[QUEEN'S BENCH DIVISION]

REGINA v. HEREFORD CORPORATION, Ex parteHARROWER AND OTHERS

Local Government - Powers - Standing orders - Not suspended by special resolution - Procedure for entering into contracts not complied with - Breach of statutory duty - Right of contractors as ratepayers to mandamus - Local Government Act, 1933 (23 & 24 Geo. 5, c. 51), s. 266 (2).

Crown Practice - Mandamus - Local authority - Failure to comply with standing orders in entering into contracts - Application for mandamus by contractors - Ratepayers - Whether sufficient interest.

[Reported by RENGAN KRISHNAN, ESQ., Barrister-at-Law.]

In April, 1969, a local authority, having decided to instal central heating in certain flats, invited the local electricity and gas boards and the National Coal Board to submit schemes. The local authority subsequently approved the scheme submitted by the electricity board and the town clerk wrote to the board declaring the authority's intention to enter into contract with the board. The applicants, who were all electrical contractors on the corporation's approved list, and ratepayers, claimed that the procedure adopted by the local authority contravened their own standing orders, by which, inter alia, they were required to invite tenders from a "reasonable number of persons" from the approved list of contractors and to give 10 days' public notice before entering into any contract and that they were therefore acting in breach of section 266 (2) of the Local Government Act, 1933.¹ The Local authority contended that there was no provision in the standing orders for non-compliance therewith by "direction of the council" and that the procedure adopted in the present case amounted to a "direction of the council."

On an application for an order of mandamus directing the local authority to comply with their standing orders:-

Held, granting the application, (1) that section 266 (2) of the Act of 1933 imposed a statutory duty on the local authority in making contracts to comply with their standing orders as they existed at the time and that the local authority were in breach of that duty when they failed to comply with the relevant standing orders without having previously suspended them specifically by a special resolution.

(2) That the applicants, as ratepayers, but not as electrical contractors, had a sufficient legal right to apply for an order of mandamus.

McKee v. Belfast Corporation [1954] N.I. 122 applied.

The following case is referred to in the judgment:

McKee v. Belfast Corporation [1954] N.I. 122.

The following additional cases were cited in argument:

Reg. v. Lewisham Union [1897] 1 Q.B. 498, D.C.

Watson v. Hythe Borough Council (1906) 22 T.L.R. 245.

APPLICATION for an order of mandamus.

The applicants, Alexander McCartney Harrower, Harding Brothers Ltd., Brian Fredrick Kempson, Neville Stuart Wiggins, C. F. Roberts Ltd., Messrs. Stokes & Lloyd and Vernon Davies, electrical contractors and engineers carrying on business as such, all in the city of Hereford, applied for an order of mandamus directed to the mayor, aldermen and the citizens of the City of Hereford (hereinafter called "the council") commanding them, in respect of the proposed installation of block storage heaters and immersion heaters in flats known as "Cornish Unit Flats" in Hereford to invite tenders from a reasonable number of persons who executed such works and whose names appeared on the list of suitable contractors approved by the council before entering into any contract in respect of the proposed installation and to give at least ten days' public notice in one or more

1 Local Government Act, 1933, s. 266: "(2) All contracts made by a local authority or by a committee thereof shall be made in accordance with the standing orders of the local authority, and in the case of contracts for the supply of goods or materials or for the execution of works, the standing orders shall - (a) require that, except as otherwise provided by or under the standing orders, notice of the intention of the authority or committee, as the case may be, to enter into the contract shall be published and tenders invited; and (b) regulate the manner in which such notice shall be published and tenders invited: ..."

newspapers of any proposed contract in respect of the proposed installation before making any such contract.

The grounds on which the relief was sought were that the council had declared its intention of entering into or making and/or had entered into and/or made a contract with the Midlands Electricity Board in respect of the proposed installation in breach of section 266 of the Local Government Act, 1933, and standing orders 52 and 53 of the council's standing orders in that (a) the council had failed to invite tenders from a reasonable number of persons whose names appeared on the list of suitable contractors approved by the council, and (b) had failed to give ten days' or any public notice in one or more newspapers of any such proposed contract.

John Hamilton for the applicants.

Raymond Sears for the Hereford Corporation.

LORD PARKER C.J. In these proceedings Mr. Hamilton moves on behalf of a number of applicants, all electrical contractors and all on what is called the approved list of contractors for the Hereford Corporation. Their application is for an order of mandamus directed to the mayor, aldermen and citizens of the City of Hereford "commanding them, in respect of the proposed installation of block storage heaters and immersion heaters in flats known as Cornish Unit Flats in the City of Hereford ... (a) to invite tenders from a reasonable number of persons who execute such work and whose names appear on the list of suitable contractors approved by the council before entering into any contract in respect of the said proposed installation; and (b) to give at least 10 day's public notice in one or more newspapers of any proposed contract in respect of the said proposed installation before making any such contract."

What has given rise to this application is the fact that for some time now the council have been considering the installation of some form of heating in these Cornish Unit Flats to avoid condensation. The matter came under consideration early in 1969. Various methods of heating were considered, and indeed the National Gas Industry, the National Coal Industry and the Midland Electricity Board were consulted as to rival schemes of installation.

