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You are here: BAILII >> Databases >> The Law Commission >> Judicial Review And Statutory Appeals (Report) [1994] EWLC 226(3) (09 September 1994) URL: http://www.bailii.org/ew/other/EWLC/1994/226(3).html Cite as: [1994] EWLC 226(3)

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PART III PROCEDURAL EXCLUSIVITY

3.1      Following the reform of the procedure for judicial review in 1977 the decision of the House of Lords in O'Reilly v Mackman^[1] six years later introduced what has become known as the principle of procedural exclusivity. Under this principle claims for declarations and injunctions relating essentially to public law matters were, as a general rule, required to be brought under Order 53 and within its procedural constraints.^[2] The creation of this principle has given rise to much case law on the boundary between public law and private law rights, including several House of Lords decisions, most recently Roy v Kensington and Chelsea and Westminster FPC.^[3]

Procedural exclusivity and Order 53's provisions for leave, promptness and discretion

3.2      The requirement of leave and the short time limit under Order 53 which are absent in proceedings by writ or originating summons express divergent policy judgments as to the conditions under which a remedy may be obtained in public law. In our consultation paper we said that it was perhaps inevitable that attempts would be made to prevent the requirements of the prerogative procedure from being circumvented.^[4]
3.3      The principle of procedural exclusivity has, however, attracted criticism, in particular :

(a) Any exclusivity rule operates by automatically protecting public authorities, without reference to the actual degree of administrative inconvenience liable to be suffered.

(b) The existence of an exclusivity rule suggests that a sharp distinction can be drawn between private law rights and public law rights which can or cannot be raised in civil litigation. This is not true, and is liable to generate needless litigation over procedural issues, rather than the substance of the dispute.^[5]

(c) The exclusivity rule has been justified on the ground that the protection afforded to public authorities by the requirement of leave and short time limits is required to protect public authorities against litigation which prevents them from carrying out their statutory tasks. Although this justification might be thought to be equally applicable to litigation in which the infringement of rights in tort or contract is asserted, public authorities are not accorded special protection from such litigation.^[6]

3.4      The majority of those who responded to the consultation paper stated that the present procedure reflected a necessary compromise between the competing public policy interests we had identified.^[7] However, a minority^[8] considered that a filtering requirement, the need for the applicant to act promptly, and the discretion to refuse relief where there has been delay^[9] are neither necessary nor intrinsic to the procedure for making an application for judicial review.
3.5      Those who were dissatisfied with the existing procedure proposed a "unified procedure" under which judicial review proceedings would be commenced by writ and the requirement of leave replaced by a provision enabling a respondent to apply to strike out the application. Although, as will be seen in Part V, we have reservations about the label ''leave'' and propose a change of nomenclature, we do not favour a "unified procedure". We consider that any "unified procedure" would prevent the expeditious disposal of public law cases by specialist judges and could increase complexity and cost. We also consider that it is essential to filter out hopeless applications for judicial review.^[10] A unified procedure with a single criterion of "arguability" and no safeguards might also lead to a more restrictive approach to cases in which the issues are of wide public interest^[11] and to a narrower approach to standing.^[12] A filter such as the leave requirement gives judges discretion: in a unified procedure such cases might be struck out.
3.6      The abolition of the procedural mechanisms put in place in 1977 and revised in 1980 is not recommended in this report. We are of the view that challenge to the legality of public decisions and acts should be by a separate procedure. It is in the public interest that this procedure emphasises speed, certainty, and the prevention of vexatious litigation. However, we accept that this emphasis may be overridden by an even stronger public interest: that is, the vindication of private law rights where these exist.^[13]
3.7      We consider that reform should be by a combination of building on the restrictive approach to the exclusivity principle taken in Roy v Kensington and Chelsea and Westminster FPC^[14] and facilitating the transfer of issues or proceedings into or out of Order 53 so as to avoid serious detriment to cases involving a combination of public law and private law issues.^[15]

