[COURT OF APPEAL]

PICKIN v. BRITISH RAILWAYS BOARD AND ANOTHER

[1969 P. No. 5814]

Statute - Local or private Act - Railways Act - Plea that private Act obtained by fraud and misleading of Parliament - Application to strike out plea as frivolous - Whether issue of court's competence to go behind Act presented to Parliament as unopposed Bill triable - Bristol and Exeter Railway Act 1836 (6 Will. 4, c. xxxvi), s. 259 - British Railways Act 1968 (c. xxxiv), s. 18 (1)

By section 259 of a private Act of 1836 setting up the Bristol to Exeter Railway, it was provided that if the railway should at any time thereafter be "abandoned or given up" by the company promoting the Act or should after completion cease to be used as a railway for three years, the lands acquired for the track "shall vest in the owners for the time being of the land adjoining that which shall be so abandoned" as to "one moiety thereof" in the owners of the land on either side. The section was incorporated in a private Act of 1845 for the formation of a junction railway from Yatton to Clevedon in Somerset which was built and used thereafter. The Acts continued in force; but in the early 1960s, by which date all railways had vested in the British Railways Board it was decided to close the branch line; and its use was discontinued in stages, Clevedon station being demolished in May 1968; but the track lines were not taken up until October 1969.

At some date before July 26, 1968, the board promoted a private Bill before the unopposed Bill committee in Parliament with the object, inter alia, of cancelling the effect of section 259 of the Act of 1836 and similar provisions in old Acts and of vesting all the relevant track land in the board from the date when the proposed Act should come into force. The preamble recited that plans of the lands authorised to be acquired and a book of reference to such plans containing the names of persons interested in the land had been deposited with, inter alia, the clerk to the council of the county in which the lands were situate; and section 18 in effect vested the relevant lands in the board in respect of any

railway abandoned after the Act should come into force. The Act - the British Railways Act 1968 - came into force on July 26, 1968.

The plaintiff, who objected to the closing of the branch line and had in 1969 purchased a few feet of the relevant adjoining land as a locus standi, began an action claiming against the board, and against contractors who had in October 1969 taken up the lines, a declaration that he was the owner of the land to mid-track since in fact the railway had been abandoned within the terms of section 259 of the Act of 1836 before July 26, 1968; and he asked for the return of his land or its value. The board denied that the railway had been abandoned before section 18 came into force and claimed that as under that section the land had vested in the board the claim was invalid.

By his reply the plaintiff pleaded in paragraphs 3 and 4 that the preamble to the Act of 1968 contained a false recital in reference to the depositing of the requisite documents because no plans and book of reference were in fact deposited with the Somerset county council, that the board had misled Parliament by obtaining the Act ex parte as an unopposed Bill; and that it was therefore ineffective to deprive him of his land and the board could not rely on section 18.

The board applied to have paragraphs 3 and 4 struck out under R.S.C., Ord. 18, r. 19 as frivolous, vexatious and an abuse of the process of the court. Master Elton and Chapman J. on appeal struck them out, Chapman J. basing his judgment on the principle that the court could not go behind an Act of Parliament alleged to have been obtained improperly.

On appeal by the plaintiff:-

Held, allowing the appeal, that the question whether the court was competent to go behind a private Act of Parliament and investigate a responsible plea that it had been improperly obtained by misleading Parliament was a triable issue, supported by House of Lords authority in the lath century. Accordingly the plea should remain on the record; and if at the trial it were proved that there had been an abuse of Parliamentary procedure whereby persons had been deprived of proprietary rights without compensation, the court might be under a duty to report the matter to Parliament (post, pp. 230G - 231B, G, H, 232D, E).

M'Kenzie v. Stewart (1752) 9 Mor.Dic. 7443. H.L.(Sc.) and Lee v. Bude and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576 considered.

Decision of Chapman J. reversed.

The following cases are cited in the judgments:

Biddulph v. Biddulph (1790) 5 Cru.Dig. 34.

Green v. Mortimer (1861) 3 L.T. 642, C.A.

Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308; [1941] 2 All E.R. 93, P.C.

Labrador Co. v. The Queen [1893] A.C. 104, P.C.

Lee v. Bude and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576.

M'Kenzie v. Stewart (1752) 9 Mor.Dic. 7443, H.L.(Sc.).

The following additional cases were referred to in argument:

Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & Fin. 710, H.L.(Sc.).

