[1990] 3 All ER 737

In 1978 a council advertised for tenders for a 99-year lease of a vacant site which it owned with permission for the erection of a shop or an office and showroom. The plaintiff, who was in business with her husband who was then one of the councillors representing the majority Ratepayers Party on the council, submitted the only tender, which was accepted by the council. The plaintiff took possession in September 1978 and in January 1979 she applied for a change of use to that of a club. In April, after an acrimonious debate, the council approved the change of use. During the debate the leader of the Labour group stated that if he was returned at the forthcoming local government elections he would put down a motion to have the council's decision reversed. In May 1979 the local government elections resulted in a decisive Labour victory and the leader of the Labour group became the leader of the council. The plaintiff's husband did not stand for re-election. On 28 June the council voted to rescind the consent for a change in the use of the plaintiff's premises to that of a club, the resolution being proposed by the leader of the Labour group and carried by 28 to 15, the majority being made up of all 28 members of the Labour group present. The plaintiff brought an action against the council claiming, inter alia, that by maliciously refusing consent to the change of use with the object of injuring the plaintiff and her husband the council had been guilty of the tort of misfeasance in public office when passing the resolution of 28 June. The council contended that the plaintiff could not succeed against it on such a cause of action, even if it was otherwise justified on the evidence, because the council was acting as the plaintiff's landlord in circumstances in which, under private law, no cause of action based on malice would lie. The judge rejected that submission but dismissed the plaintiff's action on the ground that malice had not been proved against the leader of the Labour group or any other members of the Labour group. The plaintiff appealed to the Court of Appeal, which allowed the appeal, holding that the plaintiff had a good cause of action in tort for misfeasance in a public office on the part of the council and that the judge's finding that the leader and the other members of the Labour group had not been actuated by personal malice towards her and her husband when voting for the resolution could not be sustained. The court ordered a retrial because it was not in a position to substitute a positive finding of malice in place of the judge's finding that there had been no malice. The council appealed to the House of Lords.

Held - The plaintiff would have had a good cause of action against the council for misfeasance in a public office if she had alleged and proved that a majority of the councillors present, having voted for the resolution, had done so with the object of damaging her. However, since her case as pleaded was that all the Labour councillors who voted for the resolution were infected by their leader's malice and since that had not been proved, her case was bound to fail even if malice were proved against the leader of the Labour group. The appeal would accordingly be allowed and the judgment and order737 of the judge restored (see p 739 a to d, p 741 d to f, p 744 e f, p 749 f to j, p 751 b to d, p 753 d to f and p 756 d to g, post).
   Dunlop v Woollahra Municipal Council [1981] 1 All ER 1202 considered.
   Per curiam. To reach a conclusion founded on an alternative assumption is a common and useful feature of civil trial by a judge without a jury and only exceptional circumstances will justify an appellate court in refusing to accept supportable conclusions pronounced by a judge on such a basis (see p 739 a to d and p 755 g, post).
   Decision of the Court of Appeal [1989] 3 All ER 162 reversed.

Notes
For abuse of public office, see 1(1) Halsbury's Laws (4th edn reissue) para 203.

Appeal
The defendant, Swansea City Council, appealed with leave of the Appeal Committee of the House of Lords given on 8 May 1989 against the decision of the Court of Appeal (Nourse and Stuart-Smith LJJ, Slade LJ dissenting) ([1989] 3 All ER 162, [1990] 1 WLR 54) on 3 March 1989 allowing the appeal of the plaintiff, Margaret Elizabeth Jones, against the judgment of Roch J given on 4 February 1988 whereby he dismissed the plaintiff's claim against the council for damages for misfeasance in a public office. The facts are set out in the opinion of Lord Lowry.

15 November 1990. The following opinions were delivered.

LORD TEMPLEMAN. My Lords, the salient features of this unfortunate litigation appear from the judgments in the Court of Appeal ([1989] 3 All ER 162, [1990] 1 WLR 54) and the comprehensive speech of my noble and learned friend Lord Lowry.
   This case presents some puzzling and disquieting features, namely the enmity displayed against Cllr Jones because he was prominent in the Ratepayers group for 1979 when a Labour leader was prosecuted for corruption, the rejection of an offer by Mrs Jones to pay a substantially increased rent for change of use, the public display of anger and threats made by Cllr Tyssul Lewis at the council meeting on 26 April 1979, the observation by the judge that 'this is not a case in which I can say that the evidence of Cllr Tyssul Lewis satisfies me that he was not motivated by malice ... for reasons of personal antipathy ... ', the acceptance by the judge of the evidence that nothing relevant was said at the meeting of the Labour group prior to the council meeting on 28 June 1979 and the inference that the members of the Labour group spontaneously and independently came to the same conclusion as their leader. In these circumstances, I have every sympathy with the penetrative observation of Nourse LJ that to deny that it was open to the judge to infer group malice 'would in my view be to disregard the realities of decision-taking by councillors in local government' (see [1989] 3 All ER 162 at 187, [1990] 1 WLR 54 at 86). But the disputed events took place in 1979, the writ was not738 issued until 1985, and the trial took place in 1988. A second trial in 1990, raking over the unsavoury history of the Swansea City Council, would be oppressive and unfair on the witnesses and any result would be suspect. Accordingly, with some misgivings I concur in allowing this appeal. The moral of this story is that a councillor and any close relative of a councillor should avoid any business transactions with the council.

