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Procedure Cases

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Cases: Procedure O'Rourke v Camden London Borough Council [1998] AC 188 (Lord Hoffmann) Facts: O Rourke is ex prisoner and applied for housing and the housing atuhorty messed up by evicting him out of a temporary housing when they ought not to with no replacement and he claimed damages. Lord Hoffmann:

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The question is whether section 63(1) creates a duty to Mr. O'Rourke which is actionable in tort. There is no doubt that, like several other provisions in Part III , it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy. In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 , 731 - no rule, but "indicators". A second contra-indication is that Part III of the Act of 1985 makes the existence of the duty to provide accommodation dependent upon a good deal of judgment on the part of the housing authority.*The nature of the subject matter might incline a court to allow a housing authority some latitude in deciding whether it has reason to believe' the facts giving rise to the duty. The question of what kind of accommodation should be provided also involves a considerable degree of discretion. But the main difficulty I have with this argument is that it requires the court to suppose that, in an Act imposing a number of important duties which are accepted as enforceable only in public law, Parliament intended to embed one temporary duty enforceable by a private action in tort. There seems to me no rational explanation for such a scheme.

Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998]
1 WLR 840, 845-9 Facts: T conducted repair work to render premises fit for human habitation under the Housing Act 1985 s.189. S (PA) refused to pay the sums due to T by way of improvement grants, contending that the works had not been completed to their satisfaction as required by the Local Government and Housing Act 1989 s.117(3). T brought an action for payment of the grants under the 1989 Act s.113. S, arguing that it was wrong for T to bring an ordinary action in such circumstances and that

the correct procedure was an application for judicial review, appealed against a refusal to strike out T's actions. Held: dismissing the appeal, that, bearing in mind the principles on which the general rule in O'Reilly v Mackman [1983] 2 A.C. 237 was founded, in cases where it was unclear whether the correct procedure had been adopted a court should consider the practical consequences of the choice of procedure, including the interests of the parties, the public and the court....It was disproportionate for judicial review to be used as a procedure for enforcing payment of a grant or for debt collecting (p 845). Lord Woolf MR P 844: How can we better understand this stupid private/public divide post O Reilly v Mackman?
Must remember that: (1) If it is not clear whether judicial review or an ordinary action is the correct procedure it will be safer to make an application for judicial review than commence an ordinary action since there then should be no question of being treated as abusing the process of the court by avoiding the protection provided by judicial review. In the majority of cases it should not be necessary for purely procedural reasons to become involved in arid arguments as to whether the issues are correctly treated as involving public or private law or both. (For reasons of substantive law it may be necessary to consider this issue.) If judicial review is used when it should not, the court can protect its resources either by directing that the application should continue as if begun by writ or by directing it should be heard by a judge who is not nominated to hear cases in the Crown Office List. It is difficult to see how a respondent can be prejudiced by the adoption of this course and little risk that anything more damaging could happen than a refusal of leave. (2) If a case is brought by an ordinary action and there is an application to strike out the case, the court should, at least if it is unclear whether the case should have been brought by judicial review, ask itself whether, if the case had been brought by judicial review when the action was commenced, it is clear leave would have been granted. If it would, then that is at least an indication that there has been no harm to the interests judicial review is designed to protect. In addition the court should consider by which procedure the case could be appropriately tried. If the answer is that an ordinary action is equally or more appropriate than an *849 application for judicial review that again should be an indication the action should not be struck out. (3) Finally, in cases where it is unclear whether proceedings have been correctly brought by an ordinary action it should be remembered that after consulting the Crown Office a case can always be transferred to the Crown Office List as an alternative to being struck out.

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