May v. Great Western Railway Co. (1872) 20 W.R. 328.

Stead v. Carey (1845) 1 C.B. 496.

Waterford, Wexford, Wicklow and Dublin Railway Co. v. Logan (1850) 14 Q.B. 672.

Wear River Commissioners v. Adamson (1877) 2 App.Cas. 743, H.L.(E.).

INTERLOCUTORY APPEAL freon Chapman J.

The plaintiff, George William Leonard Pickin, issued a writ and statement of claim on October 23, 1969, against the British Railways Board, the first defendants, and L. A. Moore (Builders) Ltd., the second defendants. The plaintiff, who on October 10, 1969, had purchased a small piece of land adjoining land on which the track of the Clevedon to Yatton branch railway line was laid, alleged, by his statement of claim as amended on May 27, 1971, that on October 22 the board and the second defendants had entered on the land and despite his objection had uplifted and removed the track.

He claimed against the board a declaration that he was the owner or alternatively an equitable tenant in common of that half of what was formerly the board's land, being such part of the Clevedon-Yatton branch railway as lay immediately adjacent to 60 Oldville Avenue, Clevedon, Somerset; that he was entitled to possession of the piece of land; and as against both the board and the contractors he claimed the return of the track or its value, approximately £70, damages for its conversion and detention, and an order for possession and damages for trespass.

The board by their defence claimed that on January 1, 1963, they became owners of the land when the railway undertaking of the British Transport Commission vested in them under the Transport Act 1962; and that the commission became owners of the land under the Transport Act 1947 which vested in them the undertaking of the Great Western Railway. By paragraph 2 they stated that they did not abandon or give up the railway or cease to employ it as a railway within the meaning of the provisions of section 259 of the Bristol and Exeter Railway Act 1836 before the provisions of section 18 of the British Railways Act 1968 came into force on July 26, 1968; and that therefore, in so far as the plaintiff's purported ownership of the piece of land was alleged to rest on section 259 of the Act of 1836, his claim was invalid and that the board had never ceased to own the land. They admitted that on October 22, 1969, employees of the contractors, with the board's consent and authority, had gone on to the land to remove the track, but that the board had the right to go on to the land and remove the track as they were the owners; and they denied that the plaintiff was entitled to the relief claimed or to any relief.

The defence of the contractors is not relevant to the report.

After various interlocutory proceedings, the plaintiff applied for discovery by the board of (1) all material placed before Parliament by the board and its servants and agents for the purposes of obtaining a private Act of Parliament, namely, the British Railways Act 1968; and (2) letters sent to inquiries about the Act or proposed Act and all documents relating thereto. An affidavit by the plaintiff in support of the summons for discovery alleged, inter alia, that there was a fraud on the face of the Act

so that it was ineffective to deprive him of his rights under section 259 of the Act of 1836.

By his amended reply in the action pleaded by his counsel, L. Herrick Collins, the plaintiff claimed that even if there was no abandonment of the railway or cessation to employ it before July 26, 1968, when the British Railways Act 1968 came into force, which was denied, and even if it occurred thereafter, it nevertheless occurred before the issue of the writ. and section 18 of the Act of 1968 could not defeat the claim. He further claimed that if on its true construction section 18 had the purported effect of taking away from the owners of lands adjoining the railway the rights of reverter conferred on them by section 259 of the Act of 1836 then such rights of reverter were land or an interest in land and section 18 would operate as a compulsory purchase order of such land; and that no notice to treat had been given under section 5 of the Compulsory Purchase Act 1965 (which by section 4 of the Act of 1968 applied to compulsory acquisition of land thereunder) and the board's compulsory purchase powers had never been exercised. By paragraphs 3 and 4 of the reply (see post, pp. 228H - 229D) the plaintiff alleged that the preamble to the Act of 1968 contained a false recital by stating that the requisite documents had been deposited when, as the board well knew, no such documents had been made or deposited with the clerk to the Somerset County Council; that the board had misled Parliament by obtaining the Act ex parte as an unopposed Bill; that it was therefore ineffective to deprive him of his land; and the board could not rely on section 18.

