O'Reilly v Mackman - Case Study Example

The importance of the House of Lords’ ruling in O’Reilly v Mackman was not only the development of the principles of judicial review, but also the judicial creation of a procedural exclusivity rule and principle. The House of Lords intended the formulation of a rule with limited application. Lord Steynn said an example of when the procedural exclusivity rule would apply would be ‘where the invalidity of the decision arises as a collateral matter in a claim for infringement of private rights.’1 The procedural exclusivity rule enunciated by Lord Diplock in O’Reilly v Mackman has been the subject of much debate and has had its fair share of criticism. It was this statement of Lord Diplock that gave rise to the creation of the exclusivity rule: 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. 2 The most salient feature of the O’Reilly case, the procedural exclusivity rule determined that all matters concerning public law issues had to be litigated by way of judicial review. This had the effect of denying citizens the right to seek redress in the same matter in other proceedings where private rights were infringed. Procedural concerns are relevant to this issue. This exclusivity rule has generated a lot of confusion among the courts and surprisingly, it has never been overruled. Lord Woolf was very outspoken when addressing the confusion created by O’Reilly v Mackman’s procedural exclusivity rule. He said that the ‘procedural wrangling in that case’ has given rise to a waste of resources.3 Lord Woolf carried his discussion of O’Reilly v Mackman a little further in Clark v Lincolnshire [2000] 3 All 742 when he noted that Lord Diplock’s exclusivity rule was concerned with minimizing the risk of an abuse of the civil process. Under Order 53 a complainant had to demonstrate that he had a real chance of success in order to proceed with the judicial review process. Lord Woolf said, ‘The emphasis can therefore be said to have changed since OReilly v Mackman. What is likely to be important when proceedings are not brought ...under Ord 53, will not be whether the right procedure has been adopted but whether the protection provided by Ord 53 has been flouted in circumstances which are inconsistent with the object that the proceedings be conducted justly in accordance with the general principles contained in Pt 1. Those principles are now central to determining what is due process.’4 Some judges have attempted to cope with the limitations set by the exclusivity rule, by explaining its scope and range. The general tone is that the rule was purely for the purpose of creating a general rule for the introduction of a scheme capable of preventing an abuse of the civil process. Lord Steynn points out that following the decision in O’Reilly v Mackman, ‘decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individuals sole aim was to challenge a public law act or decision.’5 In other words, private rights could not be alienated if the claimant only desired to pursue infringements that related to alleged infractions attributed to the decisions made by public authorities. Following the decision of O’Reilly v Mackman, modification of the exclusivity rule was necessary and an inconsistent trend developed within the English courts. In another case, it was ruled that erroneous decisions on the part of public authorities can be contested in the same manner and means as private law matters whenever there is an element of private rights connected to it.6 In fact this course can be taken even if the private interest is only incidental to the issue involving decisions made by public authorities.7 The introduction of new rules of civil procedure following the confusion introduced by the O’Reilly case might have done nothing more than to preserve the exclusivity rule. The Civil Procedure Rules have now been framed to include judicial review procedures and ‘bring judicial review fully within the framework of the CPR. Thus "the judicial review procedure" is now defined as "the Part 8 procedure as modified by this part" r 54.1(2)(e).8 Cornford goes on to note that despite these changes ‘they preserve those safeguards of public authorities interests which furnished the original justification for insisting that public law challenges be brought by means of judicial review.’9 The Privy Council revisited O’Reilly v Mackman in a 2001 case and appeared to validate it all over again, yet at the same time recognized the changes introduced by r. 54.1(2)(e). Lord Mackay, in delivering the Council’s decision observed that although some parts of the judicial review trial might apply to a full trial, ‘the judicial review procedure is not an optional procedure in order to secure a result without the procedures of an ordinary action but is a procedure…’10 Lord Mackay went on to saw that this rule was unambiguously established in O’Reilly v Mackman. It ‘has protections built into it for authorities which may be subject