The rise and fall of the exclusivity principle

3.8      Before the reforms of 1977, for proceedings to be brought by writ or originating summons there had to be a completely constituted cause of action. Broadly speaking, a plaintiff had to allege the infringement of an individual right, be it contractual, tortious, restitutionary or proprietary, and be it statutory or rooted in the common law.^[16] However, plaintiffs were also able to get injunctive relief or a declaration in cases, exemplified by public nuisance, where, although no private right is interfered with, they had suffered special damage peculiar to themselves from interference with a public right.^[17] It is arguable that before the 1977 reforms the courts used to stretch this category because of the perceived inadequacies of prerogative relief.^[18] However, O'Reilly v Mackman was widely taken as doing more than simply reversing this trend because of Lord Diplock's statement that:-

Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, 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, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was 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 for the protection of such authorities.^[19]

It was this statement that was seen as providing that a person might be prevented from bringing a properly constituted cause of action, or raising a defence in one, where the case raised public law issues.

3.9      The application of this exclusivity principle has been considered by the House of Lords five times since the decisions in O'Reilly and in Cocks v Thanet DC: see Davey v Spelthorne BC,^[20] Wandsworth LBC v Winder,^[21] DPP v Hutchinson,^[22] Roy v Kensington and Chelsea and Westminster FPC^[23] and R v Secretary of State for Employment, ex p Equal Opportunities Commission.^[24] In Wandsworth LBC v Winder the exclusivity principle was held not to apply where a defendant sought to defend proceedings brought against him by relying on the invalidity of an administrative decision, and in Roy v Kensington and Chelsea and Westminster FPC the House of Lords appeared to favour a more fundamental limitation to the O'Reilly v Mackman exclusivity principle. The House considered two approaches: a "broad" approach under which Order 53 would only be insisted upon if private rights were not in issue and a "narrow" approach (more in line with Lord Diplock's formulation) which required applicants to proceed by judicial review in all proceedings in which public law acts or decisions are challenged, subject to some exceptions where private law rights are involved. Their Lordships did not decide which approach was the correct one but appeared to prefer the "broad" approach.^[25] 3.10 In Roy Lord Lowry, who was clearly not happy with the wide procedural restriction,^[26] considered that where "individual rights" are in issue the discretionary nature of Order 53 was inappropriate.^[27] Although their Lordships did not attempt to define private rights as such, Dr Roy was found to have a private right even where that right arose out of a particular statutory context, and only against a public authority.^[28] As indicated, such rights may be contractual, tortious, restitutionary or proprietary, and founded on statute or the common law. Roy's case does not address the difficult question of when a private right is created by statute; that will remain a matter of construction of individual statutes in their particular contexts.^[29] What it does is to provide guidance as to the procedural consequences of finding that such a right exists.
3.11      The effect of Roy, Wandsworth LBC v Winder^[30] and other cases^[31] is that where the plaintiff pleads a properly constituted cause of action there is no need to use the Order 53 procedure even though public law issues are raised which require decision.^[32] In a sense this represents the abandonment of the exclusivity principle because, as one consultee^[33] stated, "[t]here is no need for any principle of procedural exclusivity to prevent a person bringing something which is not a properly constituted cause of action: he has no right to sue in any event". If no such properly constituted cause of action is pleadable, as was the case in O'Reilly and in Cocks v Thanet DC, where an appropriate public law decision was a condition precedent to the establishment of the private law duty, the only avenue for relief will be by an application for judicial review.^[34]
3.12      The most recent House of Lords decision is R v Secretary of State for Employment, ex p Equal Opportunities Commission.^[35] In this case an ex-employee (joined to I proceedings by the EOC) brought a claim for judicial review of the Employment Secretary's continuing refusal to introduce amending legislation to make the Employment Protection (Consolidation) Act 1978 comply with the relevant provisions of EC anti-discriminatory law. The House of Lords held, upholding the Court of Appeal, that the individual applicant could not succeed in her application as her claim was essentially a private law claim which should be brought in an industrial tribunal. In this case a body which the relevant legislation did not directly affect was able to challenge by way of judicial review, while the individual who was affected was not. This aspect of the case is, however, consistent with the principle, of which we approve, that alternative remedies should be exhausted.^[36] The question of the exhaustion of alternative remedies is separate from, and prior to, the issue of standing as raised in this case. It is also separate from and prior to the issue of whether or not to allow transfer into or out of Order 53.
3.13      We consider that the primary rationale for requiring the use of Order 53 is the need to take account of public interest factors in purely public law cases. First, there is the constitutional function of judicial review and the public interest to ensure that public authorities observe the law and are prevented from relying on invalid decisions. Secondly, there is the interest in enabling individuals to obtain a remedy for grievances which are substantiated. Thirdly, there is the need for speed and certainty in administrative decision-making, particularly in cases where a large section of the community will be affected by a decision. In a case involving only public law issues the public policy interest in ensuring speed and certainty in administrative decision-making may be more important than the private interest of the individual litigant in obtaining a substantive hearing and, if appropriate, a substantive public law remedy, and is thought to justify, in particular, a very much shorter time limit.
3.14      On the other hand, where a case involves a properly constituted private law cause of action or where it is necessary to decide whether a person should be prevented from raising a defence in such an action, on the ground that it involves an issue of public law, a more flexible procedural approach is needed to ensure that private law rights are not "trumped" by public law justifications. Where a case involves disputed issues of fact^[37] use of a writ procedure may also be appropriate. However, we consider that such cases are unlikely to arise frequently.^[38]
3.15      The Commission supports development of the "broad" approach identified in Roy which it believes offers a principled way forward. We accordingly believe that the present position whereby a litigant is required to proceed by way of Order 53 only when (a) the challenge is on public law and no other grounds; i.e. where the challenge is solely to the validity or legality of a public authority's acts or omissions and (b) the litigant does not seek either to enforce or defend a completely constituted private law right is satisfactory.