The defendants applied to Master Elton asking that paragraphs 3 and 4 of the amended reply to the board's defence be struck out under R.S.C., Ord. 18, r. 19 on the ground that they were frivolous and vexatious and an abuse of the process of the court. The master made the order on February 21, 1972, and Chapman J. dismissed the plaintiff's appeal from that order on June 1, 1972. In his judgment, as recorded in an agreed note, the judge said:

"The plaintiff in paragraphs 3 and 4 of the reply says section 18 of the Act of 1968 is to be disregarded for not following the proper procedure and because the recitals are false and Parliament misled. The question is whether it is open to anybody except Parliament to disregard section 18. The plaintiff says Parliament was misled and he relies on Blackstone, Cruise and Lord Hardwicke in the House of Lords. I think this is not nowadays a tenable proposition. The position is as set out in Halsbury's Laws of England, vol. 36 (3rd ed.), p. 378, and by Willes J. in Lee v. Bude and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576, 582. One must accept section 18 and one cannot go behind it. Otherwise there would be a head-on collision between Parliament and the courts in the Strand. It would raise a quite impossible situation to go behind the section and seek to stultify its effect by reason of alleged failure in procedure or inaccuracy of recitals. The preamble has to be proved before Parliament. Parliament alone decides whether the preamble is true. Once accepted by Parliament, and the following sections enacted, an Act must be accepted by the courts and construed by them, rather than

going behind the Act and saying it has no effect. Parliament and Parliament alone has jurisdiction to decide. The court must accept the situation and concentrate on the enacting words. It is not the function of the court to embark on the process of repealing rather than interpretation. Master Elton was right. The two paragraphs should be deleted. The appeal is dismissed. The costs of the appeal should be the defendants' in any event."

The judge granted leave to appeal, and the plaintiff appealed on the grounds (1) that paragraphs 3 and 4 of the reply raised a triable issue; (2) that the question whether any part of a private Act of Parliament could be ignored by the High Court of Justice on the ground that it was procured by fraud was a question on which there was authority both ways and raised an issue which was neither frivolous nor vexatious nor an abuse of the process of the court; (3) that the question mentioned in ground (2) did not involve any conflict with Parliament; (4) that the allegation that section 18 of the private Act was procured by fraud was one that should be tried at the trial of the action and not summarily dismissed on an interlocutory application, and that the documents for which discovery was sought would then become relevant; and (5) that the decisions of the master and the judge were wrong.

John Tackaberry for the plaintiff. On an appeal against an order to strike out, all that has to be shown is that it is arguable at the trial that it is competent for a court of this country. On proof that a private Act has been obtained by fraud, to refuse to enforce its provisions where they take away proprietary rights vested in a party who is unconnected with the party making the Act and who had no knowledge of the fraud. The plaintiff will say that in the early 1960's the hoard alone knew about the old Acts with sections similar to section 259 of the Act of 1836 and the likely results of abandoning about 200 miles of track; that to meet the situation they promoted a private Bill and invoked the speedy unopposed Bill procedure to obtain an Act which by section 18 (1) takes away the automatic right of reverter of landowners on either side of the track under the old Acts; that because of the way the Act was procured the court should ignore section 18 (1); that in 1967, before the Act of 1968 was passed. Clevedon corporation wanted to buy the station area and the proposed price was £40,000, though the negotiations were not concluded; that if at that date the board had, as the plaintiff says, ceased to use the line within the meaning of section 259 of the old Act, Clevedon corporation was being asked to pay public money for land which had already automatically become their own. Another disquieting factor is that when the Bill was before Parliament Clevedon corporation, at the instigation of the plaintiff, consulted Parliamentary agents on the question of opposing the Bill, but those agents were already acting for the board and advised Clevedon corporation that the Bill need not be opposed. Members of Parliament who raised the matter with the board were told that the sections of the old Acts were difficult to enforce and that the purpose of the Act was to tidy up the situation; hut that was not so, for the reverter was automatic and all that the board needed to do was to abandon the line and sit back.

The board admits that the plans and book of reference referred to in the preamble to the Act of 1968 were not deposited with the Somerset county council.

All those are matters relevant to the desirability of allowing the point raised hi the plaintiff's reply by the paragraphs struck out by the master and the judge to be argued on the trial of the issue of fact whether or not the line had been abandoned before the Act of 1968 came into force on July 26, 1968.

