Lord 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:
- 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.
- 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:
- 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)
- 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.
- 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 CPR

The 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...

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Procedural Exclusivity Notes

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Procedural Exclusivity

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Cases

Summaries

O’Reilly v Mackman (1983)

Procedural Exclusivity

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