‘It seems to me that, unless the procedure adopted by the moving party is ill

suited to dispose of the question at issue, there is much to be said in favour of

the proposition that a court having jurisdiction ought to let a case be heard
rather than entertain a debate concerning the form of proceedings’ . Per Lord
Lowry in Roy v Kensington and Chelsea and Westminster Family Practitioner
Committee.

In light of the above observation, analyse to which extent the strict distinction
imposed by the House of Lords in O’Reilly v Mackman (1983) remains.

Questioning the legality of administrative action in UK is almost synonymous with the

duality of the procedure which is consequentially followed. This duality can be
categorised as being between private and public law remedies. In the last few
decades, the importance of this question became prominent, triggered by the
modifications to the Supreme Court Act of 1977, later codified in 1981 as the
Supreme Court Act, now known as the Senior Courts Act.

When considering Order 53 Civil Procedure Rules or Section 31 (2) Senior Court Act
1981, the rules state that only matters of interest concerning public law may be
brought forward in a Judicial Review(JR) claim. Private law matters cannot be
submitted to court for JR.

The preference for a separate, more stringent JR procedure for claims against public
authorities for public law matters is intrinsically rooted in a green light perspective of
administrative law, that these procedures place less burden on the public authorities.
Under JR proceedings, restrictions such as those on time standing, cross
examination and legal representation reduce the interference with the functioning of
the public body and expedites the litigation process.

In the case of Islington, it was recognised that these limitations made the JR
procedures less preferable to potential litigants, and consequently in the case of
Barnard v National Dock Labour Board, Lord Denning held that it would not be an
abuse of procedure to use ordinary procedures instead of JR to avoid such
limitations. He stated that as the ‘remedy of certiorari is hedged by limitations and
may not be available, why them should not the court intervene by declaration and
injunction. If it cannot so intervene, it would mean that the tribunal could disregard
the law, a thing no one can do in this country’.

To address Lord Lowry’s statement in Roy v Kensington and Chelsea and

Westminster Family Practitioner Committee, one must first address the significance
of the O’Reilly v Mackman (1983) case. Lord Diplock brought the question that if
after Order 53 was in force, if it was still not an abuse of procedure to go through
ordinary proceedings instead of the JR route. In order to answer this question, his
lordship identified the importance of establishing whether the case was a private or
public law case. Based on the case facts it seemed that the expectation for the
litigants would result in a public law remedy where it could not under private law.

As it was a public law case, his lordship held that in this case, and in any other which
may fall within the scope of public law, should be considered as an abuse of the
system if the proceedings were made under ordinary proceedings. This was past the
1977 amendments so most restrictions place on litigants who went through JR
procedure had been relaxed, particular in light of the terms on cross examination and
discovery, as per Lord Denning in George v SOS for the Environment.

S.31 and Order 53 have no express provisions for a remedy to be obtained for
infringed rights which are entitled to protection in public law. These disadvantages
have been largely improved by Order 53. Lord Diplock held that as a general rule, it
would be against public policy and an abuse of court procedure to allow a litigant
seeking to establish a claim of a public authority infringing rights to which he is entitle
protection in public law, to proceed via ordinary proceedings.

This is considered a controversial decision, as reiterated in academic criticism.

Forsyth states that this ratio is ‘a novel and rather cavalier use of the abuse of
process jurisdiction’. He adds that there is no real mitigation of the harsh limitations
of the pre-1977 process since the time limits and standing issues and a general
reluctancy of courts to resolve factual disputes about JR.

Bowen J in Cropper v Smith commented over a century ago on the legal process in
UK saying that ‘it is a well established principle that the courts would determine the
rights of the parties and not punish them for the mistakes they make in conduct of
their cases by deciding them otherwise than in accordance with their rights’. Jolowicz
added that ‘it is astonishing that any court would spend any time on a question
concerning only the procedure by which relief should be sought’, corroborated by
Wades and Forsyth. The result of the O’Reilly case was to elevate form over
substance.

Exceptions to this rule have been identified, such as if both parties waive the right to
object to the procedure taken, where it will not be an issue. Where there is a
collateral issue in the validity of the offense charged, as in Boddington v British
Transport Police, ordinary proceeding may be used. Cocks v Thanet District Council
held that a litigant could acquire private law rights on the basis of a public law
decision, though this exception was later narrowed in Rourke where Hoffman LJ held
that it was unlikely that parliament intended every judiciary error that give rise to
enforceable private law obligations.

Coming back to Lord Lowry’s statement in Roy v Kensington and Chelsea and
Westminster Family Practitioner Committee, his lordship allowed private law rights
that were affected by decisions in public law to be tried under private law. His
lordship adapted two approaches to the question in O’Reilly. The broad approach
only required the litigant to proceed through JR where private law was not at stake.
In contrast, the narrow approach applied the rule to all proceedings in general in
which public law acts were questioned. Lord Lowry had an affinity for the broad
approach due to it’s practical merit of eliminating a procedural minefield.

The law commission and Cane commented on this stating that it did not identify what
a private right entailed. Cane further stated that it is unlikely to be of any assistance
in current times. Lord Bridge further stated that though O’Reilly can be subjected to
much criticism, it cannot be overruled.

The court has attempted to address the need for speed and certainty in
administrative decisions, with priority given to substance over form in Clark, through
incorporating a system of summary judgements. Hickman states that the theory for
this shift is to focus the argumentation on the need for protection over the precise
procedural form, an approach welcomed by Elliot. Part 54 of Civil procedural rules
also supports this, making it possible for litigants to transfer in and out of JR
proceedings with the court not under obligation to strike out the case, leaving the
litigant with no options for legal remedy.
Although the original intent for ‘exclusive procedure’ in the O’Reilly case is noble, it
resulted in elevating form over substance. This has been mitigated by the decision
in Clark as well as Part 54 of the CPR. Thus, it can be seen that though the O’Reilly
case is not overturned by the SC, not much of the original strict distinctions imposed
by the House of Lords remains, as the applicability of the exclusive principle has
reduced in contemporary times.

(1180 words)