LORD GRIFFITHS. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Lowry and for the reasons which he has given I would allow the appeal.

LORD ACKNER. My Lords, for the reasons summarised by my noble and learned friend Lord Lowry in the final two paragraphs of his speech, which I have had the advantage of reading in draft, I too would allow this appeal, restore the judgment and order of the trial judge.

LORD OLIVER OF AYLMERTON. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Lowry. I agree with it and would allow the appeal for the reasons which he has given.

LORD LOWRY. My Lords, this appeal is concerned with an alleged tort of misfeasance in public office by Swansea City Council against Mrs Margaret Elizabeth Jones (whom I shall call 'the plaintiff'). The facts are set out admirably and in considerable detail by Slade LJ in the Court of Appeal ([1989] 3 All ER 162 at 164ff, [1990] 1 WLR 54 at 57ff), and I shall not weary your Lordships by restating them. It is enough to say that the council owned a vacant site at 88-89 High Street, Swansea and in March 1978 advertised for tenders for a 99-year lease of the site under the heading 'Development Site at High Street with permission for erection of a shop or an office and showroom'. The plaintiff was in business with her husband Benjamin Jones, then one of the councillors representing the majority Ratepayers group or party on the council, and on 4 May 1978 she submitted the only tender, which was accepted by the council in June 1978. The effect of the council's planning permission (granted to itself on 23 February 1978), when read with the terms of the tender, limited the use of the site to that of an office and showroom. In September 1978 the plaintiff took possession of the site with the council's consent and started building. She wished to change the use to that of a club, and this involved the need for both planning permission and the council's permission as her landlord to alter the use of the premises. The council's dual function helps to explain the large number of meetings referred to in Slade LJ's summary. It was, of course, for the council ultimately to consider the respective recommendations of the planning committee and the estates committee and to make a decision.
   On 9 March 1979 the council and the plaintiff entered into a written agreement for a lease in which the user clause conformed with the existing planning permission. On 13 March the planning committee by nine votes to three and on 14 March the estates committee by seven votes to five (subject to an increased rent being agreed) approved the change of use to that of a club.
   On 29 March the council confirmed by a single vote the resolution of the planning committee but by a majority of 22 to 18 rejected the resolution of the estates committee. The majority was of a cross-party character, since it included two independents, two Conservatives and at least four of the Ratepayers group. On 3 April the plaintiff's solicitors wrote to the council's chief executive asking that her request for change of use consent be reconsidered and on 11 April, despite the council's decision of 29 March, the estates committee by eight votes to six again resolved in favour of a change of use to that of a club.
   On 26 April the council by 24 votes to 18 confirmed the estates committee resolution of 11 April, thereby reversing its own decision of 29 March, and, as the factual summary739 of Slade LJ shows, this was an important council meeting, to which I shall presently refer.
   On 6 May 1979 the local government elections were held and resulted, so far as Swansea City Council was concerned, in a decisive Labour victory. Mr Jones did not stand for re-election, several of the Ratepayers group lost their seats and shortly after the election Cllr Tyssul Lewis became the leader of the council.
   In that capacity he attended the estates committee meeting on 13 June and, consistently with his attitude at the council meeting on 26 April, was instrumental in having the city estate agent's recommendation for a new rent (consequent on the proposed change of use) disapproved by eleven votes to five.
   At the council meeting on 28 June 1979 Cllr Tyssul Lewis proposed and carried a resolution to rescind the council's resolution of 26 April. All 28 Labour members present, but no others, voted in favour of that resolution, which was carried by 28 to 15 and which became the basis for the cause of action against the council when the plaintiff issued her writ on 27 June 1985, five years and 364 days later.
   The summary of facts given in the Court of Appeal has described the events and the litigation which followed the council's reversion to its position of 29 March (see [1989] 3 All ER 162 at 170-171, [1990] 1 WLR 54 at 65-67). I need not now refer to this, but the summary also contains a sketch of the political background to which I call your Lordships' attention ([1989] 3 All ER 162 at 165, [1990] 1 WLR 54 at 58-59):

   I should also mention that, when the plaintiff on 30 March learnt of the council's decision of 29 March, she complained to the local commissioner of the Commission for Local Administration in Wales the same day that 'it had become clearly apparent that there was a personal vendetta being carried out against her husband, who was also a local councillor in the Ratepayer group of councillors in Swansea' (see [1989] 3 All ER 162 at 167, [1990] 1 WLR 54 at 62). She referred by name to two Ratepayer councillors and to the wife of an independent councillor (but not to any Labour councillors) as displaying particularly vindictive attitudes towards Mr Jones and claimed that these councillors would most vigorously oppose her project, aided by the entire Labour group of councillors simply because her husband had an interest in the project. As requested, the commissioner conducted an inquiry into the decision, in the course of which he also considered what had happened at subsequent council and committee meetings. He reported on 12 February 1981, rejecting the plaintiff's allegations. I mention this because, by consent of the parties, the commissioner's findings were put in evidence at the trial before Roch J, who concluded his judgment by saying:

740

   In the statement of claim and particulars the plaintiff alleged that all the Labour councillors who voted for the resolution on 28 June 1979 were motivated by the desire to damage the plaintiff and Mr Jones and that they all bore a grudge against him, and her case was presented on that basis both at the trial and in the Court of Appeal. The proof of that allegation naturally depended in the first place on proving that Cllr Tyssul Lewis had been activated by malice and also on showing that, either directly or indirectly, expressly or by implication from the circumstances, he as an individual and as leader of the Labour group had caused the other Labour councillors to vote as they did. Indeed, apart from him, Cllr McDonald-Murray, who had been deputy leader of the Labour group before, but not after, the local government election of 6 May 1979, was the only councillor against whom the plaintiff seriously attempted at the trial to prove express malice.
   Having regard to Dunlop v Woollahra Municipal Council [1981] 1 All ER 1202, [1982] AC 158 and the cases mentioned in Wade Administrative Law (6th edn, 1988) p 777, I apprehend that a local authority can be sued for misfeasance in a public office, but counsel argued at the trial and in the Court of Appeal that the plaintiff could not succeed against it on such a cause of action, even if it were otherwise justified by the evidence, because in this case the council was acting as a landlord in circumstances in which, according to private law, no cause of action based on malice would lie. The trial judge and the Court of Appeal both rejected this argument for reasons with which I am respectfully inclined to agree. This point, however, which constituted the council's first submission on the appeal, was by agreement left on one side in this House until the other points in the case had been argued and, in the event, your Lordships did not require to hear argument on it. Accordingly, I do not propose on this occasion to discuss the bounds of misfeasance committed by a body such as a local council or to compare the remedy for that tort with an application for judicial review, but I consider that, generally speaking, if a plaintiff alleges and proves that a majority of the councillors present, having voted for a resolution, did so with the object of damaging the plaintiff, he thereby proves against the council misfeasance in a public office.
   The trial judge was not satisfied that malice had been proved against Cllr Tyssul Lewis or against any Labour councillors and accordingly he dismissed the action. Before considering, in the light of such high authorities as Watt (or Thomas) v Thomas [1947] 1 All ER 582, [1947] AC 484, whether it was open to the Court of Appeal to set aside his judgment, it is important to see what he decided.
   I would make two preliminary observations. The case was concerned almost entirely with oral evidence given, by witnesses who were closely involved, almost nine years after the event. Feelings in a charged political atmosphere might remain sharp but memories, even of honest witnesses, must have dimmed. If the plaintiff, on whom lay the burden of proof, delayed for six years to bring her action, the council and its witnesses can scarcely be blamed if some of what they had to say was not entirely clear. Second, the trial judge, when he was not sure of the answer, rightly based his conclusion on where the burden of proof of an issue lay. I have, moreover, received a fairly clear impression that, in delivering judgment in this very political case, he had well in mind the maxim 'Least said, soonest mended', which I suspect he applied, so far as he could consistently with his duty to decide the case. This procedure, however, did not entirely satisfy the Court of Appeal, which was for its part equally anxious to penetrate the mist and arrive at the truth.
   The plaintiff relied on negligence as well as misfeasance. This was rightly regarded as a hopeless mission and she did not persevere with negligence in the Court of Appeal. Her main point on misfeasance in the statement of claim as amended was:

741

The plaintiff's counsel at the trial and also in the Court of Appeal put the case of malice against the councillors as a body in several different ways, but at all times they stuck tenaciously to the allegation that all the councillors were infected by malice. This stand combined both logic and weakness; logic because, once the plaintiff was forced to concede that there could have been councillors who voted for the resolution without being so infected, the blanket effect of her case would disappear; weakness because three councillors called as witnesses said that they voted for what they considered to be good reasons, that they had not been instructed by Cllr Tyssul Lewis or anyone else how they should vote and that there had been no group decision or party whip in operation. The judge accepted this evidence and it was, in my opinion, clearly open to him to do so.
   Giving judgment Roch J said:

In my opinion that statement did at least full justice to the plaintiff's legal position and, as your Lordships have seen, the facts as found by the judge did not match the plaintiff's requirements for a decision in her favour.
   The judge in the course of narrating the history of the affair made certain findings of fact. Those findings have been accepted on behalf of the plaintiff. They include the finding 'on the balance of probability' (which indicates a careful and scrupulous approach to the evidence) that a meeting in the Bayview Hotel in July 1979, as deposed to by Mr Jones, did not take place and that what was alleged to have been said on the occasion of that alleged meeting was not said. In reality, when one reads the judgment, the evidence against this meeting having happened appears very convincing. The judge then turned to deal with the issues, describing as the foremost issue in the case the question whether Cllr Tyssul Lewis, either alone or with other leading members of the Labour group, was activated by malice towards the plaintiff at the meeting of 28 June 1979.
   He disposed, rightly, as the Court of Appeal concedes, of the plaintiff's first point that the decision at that meeting was so unreasonable that it could only be explained by the presence of malice. On this issue, as well as generally, your Lordships will recall (1) that there were rational grounds (entertained by witnesses whose evidence was accepted by the judge) for not allowing an alteration of use and (2) that the council's first resolution passed at a time when Mr Jones's party was in control but reversed four weeks later, while that party was still in control, had been against granting permission.
   The judge noted, as already mentioned, that, when complaining to the local commissioner, the plaintiff did not name any member of the Labour group as having been actuated by malice and that on 29 March those who voted against giving permission included members of every political group. He then in a manner indicative of great care and anxious thought reviewed the different meetings which had been held and proceeded to make his assessment of Cllr Tyssul Lewis. The judge's review involved in particular a742 consideration of the council meetings held on 29 March, 26 April and 28 June 1979 and the estates committee meeting of 13 June.
   He noted that there had been three broad grounds of objection to the use of the premises as a club: (1) inadequate parking facilities, a ground in which he thought there was no substance; (2) the likelihood of disturbance to residents, a ground which derived some support from a petition and from approaches made by residents and traders to councillors; (3) the fact that the site had originally been advertised on the basis of use as a shop and offices and the likelihood that the plaintiff's would not have been the sole tender if the use contemplated in the advertisement had been wider. The first two grounds were really planning considerations, but it is worth recalling that the planning committee's recommendation was approved on 29 March by only one vote. The rejection at the same council meeting of the estates committee's recommendation indicates that the third ground listed above swayed the balance. The judge pointed out that witnesses for the plaintiff regarded this ground of objection as reasonable, if honestly held, and he also noted another reason advanced by objecting councillors, namely that the applicant for the lease on the original terms was the wife of a member of the majority group on the council and therefore ought not to appear to have received preferential treatment.
   He then considered the plaintiff's argument that, even if the decision against her could be justified rationally, there was clear evidence pointing to malice on the part of the Labour councillors, in particular Cllr Tyssul Lewis. At the estates committee on 14 March, when the question of permitting a change of use was discussed, Cllr Hawkins (Labour) was noted as saying:

   There being no earlier context to evoke any denial of a vendetta, the plaintiff submitted that Cllr Hawkins's denial itself indicated a vendetta. I note that the same point, for what it is worth, could have been, but was not, made in regard to what Cllr McDonald-Murray is recorded as having said about the proposal at the planning committee on 13 March: 'I have no axe to grind-speaking from a planning viewpoint only.' A less sinister explanation could be that political opponents sometimes introduce their remarks in this self-exculpatory way.
   At the council meeting on 29 March, when the planning committee minutes were passed by 12 to 11, part of the note reads:

   Councillors Greep and Coode (Ratepayers group) and Councillor Ball (Plaid Cymru) as well as Cllrs Hawkins, Tyssul Lewis and McDonald-Murray (Labour) spoke against change of use. Councillor Greep said: 'Application smells of the Mafia', while Cllr Edwards said, inter alia: 'Let it be quite clear that a councillor of this Council is involved in this application and ever since it has been scheduled there have been rumours that there is something going on.' Having regard to what I have said above, three other remarks may be noted:

(This last remark was made on 26 April.)

743

   The following extract from the note of the council meeting held on 26 April is of importance and the remarks of Cllr Tyssul Lewis were noted in the judgment:

   The meeting of 26 April was clearly an acrimonious one. The judge considered it carefully and reviewed the evidence of Cllrs Smith, Evans, Meager and Wesley, who were called as witnesses for the plaintiff. On studying such parts of the transcript of evidence as the parties have chosen to rely on, my view is that the judge was not at all bound to find that Cllr Tyssul Lewis was motivated by malice against the plaintiff or her husband. The judge saw and heard all the witnesses, which conferred on him a most valuable advantage in a case which depended so much on the veracity and accuracy of recollection of the witnesses. Councillor Tyssul Lewis's attitude is readily attributable to indignation and to his determination to put right, if he could, a decision which he regarded as completely wrong.
   Passing to the estates committee meeting of 13 June, given the genuineness of the attitude expressed by Cllr Tyssul Lewis at the council meeting of 26 April, it may be regarded as perfectly natural for him to take the first official opportunity of pursuing his stated objective. Counsel for the plaintiff submitted that it was strange that 11 councillors should vote for a proposal for which no reasoned argument had been advanced and inferred that the decision must have been taken before the meeting, but presumably the minutes of the previous meeting were available and even the brief note of the discussion indicates that the participants knew what they were debating about.
   At the council meeting of 28 June Cllr Tyssul Lewis's proposal was consistent with the line he had already adopted. Again the judge noted the plaintiff's submission that the proposal to rescind the decision of 26 April had gone through strictly on party lines after only a short debate without an elaborate justification. But again the note of the meeting tends to show that the point at issue was fully appreciated by those taking part. The judge records that Cllr Tyssul Lewis gave four reasons for his attitude, namely the nuisance to residents, the parking problem (admittedly these were planning points but would continue as relevant arguments in the mind of anyone who opposed the change of use), the principle of holding the (only) tenderer to the advertised use and the feeling that the council, having rejected the change of use application in March 1979, ought not to have changed its mind in April.
   The judge continued:

   The judge's subsequent conclusions included the following passages:

