Taxi Driver Online

Darlington. An unincorporated association has no independent existence in law.
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The Times

January 21, 1994, Friday

HEADLINE: Capacity distinguished from sufficient interest

Regina v Darlington Borough Council, Ex parte Association of Darlington Taxi Owners and Another

Before Mr Justice Auld

(Judgment January 12)

Capacity to apply for judicial review preceded and was distinct from the issue of locus standi and was a question for dispositive decision at the leave or setting aside leave stage.

Mr Justice Auld so held in a reserved judgment in the Queen's Bench Division in finding that an "unincorporated association" did not have the capacity to apply for judicial review.

His Lordship set aside leave granted by Mr Justice Schiemann on an ex parte application by the Association of Darlington Taxi Owners and the Darlington Owner Drivers Association to apply for judicial review of decisions of Darlington Borough Council, inter alia, to limit its concessionary fares scheme to wheelchair accessible vehicles and to remove any limit on the number of hackney carriages licensed to operate within its area.

Mr Charles Bear for the associations; Mr Michael Beloff, QC and Mr Neil Calver for the council.

MR JUSTICE AULD said that the council applied for the leave to challenge its decisions to be set aside on the ground that the associations were not legal persons and thus that the proceedings were not properly constituted.

Both associations were unincorporated. Mr Beloff submitted that, therefore, they could not apply for judicial review.

Mr Bear maintained that capacity was a private law concept and that the true question in proceedings for judicial review was whether the applicant had locus standi or a sufficient interest in the matter to which the application related as required by Order 53, rule 3(7) of the Rules of the Supreme Court. That question, he submitted, was not appropriate for decision at the leave stage.

His Lordship said that the general rule was that, subject to certain well recognised exceptions of which this was not one, unincorporated associations could not sue or be sued in their own name. The researches of counsel had not identified any cases in which the court had held that an unincorporated association was capable of applying for judicial review.

The question of capacity was one for dispositive decision at the leave or setting aside leave stage, not one on which the court should merely consider whether it was sufficiently arguable to grant or not to disturb the grant of leave, as the case might be. It preceded and was quite distinct from the issue of locus standi or sufficient interest.

It was not therefore affected by the guidance in R v IRC, Ex parte National Federation of Self-Employed and Small Businesses Ltd ((1982) AC 617) that, save in the simplest cases, that threshold question should be reserved to the substantive hearing where it could be considered in the legal and factual context of the issues raised by the application.

Sufficiency of interest might well depend upon the factual and legal context of the case. Capacity did not. In law, subject to certain exceptions, none of which applied here, an unincorporated association was not a person capable of instituting proceedings whatever the factual context and legal issues.

Capacity, like locus, was a jurisdictional matter but capacity was a matter of substantive law; locus was a procedural rule introduced in its present form by Order 53, rule 3(7). Capacity was not affected by the qualification of sufficiency of interest set out in that rule for which the term ''locus'' was merely shorthand: see National Federation of Self-Employed (at p647). Capacity was not just a private law or contractual concept.

The question whether an initiator of proceedings was a person recognised by the law was likely to be of considerable importance on, for example, the matter of costs or, as here, the requirement of a cross-undertaking as to damages.

The remote prospect of the court in the proper exercise of its discretion looking to individual members of an unincorporated association to pay costs in the event of failure of the association's litigation, or the possibility in some cases of seeking security in advance from those members, could not sensibly be an argument for ignoring the association's legal incapacity to institute proceedings.

Solicitors: Freeman Johnson, Darlington; Mr Peter Kearsley, Darlington.
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