#17231 - The Exclusivity Principle - GDL Constitutional and Administrative Law

Question of what happens where there are a mix of public and private rights in question.

Procedural Exclusivity:

• O'Reilly v Mackman [1983] - Prisoners had been involved in riots, penalties imposed by the prisons board of visitors. Prisoners complained of unfairness. Brought an action in private law against the board of visitors, CA struck out their action as an abuse of the process of the court – appeal to HoL failed.

  • Lord Diplock dismissed appeals as a matter of principle, they had no private law rights against board of visitors.

  • An action on a public law issue must be brought by way of judicial review or it will be an abuse of process, attempting to evade protections afforded to public bodies:

    • e.g. that cases must pass a leave stage; stringent time limits; discretionary remedies etc.

  • Had they sought the remedy in public law they probably would have won, but outside time limit.

• Cocks v Thanet District Council [1983] – decided on same afternoon as O’Reilley v Mackman. Homeless plaintiff bringing action against council for breach of duty to house him. Held this duty could only be established by JR.

  • Lord Diplock: where private rights depended upon prior public law decisions, the judicial review process should ordinarily be used.

Public Law in Defence:

• Wandsworth LBC v Winder [1984] – Winder was council tenant in Wandsworth; Council raised the rent on his flat to a level that he claimed was unreasonable, refused to pay the excess.

  • Wandsworth pursued for rent. Argued could not raise unreasonableness as a public law point.

  • Held that Winder could raise unreasonableness as he was raising it as a defence, it was therefore truly collateral to private law proceedings.

  • Otherwise any public authority could destroy any public right through private proceedings.

• Similar principle applied in Boddington v British Transport Police

Mixed Public/Private Cases:

• Roy v Kensington & Chelsea FPC [1991] – Dr Roy (NHS GP) brought private claim after K&C had withheld some pay. As the public issues were incidental is was acceptable to proceed by ordinary action.

  • Lord Lowry shows irritation with these procedural points – get on with it.

• Mercury Communications v Director General of Telecommunications [1997] - Contract between parties and licence granted by the director general. Mercury proceeded in private law. D’s sought to strike out on grounds of abuse of process.

  • Lord Slim: Important to retain flexibility about the precise limits of 'public and private law'.

  • The overriding consideration was for the court to ask whether the proceedings constitute an abuse of process. When a higher court has to decide about an abuse of process, the first instance decision should stand, unless...