   Clearly the judge's conclusion about the motivation of Cllr Tyssul Lewis, although not very positively expressed, defeats the plaintiff's claim if it cannot be upset.
   The judge's general verdict on the other Labour councillors must be noted here:

745

   This was a negative finding, fully justified, in my opinion, by the evidence and not capable of being attacked on logical grounds. Accordingly, it destroys the plaintiff's case against the council, whether Cllr Tyssul Lewis was actuated by malice or not.
   How then does the plaintiff cope with this twofold difficulty? In the Court of Appeal Slade LJ, while conceding (as he must) that it was, on the evidence, open to the judge to find for or against the plaintiff on the issue of Cllr Tyssul Lewis's malice, was dissatisified with the judge's finding against the plaintiff on that issue and accordingly held that, if this were the only relevant issue, he would have been prepared to set aside the judge's finding and order a new trial, although he would not enter judgment for the plaintiff because, if he had adopted a correct approach, the trial judge could still have decided the issue of malice either way. The other members of the court agreed with Slade LJ on this point, to which I will return.
   So far as the attitude of the other councillors was concerned, on the assumption that malice had been, or might at a new trial be, found against Cllr Tyssul Lewis and, for what it was worth, Cllr McDonald-Murray, Slade LJ pointed out that the plaintiff's case was that all the councillors voting for the resolution on 28 June were infected by malice. On this basis, having regarded to the evidence of Cllr Ayres, Aldron and Chilcott, which was accepted by the judge, the plaintiff could not possibly succeed. He would hold the plaintiff to her case as pleaded and presented but he further considered that, even if one were to adopt a flexible approach and only look for proof that 22 councillors (a bare majority) were malicious or infected by malice, the plaintiff still could not succeed in proving her case, having regard to what the trial judge had quite legitimately found. This is where the difference of opinion arose in the Court of Appeal, because the majority regarded the insistence on '28 councillors infected' as a mere pleading point and were also of the further opinion that, once the finding of no malice on the part of Cllr Tyssul Lewis was set aside, there should be a new trial in view of the possibility that he might at that new trial be found guilty of malice and that at least 21 other councillors might be found to have been infected by malice.
   My Lords, I come back to the question of malice on the part of Cllr Tyssul Lewis. Slade LJ professed 'considerable unease' concerning the manner in which the judge dealt with this issue 'for at least four reasons advanced in argument by counsel for the plaintiff'. These are set out in detail (see [1989] 3 All ER 162 at 177-179, [1990] 1 WLR 54 at 73-76), and can be summarised thus: (1) that it was difficult to reconcile the judge's favourable findings as to Cllr Tyssul Lewis's motives with his inability to make a positive finding that the councillor was not motivated by malice; (2) that there were some grounds for supposing that the judge may have misunderstood the essential thrust of the plaintiff's allegation of malice against Cllr Tyssul Lewis and correspondingly did not deal adequately with the question of his motives; (3) (which Slade LJ found to be linked to reason (2)) that the judge had failed to draw from the evidence and from the defendant's omission to call Cllr McDonald-Murray (who had been in court at some stage) an inference of malice against that councillor and had failed to say whether he accepted the evidence of Cllr Leslie Evans; (4) that the judge, when finding that malice had not been746 proved against Cllr Tyssul Lewis, failed to deal explicitly with the evidence of Cllrs Margaret Smith and Meager, since he merely recited it but did not say whether he accepted it or appear to consider its significance.
   My comments on these points are as follows.
   (1) The burden of proof was on the plaintiff and the judge found that it had not been discharged.
   (2) The entire trial was infused with political acrimony and the judgment read as a whole shows that the judge fully appreciated the significance of the political background. That is why he recounted it. His recital of the evidence confirms that he could not have failed to recognise the two-pronged nature of the plaintiff's attack, particularly when so much of what was relied on by the plaintiff happened or was alleged to have happened at meetings of the council. As Slade LJ himself said ([1989] 3 All ER 162 at 177-178, [1990] 1 WLR 54 at 74):

   Slade LJ's misgivings are illustrated by what he said next ([1989] 3 All ER 162 at 178, [1990] 1 WLR 54 at 74-75):

   But, I feel bound to say, the whole atmosphere of the case was that the council had been divided by political animosity and that Mr Jones was seen as not only an abrasive and dislikeable man but an abrasive and dislikeable political opponent. I find it hard to believe that the judge could have overlooked these obvious facts or failed to take account of them and I consider that it is much more probable that he was resolved not to highlight or revive political differences any more than he was obliged to.
   (3) The principle is well established that an inference may, but not must, be drawn when a witness who was available has not been called to contradict unfavourable evidence, but its application varies with the circumstances. Councillor Evans, as the judge put it, 'gave evidence of a conversation he said [sic] he had with a Labour councillor, Cllr McDonald-Murray, at a planning committee meeting'. The judge proceeded:

747

   The first observation which Cllr Evans attributed to Cllr McDonald-Murray was consistent with a strong but sincere determination to prevent something wrong but the last remark, if it was made, would tend to show malice in the shape of an intention to thwart Mr Jones on grounds personal to him. With regard to this alleged incident, the judge later said:

   Slade LJ commented ([1989] 3 All ER 162 at 178, [1990] 1 WLR 54 at 75-76):

