claimants were police officers. They met a senior MP at Sutton Coldfield. They emerged from the meeting and were said to have made misleading statements as to the content of the meeting. The IPCC referred the matters back to local forces . .
CitedWestminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
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Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative

Leading Case

Updated: 11 November 2021; Ref: scu.180917