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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
    1. Barnard and Others v National Dock Labour Board and Another [1953] 1 All ER 1113
    3. Heywood v Hull Prison Board of Visitors and another [1980] 3 All ER 594
    4. Supreme Court Act 1981
    5. O'Reilly v Mackman and others and other cases [1982] 3 All ER 1124
    6. Wandsworth London Borough Council v Winder [1984] 3 All ER 976
    7. Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300
    8. R v East Berkshire Health Authority, ex parte Walsh [1984] 3 All ER 425
    9. R v Secretary of State for the Home Department, ex parte Benwell [1984] 3 All ER 854
    10. R v Panel on Take-overs and Mergers, ex parte Datafin plc and another (Norton Opax plc and another intervening) [1987] 1 All ER 564
    11. Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 All ER 705
    12. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    13. Boddington v British Transport Police [1998] 2 All ER 203
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Heywood v Hull Prison Board of Visitors and another [1980] 3 All ER 594

GOULDING J: I have before me a motion on the part of the defendants in an action brought by Joseph Bernard Paul Michael Heywood as plaintiff against two defendants, namely, the Board of Visitors of Hull Prison and the Home Office. The plaintiff was a prisoner at Hull in the summer of 1976 at the time of the well-known disturbances that then took place there. In consequence of those disturbances, a large number of prisoners were charged with various breaches of discipline before the Board of Visitors of Hull Prison, the present first-named defendants. The plaintiff was charged with two specific offences alleged to have taken place on 31 August 1976, the charges being laid, as I understand, on 12 October in that year. On the next day, 13 October, the board of visitors found the charges proved and sentenced the plaintiff to various penalties, including a loss of remission of sentence amounting to 250 days. Some of the prisoners who were the subject of disciplinary proceedings after the Hull disturbances sought relief from the decisions of the board of visitors by way of application for certiorari. The Divisional Court of the Queen's Bench Division took the view that that remedy was not available in such a case. However, some of those concerned appealed to the Court of Appeal, that is to the Civil Division of the Court of Appeal, and there the decision of the Divisional Court was reversed and it was held that the determinations of the board of visitors could be called in question by way of certiorari. That case is reported as R v Hull Prison Board of Visitors, ex parte St Germain [1979] 1 All ER 701.

After the decision of the Court of Appeal, the plaintiff quickly came to know of it and took steps to seek legal aid and to endeavour to bring proceedings for his own benefit. There were, it is conceded, delays on the plaintiff's side and it is said...that he personally was not to blame in the matter. I will so assume for the purposes of my judgment. However, in the event, the plaintiff did not seek relief by certiorari proceedings in the Queen's Bench Division, which would now have to be brought under RSC Ord 53 by way of an application for judicial review. Instead, he issued a writ in the Chancery Division. That writ was issued on 28 February 1980. It is indorsed generally for one item of relief only, namely 'a declaration that the adjudication of the Board of Visitors on the 12 October 1976 is null and void'.

On 26 March the plaintiff gave notice of a motion seeking an order for a speedy trial of the action. That is plainly a necessary move on his part, because he is now, so I am informed, only detained in prison in consequence of the loss of remission of 250 days by the sentence of the board of visitors. Accordingly, unless he can obtain relief reasonably quickly, it will be no benefit to him in that regard.

The notice of motion given on behalf of the plaintiff has been overtaken by a cross-notice of motion on the part of both defendants, the board of visitors and the Home Office. That seeks(

an Order under the inherent jurisdiction of the Court or under Order 18, Rule 19, of the Rules of the Supreme Court, that all further proceedings in the action be stayed or that the endorsement of the Writ and the Statement of Claim herein be struck out and this action dismissed, on the ground that the action is an abuse of the process of the Court and that before the commencement of any proceedings against the Defendants in respect of the matters of complaint alleged in the said Writ and said Statement of Claim the leave of the Divisional Court of the Queen's Bench Division should have been and should be sought under Order 53 of the said Rules.....

[U]nder the Rules of the Supreme Court, which have the force of statute, in the form in which they stand at present and in the circumstances of the present case, there are at least two methods indicated of seeking a declaration from the court. One is in RSC Ord 15, r 16 which says:

No action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.

While that applies to all proceedings in the High Court, it looks primarily at actions, that is actions in the ordinary sense, begun by writ or originating summons, and it makes it clear that a writ or originating summons cannot be objected to merely because it asks for nothing but a declaration. So there is one way indicated of seeking such relief from the court. But in the present case there is an alternative and more special mode of approach indicated by RSC Ord 53, which has been extensively revised quite recently, in 1977. I will read Ord 53, r 1....:

St Germain's case shows plainly that relief sought against a decision of a board of prison visitors would fall within the scope of Ord 53, r 1 and a declaration might suitably be claimed by an application for judicial review. Fourthly (and I am still dealing with matters that I consider clear), although the present case in its subject matter is clearly and properly within the scope of Ord 53, the court has jurisdiction to give a declaration in an action commenced by writ or originating summons. The existence of that concurrent jurisdiction seems to me to be sufficiently established by reported cases....[L]ooking at the matter from the point of view of a court seeking to apply the existing Rules of the Supreme Court in the interests of justice, it is obviously undesirable that the plaintiff should seek relief by action rather than by application for judicial review.