A procedure for transfer

3.16      One option which received widespread support from consultees was facilitating the transfer of proceedings in to, as well as out of, Order 53.^[39] Facilitating such transfers, it was argued, would help eliminate the uncertainty and potential for litigation over procedural issues and the risk of being non-suited where private law rights and issues of public law are intermingled and the applicant/litigant is not sure in which jurisdiction to commence proceedings.^[40] This might occur where, as was the case before Cocks v Thanet DC in the field of homelessness, it is not clear whether there is a completely constituted cause of action or where, as in the judicial review of homelessness cases since Cocks, the law is very complicated.^[41] It might also occur in cases arising out of EC law.^[42] Although at present proceedings can be transferred out of Order 53 there is no express power^[43] to convert actions commenced by writ (or originating summons) into applications for judicial review under Order 53.^[44]

Transfer out of Order 53

3.17      Order 53 rule 9(5)^[45] provides: Where the relief sought^[46] is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.. Where the court decides to convert the application for judicial review into a writ action, it may give consequential directions under Order 28, rule 8,^[47] by analogy with converting originating summons proceedings into a writ action.
3.18      It has been argued that Order 53 rule 9(5) cannot be used to correct cases which are struck out as an abuse of process for being commenced under Order 53.^[48] For example, it has been held to be a misuse of procedure to seek damages by way of judicial review where the cause of action involves no arguable complaint in public law.^[49] We support the logic of this exclusion. However, it has also been held that the court will not exercise its discretion to order the proceedings to continue under Order 53 rule 9(5) where the only remedy sought is an order of certiorari which is inapplicable as a remedy in a civil action.^[50] We consider this to be unduly restrictive.
3.19      We consider that transfer would not be an abuse of process if the remedy sought is in substance transferable. For example, although mandamus or certiorari cannot be granted in private law proceedings, a mandatory injunction or a declaration can.^[51] We recommend that the existing rule should be amended to give the court power to order proceedings to continue as if they had begun by writ provided it is satisfied that the remedy sought is suitable for transfer into one of the forms of relief available in an action begun by writ^[52] (Draft Order 53 rule 11(1)).

