Beyond O'Reilly V. Mackman: The Foundations and Nature of Procedural Exclusivity

Editorial Committee of the Cambridge Law Journal

Beyond O'Reilly V. Mackman: The Foundations and Nature of Procedural ExclusivityAuthor(s): C. F. ForsythSource: The Cambridge Law Journal, Vol. 44, No. 3 (Nov., 1985), pp. 415-434Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506784 .

Accessed: 12/06/2014 23:27

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 195.34.79.223 on Thu, 12 Jun 2014 23:27:49 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=cup

http://www.jstor.org/action/showPublisher?publisherCode=ecclj

http://www.jstor.org/action/showPublisher?publisherCode=ecclj

http://www.jstor.org/stable/4506784?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


Counbridge lsw Journal, 3), Novcrnber 1985, pp. 415434 Prinsed in Grst Britn

BEYOND OREILLYV. MACKMAN: THE FOUNDATIONS AND NATURE OF

PROCEDURAL EXCLUSIVITY

C. F. FORSTrH *

The position of applicants for judicial review has been drastically ameLiorated by the new Order 53. It has removed all those disadvantages, particularly in relation to discovery, that were manifestly unfair to them and had, in many cases, made applications for prerogative orders an inadequate remedy if justice was to be done . . . Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of nghts under private law if such infnngements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.

(per Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237 at 285)

I. INTRODUCrION

O'Reilly v. Mackman' has had a profound effect on administrative law. It introduced or, perhaps, resuscitated a distinction between public and private law in the procedural field. Since O'ReiZly v. Macktnan, someone aggrieved by the action of a pub:lic authority has had first to ask whether the disputed right was a right entitled to protection under public law (in which case relief should be sought by means of an application for judicial review in terms of Order 53) or whether it was a private law right (properly enforced by way of an ordinary action). The wrong answer to this question can be, and has been, fatal to the outcome of litigation.

The creation in this way of a trap for the unwary litigant has been

I am grateful to Dr Y. hl. Cripps for her helpful comments on an earlicr draft of this article. t {19831 2 A.C. 237. See H. W. R. Wade, (1983) 99 L.Q.R. 199; A. Grubb, 119831 Public Law 190

and P. Cane, 119831 Public Law 202 for accounts of the casc.

415



[1985] 416 The Cambridge Law Journal

much criticised.2 For "a complainant, whether against a public authority or not," says Professor Jolowicz,3 "to find his complaint dismissed without an investigation of its merits, not on the ground that it is without substance . . . not even on the ground that he lacks locus standi, but purely and simply because he selected the wrong form of action is a singularly unfortunate step back to the technicalities of a bygone age." Quite apart from this, the decision wrested the law of judicial reviesv away from its proper concern with the legal merits of the decisions of public authorities and thrust the emphasis on to technical questions about the procedure to be adopted in seeking particular remedies. But little interest has been expressed in the juridical basis of the principle introduced by O'Reilly v. Mackman; and it is the purpose of this article to do that. We may call the principle that a litigant may on occasion be restricted to the use of only one of the two potentially applicable procedures, the principle of procedural exclusivity. Once the juridical basis of procedural exclusivity is examined it becomes clear that it has two separate albeit related, bases. Sometimes a procedure will be denied to a litigant on the ground that it would be an abuse of the process of the court to allow him to proceed7 while on other occasions procedural exclusivity will be based upon the terms of section 31(2) of the Supreme Court Act 1981. This theme will be expanded shortly; for the present it is sufficient to note that if there are two separate bases of procedural exclusivity there is no reason why they should necessarily operate together coherently. In particular, the concept of "public law" which, as we have seen, triggered the operation of procedural exclusivity in O'Reilly v. Mackman may not have a consistent meaning irrespective of which basis of procedural exclusivity is operative.

Before going more deeply into these questions, however, a fuller exposition of the problem tackled by the House of Lords in O'Reilly v. Mackman is appropriate. As is well known, for many years the prerogative writs (later prerogative orders) were not adequate to control the administration. They had numerous deficiencies4 of whlch the most prominent was, perhaps, that discovery was not available in applications for prerogative relief. Thus a case which depended upon discovery of some crucial document would surely fail if the aggrieved litigant was limited to prerogative relief. In order to overcome this and other deficiencies, litigants began in the 1950s to seek either a declaration or an injunction in an ordinary action in circumstances in

2 See ]. A. Jolowicz, 11983] C.L.J. 15 and H. W. R. Wade, (1985) 101 L.Q.R. 180. 3 Jolowicz, Op. Cit., 18- 4 Grubb, Op. Cit., 195 sets these out. Cross-examination of deponents on their affidavits was difficult, and prerogative and non-prerogative relief were not available in the alternative.



C.L.J. Beyond O'Reilly v. Mackman 417

which, were it not for the deficiencies, prerogative relief would

normally have been applied for. The courts encouraged this

development. As Lord Denning said in Barnard v. National Dock

Labour Board,5 the court had power to intervene in the decisions of

statutory tribunals "not only by certiorari, but also by way of

declaration. . . . The remedy by certiorari is hedged round by limitations and may not be available. Why then should not the court

intervene by declaration and injunction? . . . The authorities show

clearly that the courts can intervene." Thus it was that the

renaissance of English administrative law during the 1960s and 1970s

was accompanied by an increasing reliance upon the remedies of

declaration and injunction (sought by way of an action commenced

by writ or originating summons) rather than the prerogative orders

(sought by way of an application under the unreformed Order 53).6 In 1977, however, Order 53 was reformed and these reforms were

confirmed by section 31 of the Supreme Court Act 1981.7 The

essence of these reforms was that they stripped away many of the

procedural disadvantages of the old style prerogative relief; provision was made for discovery and the various remedies (prerogative and

non-prerogative (including damages)) would all be available in the

alternative.8 Other provisions of Order 53 and section 31, however, tended to protect the public authorities whose decisions were being challenged. The leave of the High Court had first to be obtained before an application for judicial review could be made;9 and

applications for judicial review had to be launched within a relatively short time period (three months from the date when grounds for the

application first arose).10 Now the problem that concerned the House of Lords in O'Reilly

v. Mackman is clear. There was no longer any reason why a litigant against a public authority need seek a remedy by way of an ordinary action; he could obtain any remedy he might need in an application under Order 53 and in so doing he would not be procedurally disadvantaged. But a litigant who had fallen foul ofthe Order 53 time limits or who wished to evade the requirement of leave could simply issue a writ and commence an ordinary action seeking a declaration