Against that background the court should approach the appeal on the assumption that the fact of fraud can be proved: the plea of "falsely recited" in paragraph 3 of the reply is equivalent to a plea of fraud. The main evidence for the trial of that issue would be contained in the board's internal memoranda and that is why there is a separate summons for discovery of those documents. If it can be shown that the board acted recklessly that might be enough; but if they merely slipped up it would be more difficult for the plaintiff to say that section 18 (1) could be ignored, for the courts have generally been unwilling to say that they will not enforce an Act where there is mere error, whereas there is high, if old, authority for the proposition that the courts will decline to enforce a private Act obtained by fraud: see Green v. Mortimer (1861) 3 L.T. 642, where the full Court of Appeal, if correctly reported, declined to enforce a provision of a private Act because it went through Parliament per incuriam; and M'Kenzie v. Stewart (1752) 9 Mor.Dic. 7443, where the House of Lords by seven votes to six decided the precise point now raised. That is authority binding on this court for saying that this is not a case for striking out.

[LORD DENNING M.R. The allegation of fraud docs not impugn the sovereignty of Parliament?]

No. See also Blackstone's Commentaries, Book II, 14th ed. (1803), p. 346 and Cruise's Digest, Vol. 2, 4th ed. (1835), p. 300, both commenting on M'Kenzie v. Stewart, though neither that case nor Green v. Mortimer 3 L.T. 642 are mentioned in Halsbury's Laws of England, 3rd ed., Vol. 36, (1962), p. 378 on which Chapman J. relied in striking out the paragraphs in the present case, and which grossly misrepresents Stead v. Carey (1845) 1 C.B. 496. Halsbury bases its comment on the fine purple passage of Willes J. in Lee v. Bude and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576, 582; but in Lee's case the present point was not argued, M'Kenzie v. Stewart was not cited, what Willes J. said was obiter and it is not binding on this Caught, their it is not disputed that what he said was correct in relation to public Acts which, being promoted by governments, cannot be said to be obtained by fraud. [Reference was also made to Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & Fin. 710, against the present submission: and Waterford, Wexford. Wicklow and Dublin Railway Co. v. Logan (1850) 14 Q.B. 672.]

[STEPHENSON L.J. But see in the Edinburgh Railway case, 8 Cl. & Fin. 710, 715 the succession that a matter of fraud might have to be reported to Parliament.]

The authorities do show that the courts were ready to look at Acts to see what had happened, particularly when they found it hard to believe Parliament could have intended what an Act effected. It may be that the correct course would be for the court to report a matter of fraud to Parliament;

but that does not arise at the present stage when all that has to be shown is that the point is not so "frivolous" that it should be struck out. The United States Corpus Juris Secundum on Statutes, Vol. 82, para. 90, p. 148 says that a private statute may be declared void on proof that its passage was procured by fraud. The Bill Should not have been promoted before the unopposed Bill committee. Standing Order 27 of the Parliamentary standing orders says that land is not to be acquired without notice: and Standing Order 13 requires that the preamble to a private Act must be proved, The unopposed Bill committee has no power to waive standing orders and the Parliamentary agent who presents an unopposed Bill simply has to say that the preamble is true - but he says it on oath. [Reference was also made to Wear River Commissioners v. Adamson (1877) 2 App. Cas. 743, and May v. Great Wastrel Railway Co. (1872) 20 W.R. 328.]

Gordon Hodgson for the board and the contractors. The board is unwilling to disclose internal memoranda at the suit of a private citizen unless the court orders it to do so, for some of them are no longer in the board's power and control; further, it would be embarrassing to have to do so when a private citizen makes unwarranted allegations of fraud against a public body. There is no foundation for the allegations of fraud. The Bill was published in the London Gazette and The Times. There were many inquiries about the operation of section 18 which were funnelled through the Parliamentary agents to the board and which the board answered. Its answers were accepted by the local authorities who must themselves have been aware of the provisions about reverter under the old Acts. Section 18 was an attempt to get over difficulties which might have arisen by making clear to whom the land would belong on the cesser of use of the railway. (Though in this case there is a strong dispute on the issue of fact as to whether the line had been abandoned before the Act of 1968 came into force) the board does not accept that ceasing to use a railway is equivalent to abandonment of the line within the provisions of the old Acts. The land concerned may be of little value, at least not in country districts where no one would be interested in a narrow strip of land where a railway is no longer economically viable. There would be a great outcry if children playing on derelict railway bridges were injured and the board shrugged off responsibility on the basis of a section in a private Act 150 years ago.