Transfer in to Order 53

3.20      Whilst many consultees welcomed the "broad" approach to the exclusivity principle as formulated by Lord Lowry in Roy v Kensington and Chelsea and Westminster FPC^[53] at least one commentator has argued that it is still difficult to assert with confidence when exceptions to the rule properly apply.^[54] Recent case law also suggests that a lax view of exclusivity does not necessarily prevail in housing law cases,^[55] perhaps because of the number of such cases that come before the courts and the view of the courts that many of these are disguised appeals.^[56] It is important to prevent litigants getting caught in a procedural trap which it was the purpose of the 1977 reforms to remove.^[57] Accordingly, we recommend the introduction of a power to enable actions commenced by writ to proceed under Order 53. As indicated above, this might occur where it is not clear whether breach of a particular statutory duty gives rise to a completely constituted cause of action.
3.21      The Master and Head of the Crown Office suggested that in considering whether to exercise a power of transfer into Order 53 the court should apply the principles which would be applicable to the issue if it were raised by way of application for leave to apply for judicial review.^[58] We agree with this proposition since, without the application of those principles, an applicant in search of an exclusively public law remedy would be able to bypass the requirement for leave altogether.^[59] One difficulty with this requirement relates to delay. Although one consultee argued that transfer should be based on considerations of the wider interests of good administration rather than a strict application of the judicial review time limit, others, including the nominated judges doubted that, in practice, a case with merits would be turned down merely for reasons of delay. It is recommended that Order 53 rule 9 be amended so as enable an action commenced by writ to be transferred into Order 53 and to continue as an application for judicial review provided the plaintiff satisfies the criteria for the granting of leave or, on our recommendation, for an application being allowed to proceed to a full judicial review^[60] (Draft Order 53 rule 11 (2) (3)).

A reference procedure

3.22      The transfer procedure we have described above contemplates the wholesale transfer of cases rather than guidance on a particular point of law. For this reason, some consultees favoured bringing about greater procedural flexibility through the introduction of a reference procedure. This procedure, likened to Article 177 of the EEC Treaty,^[61] would enable a court or tribunal to seek a ruling from the Divisional Court or a single judge hearing cases in the Crown Office List on the validity or otherwise of a public action.^[62] We have given careful consideration to this proposal but we are of the view that the case for such a unique line of judicial authority emanating from one part of one Division of the High Court, albeit a specialist one, has not yet been made. We also consider that a reference procedure would result in a multiplicity of proceedings, increased costs and further delay. Our recommendations for an improved and extended procedure for transfer in and out of Order 53 (paragraphs 3.16 - 3.20 above) and a new procedure (paragraph 3.23 below) by which a judge may, of his or her own motion, transfer a case to the Crown Office or mark it as appropriate for a nominated judge are designed to avoid procedural hardship to plaintiffs who commence proceedings in the wrong court. Transfer would also ensure that, even where cases are not required to proceed under the Order 53 procedure they may be heard by a specialist judge if they raise significant public law points.

Transfer to the Crown Office List and certification of a case as "fit for a nominated judge" without necessarily putting it into the Crown Office List

3.23      We consider that facilitating transfer of cases from the county court to the High Court after an action has begun would assist in the early identification and disposal of either public law or mixed public and private law cases. A similar procedure exists for the transfer of actions to the commercial list.^[63] In effect we propose that any party to an action should be able to apply by summons to the district judge or master to transfer the action to the High Court on the ground that it raises issues of public law. It is envisaged that if the district judge or master considers the case a suitable one then it could be "certified as fit for a nominated judge if available" and transferred to the High Court, either, in a case solely raising public law issues, to the Crown Office List, or in a "mixed" case to the Queen's Bench Division. Such a transfer procedure would operate only at the margins in those cases raising a difficult combination of public and private law issues. In view of the likelihood of increased costs^[64] we do not envisage that such transfers would constitute a significant proportion of Order 53 cases.

