Judicial Review

Authorities Subjectable to Judicial

Review and the Public / Private Law
Distinction and issue of Justiciability
 Authorities Subjectable to Judicial Review.

The Decision in O’Reilly v Mackman (1983)

• The general rule established in this case is that public law
decisions should be challenged by way of judicial review.
• Private law matters on the other hand should be dealt with by
ordinary action such as originating summons.
• According to the ‘exclusivity principle’, judicial review can not
be used as a substitute for legal proceedings involving
disputes in which there arises no issue of public law
significance, or where the public law component of the claim
is secondary.
• In O’Reilly v Mackman, Following a prison riot certain
prisoners were sentenced to a period of solitary confinement
and loss of early release by the prison board of visitors. The
prisoners commenced an ordinary action for a declaration
that the decision was ultra vires because inter alia they had
not been given a fair hearing. The prisoners claimed that a
decision that they lost remission of their sentences, after the
riot in Hull prison, was null and void because of breaches of
natural justice. The defendants applied to have the action
struck out, arguing the decisions could only be challenged by
applying for judicial review. There was a requirement to be
prompt.
• The House of Lords held that the prisoners had to make a
claim through judicial review, not for breach of statutory duty.
The court had jurisdiction to grant the declarations, but the
prisoners’ case was solely a claim based on public law. Order
53 protected public authorities from groundless or delayed
attacks by its requirements, so it would be wrong to allow
evasion of its limits. When public bodies make contracts, torts
or have property disputes, they fall within ordinary ‘private’
law rules. Claims for judicial review may not be used instead.
• The House of Lords held in O’Reilly v Mackman that where
public law rights were at stake, the claimants could only
proceed by way of judicial review. They could not originate
their action under the general civil law procedure, because
that would be avoiding the procedural safeguards aforded to
public authorities by the judicial review procedure such as the
requirement of suffcient interest, timely submission and
permission for judicial review.
• Lord Diplock said the following:
It would.....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 ordinary authorities....
• It was therefore necessary for the courts to attempt to make a
distinction between public law and private law matters.
• Lord Diplock did however stress in O’Reilly that the House of
Lords has established a general rule to which there maybe
exceptions.
Cases to Read:
 Cocks v Thanet District Council (1983)
 Roy v Kensington and Chelsea and Westminster Family
Practitioner Committee (1992)
 Mercury Communications Ltd v Director General of
Telecommunications (1996)
Refer to Pages 269 and 270 of Neil Parpworth.

• Cocks illustrate the application of the rule where only a public

law matter was involved.
• Roy is an exception to the general rule where both public and
private law matters were involved.
• Mercury illustrated a more relaxed approach and recognized
that there must be some degree of judicial flexibility.
• The House of Lords placed more emphasis on the need to
avoid an abuse of process instead of strictly
compartmentalizing cases as either public law or private law
matters.
• In light of the decision in the case of Mercury, the emphasis
on a strict judicial exclusivity has now been replaced by a
more liberal approach to the issue of exclusivity.
Case:
 Clark v University of Lincolnshire and Humberside (2000)
Refer to page 271 or Neil Parpworth
• The emphasis now is not whether the correct procedure has
been followed. Instead the question should be whether the
failure to follow the correct procedure amounts to an abuse
of the process of the court.
 Public / Private Law Distinction

