6. Availability of claims for judicial review and of actions, and the
distinction between public law and private law
An application for judicial review may only be brought against a body exercising
public or governmental functions. And in O’Reilly v. Mackman, Lord Diplock held
that it is an abuse of process to assert rights protected by public law in an action
(that ‘exclusivity rule’ has now been much diluted). So courts need to distinguish
claims as public or private for procedural purposes. Note that similar questions
also arise about the range of bodies against which actions may be brought under
the Human Rights Act 1998 (see ‘Definition of a public authority’ in Topic 1 of
the core reading list).
Beatson, Matthews and Elliots; Administrative Law:
Knowing whether something is a matter of public or private law is important because
it will determine whether D has to comply with public law duties of natural justice
etc.
Also the new rules of procedure, introduced in 2000, say that if an individual wishes
to claim that D has breached a public law principle, he must use the JR procedure.
The new rules sought to remedy many of the problems of the old civil procedure for
JR which prevented justice being done, opting instead to try and use ordinary actions.
For example, under the old JR procedure it was v difficult to get the court to allow Ps
to cross examine witnesses and the courts were generally unwilling to allow sworn
affidavits to be challenged.
The new rules also created the administrative court and PAs are under a duty to ‘assist
the court with full and accurate explanations of all the facts relevant to the issue the
court must decide. This should help overcome some of the procedural defects of
traditional JR. Also where HRA is invoked the courts are more willing to allow
cross-examination- As in R (Wilkinson) v Broadmoor Hospital [2002]EWHC 250.
There was a time when the courts actively encouraged people to seek ordinary claims
and evade JR so as to avoid the procedural problems. Hence in Barnard v National
Dock Labour Board Lord Denning made this point and said that because of the
limitations on applying JR remedies ordinary claims were preferable. However there
are problems with this view: The reason for having a distinct JR procedure is based
on policy concerns e.g. to prevent litigation from hampering a PA’s effectiveness.
The public-private distinction remains. The effect of Clark is simply that decisions on
whether the correct procedure has been followed will depend on the substantive
values in play and whether there has been an actual abuse of process is to be
welcomed.
* Civil Procedure (Amendment) Rules 2000 (S.I. 2000 No. 2092), Rule 54
Part 24: The courts can give summary judgment if they think the claim is hopeless
,Part 1: Overriding principles: Cases should be dealt with by, so far as possible,
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate:
(i) to the amount of money involved,
(ii) to the importance of the case,
(iii) to the complexity of the issues, and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court's resources, while taking into account
the need to allot resources to other cases.
NB part 1.1(2)(d) and 1.1(3): The parties are required to help out the court in furthering
the “overriding principles”
Key Changes: a judicial review may now be decided without a hearing if the parties agree
(r 54.18) and the court may, subject to any statutory provision to the contrary, take a
decision itself rather than remit it to the original decision-maker (r 54.19(3)).
Exclusivity rule (see cases below): Judicial review is brought within existing civil
procedure and that a "claim for judicial review", as it is now called (r 54.1(2)(a)), is to be
assimilated to other proceedings "unlikely to involve a substantial dispute of fact" (r
8.1(2)(a)). Thus the permission stage is retained, albeit in altered form. And as before, a
claim must be commenced promptly and, in any event, not later than 3 months after the
grounds to make the claim arose (r 54.5). The time limit provisions are, in fact, somewhat
stricter than the old Order 53 because they provide that the time limit may not be
extended by agreement between the parties (r 54.5(2)). To prevent abuse of process,
where there was excessive delay, the court could take this into account in deciding
whether there was an abuse of process which made it appropriate to strike the claim out.
Equally, delay would be relevant in deciding whether to give summary judgment.
Remedies: Mandatory, prohibiting and quashing orders can only be sought via JR
proceedings. Injunctions can be sought as detailed in SCA. Damages can be claimed as
part of the overall remedy, but not exclusively.
* Supreme Court Act 1981, s.31:
S.31(1): An application for a mandatory order, prohibitory order, quashing order and, in
some cases injunctions are to be dealt with in accordance with the rules on judicial
review.
s.31(2): Whether an injunction is granted in a case where judicial review is sought
depends on the nature of the matters, the nature of the bodies against whom the remedy is
sought, and all circumstances of the case. Tasking these into account, the court must
decide whether to grant the injunction, depending on whether “it would be just and
,convenient for the declaration to be made or the injunction to be granted, as the case may
be.”
S.31(3) “No application for judicial review shall be made unless the leave of the High
Court has been obtained in accordance with rules of court; and the court shall not grant
leave to make such an application unless it considers that the applicant has a sufficient
interest in the matter to which the application relates.”
