Wandsworth LBC v Winder (No 1)

Factual and Procedural Background

The Respondent held a weekly secure tenancy of a flat owned by the Appellants, a local housing authority. The contractual rent was £12.06 per week. Relying on statutory powers, the Appellants served notices increasing the rent first to £16.56 (effective 6 April 1981) and later to £18.53 (effective 5 April 1982). The Respondent considered the increases unreasonable, paid only what he deemed fair, and fell into technical arrears.

On 16 August 1982 the Appellants sued in The County Court for rent arrears and possession. The Respondent’s defence and counterclaim alleged that the rent-increase decisions were ultra vires and void for Wednesbury unreasonableness, seeking declarations to that effect.

The Appellants applied to strike out those pleadings, contending that the challenge could be made only by judicial review. A registrar dismissed the application; a circuit judge reversed him and stayed proceedings to allow a (late) judicial-review application, which was refused. The Court of Appeal (majority) restored the registrar’s order, holding the Respondent could advance his defence. The Appellants appealed to the House of Lords, which delivered the present judgment.

Legal Issues Presented

1. Whether it is an abuse of process for a tenant, sued for rent arrears by a local authority, to challenge the authority’s rent-increase decision by way of defence in ordinary civil proceedings instead of by judicial review under R.S.C. Ord. 53.
2. Whether R.S.C. Ord. 53 and section 31 of the Supreme Court Act 1981 impliedly exclude a defendant’s common-law right to contest the legality of a public-authority decision that underpins the claimant’s cause of action.

Arguments of the Parties

Appellants' Arguments

• The only permissible route to impugn their rent-increase decisions was judicial review; the Respondent, having been refused leave out of time, lost that opportunity.
• Allowing a collateral challenge in a private-law action undermines the public-law protections and time limits established in O’Reilly v. Mackman and Cocks v. Thanet District Council, contrary to the public interest in “speedy certainty.”

Respondent's Arguments

• While judicial review was available, it was not the exclusive remedy; a defendant may raise illegality of the claimant’s decision as of right in ordinary proceedings.
• No precedent or statutory provision abolishes the traditional right to defend an action on the basis that the underlying administrative decision is void.
• To deny that right would conflict with fundamental principles preserving access to the courts absent clear legislative words.

Table of Precedents Cited

Court's Reasoning and Analysis

The House, per Judge Fraser (with Judges Scarman, Keith, Roskill and Brandon concurring), examined the scope of the O’Reilly/Cocks principle. That principle aims to secure prompt public-law review in the public interest but is expressly subject to exceptions.

The Court identified two critical distinctions from O’Reilly and Cocks:

• The Respondent enjoys an existing private-law contractual right to occupy his flat at the original rent; the challenged decisions allegedly infringe that right, rather than merely preventing the acquisition of a new right.
• The Respondent is a defendant, not a claimant. He did not choose the litigation vehicle; he merely defends the action brought against him.

The Lords emphasised that procedural reforms such as Ord. 53 cannot abrogate substantive rights or the ability of a defendant to raise any lawful defence without “clear words” from Parliament. Public-policy concerns about speedy certainty, while weighty, do not override the fundamental right to defend an action on all available grounds. If stronger protections for public authorities are desired, legislative intervention—not judicial restriction—is required.

Holding and Implications

Appeal dismissed; Court of Appeal order affirmed.

The Respondent may contest the validity of the rent-increase decisions within the County Court action. The Appellants must pay the Respondent’s costs of the House of Lords appeal, to be taxed under the Legal Aid Act 1974. The decision reaffirms that defendants may raise public-law invalidity as a defence in ordinary proceedings, and it delineates an exception to the O’Reilly/Cocks rule without creating new substantive rights.