1903 REX v. HIGH BAILIFF LONDON absolute duty on the promoters to give ten days' notice of their intention to summon a jury, and in that notice they have to state what sum they are prepared to pay. There is a correlative duty on the claimant to accept the offer within the ten days, if he intends to do so at all; if the offer is not accepted, COUNTY a jury is to be summoned, and the amount can then only be COUNCIL, Ex parte. settled by the jury's verdict. The intention of the Legislature was that the claimant should have the period of ten days within which to consider whether he should accept the offer, so that the expense of summoning the jury and of preparing for trial may not be incurred unnecessarily. This view is supported by the judgment of Lord Coleridge C.J. in Reg. v. Smith (1), and of Cockburn C.J. in In re Hayward and the Metropolitan Ry. Co. (2), where he points out that the notice to summon the jury gives the claimant full ten days' time to consider the propriety and expediency of accepting the promoters' offer. Further, by s. 51, if the sum awarded by the jury be less than or the same as that offered by the promoters, the claimant has to bear his own costs, and half the costs of summoning the jury and taking the inquiry; but if the offer may be accepted at any time before verdict, claimants will have an easy way of escaping all liability for costs, because s. 51 only applies where there is a verdict. Again, this inquiry was held under the London County Council Act, 1899, s. 20 of which provides for alternative methods of assessing the compensation. It cannot have been intended that a claimant, after the issue as to insanitary condition of the property has been decided against him, should then be entitled to accept the offer, the amount of which in practice is always fixed so as to allow a considerable margin for every possible contingency. LORD ALVERSTONE C.J. In dealing with this case I wish to dismiss from my mind as far as possible everything recollected from past experience of these cases, because one always mistrusts one's own recollection. I will only say this, that if the contention put forward on behalf of the London County (1) 12 Q. B. D. at p. 487. (2) (1864) 4 B. & S. 787; 33 L. J. (Q.B.) 73, at p. 77. 1903 REX v. HIGH BAILIFF Council is right, a large number of cases have in the past been settled on a different view of the parties' rights. If it is true that the offer of the promoters is not binding on them, but can be withdrawn in the sense that they can claim to take the verdict of the jury, not merely with reference to how the costs are to be borne, but in order that they may pay less than the amount offered, I think that it is remarkable that no authority for the contention is to be found in any of the cases decided Lord Alverstone under the Lands Clauses Act. It is provided by s. 38 of the Act that in the ten days' notice which the promoters are to give of their intention to summon a jury they shall state what sum of money they are willing to give for the interest in the lands sought to be purchased by them, and for the damage sustained by the execution of the works. It is not an offer that is to be open for ten days only, but an offer of the sum which they are willing to give. Now we have been pressed to say that that means that the offer must be accepted for the purpose of a contract within ten days, because, if it is not accepted, the promoters of the undertaking will go on, and will incur costs in getting their case ready for trial. No doubt they will incur costs, but the necessities of Mr. Dickens' argument forced him to overlook the fact that the vendor, whose property is being compulsorily taken, and who is certainly entitled not to be put in a worse position than the promoters, is in the same position of difficulty. He has got to incur the costs of preparing for trial, and, if the jury give a less amount than the amount offered, he will not only have to bear the whole of his own costs of the inquiry, but he will also have to pay some portion of what I may call the joint costs. Therefore the position is not, as suggested by Mr. Dickens, that the only question is aye or no, shall the promoters be forced to incur costs; there is also the question whether or not the vendor shall be in a position of running the risk of having to bear a considerable amount of costs himself. The only other section which bears upon the matter is s. 51. [His Lordship read the section.] That is a part of the burden which the vendor takes upon himself which Mr. Dickens' argument forced him to overlook: it is equally as LONDON COUNTY COUNCIL, Ex parte. C.J. 1903 REX v. HIGH BAILIFF MINSTER. LONDON COUNTY COUNCIL, C.J. 66 important to him as the costs which have to be borne by the promoter. Now, without regarding the case as an authority, I think that what Lord Coleridge said in the case of Reg. v. OF WEST- Smith, In re Westfield and Metropolitan Ry. Cos. (1) is a correct enunciation of the law applicable to this particular point: The promoters are taking a person's property adversely to his Ex parte. own benefit, and it does not seem an unreasonable thing that, Lord Alverstone before they are allowed to take from him that which he does not desire to part with, they should make him an offer by which they are bound to abide, and upon which he can take the advice of his surveyor, and come to a conclusion whether or not he will accept it or embark upon costly litigation with the promoters." If the claimant has ten days only within which to accept the offer, I do not think that Lord Coleridge would have used that