[1953] 2 Q.B. 18 at 41. The House of Lords confirmed the availability of a declaration in such circumstances in Vine v. National Dock Labour Board [1957] A.C. 488. * Both Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147 and Ridge v. Baldwin [1964] A.C. 40 were cases in which declarations were used in this way. The new Order 53 was made (S.l. 1977 No. 1955) after the publication of Law Commission Report No. 73, Cmnd. 6407 (1976). Some amendments were introduced by S. 1. 1980 No. 2000, and to still any doubts about vires parts of Order 53 were enacted by section 31 of the Supreme Court Act 1981. i Order 53, rule 2, rule 8. ' S. 31(3); Order 53, rule 3. Although Order 53, rule 4 imposes a usual time limit of 3 months, s. 31(6) simply says that the court may refuse relief where there has been "undue delay."



418 The Cambridge Law Journal

1l98s]

or injunction. By so doing that litigant did not infringe any rule of court. But was he, by choosing to commence an action when he could have applied for judicial review under Order 53, simply exercising a legitimate choice,1l or was he improperly evading the safeguards of leave and the time limits, so that the court was justified in intervening to prevent him doing so? It was clear that the House of Lords in O'Reilly v. Mackman laid down that such a choice was, in general, illegitimate. Where rights ;'entitled to protection under public law" were in issue, an application for judicial review under Order 53 was the only course open to a litigant. Sir William Wade,l2 in his most recent thought- provoking contribution to the discussion of O'Reilly v. Mackman, has argued that the introduction of procedural exclusivity was "inevitable" because the reform of Order 53 was insufficiently radical: that reform "had failed to remove the illogicalities inherent in the dual system of remedies, so that the force of Lord Denning's and Lord Diplock's arguments lin O'Reilly v. Mackman] was irresistible." Had the Law Commission followed Sir William's recommendation that "the prerogative remedies should be brought within the scope of the ordinary action''l3 all the O'Reilly v. Mackman brouhaha could have been avoided. This is doubtless so, but there seems to me no reason to suppose that the introduction of procedural exclusivity was "inevitable." After all, as Sir William himself says, the arguments in favour of exclusivity i'were equally valid during the previous thirty years when the courts were actively encouraging the use of the selfsame remedy" they were now denying to litigants save in an application under Order 53. The reform of Order 53 certainly strengthened the arguments for exclusivity, but if the illogicality of the dual system could be tolerated for thirty years, could it not be tolerated a little longer? When the disadvantages and uncertainty of the post-O'Reilly v. Mackman law is weighed in the balance against the illogicality of the dual system, it is submitted that the arguments in favour of purging that illogicality by the introduction of exclusivity are resistible, although not resisted by the House of Lords. Moreover, even if it was inevitable that the courts would at some stage have to face the illogicality of the dual system, it is far from clear that that problem had to be resolved by the introduction of concepts such as 'public law" and "private law' to indicate which of the two procedures was the correct form of action.

" Certainly the Law Commission Report No. 73, supra, advised against an exclusive procedure, and Peter Pain J. in O^Reilly v. Mackman at first instance said that the "law offers the plaintiff a choice." Lord Denning M.R. in De Falco v. Crawley Borough Council [1980] Q.B. 460 at 476 was of the same opinion. 12 H. W. R. Wade, (1985) lf)l L.Q.R. 180. 13 Wade (1985) 101 L.Q.R. 180, 184.




It is, of course, the difficulties with the public law/private law

distinction that lie at the root of the criticism of O'Reilly v. Mackman.

If that distinction was clear, easy to apply and led to just results much

of the criticism of exclusivity would vanish. It is true that the courts

have stressed that the principle is flexible and that it is subject to

exceptions and that these will be worked out on a case to case basis.14

Some might suggest that because of this flexibility too much fuss is

being made about O'Reilly v. Mackman: the courts will ensure that

the principle of exclusivity will not operate oppressively. The concept of public law is no more than a useful category serving simply

pragmatic purposes. But this is not so. As Sir William remarks "in

enforcing the new dichotomy the House of Lords are using the terms

private law and public law for far more than descriptive purposes, and without any sign of caution. In case after case they are used as a

judiciai scalpel to dissect the complaint and determine the result."15

But if the judiciai motivation for introducing exclusivity is clear

(although criticised) it is less obvious what the vehicle for that

introduction was to be. Lord Diplock settled upon the court's

inherent jurisdiction to control abuse of its process; he argued that a

litigant who commenced an action by writ, in circumstances in which

he could have applied for judiciai review, was acting contrary to

public policy and as such was abusing the process of the court. We

can now turn to consider whether this was a proper exercise of the

court's power to control abuse of its process.

II. The Court's Inherent Jurisdiction to Control Abuse of its

Process

There is no previous case16 in which the court has exercised its

inherent jurisdiction in a manner analogous to O'Reilly v. Mackman. But this in no way suggests that the power was improperly exercised. On the contrary, as Sir Jack Jacob17 has said, "the inherent

jurisdiction of the court may be invoked in an apparently inexhaus-

14 Lord Diplock in O'Reilly v. Mackman said that "it would not be wise to use this as an occasion to lay down categories of cases in which it would necessarily always be an abuse to seek in an action . . . a remedy against infringement of rights . . . that are entitled to protection in public law" (at 285). See also Lord Wilberforce in Davy v. Spelthorne Borough Council [1984] A.C. 262 at 277.

