O’Reilly v Mackman [1983] 2 AC 237

• A convict's action by writ against a prison parole board (i.e. trying to claim breach of natural justice etc. but NOT by judicial review proceedings) was struck out as being an abuse of process, since it was just a way of avoiding the protection given to administrative tribunals under the judicial review rules.

• HL held that judicial review proceedings were the only appropriate way to begin an action to test public law rights.  

Lord Diplock

Since 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 [now given statutory effect under the SCA-see above] for the protection of such authorities.

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This flies squarely in the face of the traditional Diceyan view that the same law should apply to the individual and the state, and creates complexities for litigants. Moreover, later attempts to wriggle out of its scope, e.g., (Roy V Kensington And Chelsea And Westminster FPC 1992) have led to considerable confusion about the correct procedure to be followed when cases involve both public law and private law issues. 

RELATED CASES

• Roy v Kensington And Chelsea and Westminster FPC