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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
    2. RULES OF THE SUPREME COURT ORDER 53 rule 1
    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

O'Reilly v Mackman and others and other cases [1982] 3 All ER 1124

LORD DIPLOCK:..... My Lords, at the time of the commencement by the appellants of the actions in which these consolidated appeals are brought each of the appellants was serving a long sentence of imprisonment which even now has not expired. By those actions, which were commenced in 1980, in the case of the appellant Millbanks by originating summons, and in the case of the other appellants by writ, each appellant seeks to establish that a disciplinary award of forfeiture of remission of sentence made by the Board of Visitors of Hull prison (the board) in the exercise of their disciplinary jurisdiction under r 51 of the Prison Rules 1964, SI 1964/338, is null and void because the board failed to observe the rules of natural justice. Millbanks in the endorsement to his originating summons alleges bias on the part of the member of the board who presided over the hearing of the disciplinary proceedings against him. The other appellants in their statements of claim allege that they were not given by the board a fair opportunity to present their respective cases.

The board applied to the High Court...that all the actions be struck out as being an abuse of the process of the court. The judge refused the applications but, on appeal to the Court of Appeal....the actions were struck out....

My Lords, it is not contested that if the allegations set out in the originating summons or statements of claim are true each of the appellants would have had a remedy obtainable by the procedure of an application for judicial review under RSC Ord 53, but to obtain that remedy, whether it took the form of an order of certiorari to quash the board's award or a declaration of its nullity, would have required the leave of the court under Ord 53, r 3. That judicial review lies against an award of the board of visitors of a prison made in the exercise of their disciplinary functions was established by the judgment of the Court of Appeal (overruling a Divisional Court) in R v Hull Visitors, ex p St Germain [1979] 1 All ER 701, [1979] QB 425, a decision that was, in my view, clearly right and which has not been challenged in the instant appeals by the respondents.

In the St Germain case the only remedy that had been sought was certiorari to quash the decision of the prison visitors; but the alternative remedy of a declaration of nullity if the court considered it to be just and convenient would also have been available on an application for judicial review under Ord 53 after the replacement of the old rule by the new rule in 1977.....

[N]o question arises as to the jurisdiction of the High Court to grant to each of the appellants relief by way of a declaration in the terms sought, if they succeeded in establishing the facts alleged in their respective statements of claim or originating summons and the court considered a declaration to be an appropriate remedy. All that is at issue in the instant appeal is the procedure by which such relief ought to be sought.

Put in a single sentence the question for your Lordships is: whether in 1980, after RSC Ord 53 in its new form, adopted in 1977, had come into operation, it was an abuse of the process of the court to apply for such declarations by using the procedure laid down by the rules for proceedings begun by writ or by originating summons instead of using the procedure laid down by Ord 53 for an application for judicial review of the awards of forfeiture of remission of sentence made against them by the board which the appellants are seeking to impugn?.....

It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by a statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based on his knowledge of what is the general practice, that he would be granted the maximum remission.....

My Lords, the power of the High Court to make declaratory judgments is conferred by what is now RSC Ord 15, r 16. The language of the rule, which was first made in 1883, has never been altered, though the numbering of the rule has from time to time been changed:

No action or other proceeding 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.

This rule.... has been very liberally interpreted in the course of its long history, wherever it appeared to the court that the justice of the case required the grant of declaratory relief in the particular action before it.... Ord 15, r 16 says nothing as to the appropriate procedure by which declarations of different kinds ought to be sought. Nor does it draw any distinction between declarations that relate to rights and obligations under private law and those that relate to rights and obligations under public law. Indeed the appreciation of the distinction in substantive law between what is private law and what is public law has itself been a latecomer to the English legal system. It is a consequence of the development that has taken place in the last thirty years of the procedures available for judicial control of administrative action.

This development started with the expansion of the grounds on which orders of certiorari could be obtained as a result of the decision of the Court of Appeal in R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 All ER 122, it was accelerated by the passing of the Tribunals and Inquiries Act 1958, and culminated in the substitution in 1977 of the new form of RSC Ord 53 which has since been given statutory confirmation in s 31 of the Supreme Court Act 1981.

The importance of the Northumberland Compensation Appeal Tribunal case is that it re-established.....that the High Court had power to quash by an order of certiorari a decision of any body of persons having legal authority (not derived from contract only) to determine questions affecting the rights of subjects, not only on the ground that it had acted outwith its jurisdiction but also on the ground that it was apparent on the face of its written determination that it had made a mistake as to the applicable law.

However, this rediscovered ground on which relief by an order of certiorari to quash the decision as erroneous in law could be obtained, was available only when there was an error of law apparent 'on the face of the record' and so was liable to be defeated by the decision-making body if it gave no reasons for its determination.

In 1958 this lacuna, so far as statutory tribunals were concerned, was largely filled by the passing of the first Tribunals and Inquiries Act, now replaced by the Tribunals and Inquiries Act 1971. This Act required the giving of reasons for their determinations by the great majority of statutory tribunals from which there is no express statutory provision for an appeal to the Supreme Court on a point of law. But boards of visitors of prisons have never been included among those tribunals that are covered by that Act......