15 Wade (1985) 101 L.Q.R. 180,188. Davy v. Spelthorne Borough Council (1983) 81 L.G.R. 581 in the Court of Appeal is a good example of the judiciai scalpel being used to tease the strands of an action apart and to determine the result of each part by referenee to the court's concept of public law.

16 Except, perhaps, Heywood v. Hull Prison Visitors [1980] 1 W.L.R. 1386, which set the stage for O'Reilly v. Mackman. The review of the court's inherent jurisdiction to control abuse of process in The Supreme Court Practice, Vol 1, (1985), General Editor Sir Jack Jacob ("The White Book") contains little authority that could support the principle in O'Reilly v. Mackman. Neither does K. Mason, "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449 nor J. L. Taitz, The Inherent Jursidiction of the Supreme Court (1985) at 56-62. 17 J. H. Jacob, "The Inherent Jursidiction of the Court" (1970) 23 Current Legal Problems 23.



420 The Cambridge Law Journal [1985]

tible variety of circumstances and may be exercised in different ways.

This peculiar concept is indeed so amorphous and ubiquitous and so

pervasive in its operation that it seems to defy the challenge to

determine its quality and to establish its limits."

There must, however, obviously be some limits to the inherent

jurisdiction of the court to control abuse of its process. One limitation

in its mode of use is well established: the court exercises this

jurisdiction only rarely and in clear cases. As Lord Hershell said in

Lawrence v. Lord Norreys,'8 the inherent jurisdiction to control

abuse of process "is a jurisdiction which ought to be very sparingly

exercised." And more recently in Hunter v. Chief Constable of the

West Midlands Policel9 Lord Diplock himself said that the inherent

power to control abuse of process was "the power which any court of

justice must have to prevent misuse of its procedure in a way which,

although not inconsistent with the literal application of its procedural

rules, would nevertheless be manifestly unfair to a party to litigation

before it, or would otherwise bring the administration of justice into

disrepute among right-thinking people." The reason for this reluct-

ance to exercise the jurisdiction is the simple one that dismissal of an

action as an abuse of process is a summary process and necessarily

implies that the litigant is denied a trial.20 The court, quite properly,

does not wish to slam the courthouse door in a litigant's face before

his case has been heard and determined.

Today the principle of O'Reilly v. Mackman is applied in many of

the administrative law cases which come before the courts. It follows

either that abuse of process is rife in the field of administrative law or,

more plausibly, that in O'Reilly v. Mackman the traditional

reluctance to exercise this jurisdiction has been abandoned. Indeed,

adopting Lord Oiplock's words, it would surely not be manifestly

unfair if the action was allowed to proceed. lt is submitted from this

that the abuse of process jurisdiction was exercised in an entirely

novel manner in O'ReilZy v. Mackman.

But there is a further relevant limitation to the abuse of process

jurisdiction. Such powers, said the New South Wales Supreme Court

in Riley McKay (Pty) Ltd v McKay2' "are recognized and exercised

because they are necessary for the administration of justice [and]

could not exceed what is necessary for the administration of

justice. . ." The court, in other words, enjoys its inherent powers in

order to do justice in the case before it.22 Was the exercise of the

iN (1980) 15 App.Cas. 21V at 219; for a more modern examplc see Wenlock v. Malonev 11965J I

W.L.R 1238 19 11982J A C. 529 at 536 (italics added).

3' Jacob, op. cit., 2S31; Taltz, Op. Cit., 17.

21 (1982) 1 N.S.W.L.R. 264 at 270. 22 aCOb, Op. Cit., 27, 44.



C.L.J . Beyond O'Reilly v. Mackman 421

abuse of process jurisd}ction in O'Reilly v. Mackman necessary for the administration of justice in that case? It seems not. Lord Diplock7 as we have seen was much influenced by the public policy of preventing evasion of those portions of Order 53 designed to protect public authorities. Now such a public policy, whatever its merits- and, it is submitted, these should be addressed in other fora23-seems not to be "necessary for administration of justice' nor, it seems to me did the doing of justice in O'Reilly v. Mackman call for the extension of a procedural privilege to public authorities? still less for the introduction of the public law/private law distinction. Once more the conclusion is that the use of the abuse process jurisdiction in O'Reilly v. Mackman was novel and not justified by past practice nor by the legal principles underlying that jurisdiction.

Whatever the merits of these criticisms until such time as the House of Lords reassesses the prlnciple of O'Reifly v. Mackman it has to be accepted that the abuse of process jurisdiction can be used in this way to introduce a distinctiorl between public and private law We shall shortJy be considering the way in which the courts since O2Reilly v. Mackman have been delineating that distinction; but first we must consider the other juristic basis that has been used to introduce a measure of procedural exclusivity.

III. THE 'OBVERSE 24 OF O REILLYV MACKMAN: SE(2TION 31(2) OF THE SUPREh4E COIJRT ACr 1981 AND XTS CONSEQUENCES

O'Reilly v. Mackman laid down that it would generally be an abuse of process to seek to protect a right entitled to protection at public law by action; instead an application for judicial review under Order 53 should be made. The question now arises whether a similar principle applies when a remedy is sought by way of an application under Order 53 when-because7 perhaps the right in questin is entitled to protection at private law-relief ought to have been sought by way of an ordinary action

The cases m<ke clear that there are occasions on which applications for judicial review can not be made and that litigants must then seek relief by way of action. After allS it would surely be odd for a person seeking an injunction against his neighbour (who may or may not be a public authority) to abate a nuisance to be able to proceed by way of an application for judicial review. The

23 As Jolowicz says t 19831 C. L.J . 15, 18: "It m3y be right . . . that public authorities should receive especially favourable tle£tment by thc law + . To the extent that this is sc), howewer. the prolection should be attitched by legislation . . . creating special categories; of defendant, not by creating a special and exclusive form of action for usc against thcm.'

