Mercury Communications v Director General of Telecommunications [1996] 1 WLR 48

• Mercury Communications (M) and BT had a contract but agreed that pricing would be determined by the Director General of Telecommunications (DG) but M was unhappy with his decision and sought to overturn it based on Wednesbury unreasonableness under ordinary proceedings (not JR), saying that DG had misinterpreted certain terms in BT’s licence.

• HL held that this was NOT an abuse of process (!) even though no contractual or other private law issue existed between M and DG, the latter’s decision impacted on the private law relationship (i.e. contract) between M and BT. 

Lord Slynn

It is of particular importance, as I see it, to retain some flexibility as the precise limits of what is called “public law” and what is called “private law” are by no means worked out. The experience of other countries seems to show that the working out of this distinction is not always an easy matter. In the absence of a single procedure allowing all remedies — quashing, injunctive and declaratory relief, damages — some flexibility as to the use of different procedures is necessary.

It has to be borne in mind that the overriding question is whether the proceedings constitute an abuse of the process of the court.

• This effectively concedes the point made by Cane that the dividing line between public and private law is so unclear that it makes little sense to have a strong exclusivity rule. 

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