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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

Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 All ER 705

LORD BRIDGE OF HARWICH:..... The decisions of this House in O'Reilly v Mackman... and Cocks v Thanet DC [1982] 3 All ER 1135, [1983] 2 AC 286 have been the subject of much academic criticism. Although I appreciate the cogency of some of the arguments advanced in support of that criticism, I have not been persuaded that the essential principle embodied in the decisions requires to be significantly modified, let alone overturned. But, if it is important, as I believe, to maintain the principle, it is certainly no less important that its application should be confined within proper limits. It is appropriate that an issue which depends exclusively on the existence of a purely public law right should be determined in judicial review proceedings and not otherwise. But where a litigant asserts his entitlement to a subsisting right in private law, whether by way of claim or defence, the circumstance that the existence and extent of the private right asserted may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons, any more than it can prevent him from setting up his private law right in proceedings brought against him. I think this proposition necessarily follows from the decisions of this House in Davy v Spelthorne BC [1983] 3 All ER 278, [1984] AC 262 and Wandsworth London BC v Winder.....

LORD LOWRY. My Lords, Dr Premananda Roy, the respondent, is a general medical practitioner who has since 1954 practised in the area for which the appellants, the Kensington and Chelsea and Westminster Family Practitioner Committee, were at all material times responsible.....

Dr Roy is on the list of doctors undertaking.... to provide general medical services in the area. Regulation 24 of the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974, SI 1974/160 (the General Regulations) required the committee to cause payments to be made to Dr Roy and other doctors in accordance with the Statement of Fees and Allowances (the statement) which was made and published under reg 24....

Paragraph 12.1 of the statement reads:

"A practitioner will be eligible for the full rate of basic practice allowance...if:((a) he provides general medical services and has 1,000 or more patients on his ordinary list...; and (b) he is in the opinion of the responsible Committee devoting a substantial amount of time to general practice under the National Health Service".

....Dr Roy had a list of 1,600 to 1,700 patients but the committee...formed the opinion that he was not devoting a substantial amount of time to general practice under the national health service and reduced his basic practice allowance by 20% from 1 January 1985. Dr Roy has had frequent absences from his practice: between 1979 and 1987 he was absent, for reasons connected with his family, sickness or holidays, for periods ranging in total from 87 to 186 days in each year; in only one year did the total of absences fall below 100 days and on average Dr Roy was absent for between one-third and one-half of each year. His absences have always been covered by the employment of a locum who, when Dr Roy was there, acted as his practice manager. There have been no complaints from individual patients concerning the service provided, whether by Dr Roy or by the locum....

Dr Roy challenged the committee's decision on the ground that, through himself and his locum, he was, notwithstanding the committee's opinion to the contrary, devoting a substantial amount of time to general practice....

[O]n 22 July 1986 Dr Roy, suing in person, issued against the committee in the Queen's Bench Division of the High Court....

The committee served a defence and counterclaim, which denied liability, and reserved the right to apply to the court for an order striking out the plaintiff's claim on the ground that it disclosed no cause of action and/or was an abuse of the process of the court.....

The master referred the summons to a judge for hearing and on 27 February 1989 Judge White, sitting as a judge of the High Court, granted the relief claimed in the summons (see [1989] 1 MLR 10). On 22 March 1990 the Court of Appeal (Neill, Nourse and Balcombe LJJ) heard Dr Roy's appeal, reversed the judge's order and refused leave to appeal to your Lordships' House (see [1990] 1 MLR 328)....

Each member of the Court of Appeal expressed the view that Ex p Walsh was decisive of what they saw as the two main issues in the case which is now before your Lordships, as showing, first, that Dr Roy had a contract (for services, although not of service) with the committee and, secondly, that his proper remedy was by action against the committee and not by judicial review of their decision....

This brings me back conveniently to the committee's original contention in the courts below, which was that Dr Roy should have proceeded not by action but by an application for judicial review. The authorities relied on were (and still are) Cocks v Thanet DC... and O'Reilly v Mackman.....