Alternative remedies

3.24      Where alternative statutory machinery exists the governing principle has been that the court will refuse to grant a remedy under Order 53.^[65] Alternative remedies to judicial review may involve a number of different types of statutory machinery.^[66] It has been argued that there is a need to identify the scope of the rule that a remedy will be denied where an alternative remedy to judicial review is available and the factors which indicate either when it should apply or that an exception should be made.^[67]
3.25      While a majority of consultees considered that if an alternative remedy existed, or, if such a remedy existed but the applicant failed to use it, then relief might properly be refused, there was widespread support for the suggestion that an applicant should only be required to exhaust an alternative remedy where the remedy available was an adequate one.^[68] We consider that it should be the adequacy of the alternative remedy to resolve the complaint at issue which should define the scope of the principle.^[69]
3.26      The questions of when and how the exhaustion of alternative remedies should be identified are considered elsewhere in this report.^[70] Broadly speaking we consider that an alternative remedy should be regarded as an adequate remedy where it is to a court, tribunal or is a statutory appeal to a minister.^[71] Ministerial default powers, while constituting legal alternative remedies, require slightly different treatment in this context. We believe that only appeals to a court or tribunal or a statutory appeal to a minister should normally preclude an application being allowed to proceed to a substantive hearing.^[72]

Note 1   [1983] 2 AC 237.    [Back]

Note 2   The obverse of the rule in O’Reilly v Mackman is that judicial review is an inappropriate means of challenging a public authority when that authority is acting in the capacity of a private contracting party, see: R v East Berkshire Area Health Authority, ex p Walsh [ 19851 QB 152; McClaren v Home Ofice [1990] ICR 824.    [Back]

Note 3    [1992] 1 AC 624. These decisions were analysed in Consultation Paper No 126, paras 3.5 - 3.15.    [Back]

Note 4   Consultation Paper No 126, para 3.4. See also PP Craig, Administrative Law (3rd ed, 1994), p 593.    [Back]

Note 5   JUSTICE-All Souls Report, op cit p 150, para 6.20.    [Back]

Note 6   Eg Hotson v East Berkshire AHA [1987] AC 750. See generally, PP Craig, Administrative Law (3rd ed, 1994), pp 578-585.    [Back]

Note 7   See paras 2.1 - 2.7 above. Although many consultees wished to emphasise that the public policy need to vindicate the rule of law should lie at the heart of any proposed reform.    [Back]

Note 8   The most influential of these is Professor Sir William Wade QC, see eg “Exclusivity, Leave and Time Limits” (Cambridge Conference on Law Commission Consultation Paper No 126: Judicial Review and Statutory Appeals - May 1993).    [Back]

Note 9   Supreme Court Act 1981, s 31(6).    [Back]

Note 10   See further paras 5.1 - 5.5 below.    [Back]

Note 11   Eg R v Environment Secretary, ex p Greenpeace Ltd, The Independent, 8th March 1994, where leave was allowed even though the criterion of “arguability” was perhaps not met.    [Back]

Note 12   Burrs v Bethell [1982] Ch 294, 313. On standing outside O 53, see n 17 below, and on standing generally, see paras 5.16 - 5.22 below.    [Back]

Note 13   We accept that many of the problems associated with judicial review result from the difficulty in deciding whether or not a statute creates a private law right: see Cocks v Thanet DC [1983] 2 AC 286.    [Back]

Note 14   [1992] 1 AC 624, 628 - 629 (Lord Bridge), 653 - 655 (Lord Lowry). The factors against the application of procedural exclusivity included: (a) the existence of either a contractual or a statutory private law right which dominated the proceedings; (b) the possibility that the claim (for remuneration) might involve disputed issues of fact; (c) the relief sought (eg payment of money due or restitution) could not be granted in judicial review proceedings; (d) the claim was joined with another claim which was fit to be brought in an action (and had already been successfully prosecuted); (e) the action was not plainly an abuse of process.    [Back]