24 So described by Sir Jvhn Donaldson M.R. in R. v. Easf Berkshzre HeaZlh Authority, ex parte Watsh ll984J 3 W.L.R 818 al 822.



The Cambridge Law Journal [1985] 422

interesting question is: what is the juristic basis for the procedural exclusivity that denies access to judicial review under Order 53?

Given the novel and rather cavalier use of the abuse of process jurisdiction in O'ReiZly v. Mackman, it is possible it could be held to be an abuse of process to seek private law relief by way of an application for judicial review.25 But this has not proved necessary;26 the legislature has anticipated the difficulty and has delineated the scope of judicial review in section 31(2) of the Supreme Court Act 1981. It provides as follows:

A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the Hagh Court considers that, having regard t

(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by such orders; and

(c) all the circumstances of the case; it would be just and conveniene for the declaration to be made or the injunction to be granted, as the case may be.

This sub-section makes it clear that in an application for judicial review the court does not have a free hand in the making of declarations and the granting of injunctions: the court must have "regard to" the various matters specifiedssentially the scope of prerogative relief as well as "all the circumstances of the case." Thus here we have a relatively closely defined statutory discretion being used to determine when a declaration or an injunction will be available under Order 53. Although this discretion does not confine the court very tightly, it falls far short of allowing the court to grant injunctions or make declarations in an application for judicial review whenever it sees fit. As we shall see, the courts have had close "regard to" the scope of prerogative relief in the exercise of their discretion under section 31(2) and have, it is submitted correctly, not used "all the circumstances of the case" as allowing them carte blanche in the exercise of their discretion.

Now from this it is clear that when a litigant is denied judicial review under Order 53 and forced to proceed by way of action this is done because his case falls outside section 31(2).27 When, on the

2s Although a matter may be regulated by statute, that seldom prevents tite inherent jurisdiction dealing with thc samc matter: Mason, op. cit., 457

2h Except in R v. East Berkshire Health Aulhority, ex parre Walsh, supra, but even here Sir John Dc)naldson M.R. said: "the remcdy of judicial review is. . . wholly inappropriate and the continuance of lhe application. . . would involve a misuse-the tcrm abuse' has offensive overtones of the procedure of the court under R.S.C. Ord 53." See further below, n.27.

27 The scopc of seclion 31(2) may come before the court in a variety of ways An applicanl may be refused leave to apply for judicial review if the case falls outside section 31(2); alternatively the




other hand, a litigant is forced to proceed by way of an application for judicial review, this is done because the public policy of protecting public authorities, operating through the abuse of process jllrisdic- tion, so determines.

Recognition that there are these two different jlaristic bases to procedural exclusivity has a number of important consequences. First of all, there is no reason why exclusivity based upon abuse of process should necessarily be congruent with exclusivity based upon section 31(2), i.e. if relief can be sought by action then that does not necessarily imply that judicial review is not available, and vice versa. On the contrary, there is every reason to suppose that they are not congruent. Abuse of process exclusivity is delineated primarily by the policy of protecting public authorities; section 31(2) exclusivity is delineated primarily by the scope of prerogative relief. There is no reason why these two diverse principles should mesh together neatly. This does not mean that the two principles are quite unrelated. Unless a matter fsllls outside section 31(2), it will surely not be an O Reilly v. Macknzan-style abuse of process to seek relief by way of action. The point is that if there is no congruence between these two bases of exclusivity, there may be cases in which although they fall within section 31(2), it is not an abuse of process to seek relief by action (or other means). Falling within section 31(2), therefore, is a necessary but not a sufficient condition for an action commenced by writ to be an abuse of process.

Secondly, the utility of the public law/private law distlnction introduced by O'Reilly v. Mackman must be called into question. Does the distinction, perhaps, operate only in the field of abuse of process exclusivity, or is some concept of public law also relevant in section 31(2) exclusivity? lf so, is it the same or a similar concept? The concept is by no means well-defined in O'Reilly v. Mackman, but public law can hardly survive as a coherent concept if its meaning is not consistent.

IV. THE PUBLIC LAW/PRIVATE LAW [)ISlINCmON IN THE COURTS

(i) Does the availability of the prerogative orders mark the boundary between public and private law?

Given the absence of a clear definition of public law, it is not

court may, as in R v. Britesh Broadcasting Corporation, ex parte Lavelle 119831 1 W.L.R. 23. be asked to exercise its; powers under Order 53, rule 9(5) to allow thc proceedings to continuc as if begun by writ (see te.xt at note 49) if it thinks that rclief should not be grantcd in an application for judicial review. Esen if, as in ex parte Walsts, supra. the question is laised in Ihc context of abuse of process the crucial question will always be: is this matter within section 31(2); rather than: is this action contrary to public policy (as in O'Reilly v. Mackman-style abuse of process).




surprising that judges would find the availability of prerogative relief a readymade and convenient tool for distinguishing between public and private law. If prerogative relief was available, the case would be one of public law and an injunction or declaration could only be

sought by way of an application for judicial review. Moreover, section 31(2) could be interpreted as closing the door to non-

prerogative relief unless prerogative relief was available in the

alternative. This idea has appeared before the House of Lords at least

twice, most recently in Lord Wilberforce's separate concurring speech in Davy v. Spelthorne Borough Council.28 There he cited with

approval Lord Scarman's remark in I.R.C. v. National Federation of the Self Employed and Small Businesses29 that a declaration or

injunction "may be granted [under Order 53] only in circumstanees in

which one or other of the prerogative orders can issue." Both these

dicta concerned Order 53 prior to the enactment of section 31 of the

Supreme Court Act 1981 (which now governs the question); so the

way is still open for the House of Lords to decide that section 31(2) should be interpreted as allowing non-prerogative relief to be granted in an application for judicial review even if prerogative relief could not be granted in the alternative.

