#16116 - Procedural Exclusivity - Administrative Law

Lord Diplock in O’Reilly held that the principle of exclusivity required a claimant to use judicial review procedures in public law claims
Subsequent cases had to figure out how to distinguish between public law issues and private law issues

On reception of exclusivity rule

Claimants were often left unsure as to what procedure they ought to use, leading to much criticism of the apparent triumph of procedure over substance:
- Jolowicz (1983) – It is “astonishing” that, 100 years after the Judicature Acts and 100 years after Bowen LJ said that “it is a well-established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for the mistakes they make in the conduct of their cases”, the highest court of the land should still entertain a question concerning only the procedure by which relief should be sought.
- Wade (1985) 101 LQR 180
- Forsyth (1985) CLJ 415
Other commentary focused on the need to balance the rule’s policy objective (protecting PAs) against securing justice in individual cases:
- Law Comm Report at [3.2-3.5]
Thus later courts have sought to balance these goals by creating exceptions

On exceptions

If the matter is purely of private law, the claim must be issued in ordinary proceedings and JRP is not available
- Ex parte Walsh - C wanted a quashing order of a decision to terminate her employment, where if one was issued she would have kept her job but if she sued purely on contract she may have to settle for compensation.
Waiver: if none of the parties objects to the use of ordinary proceedings, then exclusivity doesn’t apply (Lord Diplock, O’Reilly)
- This can be seen as reflecting the goal of protecting PAs, so that if the latter agrees to forego these protections, it can do so.
- However, the goal can also be seen as protecting the public in general in ensuring certainty as to time limits – in which case if a waiver is prejudicial to the public at large it shouldn’t be allowed. This is endorsed implicitly in Trustees of the Dennis Rye Pension Fund v Sheffield CC – “if the choice has no significant disadvantages for the parties, the public or the court…” (Lord Woolf MR)
Resolution of factual disputes: Dennis Rye allowed ordinary procedures because the court recognized that factual disputes were more easily resolved through ordinary procedure. This recognizes that JRP is disadvantageous in practice in such circumstances (despite Lord Diplock’s contrary assertion in O’Reilly)
Collateral defensive challenge in criminal and civil proceedings: Boddington held that unless the relevant legislation expressly or impliedly prohibits it (eg. R v Wicks) the rule of law demands that a defendant should be able to challenge collaterally the validity of the offence with which he is charged.
PLRs dependent on public law: public law decisions made in an individual’s favour may give rise to privately enforceable rights, if such is the Parliament’s intention. These rights would then be enforceable in ordinary proceedings (see O’Rourke v Camden LBC)
PLRs affected by public law: where conduct lying in public law impacts upon PLRs whose existence is not in doubt, the claimant is allowed to use PLP because the private law right ‘dominates the proceedings’ (Lord Lowry, Roy v Kensington and Chelsea FPC). This is true not only of PLRs as between the parties, but whenever the authority’s decision affects C’s private law relations with others (Mercury v Director of General Communications)

On the introduction of the CPR

The introduction of the CPR led to increased flexibility, as did judicial development of the exceptions.
A more substantive approach: since Clark, the court won’t focus so much on whether the wrong proceedings have been brought, but whether the PA needs protection.
Transfer into Part 54: CPR for the first time allowed a claimant to transfer into JRP (though transfer out of it has always been possible under Order 53)

Establishes the general rule that public law claims must be brought by JRP.

Although nothing in Order 53 requires exclusivity, it is necessary to preserve the integrity of the procedure for judicial review and its underlying objectives of protecting PAs and third parties who may be indirectly affected by the decision, through speedy certainty as to whether the effect of a decision is valid in public law.

As the 1977 reforms have greatly ameliorated the position of claimants in judicial review by curing the previous injustices (especially discovery and cross-examination), it is now right to regard as an abuse of process if a claimant seeks protection of public law rights using ordinary procedure.

This is a general rule, subject to exceptions that will be developed on a case by case basis, but especially if:

The invalidity of the decision is a collateral issue in a claim for the infringement of private rights
Or none of the parties objects to using ordinary procedure

But if the only remedy sought (as in the present case) is a declaration of nullity in public law, then exclusivity applies and the claimant must use judicial review procedure.

There is an exception to exclusivity where the public law challenge is raised in defence to an action initiated by the PA, by a defendant who claims that his private law rights have been infringed by the decision.

Citizens have the right to defend themselves against unfounded claims, including those brought by PAs. The need for speedy certainty and policy justifications for exclusivity must be balanced against this right, especially considering that Order 53’s aim was to introduce procedural reforms not sweep away rights. "It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words." (Viscount Simonds, 1960) If public law interest requires this right to be removed, then Parliament msut change the law.

NOTE: This was also cited by in Boddington for the proposition that there is a strong presumption that Parliament will not legislate contrary to the Rule of Law requirement that individuals have a right, when affected by legal measures promulgated by the executive, to a fair opportunity to challenge these measures in court proceedings.

PLPs are available to a claimant vindicating his PLRs as between the parties, even though the claim turns on the challenge of a public law decision.

Two approaches to the scope of O’Reilly have been suggested by the claimant:

Broad approach – O’Reilly doesn’t apply generally against bringing actions to vindicate private rights (even if they involve challenging public law decisions)
Narrow approach – O’Reilly applies to all public law decisions subject to exceptions when PLRs are involved

O’Reilly didn’t have to differentiate between them, though Lord Diplock took the narrow approach as he stated a general rule subject to exceptions, but Lord Lowry in this case prefers the broad approach because it would get rid of a procedural minefield. However he leaves the question open, holding that even on the narrow approach C could bring a PLP because his PLRs dominate the proceedings.

The case therefore narrowed the significance of the private/public matter distinction without addressing its substance – whether a statute does confer PLRs will be on each case a matter of statutory interpretation. Cane wrote that guidance on this matter is unlikely (analogizing with lack of guidance on the question of which statutory duties are actionable in the tort of breach of statutory duty), especially considering that (in his opinion) not all statutory “rights” are PLRs.

The principle in Roy is not only applicable to vindicating PLRs as between the parties, but whenever the authority’s decision is capable of affecting C’s private law relations with others.

Public law decisions can lead to disputes outside of administrative law; for example, in the present case, where a decision directly impacted on the contractual relationship between C and another private party. In such cases, PLPs are at least as well suited, if not better, to resolving the issues as JRPs, and the...

#16116 - Procedural Exclusivity - Administrative Law

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