Note 15   It is in such cases that the exclusivity principle has given rise to most difficulties, see paras 3.10 - 3.14 below.    [Back]

Note 16   Personal freedoms are protected by torts such as trespass, false imprisonment, malicious prosecution, and assault, or by statute, such as the restrictions on police powers in the Police and Criminal Evidence Act 1984 and the Interception of Communications Act 1985.    [Back]

Note 17   Boyce v Paddington BC [1903] 1 Ch 109. Where the plaintiff suffers no special damage peculiar to himself or herself, and no private right is interfered with at the same time as interference with the public right only the Attorney-General can assist him by allowing a relator action: see Gouriet v Union of Post Office Workers [1978] AC 435.    [Back]

Note 18   O'Reilly v Mackman [1983] 2 AC 237, 281-2, 285.    [Back]

Note 19   Ibid, at p 285D. The decision in this case was handed down together with that in Cocks v Thanet DC [1983] 2 AC 286.    [Back]

Note 20   [1984] AC 262.    [Back]

Note 21   [1985] AC 461.    [Back]

Note 22   [1990] 2 AC 783 (in relation to defences in criminal proceedings).    [Back]

Note 23   [1992] 1 AC 624.    [Back]

Note 24   [1994] 2 WLR 409 (HL).    [Back]

Note 25   Roy v Kensington and Chelsea and Westminster FPC [1992] 1AC 624, pp 628-629 (Lord Bridge, whose formulation was similar to the “broad” approach), 653 (Lord Lowry, who much preferred the broad approach). Lord Griffiths, Lord Emslie and Lord Oliver agreed with Lord Bridge and Lord Lowry. It is, with respect, perhaps counterintuitive to describe, as Lord Lowry did, the preferred approach as the “broad” approach because it limits the ambit of O’Reilly v Mackman to a greater extent than the “narrow” approach.    [Back]

Note 26   In R v Secretary of State for Employment, ex p Equal Opportunities Commission [1994] 2 WLR 409, 425 he stated that he hoped O’Reilly would be reconsidered by the House of Lords.    [Back]

Note 27   [1992] 1 AC 624 at 654. See also in the context of Article 26 of the European Convention on Human Rights, App 12661/87 Miaihle v France (1990) 66 ECHR 92; App 15404/84 Purcell v Ireland (1991) 70 ECHR 262.    [Back]

Note 28   [1992] 1 AC 624 at 653 ie the “right to a fair and legally correct consideration of his claim.” Cocks v Thanet DC [1983] 2 AC 286 was distinguished in Roy on the basis that the plaintiffs in Cocks had no private rights because a discretionary decision (concerning the allocation of housing) lay in their way. Once a decision to grant the plaintiffs housing had been made, private rights would arise.    [Back]

Note 29   See M v Newham LBC [1994] 2 WLR 554 (CA). See also R v Secretary of State for Employment, ex p Equal Opportunities Commission [1994] 2 WLR 409 (HL), para 3.12 below, for the contrast between the position of an individual and the Commission.    [Back]

Note 30   [1985] AC 461.    [Back]

Note 31   See Lonhro plc v Tebbit [1992] 4 All ER 280, 288 (CA); Woolwich Equitable BS v IRC [1993] AC 70, 200. See also DPP v Hutchinson [1990] 2 AC 783; R v Secretary of State for the Home Department, ex p Adams, The Times 10 August 1994.    [Back]

Note 32   Roy at pp 628-629, 639, 640, 643-645 citing Cocks (at 292-3), O’Reilly (at 274-275, 284- 285), An Bord Bainne Co-op (at [1984] 2 CMLR 588-589) Winder (at 480). Roy may, however, indicate an even further inroad into O’Reilly since one of the functional factors listed by Lord Lowry (654) as indicating that a case should not be required to proceed under Order 53, that the type of claim may involve disputed issues of fact, is unconnected with the existence of private law rights.    [Back]