   After noting counsel's arguments he continued ([1989] 3 All ER 162 at 179, [1990] 1 WLR 54 at 76):

   This was a fair comment, but the passage quoted above from the judgment of the trial judge seems to me to contain a broad hint that he did not altogether accept Cllr Evans's testimony, in which case the failure to call Cllr McDonald-Murray would be less important. Moreover, the significance of point (3) was at best indirect. As Slade LJ said ([1989] 3 All ER 162 at 179, [1990] 1 WLR 54 at 76):

748

   (4) In his treatment of the evidence of Cllrs Margaret Smith and Meager the judge furnished another example of conclusions stated without the intermediate findings on which they were based. It would have been much more helpful if the judge had been more explicit, but again he seems to have chosen the path of reticence. I concede the aptness of Slade LJ's comment ([1989] 3 All ER 162 at 179, [1990] 1 WLR 54 at 77):

   In fairness to this careful judge, I submit that your Lordships will readily concur in Slade LJ's assessment that the judge must have rejected the evidence that the words relied on were said, or will at least conclude that he must not have found the alleged words proved. The key words in Slade LJ's last sentence are 'so far as his judgment shows'. I would be confident that the judge considered the significance of these councillors' evidence but I agree that his judgment, elliptical here as elsewhere, does not show that he did so.
   Reverting to point (1), the fact that the judge found the accusation of malice 'not proven' shows that he was careful and conscientious and also partly accounts for the greyness of his presentation. Points (2), (3) and (4) do not reveal any misdirections in point of law nor, except with the aid of what I would deem unwarranted speculation, can they in my opinion give rise to any misgivings about the judge's comprehension of the evidence that could justify a new trial of the issue of malice, which, as is conceded, the judge could properly have decided either way.
   My Lords, that conclusion would, for my part, be enough to dispose of the appeal in the council's favour, but I shall now consider the case, as the judge and the Court of Appeal did, on the assumption that malice is proved on the part of Cllr Tyssul Lewis and, for good measure, Cllr McDonald-Murray as well. On this aspect of the case I respectfully and entirely agree with the judgment of Slade LJ.
   According to her case as pleaded, the plaintiff had to show that all the Labour councillors were either motivated or infected by malice. The judge accepted the evidence of Cllrs Ayres, Aldron and Chilcott. Another judge might have taken a different view of the evidence of all or any of these witnesses, but the judge's findings, based on his acceptance of their evidence, cannot be challenged. That, in the opinion of Slade LJ and also in my opinion, is an end of the case, whatever view one takes about Cllr Tyssul Lewis. As was said in Gautret v Egerton (1867) LR 2 CP 371, under our system the plaintiff must recover secundum allegata et probata. There is no other way: this was not a case where the course of the trial would have dictated or justified an amendment of the pleadings to conform with the reality, on the footing that the case as pleaded should be disregarded. The 'bare majority' solution was never propounded by the plaintiff; it only emanated at a late stage from the bench in the Court of Appeal. To require proof of749 unanimity among the 28 Labour councillors is not making a mere pleading point, because at the trial the council refuted the plaintiff's case by calling Cllrs Ayres, Aldron and Chilcott and might well have called another four councillors who, if they had given evidence to the same effect and been believed, would have established the maximum possible number of malicious or infected councillors at a figure below the bare majority of 22.
   Slade LJ, moreover, although he considered that the plaintiff, in order to succeed, would have had to prove that all 28 Labour councillors were motivated or infected by malice, went on to consider the claim on the further assumption that a bare majority (22) of malicious or infected councillors would have been enough. And even on this basis he held, rightly in my view, that the plaintiff could not succeed.
   I respectfully indorse and adopt everything which Slade LJ has said on the attribution of malice (see [1989] 3 All ER 162 at 180-186, [1990] 1 WLR 54 at 77 and 84) and it would be pointless for me to repeat or rephrase that part of his judgment. I would just refer to and comment on three passages.
   He said ([1989] 3 All ER 162 at 183, [1990] 1 WLR 54 at 81):

This extract serves to emphasise not only the strength of the council's position in relation to Cllrs Ayres, Aldron and Chilcott, but also the adverse effect of their evidence, believed by the judge and explicitly accepted by the plaintiff's counsel, on any attempt to prove that even a bare majority of Labour councillors were in the state of mind required by the plaintiff's case.
   Then ([1989] 3 All ER 162 at 185, [1990] 1 WLR 54 at 83-84):

(Slade LJ's emphasis. I think that in this passage the word 'majority' must be taken to mean, not 15 out of 28, but 20 which, if added to the names of Cllrs Tyssul Lewis and McDonald-Murray, would bring the number to 22 out of 43.)
   Finally ([1989] 3 All ER 162 at 185, [1990] 1 WLR 54 at 84):