Although the availability of the remedy of order to quash a decision by certiorari had in theory been widely extended by these developments, the procedural disadvantages under which applicants for this remedy laboured remained substantially unchanged until the alteration of Ord 53 in 1977. Foremost among these was the absence of any provision for discovery. In the case of a decision which did not state the reasons for it, it was not possible to challenge its validity for error of law in the reasoning by which the decision had been reached. If it had been an application for certiorari those who were the plaintiffs in Anisminic would have failed; it was only because by pursuing an action by writ for a declaration of nullity that the plaintiffs were entitled to the discovery by which the minute of the commission's reasons which showed that they had asked themselves the wrong question, was obtained....

On the other hand, as compared with an action for a declaration commenced by writ or originating summons, the procedure under Ord 53 both before and after 1977 provided for the respondent decision-making statutory tribunal or public authority against which the remedy of certiorari was sought protection against claims which it was not in the public interest for courts of justice to entertain.

First, leave to apply for the order was required.....

Furthermore, as Ord 53 was applied in practice, as soon as the application for leave had been made it provided a very speedy means, available in urgent cases within a matter of days rather than months, for determining whether a disputed decision was valid in law or not.

A reduction of the period of suspense was also effected by the requirement that leave to apply for certiorari to quash a decision must be made within a limited period after the impugned decision was made, unless delay beyond that limited period was accounted for to the satisfaction of the judge. The period was six months under the pre-1977 Ord 53; under the current Ord 53 it is further reduced to three months.

My Lords, the exclusion of all right to discovery in applications for certiorari under Ord 53, particularly before the passing of the Tribunals and Inquiries Act 1958, was calculated to cause injustice to persons who had no means, if they adopted that procedure, of ascertaining whether a public body, which had made a decision adversely affecting them, had done so for reasons which were wrong in law and rendered their decision invalid. [F]rom the 1950s onwards, actions for declarations of nullity of decisions affecting the rights of individuals under public law were widely entertained, in parallel to applications for certiorari to quash, as a means of obtaining an effective alternative remedy.

I will not weary your Lordships by reciting examples of cases where this practice received the express approval of the Court of Appeal, though I should point out that of those cases in this House in which this practice was approved, Vine v National Dock Labour Board [1956] 3 All ER 939, [1957] AC 488 and Ridge v Baldwin involved, as well as questions of public law, contracts of employment which gave rise to rights under private law.....I accept that having regard to the disadvantages, particularly in relation to the absolute bar on compelling discovery of documents by the respondent public authority to an applicant for an order of certiorari, and the almost invariable practice of refusing leave to allow cross-examination of deponents to affidavits lodged on its behalf, it could not be regarded as an abuse of the process of the court, before the amendments made to Ord 53 in 1977, to proceed against the authority by an action for a declaration of nullity of the impugned decision with an injunction to prevent the authority from acting on it, instead of applying for an order of certiorari; and this despite the fact that, by adopting this course, the plaintiff evaded the safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks on the validity of decisions made by public authorities in the field of public law.

Those disadvantages, which formerly might have resulted in an applicant being unable to obtain justice in an application for certiorari under Ord 53, have all been removed by the new rules introduced in 1977. There is express provision in the new r 8 for interlocutory applications for discovery of documents, the administration of interrogatories and the cross-examination of deponents to affidavits. Discovery of documents....is not automatic as in an action begun by writ, but....is obtainable on application whenever, and to the extent that, the justice of the case requires.....It may well be that for the reasons given by Lord Denning MR in George v Secretary of State for the Environment (1979) 38 P & CR 609, it will only be on rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise on judicial review. The facts...can seldom be a matter of relevant dispute on an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers.....

Another handicap under which an applicant for a prerogative order under Ord 53 formerly laboured...was that a claim for damages for breach of a right in private law by the applicant resulting from an invalid decision of a public authority could not be made in an application under Ord 53.... Rule 7 of the new Ord 53 permits the applicant for judicial review to include in the statement in support of his application for leave a claim for damages and empowers the court to award damages....

My Lords, Ord 53 does not expressly provide that procedure by application for judicial review shall be the exclusive procedure available by which the remedy of a declaration or injunction may be obtained for infringement of rights that are entitled to protection under public law; nor does s 31 of the Supreme Court Act 1981....

The position of applicants for judicial review has been drastically ameliorated by the new Ord 53. It has removed all those disadvantages, particularly in relation to discovery, that were manifestly unfair to them and had, in many cases, made applications for prerogative orders an inadequate remedy if justice was to be done....

Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained on 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 Ord 53 for the protection of such authorities.

My Lords, I have described this as a general rule; for, though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons. Whether there should be other exceptions should, in my view, at this stage in the development of procedural public law, be left to be decided on a case to case basis.....

In the instant cases where the only relief sought is a declaration of nullity of the decisions of a statutory tribunal, the Board of Visitors of Hull Prison, as in any other case in which a similar declaration of nullity in public law is the only relief claimed, I have no hesitation, in agreement with the Court of Appeal, in holding that to allow the actions to proceed would be an abuse of the process of the court. They are blatant attempts to avoid the protections for the respondents for which Ord 53 provides.