S.31(4): the High Court may award to the applicant damages, restitution or the recovery
of a sum due if–
(a) the application includes a claim for such an award arising from any matter to which
the application relates; and (b) the court is satisfied that such an award would have been
made if the claim had been made in an action begun by the applicant at the time of
making the application.
S.31(5): If the court quashes the decision it may remit the matter to DM OR substitute its
own decision for the decision in question. However a decision can only be substituted
where the original decision was made by a court or tribunal, it has been quashed because
of an error of law, and without the error, there would have been only one decision which
the court or tribunal could have reached.
S.31 (6) Where the High Court considers that there has been undue delay in making an
application for judicial review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial
hardship to, or substantially prejudice the rights of, any person or would be detrimental to
good administration, subject to the rules of time-limiting actions.
The Scope of Judicial Review
Law v. National Greyhound Racing Club [1983] 1 WLR 1302: D, a company, ran several
greyhound racing stadiums and it decided to suspend P’s trainer licence. P sought a
declaration that the decision was ultra vires and in breach of an implied term of an
agreement between them that D’s decisions would be reasonable. D asked to have the
case struck out on the grounds that the Supreme Court Act s.31 says that the application
should have been made by judicial review, which this was not. CA rejected the striking
out motion since the authority of D derived wholly from a contract between it and P’s
status was that of a domestic tribunal albeit their decisions might affect the public, so that
the process of judicial review would not have been open to the plaintiff. S.31 Supreme
Court Act (SCA) did not give the courts the power to review, by any order, the decision of
a domestic tribunal, but rather applied only to public law.
* R. v. Panel on Take-overs & Mergers, ex parte Datafin [1987] 1 All ER 564: The Panel
on Take-overs and Mergers was a self-regulating unincorporated association which
devised and operated the City Code on Take-overs and Mergers prescribing a code of
conduct to be observed in the take-overs of listed public companies. The panel had no
direct statutory, prerogative or common law powers, nor were its powers based solely on
, consensus, but they were supported and sustained by certain statutory powers and
penalties introduced after the inception of the panel. CA held that it was subject to
judicial review claims since in determining whether the decisions of a particular body
were subject to judicial review, the court was not confined to considering the source of
that body's powers and duties but could also look to their nature. Accordingly, if the duty
imposed on a body, whether expressly or by implication, was a public duty and the body
was exercising public law functions the court had jurisdiction to entertain an application
for judicial review of that body's decisions. On the merits though there was no case for
quashing the decision.
Lloyd LJ: the wide-ranging nature of the powers exercised by the Panel (regulating
take-overs and enforcing a code of conduct on them) were essentially in the domain of
public law and formed part of the Government's scheme to regulate the City. Those
affected had no choice but to submit to the Panel's jurisdiction.
* R. v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR
909; (see Bamforth, ‘The Scope of Judicial Review: Still Uncertain’ [1993] PL 239): D
regulated the horse racing profession by the issue of licences and permits by which the
club's stewards entered into contracts with racecourse managers, owners, trainers and
jockeys, who were required to submit to a comprehensive regulatory code. It derived
authority from contract but dominated the sport. CA held that D’s powers and duties were
in no sense governmental but derived from the contractual relationship between the club
and those agreeing to be bound by the Rules of Racing. Such powers gave rise to private
rights enforceable by private action in which effective relief by way of declaration,
injunction and damages was available. Accordingly, the club's decision was not amenable
to judicial review.
Sir Thomas Bingham MR: He says that Law v. National Greyhound Racing Club is still
good law and stands for the proposition that “public law remedies do not lie against
domestic bodies, as they derive solely from the consent of the parties.” He says that ex
parte Datafin did not change this even though it allowed more factors to be taken into
account that just the source of powers/duties. If Datafin was largely based on the fact that
it was impossible to enter the market without submitting to the regulation of the body, and
the same is true here because of de facto domination by the Jockey Club then he ought to
have granted judicial review. Also why is it relevant that some private law actions exist if
they don’t protect the individual to the same extent? Having a private cause of action
shouldn’t and usually doesn’t prevent someone from bringing a public law action too.
