#3503 - Private And Public Divide - Administrative Law

Getting Outside of JR – C seeks to proceed outside CPR 54 & s31 1981 Act

Procedural Exclusivity

• Prior to Order 53, range of remedies mixed + uncertainty about their scope (i.e. certiorari & declaration). Reform Order 53 (some provisions incorporated into s31 Supreme Court Act 1981)

• JR now governed by CPR 8, as modified by Pt 54 (all JR apps lodged after Oct 2000) + s31 + Practice Directions

• S31(2) – decl. & injunction can be granted if court considers that, having regard to nature of the matter/persons or bodies against whom remedy may be granted by prerogative orders, and all circs, that it would be just & convenient to make it or grant an injunction

• Read apps for JR in light of O’Reilly v Mackman – limited circs in which remedies could be brought outside of s31

• Lord Diplock: where PL rights are at stake, C can only proceed by way of JR and can’t originate action under gen. civil law procedure b/c that would be avoiding safeguards afforded to PAs, including “sufficient interest”, timely submission & permission for JR.

• NB: prior to reforms prerogative orders were subject to a number of limitations: no right of discovery, damages couldn’t be claimed in conjunction w/one of the orders, cross examinations rare. Order 53 removed these, providing safegyards for PBs, including time limit short enough not to keep it in suspense as to validity of its own actions.

Rationale for Seeking to Proceed outside S31

1. Avoid short time limit

2. Investigate factual issues/undertake cross examination

Exceptions to O’Reilly

1. Where public law issues are a condition to establishing C’s private law rights, action must be brought by way of JR under s31 b/c C has no private law rights to found the action outside JR

• Cocks v Thanet DC [1983] – P claimed decl. + damages alleging breach by council of duties to inquire if C might be homeless & whether he might be entitled to accommodation. Held these were public law issues, determination of which was a cond. precedent for C’s private law rights, so had to be under JR.

• Difficulty post O’Reilly to decide if particular interest was a private right + did its presence mean O’Reilly didn’t apply full stop or was it merely a factor capable of leading to a discretionary exception to it

2. D can raise public law issues as a defence in civil law proceedings w/out bringing separate action for JR

• Wandsworth LBC v Winder [1985] –LA raised P’s flat rent, he refused & paid only what he thought reasonable, council sued for arrears & possession, P argued in defence it acted UV in increasing rent. Council argued legality could only be tested under s31. Held for P. Cocks distinguished b/w P there didn’t have private law rights whereas W had a contract + wasn’t the one to initiate proceedings so didn’t get to choose the course of action.

3. If case turns exclusively on public law right, the only remedy is JR under s31, but if it involves assertion of private law rights, by way of claim or defence, the fact that its existence might accidentally involve examination of public law issues doesn’t prevent C from bringing ordinary action outside s31.

• Roy v Kensington & Chelsea FPC [1992] – P, doc, paid certain sums under NHS regs, provided that devotes substantial amount of time to treating NHS patients. FPC decided he wasn’t complying & reduced his allowance. He claimed breach of contract & was allowed to proceed outside s31.

Lord Lowry: distinguish:

1. Broad approach – O’Reilly doesn’t apply in cases involving private law rights in circs where those actions involve a challenge to public law act or decision, requiring C to proceed by way of JR only where no private law rights are at stake (preferred!)

2. Narrow approach – rule applies to all proceedings in which public law acts/decisions are challenged, subject to some exceptions where private law rights are involved

• Boddington v British Transport Police [1999] – D in crim proceedings can challenge a byelaw or decision made thereunder where prosecution is based on its validity, unless there’s clear Parl. intent to the contrary. Didn’t have to challenge by way of JR b/c it would be contrary to rule of law to convict a person who couldn’t rely on defence. Procedural exclusivity insisted on only where the sole subject of action was to challenge a public law act or decision – won’t apply where:

1. C in a civ. law case seeks to defend himself by questioning validity of public law decision or uses it as a claim

2. In a crim. law case where D’s liberty is at stake

4. O’Reilly exclusivity is presumptive, not conclusive – in determining whether case could be brought outside s31 & CPR 54 ask if proceedings constitute “abuse of process” of court. C can proceed outside s31 if has private law rights &, if doesn’t, can also do so where it’s not abuse of process

• Mercury Communications [1994] – Mercury & BT agreed provision of services pursuant to agreement for BT’s licence, providing for ref to DGT in case of dispute. When it adjudicated, M challenged the decision, w/DGT & BT arguing case should be brought by way of JR. HL held for M – no abuse of process.