Whether such an interpretation should be applied to section 31(2) was the crucial issue before the Court of Appeal in Law v. National

Greyhound Racing Club Ltd.30 There plaintiff sought a declaration

by way of action that the defendant's suspension of his greyhound racing licence was ultra vires and void. Prerogative relief was plainly not available, since the defendant's power to suspend licences was derived from contract and, moreover, the defendant was a company limited by guarantee and not established by statute or under the

prerogative. Nonetheless, defendant in reliance upon the principle of

O'Reilly v. Mackman sought to have the plaintiffs claim struck out for want of jurisdiction on the ground that the plaintiff ought to have

brought his claim by way of an application for judicial review under Order 53 and section 31. Defendant argued that section 31 had

"given the court jurisdiction to entertain judicial review of the

proceedings of a domestic tribunal if . . . those proceedings were

likely to have consequences affecting the public generally," In other

words, defendant argued for a functional interpretation to be placed upon section 31(2): if the function of the body whose decision was

challenged "affected the public generally" it fell within the scope of the discretion granted to the court by that sub-section, and a declaration or an injunction could be sought in such circumstanees in

[1984] A.C. 262. [1982J A.C. 617. [19831 1 W.L.R. 1302.



C.L.J. Beyond O'Reilly v Mackman 425

an application for judicial review even if prerogative relief was plainly not available.

This argument *vas rejected by the Court of Appeal. Lawton L.J. held that section 31 did not "purport to enlarge the jurisdiction of the court sc) as to enable it to review the decisions of domestic tribunals" and did not do so. On the contrary, "having regard to . . . the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari" as enjoined by section 31(2Fthe plaintiff could not proceed by way of an application for judicial review. Fox L.J. in his separate concurring judgment drew the link between prerogative relief and the availability of a declaration or injunction in an application for judicial review even more clearly. He said: "it seems to me that the power *lnder Order 53 to grant an injunction or make a declaration is only exercisable in cases where, previously to the change in the rules, the applicant could have obtained a prerogative order...."

Notwithstanding all this, it is possible that Law can be read3l as not closing the cloor entirely to non-prerogative relief in an application for j udicial review when prerogative relief is not available. This is because both Lawton and Fox L.JJ. approved, en passant a dictum of Woolf J. in R. v. British Broadcasting Corporation, ex pwrte Lavelle.32 There the learned judge had said: "Order S3 does not strictly confine applications for judicial review to cases where an order for mandamus, prohibition or certiorari could be granted. It merely requires that the court should have regard to the nat:ure of the matter in respect of which such relief may be granted." This is doubtless correct; but the interesting question is how closely judges will '4have regard to" the availability of prerogative relief in exercising their discretion under section 31(2). Law v. National Greyhoand Racing Club Ltd suggests that relatively close regard will be paid to prerogative relief. There i<; little sign that the court wished to seize upon the public function of lhe Greyhound Racing Club as a "circumstance of the case" justifying an expansive approach to its discretion under section 31(2). A different view was taken by Hodgson J. in R. v. Bromley London Borough Council, ex parte Lambeth London Borough Council.33 Here the court was asked to grant a declaration under Order 53 that payment by a local authority of a subscription to the Association of London Authorities (with amended constitution) would not be unlawful under section 143 of the Local Government Act 1972. The respondent council challenged the court's jurisdiction to make a declaration in these

31 SCC A. Grubb, 119841 C.L.J. 16 al 1S17 and Y. M. Cripps. 119831 (.L.J. 080. 32 lls83] I W.L.R. 1302. 33 The Times, 16 June 19(84.




circumstances on the ground that prerogative relief would not have

been available. Hodgson J., however, distinguished the dictum cited

above from the National Federation of the Self-Employed and Small

Businesses case on the ground that that case dealt with the position

under Order 53 before the enactment of section 31. The "effect of

section 31(2)," he said, 'swas that it was not now necessary to

consider whether one of the prerogative orders would have been

available on the facts of the instant case, but whether the application

was the sort of thing to which a prerogative order could apply." The

words "the sort of thing to which a prerogative order could apply"

presumably mean "if prerogative relief is available in an analogous or

similar case" rather than "if prerogative relief is available in the

alternative." But this sureJy points towards the real difficulty: the

scope of the prerogative orders is not very clear but, if abandoned,

the court will find itself adrift on a sea of even more ill-defined

concepts. It seems likely therefore that, until the reasoning of Law v.

National Creyhound Racing Clab Ltd is questioned in the House of

Lords, the courts in determining the limits of section 31(2) will be

guided relatively closely by the availability of prerogative relief in the

alternative. Whether this is a beneficial development or not may be

open to question. If Law v. IVational Greyhound Racing Club Ltd is

correct, the revival of interest in administrative law remedies

heralded by O'Reilly v. Mackman is more archaic than has been

previously thought: inasmuch as the concepts of "public" and

4'private' law have been introduced into the court's discretion in

terms of section 31(2), all that has happened is that the restrictions in

the scope of the prerogative orders once thought to have been

suffocated by the reformed Order 53 have been resuscitated, given a

new name, and moved to centre stage. The last sentence is perhaps too pessimistic. Although Law v.