to judicial review which would not apply to an ordinary action. In consequence judicial review is in no sense an optional less formal procedure for the decision of a matter than an ordinary action but rather is a proceeding for dealing with matters of public law for which an ordinary action is not appropriate…’ 11 O’Reilly v Mackman is also credited with extending and qualifying the general rules and ambit of judicial review. Those general principles ensure that decision making powers are exercised fairly and reasonably. Moreover, the decision in O’Reilly maintains that judicial review exists to ensure that those decisions are exercised on a legally correct basis. Judicial review is a means by which the court can intervene to ensure that members of public decision-making entities exercise those powers within the limits of their jurisdiction. Even misdirection in law or procedure would render that decision unlawful.12 Prior to O’Reilly v Mackman, the leading case on the principles governing and regulating judicial review was Anisminic Ltd v Foreign Compensation Commission [1969]. In this case, the House of Lords determined that the old practice of distinguishing between errors in law that went outside of a public authority’s jurisdiction and errors in law committed within their jurisdiction. Lord Diplock indorsed this distinction in O’Reilly stating, ‘The breakthrough that Anisminic made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported "determination", not being "a determination" within the meaning of the empowering legislation, was accordingly a nullity’.13 Following the Anisminic ruling, the O’Reilly decision went on to offer further clarification of the extension of the doctrine of judicial review. Lord Diplock was careful to explain that not all errors of law on the part of a public authority would be the subject of judicial review. Only relevant errors of law could be reviewed with the result that the decision made by the public authority could be quashed. It had to be shown that some error was committed in the making of a decision that had some impact on the decision itself. 14 Another key observation by the House of Lords in O’Reilly’s case is that applications for judicial review should be commenced without delay. Lord Craighead adapted this position in R v LB Hammersmith when he said, ‘the public interest in good administration requires that public authorities and third parties should not be kept in suspense for any longer period than is absolutely necessary in fairness to the person affected by the decision.’15 Previously, Order 53 of the Rules of the Supreme Court made provision for an application for judicial review to be commenced within three months from the date the action accrued. Order 53 also mandated the general rules of procedure relative to judicial review. In any event Part 54 of the Civil Procedure Rules abolished and replaced Order 53. The three months time limitation for the commencement of an action remains a part of the judicial review process, although Part 54 now contains provision for the time to be extended by agreement between the relevant parties to the putative action.16 Despite the mixed reactions to O’Reilly v Mackman, the ruling in that case has served a useful purpose. It raised awareness of the inherent weaknesses in the procedure for pursuing judicial review. As it stood, once a complainant decided to issue process against a public authority his right to pursue incidental private rights was compromised. The developments in the procedural law relating to judicial review since the O’Reilly decision have attempted to balance the interests of the public authority and the right of the complainant to pursue analogous private rights. References Boddington v. British Transport Police (1988) (HL) http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldjudgmt/jd980402/bodd01.htm Viewed November 22, 2006 Clark v Lincolnshire [2000] 3 All 742 Cornford, Tom. The New Rules of Procedure for Judicial Review. (2000) 5 Web JCL1 http://webjcli.ncl.ac.uk/2000/issue5/cornford5.html Viewed November 22, 2006 Dennis Rye Pension Fund Trustees v Sheffield City Council [1997] 4 All ER 747 Halliday, Simon. Judicial Review And Compliance with Administrative Law (2004) Hart Publishing. Mercury Communications v Director General of Telecommunications [1996] 1 WLR 48 (HL) O’Reilly v Mackman [1982] 3 All ER 1124 (HL) Rajkumar v Lalla et ales [2001] (PC) http://www.privy-council.org.uk/files/word/DOUGNA-rtf.doc Viewed November 23, 2006 R. v. LB Hammersmith and Fulham exp Burkett (2002) H.L http://www.richardbuxton.co.uk/reference/view.php?table=transcripts&id=44&flag=name Viewed November 22, 2006 Roy v Kensington and Chelsea FPC [1992] 1 AC 624 (HL) The Rules of The Supreme Court (Amendment) 1996 http://www.opsi.gov.uk/si/si1996/Uksi_19963219_en_1.htm Viewed November 24, 2006 Wade, William. Administrative Law. (1988) Oxford University Press Wandsworth LBC v Winder [1985] 1 AC 461 Read More