P applied for a grant from D for repairs to its building (which D had ordered under statute) and D approved the grant, but refused to pay out because the repairs had not been completed to what D deemed a “satisfactory” standard. P sued D for payment under normal rules and D demanded that the claim be struck out as it should have been made under the JR procedure and was therefore an “abuse of process”. CA refused to strike it out, holding that once the council had approved an application for an improvement grant it was under a duty to make payment upon the applicant's compliance with the statutory conditions and any amount unpaid could be recovered as an ordinary debt in a private law action. This was not an abuse of process.
Lord Woolf MR: How to resolve the costly disputes over where the dividing line lies between public and private law? The “first principles” derived from O’Reilly are that “(a) that remedies for protecting both private and public rights can be given in both private law proceedings and on an application for judicial review; (b) that judicial review provides, in the interest of the public, protection for public bodies which are not available in private law proceedings” and therefore that (c) the general rule on exclusivity arises. The following proposition can then be made: That the courts should proceed by "not only considering the technical questions of the distinctions between public and private rights and bodies but also looking at the practical consequences of the choice of procedure which has been made. If the choice has no significant disadvantage for the parties, the public or the court, then it should not normally be regarded as constituting an abuse." He says that if the courts clearly would have granted an application for judicial review then ordinary proceedings shouldn’t be struck out and JR was inappropriate for a claim involving factual disputes that a JR court might find hard to resolve.
While this decision doesn’t resolve the basic problems of precisely when a particular type of claim will proceed, it at least shifts the debate away from technicalities and towards substantive benefit of allowing a particular claim to be brought. This is a more practical view of JR, though it may not reduce the amount of litigation on the subject as PAs will always prefer a low-intensity Wednesbury examination whereas individuals will always prefer a normal cause of action.