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Procedural Exclusivity Notes

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TABLE OF CONTENTS

PROCEDURAL EXCLUSIVITY........................................................................................2
TEXTBOOK................................................................................................................................. 2
CASES...................................................................................................................................... 3
Summaries........................................................................................................................... 3
O'Reilly v Mackman (1983)............................................................................................ 3
Wandsworth v Winder (1985)........................................................................................ 3
Roy v Kensington and Chelsea FPC (1992)....................................................................3
X v Bedfordshire CC (1995)........................................................................................... 4
Mercury v Director General of Communications (1996)................................................4
R v Wicks (1997)............................................................................................................ 4
Boddington v British T Police (1998).............................................................................4
O'Rourke v Camden LBC (1997).................................................................................... 5
Trustees of the Dennis Rye Pension Fund v Sheffield CC (1997)..................................5
Steed v Secretary of State for the Home Department (2000)........................................5
Clark v University of Lincolnshire and Humberside (2000)...........................................5
Bunny v Burns Anderson Plc (2007)..............................................................................6
Trim v North Dorset DC (2010)...................................................................................... 6
Notes................................................................................................................................... 6
O'Reilly v Mackman (1983)............................................................................................ 6
* Cocks v. Thanet DC [1983] 2 AC 286..........................................................................7
Wandsworth v Winder (1985)........................................................................................ 8
Roy v Kensington and Chelsea FPC (1992)....................................................................8
X v Bedfordshire CC (1995) (NOFL).............................................................................. 9
Mercury v Director General of Communications (1996)................................................9
R v Wicks (1997) (NOFL)............................................................................................... 9
Boddington v British T Police (1998)...........................................................................10
O'Rourke v Camden LBC (1997) (NOFL).....................................................................11
Trustees of the Dennis Rye Pension Fund v Sheffield CC (1997) (NOFL)...................12
Steed v Secretary of State for the Home Department (2000) (NOFL).........................12
Clark v University of Lincolnshire and Humberside (2000).........................................13
Kay v Lambeth LBC [2006] UKHL 10..........................................................................14
Trim v North Dorset DC (2010), CA............................................................................. 14 PROCEDURAL EXCLUSIVITY
TEXTBOOKLord Diplock in O'Reilly held that the principle of exclusivity required a claimant to use judicial review procedures in public law claims
Subsequent cases had to figure out how to distinguish between public law issues and private law issues

On reception of exclusivity rule-Claimants were often left unsure as to what procedure they ought to use, leading to much criticism of the apparent triumph of procedure over substance:
o Jolowicz (1983) - It is "astonishing" that, 100 years after the Judicature Acts and 100 years after Bowen LJ said that "it is a well-established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for the mistakes they make in the conduct of their cases", the highest court of the land should still entertain a question concerning only the procedure by which relief should be sought.
o Wade (1985) 101 LQR 180

Forsyth (1985) CLJ 415
Other commentary focused on the need to balance the rule's policy objective
(protecting PAs) against securing justice in individual cases:
o Law Comm Report at [3.2-3.5]
Thus later courts have sought to balance these goals by creating exceptions

On exceptions--

If the matter is purely of private law, the claim must be issued in ordinary proceedings and JRP is not available

Ex parte Walsh - C wanted a quashing order of a decision to terminate her employment, where if one was issued she would have kept her job but if she sued purely on contract she may have to settle for compensation.
Waiver: if none of the parties objects to the use of ordinary proceedings, then exclusivity doesn't apply (Lord Diplock, O'Reilly)
o This can be seen as reflecting the goal of protecting PAs, so that if the latter agrees to forego these protections, it can do so.
o However, the goal can also be seen as protecting the public in general in ensuring certainty as to time limits - in which case if a waiver is prejudicial to the public at large it shouldn't be allowed. This is endorsed implicitly in
Trustees of the Dennis Rye Pension Fund v Sheffield CC - "if the choice has no significant disadvantages for the parties, the public or the court..." (Lord Woolf
MR)
Resolution of factual disputes: Dennis Rye allowed ordinary procedures because the court recognized that factual disputes were more easily resolved through ordinary procedure. This recognizes that JRP is disadvantageous in practice in such circumstances (despite Lord Diplock's contrary assertion in O'Reilly)
Collateral defensive challenge in criminal and civil proceedings : Boddington held that unless the relevant legislation expressly or impliedly prohibits it (eg. R v Wicks) the rule of law demands that a defendant should be able to challenge collaterally the validity of the offence with which he is charged. -PLRs dependent on public law: public law decisions made in an individual's favour may give rise to privately enforceable rights, if such is the Parliament's intention.
These rights would then be enforceable in ordinary proceedings (see O'Rourke v
Camden LBC)
PLRs affected by public law: where conduct lying in public law impacts upon PLRs whose existence is not in doubt, the claimant is allowed to use PLP because the private law right 'dominates the proceedings' (Lord Lowry, Roy v Kensington and
Chelsea FPC). This is true not only of PLRs as between the parties, but whenever the authority's decision affects C's private law relations with others (Mercury v Director of General Communications)