O'Reilly v Mackman, Cocks v Thanet DC and two other cases which reached your Lordships' House were referred to in An Bord Bainne Co-op Ltd v Milk Marketing Board [1984] 2 CMLR 584 (the Irish Dairy Board case), in which the Irish Dairy Board sought damages and an injunction to restrain the Milk Marketing Board from selling at differential prices milk for making butter, according to whether the butter was to be sold to an intervention agency or into the United Kingdom domestic market. The grounds of the action were (a) breach of Council Regulation (EEC) 1422/78 and Commission Regulation (EEC) 1565/79 and of the United Kingdom Milk Marketing Scheme (Amendment) Regulations 1981, SI 1981/323, and (b) abuse of a dominant position under arts 86 and 90(2) of the EEC Treaty. The defendants applied to strike out the grounds under (a), arguing that the claim alleged a cause of action in the field of public law and could be brought only by way of judicial review under Ord 53 and that the defendant's action amounted to an abuse of process. The Court of Appeal, affirming the decision of Neill J ([1984] 1 CMLR 519) and dismissing the appeal, held that the action was based on private law rights, whether or not it was also based on public law rights, and that the right procedure was by action and not by judicial review.....

In R v Derbyshire CC, ex p Noble [1990] ICR 808 a deputy police surgeon, whose services were dispensed with, unsuccessfully sought judicial review of a police committee's decision. The Court of Appeal affirmed the Divisional Court's decision that judicial review was an inappropriate remedy, since the applicant's grievance arose in connection with his private rights. I refer to the case mainly for the sake of a passage in the judgment of Woolf LJ (at 813):

"[T]he present application is one which is unsuitable for disposal on an application for judicial review ( unsuitable because it clearly involves a conflict of fact and a conflict of evidence which would require investigation and would involve discovery and cross-examination. Cross-examination and discovery can take place on applications for judicial review, but in the ordinary way judicial review is designed to deal with matters which can be resolved without resorting to those procedures".

The concluding observations, by a judge who is an acknowledged authority on the subject, remind us that oral evidence and discovery, although catered for by the rules, are not part of the ordinary stock-in-trade of the prerogative jurisdiction. That fact alone must constitute an important qualification of the general theory propounded by Lord Diplock in O'Reilly v Mackman.

McClaren v Home Office [1990] ICR 824 was concerned with an action brought, in connection with a dispute over working hours, by a prison officer against the Home Office, which then applied to strike out the action on the ground that the plaintiff ought to have proceeded by judicial review. Woolf LJ, after agreeing with Dillon LJ in the Court of Appeal that the plaintiff's appeal against the judge's order striking out his action should be allowed, continued as follows (at 835):

"However, this appeal and the appeal which was heard recently by this court in Reg. v Derbyshire County Council, Ex parte Noble ([1990] ICR 808) suggest that problems are being experienced as to when proceedings have to be taken by way of judicial review by employees ( I use that term in a wide sense... ( who wish to bring proceedings against their employer who is a public body. The problem appears to be due to a misunderstanding as to the effect of the decision of the House of Lords in O'Reilly v. Mackman...."

Woolf LJ did not discuss in terms that 'misunderstanding', but a hint of its nature, as perceived by him, may perhaps be gathered from...passages in his judgment. First (at 836):

"In relation to his personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees. If he has a cause of action and he wishes to assert or establish his rights in relation to his employment he can bring proceedings for damages, a declaration or an injunction (except in relation to the Crown) in the High Court or the county court in the ordinary way. The fact that a person is employed by the Crown may limit his rights against the Crown but otherwise his position is very much the same as any other employee.....

There is now a considerable number of dicta which indicate that it is possible for a servant of the Crown to have contractual rights. It is not necessary for me to refer to these authorities because they are all set out in Reg. v. Civil Service Appeal Board, Ex parte Bruce ([1988] 3 All ER 686)...."

I have already referred to the judgment of the Court of Appeal, which concluded that there was a contract for services between Dr Roy and the committee and that it was therefore in order for Dr Roy to sue the committee for a declaration of his rights and an order for payment....I cannot altogether accept the reasoning which led the members of the Court of Appeal to conclude that there was a contract, because, although there may well have been a contract for services, I am not satisfied that there was. Ex p Walsh [1984] 3 All ER 425, [1985] QB 152 does not in my view provide a reliable argument in favour of saying that there was a contract in the present case.... At the same time, I would be foolish to disregard the fact that all the members of a distinguished Court of Appeal held that a contract for services existed between Dr Roy and the committee. It shows, to say the least, that there are 'contractual echoes in the relationship'...