There are a number of considerations which to my mind justify that opinion. First of all, the Rules of the Supreme Court as they stand must be construed as a whole. Where, in a code of procedural rules, carefully designed machinery is provided for determining a special class of issues or questions, it is in general inconvenient to use some broader form of process designed to cover not only that, but much larger categories of question. Secondly, Ord 53, r 3(1) requires a would-be applicant for judicial review to obtain preliminary leave..... There are very good reasons (among them an economy of public time and the avoidance of injustice to persons whom it is desired to make respondents) for that requirement of preliminary leave. If an action commenced by writ or originating summons is used instead of the machinery of Ord 53, that requirement of leave is circumvented. Thirdly, by Ord 53, r 4, certain requirements of expedition are laid down to be observed by an applicant for judicial review, though they are not inflexible and within limits the court has a discretion as to their application. Once again, there are very good reasons for such a requirement. Once again, the provisions of the rule are obviated if the relief is sought by action instead of by application for judicial review. In the present case the plaintiff or his advisers (for whom he is responsible) have, it may be, been guilty of some delay. it is no recommendation of the plaintiff's application that that has happened, though of course he may on investigation be able to excuse himself. Fourthly, Ord 53, r 9(4) provides that where an order of certiorari is sought and obtained, the court may, in addition to quashing the decision to which the application relates, remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the court. No such convenient machinery for remission of the cause is available in an action for a declaration. Fifthly, in proceedings seeking a review of a judicial or quasi-judicial determination, the machinery of an action as to discovery and giving of evidence may result in placing members of the tribunal concerned in a position not really compatible with the free and proper discharge of their public functions, or at least result in attempts to put them in that position. In the present case counsel for the plaintiff has contemplated the possibility (though he by no means says it will be a necessity) of cross-examining members of the board of visitors. In principle, that seems to me an undesirable way of dealing with such questions....

Those matters seem to me, as I have said, tolerably plain. But now I leave what is clear for the question that I have to decide. I think I have to ask myself in the end this question: is the impropriety of using the procedure of an action in the present case so gross that the court, in exercising its undoubted power to regulate its own business and avoid abuse of its process, can stop an action that is within the court's jurisdiction to determine and that might conceivably succeed, stop it at the earliest stage, when the issues have not yet been defined by pleadings, nor elucidated by particulars or discovery, simply in order to force the plaintiff to use the proper machinery in the light of the rules considered as a whole?...

On behalf of the plaintiff, I have been directed, among other things, to the report of the Law Commission on remedies in administrative law (Cmnd 6407 (1976)), which I am told led to the revision of RSC Ord 53. The report says this (at para 34):

'In the light of our consultation, we are clearly of the opinion that the new procedure we envisage in respect of applications to the Divisional Court should not be exclusive in the sense that it would become the only way by which issues relating to the acts or omissions of public authorities could come before the courts.'

Somewhat similar language was employed by Lord Denning MR in De Falco v Crawley Borough Council [1980] 1 All ER 913 at 920, a case relating to the duties of a housing authority under the Housing (Homeless Persons) Act 1977. He said:

"During the hearing, a point was raised about the procedure adopted by the plaintiffs. They issued writs in the High Court claiming declarations and an injunction. It was suggested that they should have applied for judicial review, because that was the more appropriate machinery. Now the interesting thing is that this new Act, the Housing (Homeless Persons) Act 1977, contained nothing about remedies. It does not say what is to the done if the local authority fails to perform any of the duties imposed by the statute. It has been held by this court that, if the council fails to provide accommodation as required by s 3(4), the applicant can claim damages in the county court: see Thornton v Kirklees Metropolitan Borough Council [1979] 2 All ER 349, [1979] QB 626. I am very ready to follow that decision and indeed to carry it further, because this is a statute which is passed for the protection of private persons, in their capacity as private persons. It is not passed for the benefit of the public at large. In such a case it is well settled that, if a public authority fails to perform its statutory duty, the person or persons concerned can bring a civil action for damages or an injunction.... No doubt such a person could, at his option, bring proceedings for judicial review under the new RSC Ord 53. In those proceedings he could get a declaration and an injunction equally well. He could get interim relief also. So the applicant has an option. He can either go by action in the High Court or county court, or by an application for judicial review".

That conclusion.... is only, I think, of limited assistance to the plaintiff in the present case, because Lord Denning MR founded his observations on the hypothesis that the proceedings with which he was concerned were for the enforcement of a statute passed for the protection of private persons, and not passed for the benefit of the public at large.....

It seems to me that...if indeed it is wrong that the procedure of an action should be adopted in order to bypass the need for getting leave from the Divisional Court, then in the present case it is my duty to put a stop at an early stage to the action...... The observance of judicial discipline in the hierarchy of courts in this country seems to me much more important than any particular considerations affecting the plaintiff in this individual case.