Houses had been built across the site of a footpath which had not been properly diverted. An order to demolish the houses was refused because of the delay and prejudice.
Held: Lord Green MR said of the exercise of discretion involved: ‘Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, then a person aggrieved by that is entitled ex debito justitiae to his order. That merely means this, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well known and settled that in certain circumstances – I will not say in all of them, but in a great many of them- the Court, although nominally it has a discretion, it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a Judge at a trial refuses to do so, then the Court of Appeal will set the mater right. But when once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion.’
Before such a discretion can be exercised ‘there must be something in the circumstances of the case which make it right to refuse the relief sought’
Judges:
Lord Greene MR
Citations:
[1940] 2 KB 33, (1940) 109 LJKB 584
Land, Administrative
Updated: 06 May 2022; Ref: scu.472247