Bradley v. Jockey Club [2005] EWCA Civ 1056: B had received money in return for
sensitive information about horses which breached the Jockey Club’s rules and was
therefore disqualified for 5 years from working in racing. CA said that while it had no
ability to hear judicial review claims from bodies such as the Jockey Club, it did have a
similar “supervisory jurisdiction” that required disciplinary boards and courts had to have
regard to the circumstances that required disqualification where that penalty deprived a
person of his right to work.
distinction between public law and private law
An application for judicial review may only be brought against a body exercising
public or governmental functions. And in O’Reilly v. Mackman, Lord Diplock held
that it is an abuse of process to assert rights protected by public law in an action
(that ‘exclusivity rule’ has now been much diluted). So courts need to distinguish
claims as public or private for procedural purposes. Note that similar questions
also arise about the range of bodies against which actions may be brought under
the Human Rights Act 1998 (see ‘Definition of a public authority’ in Topic 1 of
the core reading list).
Beatson, Matthews and Elliots; Administrative Law:
Knowing whether something is a matter of public or private law is important because
it will determine whether D has to comply with public law duties of natural justice
etc.
Also the new rules of procedure, introduced in 2000, say that if an individual wishes
to claim that D has breached a public law principle, he must use the JR procedure.
The new rules sought to remedy many of the problems of the old civil procedure for
JR which prevented justice being done, opting instead to try and use ordinary actions.
For example, under the old JR procedure it was v difficult to get the court to allow Ps
to cross examine witnesses and the courts were generally unwilling to allow sworn
affidavits to be challenged.
The new rules also created the administrative court and PAs are under a duty to ‘assist
the court with full and accurate explanations of all the facts relevant to the issue the
court must decide. This should help overcome some of the procedural defects of
traditional JR. Also where HRA is invoked the courts are more willing to allow
cross-examination- As in R (Wilkinson) v Broadmoor Hospital [2002]EWHC 250.
There was a time when the courts actively encouraged people to seek ordinary claims
and evade JR so as to avoid the procedural problems. Hence in Barnard v National
Dock Labour Board Lord Denning made this point and said that because of the
limitations on applying JR remedies ordinary claims were preferable. However there
are problems with this view: The reason for having a distinct JR procedure is based
on policy concerns e.g. to prevent litigation from hampering a PA’s effectiveness.
The public-private distinction remains. The effect of Clark is simply that decisions on
whether the correct procedure has been followed will depend on the substantive
values in play and whether there has been an actual abuse of process is to be
welcomed.
* Civil Procedure (Amendment) Rules 2000 (S.I. 2000 No. 2092), Rule 54
Part 24: The courts can give summary judgment if they think the claim is hopeless
,Part 1: Overriding principles: Cases should be dealt with by, so far as possible,
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate:
(i) to the amount of money involved,
(ii) to the importance of the case,
(iii) to the complexity of the issues, and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court's resources, while taking into account
the need to allot resources to other cases.
NB part 1.1(2)(d) and 1.1(3): The parties are required to help out the court in furthering
the “overriding principles”
Key Changes: a judicial review may now be decided without a hearing if the parties agree
(r 54.18) and the court may, subject to any statutory provision to the contrary, take a
decision itself rather than remit it to the original decision-maker (r 54.19(3)).
Exclusivity rule (see cases below): Judicial review is brought within existing civil
procedure and that a "claim for judicial review", as it is now called (r 54.1(2)(a)), is to be
assimilated to other proceedings "unlikely to involve a substantial dispute of fact" (r
8.1(2)(a)). Thus the permission stage is retained, albeit in altered form. And as before, a
claim must be commenced promptly and, in any event, not later than 3 months after the
grounds to make the claim arose (r 54.5). The time limit provisions are, in fact, somewhat
stricter than the old Order 53 because they provide that the time limit may not be
extended by agreement between the parties (r 54.5(2)). To prevent abuse of process,
where there was excessive delay, the court could take this into account in deciding
whether there was an abuse of process which made it appropriate to strike the claim out.
Equally, delay would be relevant in deciding whether to give summary judgment.
Remedies: Mandatory, prohibiting and quashing orders can only be sought via JR
proceedings. Injunctions can be sought as detailed in SCA. Damages can be claimed as
part of the overall remedy, but not exclusively.
* Supreme Court Act 1981, s.31:
S.31(1): An application for a mandatory order, prohibitory order, quashing order and, in
some cases injunctions are to be dealt with in accordance with the rules on judicial
review.
s.31(2): Whether an injunction is granted in a case where judicial review is sought
depends on the nature of the matters, the nature of the bodies against whom the remedy is
sought, and all circumstances of the case. Tasking these into account, the court must
decide whether to grant the injunction, depending on whether “it would be just and
,convenient for the declaration to be made or the injunction to be granted, as the case may
be.”
S.31(3) “No application for judicial review shall be made unless the leave of the High
Court has been obtained in accordance with rules of court; and the court shall not grant
leave to make such an application unless it considers that the applicant has a sufficient
interest in the matter to which the application relates.”