National Creyhound Racing Club Ltd doubtless indicates that a

wholesale departure from the limits of the prerogative orders is not to

be expected, there are some areas in which cogent arguments support

a wider interpretation of the scope of section 31(2). For example,

certiorari will not issue to quash ultra vlres subordinate legislation; a

declaration should be used for this purpose.34 If such a declaration is

sought by means of an application for judicial review, this would

involve recognising that declarations and injunctions may be avail-

able under Order 53 even if no prerogative relief was available in the

alternative. One argument seems to support such an interpretation

with some force. Reliance was placed in the days before the reform of

Order 53 on non-prerogative relief, not only because of the

34 P. P. Craig, Administrative Law (1983) at 468.




procedural disadvantages attaching to the prerogative orders but also

because of the restrictions in their scope. Order 53, sc) the argument

runs, remedied not just the procedural difficulties (absence of

discovery, etc.) that used to attend the prerogative orders but also the

limitations in the scope of the orders, by providing for the availability

of non-prerogative relief in the alternative.g. a declaration that

certain subordinate legislation is invalid. This is not inconsistent with

Lord Diplock's reasoning in O'Reil v. Mackman. After all, what is

non-prerogative relief doing in section 31(2) if it is only availab]e

when prerogative relief is also available? True, there are some cases

in which it may be convenient to rely upon non-prerogative remedies

rather than a prerogative order although such an order would be

available; but considerations of convenience hardly seem to justify

the prominent role of non-prerogative remedies in the reformed

Order 53. Even if, as has )ust been argued, there are cases in which the

courts will be persuaded to grant non-prerogative relief in an

application for judicial review when prerogative relief is not

available, it does not follow that the courts will ignore the injunction

of section 31(2) to "have regard to" the limits of prerogative relief

and graft on to that section a more abstract concept of 4'public" law.

It seems clear that the basic scope of the avail<bility of non-

prerogative relief under Order 53 Is marked by the availability of

prerogative relief. "Public law" in this area is approximately

equivalent to 'isusceptible to control by a prerogative order."

(ii) The abuse of process cases and the distinction between public and

private law

Since O'Reilly v. Mackman there have been a number of cases in

which the distinction between public and private law has been

relevant in a context removed from the scope of Order 53 and the

prerogative orders. These have been the cases in which procedural

exclusivity has been made to rest squarely upon the principle of abuse

of process. Apart from O'Reilly v. Mackman itself they are: Cocks v.

Thanet District Council,35 Davy v. Spelffiorne Bor¢7ugh Council36

and, most recently, Winder v. Wandsworth London Boroagh

Council. 37

Yet all these cases are noteworthy for the way in which the

distinction is not defined but simply taken for oranted.38 The

35 119831 2 A.C. 286.

__36 Above, n.28. t 11984J 3 W.L.R. I254.

38 Lord Denning's remark in O'Reilly v. Mackman in the Court of Appeal (119831 2 A.C. 237, 255)

that "Private law regulates thc affair of subjects as betwecn themselves. Public law regulates the

affairs of subjects vis-avis public authorities" does not {ake one ver) far.




distinction slips elegantly into Lord Diplock's speech in O'Reilly v. Mackman in the context of the aggrieved prisoners in that case having no private law right to remission of sentence, but only a legitimate expectation of such remission which gave them a public law right to challenge the legality of an adverse disciplinary award on the ground that the board making the disciplinary award was acting beyond its powers. The concept, therefore, seems related to ideas such as the distinction between rule and discretion and between appeal and review. These ideas are hardly new, so one is a little surprised to read later on that i'the appreciation of the distinction in substantive law between what is private law and what is public law has itself been a latecomer to the English legal system. lt is a consequence of the development that has taken place in the last thirty years of the procedures available for the judicial control of administrative action." At this point, Lord Diplock then develops the powerful reasoning encapsulated in the extract from his speech which begins this article. All this, with respect, does not amount to a good definition of the concept. "Public law" here is plainly concerned with the ways in which the decisions of public authorities can be challenged, but it is difficult to be much more precise than this. The position was made a little clearer by Cocks v. Thanet District Council. Lord Bridge's speech spelt out that the jural relations surrounding public authorities were a web of private law and public law matters. In particlllar it was clear that the duty to house homeless persons which was imposed upon housing authorities by the Housing (Homeless Persons) Act 1977, and the correlative rights of the homeless to be housed were private law matters. Such rights and duties, however, only arose after there had been a public law enquiry into whether the person claiming the right was in fact homeless or threatened with homelessness? whether he had a priority need and whether he was intentionally homeless. "It is for the housing authority," said Lord Bridge, ". . . to make the appropriate inquiries and to decide whether they are satisfied, or not satisfied as the case may be, of the matters which will give rise to the limited housing duty or the full housing duty. These are essentially public law functions. The power of decision being committed by the statute exclusively to the housing authority, their exercise of the power can only be challenged on . . . strictly limited grounds. . . " Since the appropriate conclusion to the public law enquiry was a condition precedent to the private law right, it followed that to seek a declaration as to the existence of that duty (along with other relief) was a challenge to that public law enquiry and it was, on an application of Ihe reasoning of O'Reilly v. Mackman, an abuse of process to do that other than by an application for judicial review under Order 53.



C.L.J, Beyond O'Reilly v. Mackman 429

It follows from this that private law is not limited to obvious matters such as contract and tort but extends to the statutory rights and duties of public authorities and citizens such as those under the Housing (Homeless Persons) Act 1977. Moreover, the principle of abuse of process and the reasoning of O'Reilly v. Mackman extend to indirect challenges to public law decisions such as that in

Cocks.