On the introduction of the CPRThe introduction of the CPR led to increased flexibility, as did judicial development of the exceptions.
A more substantive approach: since Clark, the court won't focus so much on whether the wrong proceedings have been brought, but whether the PA needs protection.
Transfer into Part 54: CPR for the first time allowed a claimant to transfer into JRP
(though transfer out of it has always been possible under Order 53)

CASES
SUMMARIES
O'REILLY V MACKMAN (1983)
Establishes the general rule that public law claims must be brought by JRP.
Although nothing in Order 53 requires exclusivity, it is necessary to preserve the integrity of the procedure for judicial review and its underlying objectives of protecting PAs and third parties who may be indirectly affected by the decision, through speedy certainty as to whether the effect of a decision is valid in public law.
As the 1977 reforms have greatly ameliorated the position of claimants in judicial review by curing the previous injustices (especially discovery and cross-examination), it is now right to regard as an abuse of process if a claimant seeks protection of public law rights using ordinary procedure.
This is a general rule, subject to exceptions that will be developed on a case by case basis,
but especially if:
1) The invalidity of the decision is a collateral issue in a claim for the infringement of private rights 2) Or none of the parties objects to using ordinary procedure
But if the only remedy sought (as in the present case) is a declaration of nullity in public law,
then exclusivity applies and the claimant must use judicial review procedure.
WANDSWORTH V WINDER (1985)
There is an exception to exclusivity where the public law challenge is raised in defence to an action initiated by the PA, by a defendant who claims that his private law rights have been infringed by the decision. Citizens have the right to defend themselves against unfounded claims, including those brought by PAs. The need for speedy certainty and policy justifications for exclusivity must be balanced against this right, especially considering that Order 53's aim was to introduce procedural reforms not sweep away rights. "It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words." (Viscount Simonds, 1960) If public law interest requires this right to be removed, then Parliament msut change the law.
NOTE: This was also cited by in Boddington for the proposition that there is a strong presumption that Parliament will not legislate contrary to the Rule of Law requirement that individuals have a right, when affected by legal measures promulgated by the executive, to a fair opportunity to challenge these measures in court proceedings.
ROY V KENSINGTON AND CHELSEA FPC (1992)
PLPs are available to a claimant vindicating his PLRs as between the parties, even though the claim turns on the challenge of a public law decision.
Two approaches to the scope of O'Reilly have been suggested by the claimant:
1) Broad approach - O'Reilly doesn't apply generally against bringing actions to vindicate private rights (even if they involve challenging public law decisions)
2) Narrow approach - O'Reilly applies to all public law decisions subject to exceptions when PLRs are involved
O'Reilly didn't have to differentiate between them, though Lord Diplock took the narrow approach as he stated a general rule subject to exceptions, but Lord Lowry in this case prefers the broad approach because it would get rid of a procedural minefield. However he leaves the question open, holding that even on the narrow approach C could bring a PLP
because his PLRs dominate the proceedings.
The case therefore narrowed the significance of the private/public matter distinction without addressing its substance - whether a statute does confer PLRs will be on each case a matter of statutory interpretation. Cane wrote that guidance on this matter is unlikely (analogizing with lack of guidance on the question of which statutory duties are actionable in the tort of breach of statutory duty), especially considering that (in his opinion) not all statutory
"rights" are PLRs.
X V BEDFORDSHIRE CC (1995)
MERCURY V DIRECTOR GENERAL OF COMMUNICATIONS (1996)
The principle in Roy is not only applicable to vindicating PLRs as between the parties, but whenever the authority's decision is capable of affecting C's private law relations with others.
Public law decisions can lead to disputes outside of administrative law; for example, in the present case, where a decision directly impacted on the contractual relationship between C
and another private party. In such cases, PLPs are at least as well suited, if not better, to resolving the issues as JRPs, and the trial judge in PLPs can still have regard to, though he is not bound by, the procedural protection available under Order 53.
It's important to retain some flexibility as to what constitutes public law and private law -
the distinction is not easily borne out and in the absence of a single procedure allowing all remedies (quashing, injunctive and declarative relief; damages) some flexibility as to choice of process is necessary and the overriding question is always whether the proceedings are an abuse of process
R V WICKS (1997)
Whether the lawfulness of a decision can be challenged as a defence to criminal proceedings depends in each case on the proper construction of the enabling statute.