• For the purpose of judicial review, it is necessary to determine

which decision making authority is a public authority and also
to consider the bodies or organisations that do not derive
power from any written laws but have decision making
powers.
• However it is not easy to determine whether a matter is a
public law or private law matter.
• Ognall J in R v Legal Aid Board, ex p Donn & Co stated that
“there can be no universal test” for determining the existence
of a public law element.
• It is clear that decisions of authorities that derive their powers
from constitutional or legislative provisions. A public body
normally derive its power from a statute, or delegated
legislation made under a statute or from prerogative powers.
• This can include government departments, ministers, local
authorities, statutory bodies and tribunals.
• However, a private body obtains its power not from a statute
but from an agreement of those who are subject to their
jurisdiction – R v Disciplinary Committee of the Jockey Club,ex
parte Aga Khan (1993) .
Refer to page 273 of Neil Parpworth
• Distinction can be easily drawn between bodies which are
clearly private such as companies and bodies which are clearly
public.
• Difficulties arise however for bodies that are to the middle of
the spectrum. The source of the body’s power does not
always provide the answer.
• Case: R v Panel on Take-overs and Mergers, ex p Datafin plc
(1987)
The panel was a body established by the City of London to
regulate takeovers and mergers. Its powers were derived from
neither statute nor the common law, although it did operate
within a statutory framework. Datafin sought judicial review of
the panel’s decision to reject a complaint which it had made.
Hodgson J refused to grant leave on the ground that the court
had no jurisdiction to hear the application. Datafin appealed.
Court of Appeal held that in deciding whether or not a body is
subject to judicial review, although the source of its power would
normally decide the issue, it was not the sole test. A court was
also entitled to look at the nature of the power which the body
exercised. Having regard to the wide ranging powers of the panel
and the importance of the task that it performed, it was a body
which was susceptible to judicial review. However, application for
leave was refused on the facts because none of the grounds for
review were present.
• The decision in Datafin is important because it recognises that
a body can be described as a public body because of the
functions which it performs.
• It was also established that had the City of London not
established the panel for its own regulation, the Government
would most probably have set up a public body to perform
the same function.
• Thus, in R v Panel on Take-overs and Mergers, ex p Datafin
Ltd., the City Panel of Takeovers and Mergers was considered
a public body even though it was established on a voluntary
basis.
• However, in R v Disciplinary Committee of the Jockey Club,ex
parte Aga Khan, the relationship between the Jockey club and
horse owners was seen as having no public law significance
and therefore the club was not a public body.
• In the case of OSK & Partners Sdn Bhd v Tengku Noone Aziz
(1983), the Kuala Lumpur Stock Exchange was held to be
subjectable to judicial review. Abdoolcader J held that the
Exchange is a hybrid corporation ie a company incorporated
under the Companies Act but recognised and regulated by
legislation and subject to its governance and authority with
therefore an element of public flavor superimposed on the
contractual element in relation to its members. It is a
statutorily regulated entity under the overall direction and
control of the Minister in fundamental respects, thus
manifesting a distinctive public element.
• Other case:
 Tang Kwor Ham v Pengurusan Danaharta Nasional Bhd (2006)
• It is also noted that a public law matter can be used as a
shield too. A person can challenge the validity of a public law
decision in proceedings brought against them. A person
should not be convicted under a law that would have been
held invalid had it been challenged in judicial review
proceedings.
• In Wandworth London Borough Council v Winder (1984), the
local authority pursuant to its powers under the Housing Act
1957 resolved to increase rents. Winder refused to pay the
increased rent. The local authority sued him in the county
court for rent arrears and possession of the property. As a
defence to those proceedings, Winder claimed that the
resolutions and notices of increase were ultra vires. The local
authority sought to strike out the defence as an abuse of the
process of the court. The local authority claimed that Winder
should have proceeded by way of judicial review. House of Lords
held that Winder was not prevented from challenging the
validity of the authority’s decision in proceedings brought
against him by the authority. There is no abused of the process of
the court.
• Similarly, in Wandworth London Borough Council v A (2000), a
school run by the local education authority applied for an
injunction order against a parent to exclude the parent from
the school premises due to her abusive and disruptive
behaviour. The Courts held that a headmaster who intend to
revoke a parent’s implied license to enter the school premises
must first warn the parent and to hear and consider any
representations from the parent relating to the conduct which
underlay the decision to exclude her from the premises. The
headmaster’s failure to do so can be relied as a defence to the
private law action brought against the parent.
 Non Justiciable Matters
• Sometimes, the courts may reject an application for judicial
review if judicial review is not the most appropriate remedy
under those circumstances.
• One reason for this maybe because Parliament may
sometimes be the more appropriate forum in certain
instances.
• Also, sometimes, the courts may not be the most appropriate
authority to adjudicate upon certain types of grievances.
• As stated in the book Judicial Review of Administrative Action:
In the judicial review context, it should refer to the government
decisions which should be immune from judicial review, either
totally or partially, for political reasons or because the courts are
ill equipped to engage in the review, even though the review is
not on the merits. Some areas of government decision making
are best left to other branches of the government for political
reasons. These include treaty making, proroguing and dissolving
Parliament, making peace, and conduct of international
relations. There might well be aspects of activities in these areas
which are properly susceptible to judicial review, but there will be
a natural judicial reluctance to get involved, even at the margins
of judicial review.
• Lord Roskill in the GCHQ case referred to the following as non
justiciable:-
i. The defence of the realm
ii. The making of treaties
iii. The dissolution of Parliament
iv. The appointment of ministers
v. The grant of honours
vi. The exercise of the prerogative of mercy
• The application for judicial review must concern a public law
issue that is prima fcaie ‘justiciable’.
• Certain matters are excluded from judicial review such as
matters of public policy.
• In Nottinghamshire County Council v Secretary of State for the
Environment (1986), it was held that the courts should not
intervene to quash guidance by the Secretary of State, issued
on the authority of Parliament, setting limits to public
expenditure by local authorities. Lord Scarman held that
unless a statute provides otherwise, or it is established that
the secretary of state had abused his powers, these are
matters of political judgment and are not for the judges to
resolve.
• Some of these non-justiciable matters are also seen as part of
the exercise of the royal prerogative.
• Fortunately, it is for the courts to decide what is and what is
not justiciable.
• Also, if a statute has been passed to regulate a matter that
was previously governed by royal prerogative, the manner in
which the power was exercised is prima facie justiciable.