In March of this year it became known that the council proposed to place a contract for a very substantial sum of money with the Midland Electricity Board. The position today is that the contract has been drawn up, but it has not been signed. These electrical contractors complain that the standing orders of the council have not been observed, in particular standing orders 52 and 53. Standing order 52 provides that 10 days' public notice should be given in one or more newspapers before any contract over £200 is placed for goods or materials or the execution of any work. Standing order 53 goes on to provide that no contract which exceeds £50 in value shall be entered into unless tenders have been invited from a reasonable number of persons who supply such goods or materials or execute such work and whose names appear on the list of contractors, provided tenders shall not be required in certain circumstances, none of which except for one could be said to apply in the present case. The one which is said to apply is standing order 52 (d): "The work to be executed or the goods or materials to be purchased are a matter of urgency."

So far as the facts are concerned, what is said on behalf of the council is contained in an affidavit from the town clerk. It is clear from that that throughout these early considerations and negotiations of the matter it

has just been assumed that the standing orders do not apply, the reason being that it was impossible for the council to send out specifications for tenders and to invite tenders because they had no heating design engineer on their staff, and for that reason they assumed that it was unnecessary to go out to tender, and they never sought to do so.

As far as that point is concerned, I can see no excuse for not complying with the standing orders merely because the council have not got a heating design engineer on their staff.

The second point taken is a point which has not been put forward in this court, that two of the applicants were in fact asked if they wished to submit a price. That clearly cannot be an invitation to tender, there having been no specification whatsoever. Then it is said that it is a matter of urgency which excuses tenders, in that, if the particular form of electrical storage heater which was thought necessary for these flats was to be reserved for the work, the contract had to be entered into at an early date. That however does not come within the wording of standing order 52 (d). Finally, it is said that by their very conduct the council directed that the standing orders in question should not apply pursuant to standing order 50, which provides: "Every contract made by the council shall comply with these standing orders and no exception from any of the following provisions shall be made otherwise than by direction of the council." It is suggested that the very fact that the council proceeded in the way they did shows that they were directing otherwise. In my judgment that is an impossible contention. As Mr. Hamilton put it, you cannot, by ignoring the standing orders, which they did, claim to have suspended them. This is a clear case where, if standing orders 52 and 53 are to be suspended, it must be done specifically by special resolution.

So far, therefore, as the merits are concerned I am sorry to say that this council have not complied with their own standing orders. The only question is whether it is a case in which an order of mandamus should issue. As to that, Mr. Sears says it cannot issue for two reasons; the first, as he puts it, is that here there was no statutory duty whatsoever in respect of which the council were in breach. For my part I am wholly unable to accept that. No doubt the standing orders themselves are merely directions as to the functions inter se of the council and its officers, but section 266 of the Local Government Act, 1933, provides by subsection (2) - and this is statute: "All contracts made by a local authority or by a committee thereof shall be made in accordance with the standing orders of the local council." True, the subsection goes on then to say that in the case of contracts for the execution of works

"the standing orders shall - (a) require that, except as otherwise provided by or under the standing orders, notice of the intention of the authority or committee, as the case may be, to enter into the contract shall be published and tenders invited; and (b) regulate the manner in which such notice shall be published and tenders invited:"

Accordingly, as it seems to me, it is quite clear that there is a statutory duty on the local authority to comply with standing orders as they exist at the time, and if those standing orders have not been suspended, then there is a duty to comply with them.

Lastly, and as I see it this is the real point in the case, Mr. Sears raises the point whether these applicants had a sufficient interest to enable them to come to this court and apply for an order of mandamus. It has

always been recognised that there is quite a different criterion of interest which would justify an application for certiorari and one which would justify an application for mandamus. It is said that a far more stringent test applies in the case of mandamus and that an applicant must have, as it is put, a specific legal right. The mere fact that these applicants were electrical contractors does not, in my judgment, of itself give them a sufficient right, but if, as I understand, they or some of them are ratepayers as well, then, as it seems to me, there would be a sufficient right to enable them to apply for mandamus.

I am reinforced in that view by a judgment, to which Mr. Sears has very properly referred us, of Curran J. in Northern Ireland, in McKee v. Belfast Corporation [1954] N.I. 122. It is unnecessary to refer to that case save to say that that was an application for a mandamus to comply with standing orders. Points were taken that there was no statutory duty and that the applicants had no legal rights. Curran J. decided against them, though he in fact did not issue the order of mandamus but adjourned the case bearing in mind that there, as here, it was open for the council at any time, if they so decided, to suspend the standing orders in question.

For my part I am quite satisfied that this is a case where, both on the merits and on the law, an order of mandamus should go in the terms prayed for in the statement, but bearing in mind the right of the council to suspend their own orders, I would allow the order of mandamus to lie in the office and only issue if, within 14 days, the council have not resolved to suspend standing orders.

COOKE J. I agree.

FISHER J. I agree.

Solicitors: Withers; Sharpe, Pritchard & Co. for H. G. Cullis, Hereford.