language; and when he refers to "embarking on costly litigation," I would again point out that the claimant does not necessarily get rid of the costly litigation by not accepting the offer, for by going on he still has a very great risk of having to bear a great proportion of it. Therefore under the Lands Clauses Act I think it is clear that the offer is intended to exist as an offer down to the time of the verdict of the jury being given. Now, under these circumstances, it seems to me that there is under the statute an offer binding on the promoters up to the time when the verdict is given, and that the claimant is entitled to say that he will accept that offer, of course coming under the responsibility which follows from that acceptance, namely, that he cannot be in a better position than if the verdict of the jury had been given for the amount of the offer, in which case he would not get his costs, and he would have to bear half the joint costs under s. 51. The only remaining question for consideration is whether s. 20 of the London County Council Act, 1899, has made any difference as regards the point which we have to consider. I agree that it is an involved section, and that it is very difficult to know exactly how the section is to be worked; but at any rate the section provides for something which is to take place on the occasion of the assessing of the amount of compensa(1) 12 Q. B. D. 481, at p. 487. 1903 REX V. OF WEST- LONDON COUNCIL, Ex parte. tion. There is to be a sort of first issue tried as to whether the property falls within a certain class; and if it is so found, then the compensation is to be assessed on a certain principle. HIGH BAILIFF The question is, Does that section make any difference on the point which we are considering? The Act incorporates the Lands Clauses Act, and it has been admitted by counsel on both sides that the real decision must be as to the position of the claimant under the Lands Clauses Act, unless s. 20 makes Lord Alverstone any difference. In my opinion s. 20 only makes this difference, that it sets up two standards of compensation. It is impossible to suggest that there is under s. 20 of this Act a greater right of withdrawal of the offer than there is in an ordinary case under the Lands Clauses Act. There is only one other observation with which I wish to deal. It is said that, practically speaking, it would be a hardship if this view were adopted, because it is well known that in offers which are made in cases under s. 20 of the London County Council Act, 1899, there is a very considerable margin allowed, in order that the promoters may not run so much risk of having to pay all the costs. I beg leave to state that that argument applies just as strongly to cases under the Lands Clauses Act as it does to those under s. 20. I am not sure that it does not apply even more strongly, because I think it would probably be easy to judge whether the facts of a case brought it within the lesser or higher assessment of compensation under s. 20. It is common knowledge that the offers made in compensation cases always allow a very considerable margin on the actual value of the property, in order that a fair estimate may be made of what a jury is likely to give. For the purpose of s. 51, when an offer is made there would in practice always have to be a margin, whether it was a case of property taken under the Lands Clauses Act or property taken under the Act of 1899. I therefore think there is an additional reason for not adopting the argument presented by Mr. Dickens in this case, and that the case must be decided in accordance with the principle applicable to an ordinary compensation case. I come to the conclusion that, under the circumstances of C.J. 1903 REX บ. ance this case, the claimants were entitled to accept the offer at the time when they did so, and that the only effect of their acceptof the offer is that they must bear their own costs and pay half the joint costs referred to in s. 51. I think the proper course here would have been to have directed a verdict by the COUNTY jury for the amount of the offer; but it is useless to send the case down for a new trial, because the only result would be Lord Alverstone that the claimants would be entitled to say that they accepted the offer; and then the verdict of the jury would have to be given for that amount. For these reasons I am of opinion that the rule must be discharged. LONDON COUNCIL, Ex parte. C.J. WILLS J. I agree, and I have nothing to add to the remarks which have fallen from my Lord. CHANNELL J. I agree also, and I think my Lord has made the matter perfectly clear. I think that this offer was a standing offer that could not be withdrawn, but even if it could be withdrawn, it never had been, so that as soon as it was accepted there was a contract as to the price, and the question which the jury would otherwise have had to determine was at an end, except possibly as to costs. As to the costs, if the promoters, in this case the London County Council, could get any costs by going on, of course they would have been entitled to go on for the purpose of getting those costs; but the outside they could get was half of the joint costs. They would have been entitled to have the verdict entered for the amount agreed upon, for the purpose of making it clear how the costs were to be dealt with; but they did not ask for that, and as it is agreed that they are to be in the same position as regards costs as if the verdict had been so entered, there is no necessity for a new trial. Rule discharged. Solicitors for claimants: Lewis & Lewis. F. O. R. |