The suggestion that there was a grave dereliction of duty by putting the Bill before the unopposed Bill committee is unfounded. The Bill was put into the hands of responsible agents who put it into the hands of Parliament; and it is Parliament which decides whether a Bill shall be unopposed or not.

[LORD DENNING M.R. But the preamble has to be proved.]

The committee took the view that the subject-matter was not "interests in land" The Bill could have been opposed in Parliament. It was properly published. People who claimed rights could and did object, but the majority were satisfied with the hoard's replies. The plaintiff had no interest in the land until after the Act of 1968 was in force. He purchased for 10s. a few feet of land in October 1969, and on that peg he seeks to hang the important question of the position of Parliament. The judge was rightly concerned with the possibility that the courts might be brought

into conflict with Parliament and placed great reliance on what Willes J. said in Lee v. Bude and Torrington Junction Railway Co., L.R. 6 C.P. 576, 582, a statement which has been accepted for the last 100 years as correctly stating the law. In Labrador Co. v. The Queen [1893] A.C. 104, and Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308, the Privy Council rejected challenges to the validity of Acts of Parliament therewith the particular Acts were on the borderline between private and public Acts.

Further, though there used to be a distinction between private and public Acts, that distinction was abolished after 1850; and by section 9 of the Interpretation Act 1889, all Acts are public unless they state expressly that they are not So the Act of 1968 proves itself just as much as any other Act. The distinction between private and public relates to Bills only.

The authorities cited for the plaintiff are all cases where an Act was passed to regulate some private or personal act of conveyance and the like, which was the sort of Act to which Blackstone referred. The Act of 1968 is of general application even though it is on a local matter and was promoted as an unopposed Bill. Once the courts go behind an Act of Parliament, that could be used as a lever to push the door wider. The board procured the Act in good faith and the court should not go behind it.

[LORD DENNING M.R. But responsible counsel has pleaded that it was false to the board's knowledge.]

There is no evidence to support that. The reverter provisions apply only to some 200 miles of railway line; and the Act of 1968 was intended to tidy up the position. The unequivocal statement of the law in Halsbury's Laws of England vol. 36, at p. 378, and the two Privy Council decisions should be preferred to three obscurely reported cases dealing with personal and private Acts.

Though it is accepted that the description of "frivolous" is not apt for the point, the board says that the plaintiff does not disclose a reasonable cause of action; and to allow the reply to stand as pleaded would be to embark on difficult constitutional waters.

Tackaberry in reply. The relevant authorities cited were not cited in the Privy Council cases of 1893 and 1941. The Act in the Hoani case [1941] A.C. 308 was a public Act passed by a quite different procedure.

The Act of 1968 is not a public Act. Its chapter number is in Roman numerals and it is not printed among the Statutes at Large. The explanation of the abolition of the distinction between public and private Acts in 1850 is simple. Before 1850 the courts did not take judicial notice of an Act unless it was a public Act; but after 1850 the procedure was reversed and it was said that the court would take judicial notice of all Acts unless they were expressly stated to be private Acts: see Craies on Statute Law7th ed. (1971), p. 559.

It is not difficult to say, on authorities all of which are distinguishable from M'Kenzie v. Stalwart, 9 Mor.Dic. 7443, that the courts are not prepared to clash with Parliament by gamete behind Acts of Parliament; but no clash is involved in exposing fraud.

There is here a triable issue on a matter of law, namely: (a) that the standing orders of Parliament were not complied with; (b) that the recital

in the preamble was not satisfied; and (c) that section 18 was passed on the basis that the preamble had been proved. It is not necessary to go behind the Act, for those matters are evident on the face of the Act. That triable issue should not be struck out summarily, a fortiori where experienced and responsible counsel let the plea stand with the allegation of fraud, and in accordance with the practice of the Bar must have based the plea on evidence which satisfied him that it was properly made.

LORD DENNING M.R. Between 1830 and 1850 several special Acts of Parliament were passed for making railways. They contained power to acquire land compulsorily. Many of these Acts contained a provision whereby, if the railway works were abandoned or ceased to be used, the land should revert to the owners on either side of the railway. One such Act was the Act of 1836 for the main line front Bristol to Exeter. Section 259 said:

"... if the said railway or any part thereof shall at any time hereafter be abandoned or given up by the said company, or after the same shall have been completed shall for the space of three years cease to be used and employed as a railway, then and in such case the lands so purchased or taken by the said company for the purposes of this Act, ... shall vest in the owners for the time being of the land adjoining that which shall be so abandoned or given up in manner following; (that is to say,) one moiety thereof in the owners of the land on the one side, and the remainder thereof in the owners of the land on the other side thereof."