Davy v. Spelthorne Borough Council, by the time it reached the

House of Lords, concerned only a putative indirect challenge to a

public law decision. All that remained of the plaintiff's action in the

Lords was a claim for damages based upon the defendant council's

negligence in advising the plaintiff as to his rights under the Town and

Country Planning Act 1971. The negligence upon which the plaintiff relied was the advice of the officers of the council that he should not

appeal against an enforcement notice. The council argued that this was in substance a challenge to the validity of that notice, which

should be brought by way of an application for judiciai review. The House of Lords, however, refused to strike out plaintiff's statement of claim as an abuse of the process of the court. The reason for this was that the plaintiff's claim was an ordinary action in tort: he did

not, so the Lords held, challenge the enforcement notice as he no

longer wished to have that notice overturned: he simply relied upon the council's negligence. Obviously Davy had abandoned any hope of

overturning the enforcement notice and in that respect he differed from Cocks. But he certainly was not asserting that the enforcement notice was entirely proper; if he was, he would have lost nothing by not appealing. The officers' advice would have been good, not bad. Once more, although it is clear that challenging a public authority's decision related either directly or indirectly to public law, public law is not well defined by this case.

As adumbrated, it is clear that the principle of O'Reilly v. Mackman is flexible and subject to exception. For instance, Lord Wilberforce said in his separate concurring speech in Davy v.

Spelthorne Borough Council: "we have not yet reached the point at which mere characterisation of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary courts: to

permit this would be to create a dual system of law with the rigidity and procedural hardships which it was the purpose of the recent reforms to remove."39 This flexibility is entirely consonant with abuse of process as the basis of procedural exclusivity, and Winder v. Wandsworth London Borough Council is an example of it. Winder was a council tenant who did not accept that the council had validly

11984) A.C. 262, 276.




raised his rent. But instead of challenging the resolutions by which

the council purported to raise the rent by means of an application for

judicial review, Winder simply continued to pay the old rent plus an

8% increase which he considered reasonable. When the council

instituted action against him seeking arrears and possession of the

premises, Winder raised the vires of the council resolutions. He

raised as a defence that the resolutions were a nullity and

counterclaimed for a declaration to that effect.

The council naturally sought to have his defence and counter-

claim struck out as abuses of the process of the court on O'Reilly v.

Mackman principles. The protections and safeguards of Order 53, the

council argued, were being evaded by Winder's defence and

counterclaim just as they had been by O'Reilly's or Cocks's action.

This was a cogent and powerful argument that persuaded Ackner

L.J. in the Court of Appeal; yet it was rejected by the House of

Lords. There was plainly a deep and understandable reluctance to

deny Winder a defence in these circumstanees. After all, he had not

chosen the proceedings he was involved in and it therefore seemed

harsh to penalise him even if his defence could have been more

appropriately raised elsewhere. But no attempt was made in the

Lords to provide an answer to Ackner L.J.'s argument; Lord Fraser

simply attempted to distinguish Cocks on the ground that whereas

Cocks's private law rights only arose after the public law enquiry, Winder's rights under his lease were pre-existing.40 The answer,

however, to Ackner L.J.'s argument must surely be that the court's

inherent jurisdiction to control abuse of its process is a flexible

jurisdiction and that the public policy that underlay O'Reilly v.

Mackman was not the only factor to be taken into account in its

exercise. In Winder v. Wandsworth London Borough Council the

court weighed the rights of Winder not to be procedurally hampered in a proceeding that he had not chosen against the expectation of the

council that the validity of their actions would not be called in

question years after the event, and Winder's rights were found more

weighty. The further interest in Winder v. Wandsworth London Borough

Council lies in the fact that Winder's counterclaim gives a clear

example of a public law matter which could have been brought by

way of an application for judicial review but which it was not an abuse

of process to raise in an ordinary action. This provides the plainest evidence that the procedural exclusivity based on section 31(2) and

This is not a persuasive ground of distinction since the council's resolutions, if valid, extinguished Winder's pre-existing rights; so that even to assert those rights was a challenge to those resolutions. See C. F. Forsyth, "The principle of O'Reilly v. Mackman: a shield but not a sword?" [1985] Public Law (forthcoming).




the procedural exclusivity based upon abuse of process are not congruent. There are other examples illustrating the same point.4l

More generally, this review of the cases in which the public law/private law distinction has arisen in the context of abuse of process shows only tllat definitions of public law are unclear and that public law relates to direct or indirect challenges to the decisions of public authorities.

(iii) Remedies for dismzssal and procedural exclllsivlty

In three cases, R. v. British Broadcasting Corporation, ex parte Lavelle,42 R. v. East Berkshire Health Authorily, ex parte Walsh43 and R. v. Secretary of State for the Home Department, ex purte Benwell,44 the question of the public law/private law distinction has been raised in the context of dismissal of an employee. These cases concerned applications for judicial review under Order 53 launched by employees who had been dismissed by their employers, in each case a public body of one kind or another. The employees could, presumably, have instituted ordinary actions claiming damages45 but they sought instead certiorari and various other remedies to quash the decisions to dismiss them. The employers resisted these applications for judicial review, arguing that the applicants ought to have brought ordinary actions, in which case their remedies would have been limited to damages. From what has gone before it is apparent that these cases were concerned in the main with the scope of section 31(2).

As cases dealing with the scope of section 31(2), one might have expected that the outlines of public law would be marked approximately by the scope of the prerogative orders, yet in these cases one finds discussion of the distinction between public and private law in terms unrelated to the scope of prerogative relief. Ihis does not, however, represent a departure from the general proposition put forward earlier that public law and the scope of prerogative relief were equivalent in the context of section 31(2). The reslson for this is to be found in Sir John Donaldson M.R.'s judgment in exparte Walsh where he says "to concentrate on remedies would in the present context involve a degree of circularity or levitation by traction applied to shoestrings, since the remedy of 'certiorari' might well be

41 Suppotie that a litigant wi!ihes to test the validity of subordinate legislation, but thc time limit has

expired, can a declaration be sought by action? [t would be inconvenient to say the least if the

validity of subordinate legislation were only able to be tested by courting prosecution under the

hopefully invalid legislation. 42 11983 1 W.L.R. 23. 43 {19841 3 W.L.R. 818; and see Y. M. Cripps 119841 C.L.J. 214.