In Attorney-General v De Keyser's Royal Hotel Ltd [1920]

The claimants, De Keyser’s Royal Hotel, were the owners of a
London Hotel that had been used by some members of the
armed forces in World War One, and they thus sought
reasonable compensation for this occupation under the Defence
Act 1842. The defendants, the Government, attempted to reject
this claim, asserting that their duty to defend the realm, as per
prerogative powers and the Defence of the Realm Act 1914,
meant they had no obligation to compensate the claimants.
The House of Lords held that the prerogative vested in the Crown
and Parliament did not allow for the repossession of property
from a citizen, even where it related to the realm’s defence,
unless the citizen was appropriately and reasonably
compensated. Subsequently, it was ordered that De Keyser’s
Royal Hotel receive compensation as per the Defence Act 1842.
Lord Dunedin remarked that ‘if the whole ground of something
which could be done by the prerogative is covered by the statute
it is the statute that rules’. Thus, the Court determined that the
statute served to temporarily limit the prerogative power,
placing it in abeyance, however that this did not amount to a
permanent restriction or abolition of the prerogative.
• Laker Airways v Department of Trade [1977]
It was held that a prerogative, in this case the treaty-making
power, could not be used to defeat a right granted under an Act
of Parliament. The Government wanted British Airways to be the
only airlines to fly long distance and directed the Civil Aviation
Authority to implement the rule. The courts held that this was
ultra vires. Policy guidance issued by the respondent was
unlawful because it was contrary to the statutory objectives laid
down for the Civil Aviation Authority by section 3 of the Civil
Aviation Act 1971.
Lord Denning said that the exercise of a discretionary
prerogative power ‘can be examined by the courts just as any
other discretionary power which is vested in the executive.’
The prerogative is a discretionary power exercisable by the
executive government for the public good, in certain spheres of
governmental activity for which the law has made no provision,
such as the war prerogative (of requisitioning property for the
defence of the realm), or the treaty prerogative (of making
treaties with foreign powers). The law does not interfere with the
proper exercise of the discretion by the executive in those
situations but it can set limits by defining the bounds of the
activity and it can intervene if the discretion is exercised
improperly or mistakenly. That is a fundamental principle of our
constitution.
• In R v Secretary of State for Home Department ex parte Fire
Brigades’ Union and Others (1995)
The Criminal Injuries Compensation Scheme was set up under
Ministerial prerogative powers to provide ex gratia
compensation payments to victims of crime. Compensation was
assessed on an individual basis by the Criminal Injuries
Compensation Board. The Criminal Justice Act 1988 was then
introduced which contained a statutory scheme for criminal
injuries compensation
Using the Royal Prerogative and avoiding the Criminal Justice Act
1988 which provided for amendments to the Criminal Injuries
Compensation Scheme, the Home Secretary decided to introduce
a new tariff for compensation where he would amend the
Scheme and save money by awarding less compensation.
Held, where a statute was in force the Home Secretary could not
avoid it and act under the prerogative. He could persuade
Parliament to amend or repeal the Act, but he could not ignore
Parliament's enactment and use a more convenient source of
power. To attempt to do so was an abuse of power.