I entirely agree.
   The majority in the Court of Appeal, as your Lordships will recall, held, agreeing with Slade LJ, (1) that, if the necessary malice had been proved, the plaintiff would have had a good cause of action and (2) that the judge's finding in favour of Cllr Tyssul Lewis could not be sustained but, disagreeing with Slade LJ, they ordered a new trial because (1) they did not consider that the failure to show that all the Labour councillors were infected, proved by the evidence of Cllrs Ayres, Aldron and Chilcott, destroyed the plaintiff's case and (2) they considered that it had been, and on a new trial would be, open to the judge to find not only that Cllr Tyssul Lewis was guilty of malice but also that a majority of the 43 councillors who voted were infected with Cllr Tyssul Lewis's malice, assuming that malice to be proved. It will be convenient to consider first the judgment of Stuart-Smith LJ.
   Stuart-Smith LJ introduced his consideration of the councillors' malice with the following observations ([1989] 3 All ER 162 at 188, [1990] 1 WLR 54 at 87-88):

   Then, noting that the judge had held that one councillor's malice will only taint the actions of fellow councillors if either they know of that malice and acquiesce in it or the councillor who is malicious is in a position to, and does, apply a party whip so that the whole of his party group votes in the way he desires at his direction, he continued ([1989] 3 All ER 162 at 189, [1990] 1 WLR 54 at 88-89):

   Referring to the April council meeting Stuart-Smith LJ said:

   Your Lordships will see that Stuart-Smith LJ has with conspicuous clarity reduced the plaintiff's case to the 'third way' in which it was presented ([1989] 3 All ER 162 at 188, [1990] 1 WLR 54 at 87): Cllr Tyssul Lewis, the plaintiff said, made an 'election pledge' and, under Labour's standing orders or the Labour tradition, all Labour councillors would have been bound to support him at the June meeting, the 'pledge' having the status of a group decision. It is something like this case which the majority in the Court of Appeal seemed to be disposed to accept. This case was not put to Cllrs Ayres, Aldron and Chilcott. Having put it to Cllr Tyssul Lewis, the plaintiff did not ask leave to put it to those other witnesses. I do not accept the implication raised in the judgment that it was for the council to recall them to 'rebut' a case which Cllr Tyssul Lewis had rejected and as to which the burden lay on the plaintiff (see [1989] 3 All ER 162 at 192, [1990] 1 WLR 54 at 92). Furthermore, as Stuart-Smith LJ noted (see [1989] 3 All ER 162 at 189-190, [1990] 1 WLR 54 at 89-90), the standing orders were not in force and in any case no group decision had been made. The highly coloured description 'election pledge' was in my view calculated to confer on Cllr Tyssul Lewis's forceful statement a binding effect on his fellow councillors which it did not possess.
   It has already been conceded on both sides that it was open to the judge to find either way on the question of Cllr Tyssul Lewis's alleged malice. It is therefore difficult to infer that the other Labour councillors knew that he was malicious, especially since there existed grounds for genuinely holding and supporting the view which he expressed and which the Ratepayer controlled council had adopted on 29 March. When one also takes into account the evidence of Cllrs Ayres, Aldron and Chilcott, there is in my opinion no room for anything more than speculation that a majority of councillors voted 'as directed' without using their own judgment. Moreover (depending on the view which your Lordships take of the pleading point) the plaintiff had to prove either that all the Labour councillors or that at least 22 of them failed to exercise their own judgment and vote in good faith on the merits.
   After referring to R v Waltham Forest London BC, ex p Baxter [1987] 3 All ER 671, [1988] QB 419, Stuart-Smith LJ continued ([1989] 3 All ER 162 at 191, [1990] 1 WLR 54 at 91):

As to the 'wholly unfounded suggestion', the clerk's note of the 26 April council meeting, which was accepted by Cllr Tyssul Lewis, recorded him as follows:

   I have already drawn attention to the judge's refusal to accept Cllr Tyssul Lewis's denial that he was out to get a good press for his own party and a bad press for the Ratepayers group. But no one has suggested that what Cllr Tyssul Lewis said at the meeting was something from which malice against the plaintiff and Mr Jones must be inferred. If his feelings were genuine (always remembering that the same council had turned down the proposal in March), he could have wished to get the Ratepayers group a bad press and the fact that the judge did not accept his denial does not amount to a finding of malice or an inference that other Labour councillors knew that he was activated by malice.
   In the passage I have cited Stuart-Smith LJ said: 'It seems to me to stretch one's credulity to an unacceptable extent to suppose that all the Labour councillors voted as they did because they accepted the validity of the objections.' No doubt, but, taking her case at its lowest, the plaintiff had to prove that at least 21 councillors in addition to Cllr Tyssul Lewis voted for unacceptable reasons. Stuart-Smith LJ then goes further and by implication casts doubt on the genuineness of the vote by criticising the two essential objections to the proposal. Witnesses called for the plaintiff had already agreed that it was possible to object on genuine grounds and it has also been conceded that the objections raised were not so innately unreasonable as to be evidence of malice. I respectfully disagree with Stuart-Smith LJ's comment on the second objection, the thrust of which was that a single tenderer (who was for good measure married to a councillor) was obtaining an unfair advantage over persons who might have tendered for the lease if the new proposed use had been advertised in the first place. A higher rent would not have remedied that apparent injustice.
   Immediately after the passage in his judgment on which I have been commenting, Stuart-Smith LJ said:

   As to the opening sentence, for the reasons I have given, I respectfully consider the inference to be unwarranted. But this question becomes academic when one considers the adverse affect, not only on the plaintiff's case as presented but on the 'majority voting' case suggested by the Court of Appeal, of the judge's acceptance of the Ayres-Aldron-Chilcott evidence. Having referred to that evidence, Stuart-Smith LJ said: 'But I do not754 think the fact that these three had proper and valid reasons for voting as they did necessarily rebuts the inference that the others did not.' I must observe that the 'proper and valid reasons' motivating the three councillors were not peculiar to them but could have influenced any of the councillors. There was on the evidence no inference to be rebutted that all the other councillors, or even 22 of them, had voted for improper and invalid reasons.
   Stuart-Smith LJ proceeded to deal with the pleading point by which, he confessed, he had been troubled, but concluded that the plaintiff did not have to prove that all the Labour councillors had been infected with malice. I have already given my reasons for taking a different view.
   I come to the last decisive passage in the judgment ([1989] 3 All ER 162 at 192, [1990] 1 WLR 54 at 92):

   I agree that, if the judge had found malice against Cllr Tyssul Lewis and perhaps Cllr McDonald-Murray, he might have found that some other Labour councillors were infected, but the judge himself denied this proposition by considering the case on the assumption that Cllrs Tyssul Lewis and McDonald-Murray were activated by malice. To reach a conclusion founded on an alternative assumption is a common and useful feature of civil trial by a judge without a jury and only exceptional circumstances will justify an appellate court in refusing to accept supportable conclusions pronounced by a judge on such a basis. The proposition that one ought to accept the judge's conclusions as to the alleged malice of the remaining councillors is in the present case strengthened by reference to the conclusions which he reached with regard to the evidence of Cllrs Ayres, Aldron and Chilcott; the latter conclusions appear very unlikely to have been different, even if the judge had found malice proved against the two leaders. Finally, the reference by Stuart-Smith to the other 26 councillors who voted prompts me to say that the council was under no duty to establish how many councillors were not infected by Cllr Tyssul Lewis's (assumed) malice.
   Nourse LJ agreed with Stuart-Smith LJ, observing that Cllrs Ayres, Aldron and Chilcott were all found to have voted from motives which entirely acquitted them of malice towards the plaintiff, whether direct or by affection. He then said ([1989] 3 All ER 162 at 187, [1990] 1 WLR 54 at 86):

755

I agree, but this ought not to help the plaintiff. What those three witnesses proved, which did affect the position of the other councillors, was that the witnesses were not instructed or asked to vote in a particular manner and that there was no party whip in operation at the council meeting on 28 June 1979 or at any of the earlier meetings. Moreover, there was no group decision at the meeting of the Labour Party group before the June council meeting.
   Nourse LJ took the view that to deny that it was open to the judge 'to infer that the other 24 members of the council who voted for the resolution did so out of an informal allegiance to Cllr Tyssul Lewis and his well publicised election pledge' would be 'to disregard the realities of decision-taking by councillors in local government' (see [1989] 3 All ER 162 at 187, [1990] 1 WLR 54 at 86). Again, with respect, this observation appears to replace the judge's conclusion on the evidence by a subjective assessment. The fact that the Labour councillors voted on party lines at the June council meeting did not justify the conclusion that they were infected by the (assumed) malice of Cllr Tyssul Lewis; where a good case (as it seemed to Cllr Ayres, Aldron and Chilcott) had been made by a respected leader for reverting to a decision originally reached at the March meeting and later abandoned, it could be regarded as normal to vote the same way.
   My Lords, I have felt bound to note and comment on a number of individual points which were made by the members of the Court of Appeal. It may therefore be useful to sum up my view. (1) It is agreed that it was open to the judge to find for or against the charge of malice brought against Cllr Tyssul Lewis. To prove that charge was the essential basis of the plaintiff's case. For the reasons I have given, the plaintiff's criticisms of the judgment lack the strength and validity to justify setting it aside on this point. (2) If, contrary to my own view but consistently with that of Slade LJ, I assume that the judgment on Cllr Tyssul Lewis's malice is fit to be set aside, I would still refuse to order a new trial, because the plaintiff's case as pleaded, presented and argued in both courts below was that all the Labour councillors who voted for the June resolution were (at the least) infected by their leader's malice. That case failed, and indeed was disproved. It would be wrong now to give the plaintiff a further opportunity, which was open to her at the trial, of making a new case based on the submission that a majority of the council, in voting for the June resolution, were infected by Cllr Tyssul Lewis's malice (if any). (3) No one suggests that judgment could now be given for the plaintiff and, even if both of the points made above were wrong, I would still refuse a new trial, because the evidence of Cllrs Ayres, Aldron and Chilcott, accepted by the judge, disposed not only of the plaintiff's case as presented but also of the alternative case which was proffered to her by the Court of Appeal. It would have been entirely inconsistent for the judge to accede to that case while accepting the evidence of the three councillor witnesses.
   Accordingly, for the reasons I have given, I would allow the council's appeal and restore the judgment and order of the trial judge.

Solicitors: Sharpe Pritchard agents for A K B Boatswain, Swansea (for the council); Allan Jay & Co agents for Robertsons, Cardiff (for the plaintiff).

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