119841 3 W.L.R. 843; and see Y. M. Cripps ll9851 C.L.J. 177.

45 Cripps 1198SI C.L.J. 177, 178



432 The CamOridge Law Journal [1985]

available if the health authority is in breach of a 'public law' obligation, but would not be if it is only a breach of a 'private law' obligation.'8 The implicit assumption that underlies this dictum is the conclusion that public law and prerogative relief are in this area closely related, precisely the conclusion reached earlier. Furth- ermore, the leading cases in this area (Ridge v. Baldwin46 and Malloch v. Aberdeen Corporstion47) were cases in which the remedy sought was a declaration (as in Ridge v. Baldwin) or the Scottish remedy of reduction (as in Malloch). Consequently the discussion in those cases about the rights of public employees who have been dismissed took place on general grounds c.g. whether the employ- ment was protected by some kind of statutory restriction in its terms-rather than on the question of prerogative remedies.

It follows, therefore, whatever criticism may be made about the reasoning in these cases,48 they do not fundamentally challenge the conclusion reached earlier: that section 31(2) cases are concerned in the main with the limits of prerogative relief. But one brief practical point may be noted before leaving these cases. Ex parte Walsh serves as a reminder that the choice of proceeding by way of an application for judicial review need not be irrevocable. Although an action commenced by writ or originating summons may not be transmuted into an application for judicial review (should that procedure turn out to be an abuse of process),49 rule 9(5) of Order 53 permits the court to order the proceedings to continue as if they were begun by writ. This power can only be exercised by the court if a declaration, an injunction or damages has been sought in the application for judicial review. In Ex parte Walsh the applicant had not clearly asked for a declaration that his dismissal was a nullity; and, consequently, t}ze court refused to order that the proceedings continue as if begun by writ.

V. CONCLUSIONS

As we have seen, the procedural exclusivity which first raised its head in O'Reilly v. Mackman rests upon two separate juridical bases: the principle of abuse of process as an aspect of the court's inherent jurisdiction, and the proper interpretation to be placed upon section 31(2) of the Supreme Court Act 1981. The examination of the actual

cases in which the principle has been relevant reveals that this theoretical distinction is present. In cases where section 31(2) is the relevant base of procedural exclusivity, "public law" when it is

l19643 A.C. 40. 47 119711 1 W L.R. 1578. U See Cr;PPS [1984] C.L.J. 214 and [19851 C.L.J. 177. 49 O'Reilly v. Mackman 119831 2 A.C. 237, 284.




referred to is approximately equivalent to "within the scope of

prerogative relief"; on the other hand, where the principle of abuse

of process is the base, "public law" is approximately equivalent to

"challenging, directly or indirectly, a decision of a public authority."

Naturally, it will be pointed out that there is a large measure of

overlap in the two concepts of "public law" isolated above. Indeed, as was seen earlier, failing within "public law" in the section 31(2) sense is a necessary if not a sufficient condition for failing within

"public law" in the abuse of process sense. This does not mean that

the distinction drawn between the two bases of procedural exclusivity is of little consequence. First, as we have seen, there remain cases in

which although within section 31(2) it is not an abuse of process to

seek relief by way of an ordinary action. For the litigants in such

cases, the point may be of crucial importance, for it means that they, unlike many others, have a choice of which procedure they should

adopt. But, secondly, the attitude of the courts to the different bases of

exclusivity are, and are likely to remain, different. The discretion

granted in section 31(2) is well structured; the matters that are to be

taken into account are specified, and although "all the circumstanees

of the case" may be taken into account, this is plainly a less flexible

and different discretion from that exercised by the court in

controlling abuse of its process. In particular, in controlling abuse of

its process, the court must plainly take into account many matters

other than the public policy of protecting public authorities that

underlay the reasoning in O'Reilly v. Mackman; and so inevitably the

abuse of process discretion will be more flexibly exercised. And this is

borne out both by the result of Winder v. Wandsworth London

Borough Council and by dicta to the effect that the concept of "public law" and the principle of O'Reilly v. Mackman should be used with

caution.

What then is likely to be the future of the concept of "public law"

as a means of determining when the principle of procedural

exclusivity is applicable? In the context of section 31(2), the concept is entirely redundant. The scope of section 31(2) is a real problem: it is reasonable to prevent the application for judicial review being used as a means whereby one individual may obtain an injunction or a declaration against another individual in a straightforward matter of contract or tort. But the concept of "public law" seems to add very little towards the solution of that problem. As we have seen, even in the dismissal cases, when the concept is used, it is little more than code for the scope of prerogative relief.

In the field of abuse of process, too, the concept of "public law" seems to be of limited usefulness. It is presently ill-defined, and the




inherent flexibility of the abuse of process jurisdiction means that it is

likely to remain so. Indeed, the dicta in favour of flexibility and

caution in the application of O'Reilly v. Mackman principles may adumbrate the abandonment of the experiment with exclusivity. The

abuse of process jurisdiction may on rare occasions be exercised on

O'Reilly v. Mackman principles, but its role will be similar to the

requirement that leave should be obtained from the High Court

before applying for judiciai review in terms of Order 53: it will be an

initial hurdle to be overcome when seeking to challenge a public

authority's decision by action. Ultimately, however, if the problem of

defining the boundary between the two procedures is to be avoided, Sir William Wade's suggestion50 of a single form of action for all cases

will have to be adopted. Otherwise, questions of procedure and

remedies are destined to play a more important part in administrative

law than they warrant.

Wade (1985) 101 L.Q.R. 180, 189-190 argues for a single form of action which would allow public and private law claims to be sorted out "at interlocutory stage under the directions of the court and at the court's discretion. No litigant could fall at the first fence by making the wrong move before his complaint ever came before the court."



Documents

Beyond O'Reilly V. Mackman: The Foundations and Nature of Procedural Exclusivity