Procedural Exclusivity

Background:

Traditionally in English law, there existed no distinction or segregation in private law or public law
matters. All matters were resolved in a single legal system. By way of contrast, France had a distinct
segregation between public law and private law matters and separate courts handled these
matters.Having a single legal system was praised by Dicey who stated that this upheld Rule of
law.However, due to this non-segregation, multiple remedies were available against public bodies which
caused complexity. Furthermore, having a single legal system with no additional protection for the state
exposed the government to frivolous and vexatious liti tion brought forward by mere busybodies.

Therefore, in order to resolve these complexities, the Law Commission proposed reforms in 1970s which
led to promulgation of Order 53 in 1979 and later in Senior Courts Act, 1981.

Reforms:

Section 31 Senior Courts Act, 1981 established administrative Court as a division in high courtUnder the
statute, an individual having sufficient interest can bring forward an application for judicial review. The
application for JR will be brought in the name of the Crownbut there is no involvement of the Crown per
se.A second wave of reform came with the Woolf reforms which resulted in an introduction of Civil
Procedure Rules, 1998 (Rule 8 part 54)

A further wave of reform came Tribunals Courts and enforcement Act, 2007 (TCEA) which created upper
tribunal who the jurisdiction to conduct Judicial Review of certain matters.

Result of the Reforms

s.31 created the procedure for Admin Law, however, the statute in itself did not make the procedure
exclusive i.e. it did not specify that Section 31 is the only available procedure for bringing admin law
actions.However, the courts construed that the new procedure is the prima facie exclusive i.e. claims
against public body must be brought under the new procedure only (O'Reilly vMackman)

O'Reilly v. Mackman: (1983)

A prisoner brought a private law action against the prison board for breach of rules of natural justice
(Admin law matter in ordinary court).Lord Diplock held that he cannot bring private law action against a
public body for violation of public law rights.
He stated: "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 permit a person seeking to establish that a decision of a public authority
infringed rights to which he is 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.

However, Lord Diplock gave two exceptions:

(:)None of the parties object to the adoption of the ordinary procedure, or

(:) The public law matter arose as a collateral issue in an action for infringement of the claimant's private
law rights.

Lord Diplock's reasons for exclusivity

(1)Reforms have been made to clarify Judicial Review mattersPreviously, right of discovery, damages,
cross-examination was not allowed in public law cases. Following the reforms this is now allowed for
Judicial Revie and thus there is no need to seek redressal under ordinary procedure.

(2) Reforms provided safeguards for public bodies such as requirement for leave, shorter-time limits etc.,
to provide certainty to public authorities for their actions.

Why claimants want to get outside Section 31?

Under Section 31, there are certain protections given to public body and is a fear that their claim might
fail under Section 31.Even through under Section 31cross-examination and discovery is allowed the
courts are reluctant to grant permission for such .

Judicial approach towards

INITIAL APPROACH

Cocks (1983):

Plaintiff claimed a private law right/damages for breach of the defendant council's duties under Housing
(Homeless Persons) Act 1977. House of Lords held that action should be brought via Section 31 as the
claimant at this stage does not have any private law right allowing him to circumvent Section 31.
Davy (1984)

Davy entered into a contract with the Borough council relying on negligent advice given by the
councilDavy brought a claim for damages for negligence under ordinary procedure. House of Lords
allowed ordinary procedure as claim for negligence did not raise any public law matter as a live issue.
HereDavy was not challenging any order passed against him but claiming damages for negligence.

Winder (1985)

Local council increased the rent of Winder's flatWinder refused to pay the increased rent, local council
claimed for pending rent and the possession of the flat by bringing private law action for eviction.

Winder in his defence raised the issue that the local council had acted ultra vires by increasing the rent.
The courts (House of Lords) allowed usage of public law matter as defence in a private law matter case.

BROADENING THE EXCEPTION

Roy v. Kensington (1992)

NHS regulations provided that doctors would be paid a sum of money if they part of their time at NHS
rather than private practice.Roy received such payments but his pay was deducted by 20% as complying
with the conditions. NHS stated that Roy is not Roy brought a claim against NHS for breach of
contractThe NHS argued that the action should be brought under Section 31. House of Lords (Lord
Bridge and Lord Lowry) favored the claimant.Lord Bridge stated if a case is exclusively on public law right
then the only remedy is under Section 31 however if the case involves assertion of law rights involving
examination of public law matters, then ordinary procedure can be used.

Boddington (1998)

Public law matter (challenging the vires of a bylaw) was allowed to be used as a defense in a private law
matterLord St stated that denying a person to challenge the very law under which he suffers the loss
would dermine rule of law (Reaffirms Winder).

FURTHER BROADNING THE EXCEPTION

Mercury DG of Telecommunications (1996)

Mercury was challenging the determination made by DGT. This was purely a public law matter yet still a
claim under ordinary procedure was allowed the Court stated that the claim under ordinary procedure is
allowed a long as there is no abuse of the court's processIn the present case, the determination by DGT
although a public law matter, was mere of a commercial matter in nature and, therefore, using
commercial courts was not an abuse of the process.

Lord Slynn stated that the exclusivity is only presumptive and not conclusive and hence the courts will
allow public law matter under ordinary procedure as long as there is no abuse of court's
process.Following Mercury it appears that O'Reilly's importance has dwindled. The reason for having
such a relaxed approach is that following the Woolf Reforms / CPR, the difference between admin and
ordinary court have decreasedThe protection given under admin courts to public bodies has now been
extended under ordinary courts as well such as shorter time limits, right to stop proceedings in interim
and giving a summary judgment etc.

HUMAN RIGHTS ACT IMPACT

A claim for breach of Human rights can be filed either under ordinary courts or admin courts (Section 7
of HRA 1998).HRA provides a scapegoat for getting outside Section 31 as if there is a case involving
Human rights as well as other public law matters, then the case can be filed under ordinary courts even if
it is later found that the claim under HRA is unfounded.