In 1845 a branch line was projected. Another special Act was passed. It authorised the making of a branch line from Yatton to Clevedon in the County of Somerset. It incorporated the provisions of the Act of 1836 including section 259 which I have read.

The branch line was completed in 1847. It was continued in use for well over 100 years. Then in the 1960't it came under the axe wielded by Lord Beeching. It was so unproductive that it was allowed to fall into disuse. At first passenger trains were given up. Then goods traffic. Eventually all trains ceased. None have run since October 1966. In May 1968 the station at Clevedon was demolished. But the railway lines on the track remained until October 1969. Then the British Railways Board employed contractors to take up the railway lines and remove them.

All this was watched with interest - I may say anxiety - by Mr. Pickin. He is a railway enthusiast. He wanted the line kept open. He had no land of his own adjoining the railway. But he bought a piece. On October 10, 1969, he took a transfer of it. It had only a few feet adjoining the railway line. But it was enough for his purpose. He was an adjoining owner. He claimed that, under the statute of 1836, the land (on which the railway had been built) had reverted to the previous owner and was now vested in him. So, it being his land, he objected to the contractors going on to the track and taking up the railway lines. He tried to get an injunction to stop them taking up the lines, but he did not get it. The railway lines have now been taken up. But Mr. Pickin

is not to be deterred. He claims that half of the old railway land belongs to him.

In the first place Mr. Pickin says that the branch railway was abandoned or given up by the board in May 1968 (when the station was demolished) and that under the old statute the land then reverted to the adjoining owners. If he proves that, as a fact, the railway was abandoned or given up before July 26, 1968, he will succeed. There is no doubt about it. But if he does not prove it - that is to say, if it was not abandoned or given up before July 26, 1968, but only at a later date - then he is in difficulty, and for this reason:

In 1968 the British Railways Board had become alive to the existence of these old special Acts and their provisions (like section 259) for reverter to the adjoining owners. So they put a Bill through Parliament. It was a private Bill. They represented to Parliament that it was an unopposed Bill. So it went through virtually without discussion. It did away with these reverter provisions, but only for the future. it was not retrospective. It was in these terms:

"18. - (1) As from the passing of this Act, the provisions to which this section applies shall not apply to any lands vested in the board. (2) This section applies to any provision in an enactment to the effect that, if at any time after the coming into force of that provision a railway or part of a railway shall be abandoned or given up, or if after the same shall have been completed it shall cease (whether for a specified period or not) to be used or employed as a railway, the lands taken for the purposes of such railway ... shall vest in the owners for the time being of the adjoining lands, ..."

The effect was that if the railway was abandoned or given up after July 26, 1968, section 259 of the old Act did not apply: and Mr. Pickin could not rely on it.

Now Mr. Pickin is fearful of section 18 of the Act of 1968. The board say that they did not abandon the railway before July 26, 1968. True, there had been no trains running since 1961, but the lines were still on the land. They were kept in order and ready for use if need be. If the board are covered, then Mr. Pickin will lose unless he can challenge the validity of the Act of 1968. And that is what he seeks to do.

In an amended reply Mr. Pickin, by his advisers, has inserted two paragraphs in which he challenges the validity of section 18 of the Act of 1968. The board seek to strike out those two paragraphs. The master and the judge have struck them out. Mr. Pickin appeals to this court.

The first of the two paragraphs is that the British Railways Board inserted section 18 so as to deprive adjoining landowners of their right to reverter and inserted it improperly. The board gave no notice to the adjoining landowners about section 18. They made no compensation to them for taking away their rights. They represented that the Bill was unopposed and got it through on that footing: whereas, if the adjoining landowners had known about it, they would have opposed it. I must read these paragraphs in full:

"3. Further or in the alternative if the said local Act purports to bar this action then it falsely recites in the preamble that plans of the

lands authorised to be acquired or used by this Act and a book of reference to such plans containing the names of the owners and lessees and of the occupiers of the said land were duly deposited as there stated. Such recital drafted by the first defendants was false (as the first defendants well knew) in that no such plans or book of reference were made or prepared in respect of the plaintiff's land nor deposited with the clerk to the Somerset County Council in which county the said land is situate. Furthermore there is no other recital in the preamble specifically referring to the subject matter of section 18. Furthermore no notice was given to the owners, occupiers or lessees of the said adjacent lands (including the plaintiff) nor was any public notice given of the said intended compulsory acquisition although at the time the Bill was before Parliament the first defendants were well aware that the railway (if not already abandoned given up or ceased to be employed as such) was about to be abandoned given up or ceased to be employed as such. By reason of the matters aforesaid section 18 does not upon its true construction have the effect of barring this action or of depriving the plaintiff of his interest in land without compensation.