There is a wide right for anyone prosecuted under a bylaw to challenge its validity, but this right cannot be extrapolated to enable him to challenge the vires of every act done under statutory authority if its validity forms part of the prosecution's case or invalidity would constitute a defence. The question must depend on each case on the construction of the enabling statute. (Lord Hoffmann)
Some challenges to the lawfulness of a decision can be raised as a defence to a criminal charge, but others cannot. Many reasons point to why some challenges must be brought by
JRP:
1) Terms of the enabling legislation 2) The Divisional Court is a more suitable tribunal than criminal court for deciding some types of issues 3) JRPs have certain build-in safeguards in the public interest (time limits, courts have discretion in granting/withholding relief)
4) The public body whose order is being impugned will be a party to the proceedings to ensure that all necessary evidence is presented 5) Criminal decisions don't bind public bodies - therefore risk of inconsistent decisions in different cases.
But these reasons don't provide guidance as to where the line should be drawn (and indeed a line would be very difficult to draw, because some challenges will be simple enough that the criminal court could resolve, saving D the expense of initiating his own civil proceedings and the lack of legal aid in civil matters) - one approach might be to abandon the search for a line and instead work from a prima facie principle that all challenges can be advanced in defence, but the court has a discretionary power to require it to be done by JRP. [Leaves the question open as to whether this approach should be adopted, because the statute offers guidance and this is enough] (Lord Nicholls)
BODDINGTON V BRITISH T POLICE (1998)
Collateral challenge by the defendant in criminal or civil proceedings is an exception to the exclusivity principle, unless the statute precludes it.
Unless the relevant legislation expressly or impliedly prohibits it (as in R v Wicks), the Rule of Law requires [Is this allowing Parliaments to impliedly breach the rule of law?] a defendant to criminal or civil law procedures to be able to collaterally challenge the validity of the offence with which he is charged. The exclusivity principle gives way to such challenge. (Lord Irvine)
There is no reason why a defendant in a criminal case shouldn't be allowed to argue that a bylaw is invalid where it would provide him a defence (except if defeated by statutory provisions - R v Wicks); allowing a collateral defensive challenge furthermore avoids duplicity of proceedings and overburdening JRP. O'ROURKE V CAMDEN LBC (1997)
Breach of statutory provisions imposing public law duties will only give rise to PLRs of action if Parliament so intended in enacting the empowering legislation (which, according to
Dennis Rye, will in future be "very rare")
The court must think carefully about Parliament's intention in enacting the relevant legislation, before concluding that a breach of statutory provisions imposing public law duties can give rise to PLRs of action. In this case, it did not because:
1) The provision was part of a welfare scheme for the benefit of the public generally and not just the homeless 2) The duty to provide accommodation was contingent on the exercise of wide discretion
The case left open the question of whether, if PLRs are capable of being so created, litigation for determining the existence of these rights can be undertaken in private law proceedings even though it involves public law. This was addressed in Dennis Rye.
TRUSTEES OF THE DENNIS RYE PENSION FUND V SHEFFIELD CC (1997)
Focus shifts from rigid categorization of public/private matters towards substantive analysis of which proceeding is more appropriate.
A proper understanding of O'Reilly involves recognizing that the general rule of exclusivity is justified based on public policy because:
1) Remedies for protecting both private and public law rights can be given in both private law proceedings and JRP
2) JRP provides protection for PAs (in the interest of the public) which are not available in private law proceedings (i.e. requirement of leave; protection against delay)
On the basis of this:
1) It is safer to use JRP if unsure, because then there's no question of abuse of process. If the court thinks it's the wrong procedure, it can refer the case to a judge who doesn't hear JRP cases 2) If PLP is used and there's a claim to striking out, then it shouldn't be struck out if:
a. It is not clear that JRP should have been sued b. AND if JRP had been brought, leave would have been granted c. AND PLP is equally or more appropriate than JRP (eg. factual disputes)
If a choice has no significant disadvantages for the parties, the public or the court, then it shouldn't normally be considered an abuse.
STEED V SECRETARY OF STATE FOR THE HOME DEPARTMENT (2000)
CLARK V UNIVERSITY OF LINCOLNSHIRE AND HUMBERSIDE (2000)
Whichever proceedings have been brought, the court will take into account all the circumstances, including the delay in initiating proceedings, to determine whether there has been an abuse of process. It will not strike out a claim merely because the wrong process was used.
The emphasis has changed since the introduction of the CPR - what is important is no longer whether the right procedure has been adopted, but whether the protection offered by Order

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