Note 33   John Howell QC.    [Back]

Note 34   Cocks v Thanet DC [1983] 2 AC 286.    [Back]

Note 35   [1994] 2 WLR 409 (HL).    [Back]

Note 36   See paras 3.24 - 3.26 and 5.31 - 5.35 below.    [Back]

Note 37   This is one of the factors indicated in Roy v Kensington and Chelsea and Westminster FPC: [1992] 1 AC 624, see n 14, above.    [Back]

Note 38   Questions of fact can arise in judicial review proceedings. There may, for example, be a dispute as to what considerations were actually taken into account and what procedures were followed. More rarely there may be a dispute as to a jurisdictional fact.    [Back]

Note 39   Consultation Paper No 126, paras 3.24 - 3.26.    [Back]

Note 40   As there was little support for empowering the court to join two forms of proceedings so that all the issues could be properly determined and the remedies provided in one court (see Consultation Paper No 126, para 3.26) we do not consider this proposal further.    [Back]

Note 41   See para 3.20 n 55 below.    [Back]

Note 42   See para 3.12 above.    [Back]

Note 43   According to Woolf LJ, writing in 1986, the High Court would in certain circumstances give leave and treat material which was before it as fulfilling the procedural requirements of an application for judicial review even though the action had been commenced by writ. See “Public Law - Private Law: Why the Divide?” [1986] PL 220 p 232.    [Back]

Note 44   Of those who commented, there was almost unanimous support for a new rule to allow for such a transfer.    [Back]

Note 45   O 53, r 9 was introduced by RSC (Amendment No 3) 1977 (SI 1977 No 1955). A power of transfer was not mentioned in either our Working Paper ((1971) No 40) or Report ((1976) Law Com No 73).    [Back]

Note 46   All the prerogative orders are inapplicable as remedies in a civil action and this may be the reason for their exclusion from O 53, r 9(5).    [Back]

Note 47   Where an order for transfer to a writ action is made the Court may require pleadings to be served or order that the affidavits stand as pleadings. The parties may be given leave to add to the affidavits standing as pleadings and apply for further and better particulars of the matters they contain: 0 28, r 8. However, where there is no indication of the form of the declaration the applicant might seek to make, the court may refuse transfer on the basis that ultimately costs will be saved if fresh pleadings are served. Eg R v East Berkshire Health Authority, ex p Walsh [1985] 1 QB 152; R v Insurance Ombudsman Bureau, ex p Aegon Life Assurance, QBD The Times 7 January 1994.    [Back]

Note 48   But see 0 2, r l(3) which states that the court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of the rules to be begun by an originating process other than the one employed.    [Back]

Note 49   R v Secretary of State for Home Affairs, ex p Dew [1987] 1 WLR 881.    [Back]

Note 50   R v East Berkshire Health Authoriry, ex p Walsh [1985] QB 152 (CA). But see: R v Northavon District Council, ex p Palmer, [ 19941 COD 60, where the court allowed a claim for a declaration to be added, so that the damages being claimed could be granted as ancillary to an O 53 ground of relief.    [Back]

Note 51   In Wandsworth London Borough Council v Winder [1985] AC 461 the House of Lords expressly approved actions for a declaration of nullity as an alternative to applications for certiorari to quash, where private law rights were concerned.    [Back]

Note 52   Another option, which we do not, however, favour, would be that prerogative orders be made available in ordinary actions: see Sir William Wade QC, “Procedure and Prerogative in Public Law [1985] PL 180; Administrative Law (6th ed 1988) pp 680-681.    [Back]

Note 53   [1992] 1 AC 624.    [Back]

Note 54   See, for example, C Emery, “Collateral Attack - Attacking Ultra Vires Action Indirectly in Courts and Tribunals” [1993] 56 MLR 643.    [Back]

