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Exclusivity principle:
The principle that a remedy for a public law matter should be pursued only through
the application for JR. / the private law matters should not be the subject of an
application for JR
The House of Lords held in O'Reilly v Mackman [1983] 2 AC 237 that where public law
rights were at stake, the claimants could only proceed by way of judicial review. They
could not originate their action under the general civil law procedure,
because that would be avoiding the procedural safeguards afforded to
public authorities by the judicial review procedure, such as the requirement of
sufficient interest, timely submission and permission for judicial review. However, a
defendant may still raise public law issues as a defense in civil proceedings.
So for example, a tenant of the public authority could allege illegality of its decision to
raise the rents when the authority sued him for failing to pay under the tenancy
contracts. He was not required to commence a separate judicial review process
(Wands worth London Borough Council v Winder (1985)). If an issue is a mix of private
law rights, such as the right to get paid under a contract, and public law issues of the
competence of the public authority to take the impugned decision, the courts are also
inclined to allow the claimant to proceed using ordinary civil procedure, at
least where it can be demonstrated that the public interest of protecting authorities
against frivolous or late claims has not been breached (Roy v Kensington and Chelsea
and Westminster Family Practitioner Committee (1992), Trustees of the Dennis Rye
Pension Fund v Sheffield City Council (1997)).
1. OReilly v Mackman :
Following a prison riot, certain prisoners were sentenced to a period of solitary
confinement and loss of early release by the Prison Board of Visitors. The prisoners
commenced an ordinary action for a declaration that the decision was ultra
vires because inter alia they had not been given a fair hearing. The House of Lords
struck out the pleadings. They held that, given the improvements made to the
judicial review procedure in the 1978 Reforms, and the safeguards of that
procedure for the administration, it would normally be an abuse of process
for the court to allow an ordinary action, rather than judicial review, to be
pursued by a person seeking to establish that a decision of a public
authority infringed rights protected by public law.
Apllicants seeking to challenge an executive act or decision must be sure that they
make their claim by means of the apprioate process.
Public law: JR ; Private law ordinary procedure(by writ or originatinf summons)
Otherwise: a abuse of process
The governemt may need to take care of various aspects, and balance the interest of
different stakeholders. It may scrutiny the merits of the policy, instead of following the
precedents. Judicial review is particularly important for the public authorities to gain
flexibility.
There comes before the High court a case which has obvious merit, the court can
there and give leave and treat the material which is before is as fulfilling the
procedural requirement of an application for judicial review.
The exclusivity principle should not be rigidly applied that it serves to block worthy
challenges to the decisions and actions of public authorities.
3. Cocks c Thanet District Council
Held: where the actions impugned the authoritys performancee of its statutory
duties as a pre-condition to enforcing private law rights, the correct way was to
do so within judiial review proceedings. The authoritys decision could not be
chllenged by an ordinary action the House attacted particulart imortance to the
prtection givent to publich authorities by Order 53 of the Rules of the Supreme
Court to the extent that leave to bring proceedings was requied and a time limit
imposed subject to good reason for extending.
Exceptions to exclusivity principle
4. Davy v. Spelthorne Borough Council
Facts: A public authority negligently advised Davy over his rights regarding a
planning permission application
Issue: Could a local authority be subject to a private law action
Decision: Yes
Reasoning: Negligent misstatements do not concern public law rights,
therefore claims may be bought in private law
5. Lau Wong Fat v. Attorney General [1997] HKLRD A15
the applicant challenged the constitutionality of the New Territories Land
(Exemption) Ordinance. The proceeding was commenced by writ and the court
held that that was the wrong procedure. It was held that where a person
seeks to establish that the decision of a person or body infringes rights
which are entitled to protection under public law, he must, as a general
rule, proceed by way of judicial review and not by way of an ordinary
action. However, no further action was taken by the applicant.
6. Lau Chi Fai v Secretary for Justice & Anor
but-for test
the test consider whether, but for the existence of the decision maker carrying
out its function, the government would itself have introduced legislation to
regulate the area in question.