S.31(4): the High Court may award to the applicant damages, restitution or the recovery
of a sum due if–
(a) the application includes a claim for such an award arising from any matter to which
the application relates; and (b) the court is satisfied that such an award would have been
made if the claim had been made in an action begun by the applicant at the time of
making the application.
S.31(5): If the court quashes the decision it may remit the matter to DM OR substitute its
own decision for the decision in question. However a decision can only be substituted
where the original decision was made by a court or tribunal, it has been quashed because
of an error of law, and without the error, there would have been only one decision which
the court or tribunal could have reached.
S.31 (6) Where the High Court considers that there has been undue delay in making an
application for judicial review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial
hardship to, or substantially prejudice the rights of, any person or would be detrimental to
good administration, subject to the rules of time-limiting actions.
The Scope of Judicial Review
Law v. National Greyhound Racing Club [1983] 1 WLR 1302: D, a company, ran several
greyhound racing stadiums and it decided to suspend P’s trainer licence. P sought a
declaration that the decision was ultra vires and in breach of an implied term of an
agreement between them that D’s decisions would be reasonable. D asked to have the
case struck out on the grounds that the Supreme Court Act s.31 says that the application
should have been made by judicial review, which this was not. CA rejected the striking
out motion since the authority of D derived wholly from a contract between it and P’s
status was that of a domestic tribunal albeit their decisions might affect the public, so that
the process of judicial review would not have been open to the plaintiff. S.31 Supreme
Court Act (SCA) did not give the courts the power to review, by any order, the decision of
a domestic tribunal, but rather applied only to public law.
* R. v. Panel on Take-overs & Mergers, ex parte Datafin [1987] 1 All ER 564: The Panel
on Take-overs and Mergers was a self-regulating unincorporated association which
devised and operated the City Code on Take-overs and Mergers prescribing a code of
conduct to be observed in the take-overs of listed public companies. The panel had no
direct statutory, prerogative or common law powers, nor were its powers based solely on
, consensus, but they were supported and sustained by certain statutory powers and
penalties introduced after the inception of the panel. CA held that it was subject to
judicial review claims since in determining whether the decisions of a particular body
were subject to judicial review, the court was not confined to considering the source of
that body's powers and duties but could also look to their nature. Accordingly, if the duty
imposed on a body, whether expressly or by implication, was a public duty and the body
was exercising public law functions the court had jurisdiction to entertain an application
for judicial review of that body's decisions. On the merits though there was no case for
quashing the decision.
Lloyd LJ: the wide-ranging nature of the powers exercised by the Panel (regulating
take-overs and enforcing a code of conduct on them) were essentially in the domain of
public law and formed part of the Government's scheme to regulate the City. Those
affected had no choice but to submit to the Panel's jurisdiction.
* R. v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR
909; (see Bamforth, ‘The Scope of Judicial Review: Still Uncertain’ [1993] PL 239): D
regulated the horse racing profession by the issue of licences and permits by which the
club's stewards entered into contracts with racecourse managers, owners, trainers and
jockeys, who were required to submit to a comprehensive regulatory code. It derived
authority from contract but dominated the sport. CA held that D’s powers and duties were
in no sense governmental but derived from the contractual relationship between the club
and those agreeing to be bound by the Rules of Racing. Such powers gave rise to private
rights enforceable by private action in which effective relief by way of declaration,
injunction and damages was available. Accordingly, the club's decision was not amenable
to judicial review.
Sir Thomas Bingham MR: He says that Law v. National Greyhound Racing Club is still
good law and stands for the proposition that “public law remedies do not lie against
domestic bodies, as they derive solely from the consent of the parties.” He says that ex
parte Datafin did not change this even though it allowed more factors to be taken into
account that just the source of powers/duties. If Datafin was largely based on the fact that
it was impossible to enter the market without submitting to the regulation of the body, and
the same is true here because of de facto domination by the Jockey Club then he ought to
have granted judicial review. Also why is it relevant that some private law actions exist if
they don’t protect the individual to the same extent? Having a private cause of action
shouldn’t and usually doesn’t prevent someone from bringing a public law action too.
Bradley v. Jockey Club [2005] EWCA Civ 1056: B had received money in return for
sensitive information about horses which breached the Jockey Club’s rules and was
therefore disqualified for 5 years from working in racing. CA said that while it had no
ability to hear judicial review claims from bodies such as the Jockey Club, it did have a
similar “supervisory jurisdiction” that required disciplinary boards and courts had to have
regard to the circumstances that required disqualification where that penalty deprived a
person of his right to work.