But the actual or possible absence of a contract is not decisive against Dr Roy. He has in my opinion a bundle of rights which should be regarded as his individual private law rights against the committee, arising from the statute and regulations and including the very important private law right to be paid for the work that he has done. As Judge White put it ([1989] 1 MLR 10 at 12):

"The rights and duties are no less real or effective for the individual practitioner. Private law rights flow from the statutory provisions and are enforceable, as such, in the courts but no contractual relations come into existence".

The judge, however, held that, even if the doctor's rights to full payments under the scheme were contractually based, the committee's duty was a public law duty and could be challenged only on judicial review. Mr Collins admitted that, if the doctor had a contractual right, he could (subject always to para 80.1 of the Statement of Fees and Allowances) vindicate it by action. But, my Lords, I go further: if Dr Roy has any kind of private law right, even though not contractual, he can sue for its alleged breach.....

Furthermore, even if one accepts the full rigour of O'Reilly v Mackman, there is ample room to hold that this case comes within the exceptions allowed for by Lord Diplock. It is concerned with a private law right, it involves a question which could in some circumstances give rise to a dispute of fact and one object of the plaintiff is to obtain an order for the payment (not by way of damages) of an ascertained or ascertainable sum of money.....

Dr Roy's printed case contained detailed arguments in favour of a contract between him and the committee, but before your Lordships Mr Lightman QC [Roy's counsel] simply argued that the doctor had a private law right, whether contractual or statutory. With regard to O'Reilly v Mackman he argued in the alternative. The 'broad approach' was that 'the rule in O'Reilly v Mackman' did not apply generally against bringing actions to vindicate private rights in all circumstances in which those actions involved a challenge to a public law act or decision, but that it merely required the aggrieved person to proceed by judicial review only when private law rights were not at stake. The 'narrow approach' assumed that the rule applied generally to all proceedings in which public law acts or decisions were challenged, subject to some exceptions when private law rights were involved. There was no need in O'Reilly v Mackman to choose between these approaches, but it seems clear that Lord Diplock considered himself to be stating a general rule with exceptions. For my part, I much prefer the broad approach, which is both traditionally orthodox and consistent with....Davy v Spelthorne BC [1983] 3 All ER 278 at 283(284and in Wandsworth London BC v Winder. It would also, if adopted, have the practical merit of getting rid of a procedural minefield. I shall, however, be content for the purpose of this appeal to adopt the narrow approach, which avoids the need to discuss the proper scope of the rule, a point which has not been argued before your Lordships and has hitherto been seriously discussed only by the academic writers.

Whichever approach one adopts, the arguments for excluding the present case from the ambit of the rule or, in the alternative, making an exception of it are similar and to my mind convincing. (1) Dr Roy has either a contractual or a statutory private law right to his remuneration in accordance with his statutory terms of service. (2) Although he seeks to enforce performance of a public law duty...., his private law rights dominate the proceedings. (3) The type of claim and other claims for remuneration (although not this particular claim) may involve disputed issues of fact. (4) The order sought (for the payment of money due) could not be granted on judicial review..... (6) When individual rights are claimed, there should not be a need for leave or a special time limit, nor should the relief be discretionary. (7) The action should be allowed to proceed unless it is plainly an abuse of process. (8) The cases I have cited show that the rule in O'Reilly v Mackman, assuming it to be a rule of general application, is subject to many exceptions based on the nature of the claim and on the undesirability of erecting procedural barriers.

My Lords, I have already disclaimed the intention of discussing the scope of the rule in O'Reilly v Mackman but, even if I treat it as a general rule, there are many indications in favour of a liberal attitude towards the exceptions contemplated but not spelt out by Lord Diplock......

In conclusion, my Lords, it seems to me that, unless the procedure adopted by the moving party is ill-suited to dispose of the question at issue, there is much to be said in favour of the proposition that a court having jurisdiction ought to let a case be heard rather than entertain a debate concerning the form of the proceedings.