• Trim & North Dorset DC [2010] –C lived in a house built w/out planning permission, granted retrospectively, on certain cond. which C didn’t comply with. Council served notice of non compliance but didn’t sue; b/c it made house less marketable, C applied for decl. that notice’s been served & action time barred but court struck out for abuse of process b/c no duty to assist a law breaker to bring himself within the law.

Impact of HRA

• C claiming PB has acted unlawfully in breach of s6(1) can proceed against it by JR or may wish to go outside it b/c of time limit reasons (s7(5) provides time limit is 1 year but subject to stricter time limits of particular action, so for JR in UK it would be 3 months). As C can proceed outside s31 by claiming private law rights, claims that ECHR rights were violated in breach of s6(1) may simply become another exception.

Impact of CPR

• Clark v Uni of Lincolnshire [2000] – C brought action in contract against uni re classification of her degree, uni argued should have been brought by way of JR b/c ordinary contract action = abuse of power, by allowing claim way beyond 3months time limit.

Lord Woolf: whole issue should now be seen in light of CPR b/c it contains safeguards for PBs even in ordinary civ. law claims, including court being able to give summary judgment where there’s no prospect of success & taking into acc delay in bringing proceedings within ordinary 6 year time limit which could be a consideration when assessing existence of abuse of process.

• Don’t overstate importance of Clark for public/private divide – while it’s undermined it procedurally, substantive divide remains

Getting Inside JR – C seeks to proceed inside CPR 54 & s31 1981 Act

Why Cs seek to proceed under s31

1. No other course of action availableDatafin: Cs couldn’t frame convincing cause of action in contract/tort

2. Remedy wouldn’t be effective common in employment law b/c under certiorari court can quash dismissal, reinstating C

3. Scope of obligation imposed on PB is wider under JR Aga Khan: main reason why sought to use JR was b/c wanted to test legality of club’s actions against substantive & procedural norms used to test validity of PB’s behaviour

Tests: is D a Public Authority?

1. Source of powers if statutory = presumptively a PA

• But literal app could lead to too many statute regulated bodies being deemed public, though operate in private sphere

2. Scope of prerogative remedies where there’s a separate list of remedies for public law, it’s reasonable to regard their scope as prima facie evidence of PA scope

3. Nature of Power difficulties of formalistic test have inclined courts towards more open textured criterion requiring consideration of body’s nature of power = formulation varied:

1. Lloyds LJ (Datafin) – if power is statutory, body is subject to JR; if contractual, it isn’t; in between these extremes, look at nature of power if exercises public law functions/has public law consequences, subject to JR & s31 applies

2. Lord Donaldson – exclude institutions whose power is based on contract or consent, and then subject any other body to JR, as long as has sufficiently public law element

• Craig: uncertainty of ‘sufficient public law element’ is the price to pay for moving from more formalistic tests, like source of power – this is mere conclusory label, anyway.

Scope of JR

1. PBs which act pursuant to statutory & prerogative powers

1. PBs/Executive Agencies – subject to JR b/c not separate from sponsoring dept. & engage in delivering public law services

2. Contracting Out – increasing use by govt. as a method of service delivery. JR action may be maintained against PB which contracted out but if no utility there, C can’t act against body to whom PB delegated

• R v Servite Houses – council contracted out elderly housing provision, body closed the Home, C had no private redress but held Servite not amenable to JR, despite the importance of contracting out. Held sufficient statutory underpinning needed to its function, beyond regulation of manner in which services are provided. Datafin&Aga Khan provide support for proposition that courts can’t in absence of sufficient statutory penetration impose public standards upon bodies w/contractual source of power.

• Craig: conclusion is regrettable b/c nothing in the logic of contracting out dictates that service provider should be subject to private/public distinction

2. PBs exercising...