Note 55   See, for example, Mohram Ali v Tower Hamlets London Borough Council [1993] QB 407; London Borough of Tower Hamlets v Abdi (1992) 25 HLR 68; London Borough of Hackney v Lambourne (1993) 25 HLR 172. Discussed by D Cowan in “The Public/Private Dichotomy and “Suitable Accommodation” under Section 69(1) of the Housing Act 1985” (1993) JSWFL 236.    [Back]

Note 56   We are proposing that there should be an appeal on points of law in homelessness cases, which will ease this particular concern. See paras 2.24 - 2.27 above.    [Back]

Note 57   See Davy v Spelthome BC [1984] AC 262, 276 per Lord Wilberforce.    [Back]

Note 58   In Part V below we recommend that the Rules contain criteria for leave or, if another of our recommendations (see paras 5.6 - 5.8 below) is accepted, for cerufylng that the application should proceed to a substantive hearing.    [Back]

Note 59   Eg Goulding J’s comments in Heywood v Board of Visitors of Hull Prison [1980] 1 WLR 1386 at 1391.    [Back]

Note 60   See further Part V below.    [Back]

Note 61   Article 177 of the Treaty gives the Court of Justice jurisdiction to exercise a form of advisory function that is legally binding. A reference to the Court of Justice enables the domestic court seised of a question to stay proceedings before and pending an interpretative decision from the Court.    [Back]

Note 62   C Emery, “The Vires Defence - “Ultra Vires” as a defence to criminal or civil proceedings” [1992] CLJ, 308-348, has argued that a domestic reference procedure, modelled on that which is adopted for cases with a community law element, would improve operation of the “vires defence” in criminal proceedings and help clarify the precise basis and extent of the ruling in Wandsworth LBC v Winder [1985] AC 461.    [Back]

Note 63   See O 72, r 5. Rule 6 enables a judge in the commercial court, on his or her own motion or on the application of either party, to order an action in the commercial list to be removed from that list. An order for entry of an action in the commercial list is appealable if the action is not properly a commercial action. If the procedure suggested in this paragraph is adopted, a case transferred direct to the Crown Office List from the county court should be placed before a judge on its arrival there, to enable him to consider whether it is appropriate for that list.    [Back]

Note 64   In discussion, the Legal Aid Board pointed out that the Board already funds transfer of cases to or from the High Court in the field of personal injury litigation.    [Back]

Note 65   See paras 5.31 - 5.35 below. On this basis the court may, in its discretion, refuse to grant leave to apply for judicial review; it may set aside leave previously given; or refuse relief at the substantive hearing.    [Back]

Note 66   These include various statutory provisions for challenge in the High Court, eg case stated, statutory rights of challenge and statutory appeals as well as specific rights of appeal or default powers entrusted to ministers (ranging from a discretion to take over the activity in question to a statutory power to apply to the court for mandamus).    [Back]

Note 67   See C Lewis, “The Exhaustion of Alternative Remedies in Administrative Law” [1992] CLJ 138. One local authority consultee remarked that lack of clarity about what constituted an alternative remedy hindered resolution of claims through further discussion, negotiation and consultation.    [Back]

Note 68   See Consultation Paper No 126, para 14.14 (c).    [Back]

Note 69   An alternative remedy may be inadequate because the reviewing body does not have the power to remedy a complaint fully. Eg the reviewing body may not have the jurisdiction to consider whether a power was improperly exercised, whether there was procedural irregularity; or be able either to quash the decision in question or to construe the validity of a regulation behind it.    [Back]

Note 70   See paras 5.31 - 5.35 below.    [Back]

Note 71   Eg the National Health Service (Service Committees and Tribunal) Regulations, SI 1974 No 455 provides for a right of appeal to the Secretary of State from a decision of the Family Practitioner Committee on the report of the service committee on a complaint against a practitioner, chemist or optician. The Secretary of State may determine the appeal: reg 11.    [Back]

Note 72   See also para 5.35 below.     [Back]