"4. If section 18 on its true construction bars this action either by depriving the plaintiff of his interest in land without compensationor otherwise, the first defendants as promoters of the said Bill have broken the standing orders of Parliament and have failed to comply with the same and have included a misleading preamble and have misled Parliament and the said local Act being solely for the benefit of the first defendants and obtained ex parte as an unopposed Billis ineffective to deprive the plaintiff of his land or proprietary rights and the first defendants cannot rely" on this Act.

Those paragraphs were pleaded by a most responsible member of the Bar, Mr. Herrick Collins. The rule, as all members of the Bar know is that a charge of fraud is not to be placed on the record without evidence to support it. We are told by Mr. Tackaberry (who appears for Mr. Herrick Collins) that these paragraphs were pleaded by counsel because he had evidence before him to warrant it. He gave us some indications of it today. Suffice it to say that they are such as to warrant the paragraphs being pleaded. I read them as a charge that the board or their advisers consciously misled Parliament and by these means got section 18 enacted as it was. I say nothing as to whether those paragraphs will be proved in fact. But the board say that even though all that is stated in them is true, the paragraphs should be struck out. The master and the judge have so held. They have applied a supposed principle of English law, which was stated by Willes J. in 1871 in Lee v. Bude and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576. It had been argued that Parliament was induced by fraudulent recitals to pass the Act which formed the company. Willes J. said, at p. 582:

"I would observe, as to these Acts of Parliament, that they are the law of this land; and we do not sit here as a court of appeal from Parliament. It was once said, - I think in Hobart, - that, if an Act of Parliament were to create a man judge in his own case, the court

might disregard it. That dictum, however, stands as a warning, rather than an authority to be followed. We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it."

That passage has been repeatedly quoted in books on constitutional law. Mr. Tackaberry says that that statement - and others like it in the Privy Council - was made without full argument. In particular he says that in all those cases there was no reference to an authority of the House of Lords. It is no doubt an old authority, but it says in terms that if a private Act of Parliament is obtained by fraud, the courts can investigate it. It is M'Kenzie v. Stewart. It was decided in 1752. It came from Scotland. It is fully set out in 9 Mor.Dic. 7443. The Court of Session had by a majority refused to entertain the suggestion that a private Act of Parliament was obtained by fraud. That decision was reversed in the House of Lords by seven to six. There were no reports in those days of the reasons of the House of Lords. But a note was taken of what Lord Hardwicke L.C. said, at p. 7445:

"The Lord Chancellor, in delivering his opinion, expressed a good deal of indignation at the fraudulent means of obtaining the act; and said, that he never would have consented to such private acts, had he ever entertained a notion that they could be used to cover fraud."

A few years later, Sir William Blackstone in his Commentaries, 14th ed. (1803), Book II, p. 346, speaking of private Acts of Parliament, said:

"A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a publick, but a mere private statute; it is not printed or published among the other laws of the session; it heath been relieved against, when obtained upon fraudulent suggestions;"

Blackstone refers for that proposition to M'Kenzie v. Stewart.

Counsel for the board submitted to us that those authorities are so old and so out of date that we should not regard them any more. He invited us to give the words of Willes J. their full scope and strike out these two paragraphs in the reply.

I do not think we should pronounce on this point finally or conclusively today. But I must say that there is sufficient material from the lath century for us to allow this plea to remain upon the record. It is quite plain that this action has to go to trial on the issue whether or not this branch line was abandoned before July 26, 1968. We should let it go for trial on the further issue whether this Act of Parliament was improperly obtained. That is a triable issue. It is deserving of investigation by the court. As I have said in the course of the argument, suppose the court were satisfied that this private Act was improperly obtained, it might well

be the duty of the court to report that finding to Parliament, so that Parliament itself could take cognisance of it. Parliament could put the matter right, if it thought fit, by passing another Act. In my opinion it is the function of the court to see that the procedure of Parliament itself is not abused and that undue advantage is not taken of it. In so doing the court is not trespassing on the jurisdiction of Parliament itself. It is acting in aid of Parliament, and, I might add, in aid of justice. If it is proved that Parliament was misled, the court can, and should, draw it to the attention of Parliament.

