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

Published online by Cambridge University Press:  16 January 2009

C. F. Forsyth
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Extract

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 rights under private law if such infringements 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)

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Articles
Information
The Cambridge Law Journal , Volume 44 , Issue 3 , November 1985 , pp. 415 - 434
Copyright
Copyright © Cambridge Law Journal and Contributors 1985

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References

1 [1983] 2 A.C. 237. See H. W. R. Wade, (1983) 99 L.Q.R. 199; A. Grubb, (1983) Public Law 190 and P. Cane, (1983) Public Law 202 for accounts of the case.

2 See J. A. Jolowicz, [1983] 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.

5 [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.

6 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.

7 The new Order 53 was made (S.I. 1977 No. 1955) after the publication of Law Commission Report No. 73, Cmnd. 6407 (1976). Some amendments were introduced by S. I. 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.

8 Order 53, rule 2, rule 8.

9 S. 31(3); Order 53, rule 3.

10 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”.

11 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) 101 L.Q.R. 180.

13 Wade (1985) 101 L.Q.R. 180, 184.

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.Google Scholar

15 Wade (1985) 101 L.O.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 judicial scalpel being used to tease the strands of an action apart and to determine the result of each part by reference 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 Taitz, J. L., The Inherent Jursidiction of the Supreme Court (1985) at 56–62.Google Scholar

17 Jacob, J. H., “The Inherent Jursidiction of the Court” (1970) 23 Current Legal Problems 23.CrossRefGoogle Scholar

18 (1980) 15 App.Cas. 210 at 219; for a more modern example see Wenlock v. Maloney [1965] 1 W.L.R. 1238.

19 [1982] A.C. 529 at 536 (italics added).

20 Jacob, op. cit., 28–31; Taitz, op. tit., 17.

21 (1982) 1 N.S.W.L.R. 264 at 270.

22 Jacob, op. cit., 27, 44.

23 As Jolowicz says [1983) C.L.J. 15,18: “It may be right … that public authorities should receive especially favourable treatment by the law … To the extent that this is so, however, the protection should be attached by legislation … creating special categories of defendant, not by creating a special and exclusive form of action for use against them.”

24 So described by Sir John, Donaldson M.R. in R. v. East Berkshire Health Authority, ex pane Walsh [1984] 3 W.L.R. 818 at 822.Google Scholar

25 Although a matter may be regulated by statute, that seldom prevents the inherent jurisdiction dealing with the same matter: Mason, op. cit., 457.

26 Except in R v. East Berkshire Health Authority, ex parte Walsh, supra, but even here Sir John Donaldson M.R. said: “the remedy of judicial review is … wholly inappropriate and the continuance of the application … would involve a misuse—the term ‘abuse’ has offensive overtones—of the procedure of the court under R.S.C. Ord 53.” See further below, n.27.

27 The scope of section 31(2) may come before the court in a variety of ways. An applicant may be refused leave to apply for judicial review if the case falls outside section 31(2); alternatively the court may, as in R v. British Broadcasting Corporation, ex pane Lavelle [1983] 1 W.L.R. 23. be asked to exercise its powers under Order 53, rule 9(5) to allow the proceedings to continue as if begun by writ (see text at note 49) if it thinks that relief should not be granted in an application for judicial review. Even if, as in ex parte Walsh, supra, the question is raised in the 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).

28 [1984] A.C. 262.

29 [1982] A.C. 617.

30 [1983] 1 W.L.R. 1302.

31 See A. Grubb, [1984] C.L.J. 16 at 16–17 and Y. M. Cripps. [1983] C.L.J. 180.

32 [1983] 1 W.L.R. 1302.

33 The Times. 16 June 1984.

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

35 [1983] 2 A.C. 286.

36 Above, n.28.

37 [1984] 3 W.L.R. 1254.

38 Lord Denning's remark in O'Reilly v. Mackman in the Court of Appeal ([1983] 2 A.C. 237, 255) that “Private law regulates the affair of subjects as between themselves. Public law regulates the affairs of subjects vis-à-vis public authorities” does not take one very far.

39 [1984] A. C. 262, 276.

40 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 Forsyth, C. F., “The principle of O'Reilly v. Mackman: a shield but not a sword?” [1985] Public Law (forthcoming).Google Scholar

41 Suppose that a litigant wishes to-test the validity of subordinate legislation, but the time limit has expired, can a declaration be sought by action? It 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 [1983] 1 W.L.R. 23.

43 (1984) 3 W.L.R. 818; and see Y. M. Cripps [1984] C.L.J. 214.

44 [1984] 3 W.L.R. 843; and see Y. M. Cripps [1985] C.L.J. 177.

45 Cripps [1985] C.L.J. 177, 178.

46 [1964] A.C. 40.

47 [1971] 1 W.L.R. 1578.

48 See Cripps [1984] C.L.J. 214 and [1985] C.L.J. 177.

49 O'Reilly v. Mackman [1983] 2 A.C. 237, 284.

50 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.”