So I take a different view from the judge. I think there is a proper issue shown on the paragraphs in the reply. I would let it stand. It follows that there will be discovery of the documents relating to the matter. I hope they will show, as everyone would hope they will show, that the board acted perfectly properly. If so, all well and good. But it is a matter which should be investigated. I would allow the appeal accordingly.

EDMUND DAVIES L.J. I agree. It needs to be stressed that we are here concerned with a private Act of Parliament, the British Railways Act 1968. There is an abundance of authority for the proposition that in relation to public statutes the court has no alternative but to apply them and cannot go behind them by investigating the legislative process which preceded their receiving the royal assent. Of the many authorities for that proposition it is sufficient to cite Labrador Co. v. The Queen [1893] A.C, 104, particularly the speech of Lord Hannen at p. 123 and Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308, where Viscount Simon L.C. said, at p. 322:

"It is not open to the court to go behind what has been enacted by the legislature, and to inquire how the enactment came to be made, whether it arose out of incorrect information or, indeed, on actual deception by someone on whom reliance was placed by it. The court must accept the enactment as the law unless and until the legislature itself alters such enactment, on being persuaded of its error."

Lord Denning M.R. has already cited the earlier decisions to the same effect, particularly that of Willes J. in Lee v. Bude and Torrington Junction Railway Co. in 1871. As is stated in Craies on Statute Law, 7th ed. (1971), p. 587, "The proper course to adopt when a Bill or clause is smuggled through Parliament is to bring in a Bill to repeal the clause in question," as was done by the Salvation Army in 1892 in order to remove from the Eastbourne Improvement Act 1885 a clause relating to Sunday processions.

If the matter stopped there I should have found grave difficulty in being persuaded that Mr. Tackaberry was right in his submission that there is here a triable issue. But that is not the position: the cases I have referred to were dealing with public Acts of Parliament, but there is ancient authority of the highest court in the land lending some support to the view that a different approach may be properly and indeed possibly ought to be adopted by the court in relation to private Acts of Parliament such as the one we are concerned with, and particularly M'Kenzie v. Stewart in 1752. The curious thing is that the assertion of Lord Hardwicke L.C. in that

case, expressed in the trenchant and powerful words already quoted by Lord Denning M.R., seems to have disappeared largely from the judicial landscape, for in no case thereafter, as far as we have been apprised, was it even referred to, still less considered. The question that accordingly looms large is, what should this court in the present case now do? Are we to say that Lord Hardwicke must be brushed aside, and that counsel for the appellant is not entitled to claim that on any view there is here a difficult question which ought to be investigated further and which can properly be investigated only by ascertaining all the facts? In Craies, p. 587, it is pointed out that in the old cases (M'Kenzie v. Stewart and Biddulph v. Biddulph (1790) 5 Cru.Dig. 34 decided by the House of Lords in 1790) there was no discussion of the proposition there acted upon that the court may go behind private statutes and, if satisfied that they were obtained by fraud, decline to act upon them. The editor then adds, at p. 587: "The question has never been seriously discussed in any modern case."

For my part, I think it is now high time that the matter should be discussed. Furthermore, there are features of this present case which appear to me to make it highly desirable in the public interest that they should be.

For those reasons I concur with Lord Denning M.R. that this appeal should be allowed.

STEPHENSON L.J. I agree that the paragraphs struck out by the master and the judge raise an arguable point of law and that this appeal should therefore be allowed. Like my Lords, I cannot and do not indicate what the outcome of the argument should be. I say only this, that I am convinced by M'Kenzie v. Stewart, to which my Lords have referred, and I would add Green v. Mortimer (1861) 3 L.T. 642, that the question whether there has been an abuse of the Parliamentary procedure which regulates unopposed private Bills may be a question for the courts as well as for Parliament in a suit brought by a person who claims that by the alleged abuse he has been deprived of a proprietary right without compensation.

Solicitors: Field, Fisher & Martineau for Tanner, Vowles & Cheshire, Bristol, Solicitor, British Railways Board; Lovell, White & King.

M. M. H.