O’ Reilly Principle essay

Intro:

In the current times, when a person thinks that a decision made by the public authority is not appropriate, he/she are in a position to challenge when challenging a decision there are some guidelines which are to be followed by him/her in order to challenge by using judicial review as stated in the 31st section of “SCA and CPR’s rule 54”. This emerged due to the modifications which resulted due to “Rule of SC order 53”. The “SCA 1981’s section 31” lead to its further acknowledgment. The results it brought are very distinct such as it significantly altered the perspective of judicial review by dealing with the limitations of the previous system. Furthermore, expansion in the scope of judicial review took place by introducing elements such as cross-examination and discovery, and it also incorporated non-prerogative remedies like declarations, injunctions, and damages.

The terms which are formed especially to protect the public authorities were also implemented, such as the requirement for applications to be made within a three-month time period. However, it is highly important to mention what Professor Wade said in this regard. He said “the reform faced criticism for not being radical enough and for failing to address the inherent inconsistencies of the dual system of remedies.” [There hasn’t been any specified instructions regarding the procedure or in short the way a public authority can be challenged.]

As an outcome of this change, during “O’Reilly v Mackman”, it has been explained in clear words by “House of Lords” that with a finite number of exemptions, no public law matter can be challenged through the normal process of claiming a private case.

consider it an "abuse of process," potentially detrimental to the litigation

proceedings.Professor Jolowicz completely opposed this view. While stating his views

which made him oppose the above mentioned perspective, he stated that the act of

investigating if the case is concerned with a "public authority" or not even before making

sure if the case has merit is like going backward in history. However, Christopher

Forsyth suggested critique of "procedural exclusivity" along with "O'Reilly principle"

originates due to difficulties in discerning among public and private law.

It proved to be the driving force behind the development of the case laws by the

judiciary. During the above mentioned case i.e. O’Rielly, it has been established in clear

words that the right that the prisoners were asserting did not pertain to private law;

hence, it was a public law’s issue, by Lord Diplock. During current times, the procedure

for judicial review is in accordance with the "Rule number 54.1 of CPR 1998". According

to this principle, change in the perspective is evident in the instance of "Clark v University",

wherein the "Court of Appeal" abstained from dismissing a case on the premise of "abuse of

process". However, this criterion doesn't encompass the full scope of public law. However, it should be noted that a clear distinction was created between

"decision making" and "executive power" during the well known case of "Cocks v Thanet District Council [1982]". This led to the fact that the "decision making" comes

under the control of public laws while the usage of executive powers is dealt with as per

the "private law". In many future cases, this differentiation was employed.

Moreover, another aspect of public law, as delineated in "O'Reilly", involves the

judgment with its origins coming from a public body endowed with authority by a

"statute or prerogative". However, during Ex Parte Datafin it was decided by the court to

employ "functionalist perspective". Due to the fact that the panel possessed some

powers such as "decision making power" and this can have influence upon the public,

therefore, the court decided that the panel shall be reviewable. An alternative rational

was based upon a "residual" basis, where no other avenue existed to challenge the

decision. This rule was illustrated during "ex parte Harriot". Additionally, during "ex parte

Wachmann", a criterion was established for assessing if the administrative function

would've been fulfilled when the defendant isn't present. Meanwhile, trying to determine

the reviewability, the court during "ex parte Aga Khan" decided to employ the "source of

power test". During the case mentioned above, it should be noted that the power here

relied upon a contract. Another case named "ex parte Aegon life" ended in the same

way. Hence, as per "Aga Khan and Aegon life", it is said that there exist no opportunity

for judicial review concerning activities or functions that are not related to the

government or public entities. Nonetheless, the Human Rights Act of 1998, section 6(3), has

expanded the public body's scope by incorporating the term "public in nature". It should be

noted that public body’s scope by incorporating the term "public in nature". It should be noted that during

"Poplar Housing v Donoghue", a comparatively broad interpretation of section 6(3) was used by

the court and concluded that acts that may initially appear to be of a private nature become

i.e. “Marc ic v Thames Water (2004)”. But during cases such as the “YL v Birmingham CC”, a much constricted approach was used and therefore as per the “section 6(3) of HRA 1998”, a private care horse wasn’t considered public. Lord Diplock was the one who realized the severity of “strict procedural exclusivity” and therefore he went on to say that “ there will be a finite number of exemptions”. Following the case “Wandsworth LBC v Winder”, the formerly harsh “procedural exclusivity” began to lose its strictness.

During the above mentioned case, the defendant invoked the defence of “Wednesbury unreasonableness”, but it was turned down by the court and they rejected the argument of “abuse of process” since the defendant was not selecting the procedure but rather defending against the claim made against them. This defense was distinct from Judicial Review, due to the fact that it was exercised as a matter of right rather than at the discretion of the court. The case was distinguished from "Cocks" by its focus on preexisting rights instead of establishing newer rights. Subsequently, in the case of “Roy v Kensington,” the court delineated that issues which fall within scope of public law rights are to be dealt with in light of “exclusivity principle”. However, in situations when claim being made consists of private right incidentally involving examination of a public law problem within an simpler claim, it wouldn’t lead to an “abuse of process”. This ruling marked the initial steps toward bridging division among the “public and private law” by integrating “public law” considerations into “private law” claims while still upholding the exclusivity principle for cases solely concerning public issues.

A comparatively much relaxed perspective regarding the “exclusivity rule” was given by Lord Slynn when he shared his viewpoint during “Mercury v Director General of Telecommunications”. As per this relaxed perspective, he stated that “public-private law” distinction isn’t always a less difficult issue and hasn’t been sorted yet therefore requires no rigidity”. In the same way, we observed a much lenient approach during the case “Dennis v Sheffield CC”. In this same case, it was stated by Lord Woolf, as per which, if there exists surety that the judgments in the cases “Bug v DPP and R v Wick” was not correct.

was observed by Lord Woolf that as per the CPR, the judges had more efficient means to address genuine instances of “abuse of process”, and therefore, a case involving a “contractual right” would not be struck out arbitrarily.

However, it should be noted that once a claim has been considered important, it shall be shifted to the administrative court. Therefore, the O'Reilly principle has waned in significance, as the consequences of selecting an incorrect procedure aren’t inherently hazardous anymore. Nonetheless, a difference between “public and private law” remains pertinent. This enduring relevance is exemplified during “North Dorset District Council v Trim” (2010), wherein a public law issue pursued through ordinary channels was dismissed due to procedural constraints. This underscores the importance of adhering to appropriate legal procedures. Moving back to the most important question that whether the “O'Reilly principle” should stay or not, basically suggesting the “rule of procedural exclusivity”. As far as I am concerned, there should be only one procedure by which all the cases should be brought into the court. Furthermore, the courts should possess supervisory authority over both the public and private law matters, including the discretion to turn down cases lacking merit or on the basis of delayed excessively. Nevertheless, the “rule of standing” must continue to apply primarily to matters of public law. In Scotland, a procedure closely resembling this approach is in place. There, all cases adhere to a single procedure outlined in “Chapter 58 of the Rules of the Court of Session” 1994.. And the best part, in Scotland, there exists no time restrictions. Dawn Oliver, in "Public Law Procedures and Remedies - Do We Need Them?" has argued against this procedural divide, suggesting that there had been a number of mistakes by the courts while being influenced by distinctions between “public and private matters, special courts, and unique remedies”. Oliver also argues that the global tilt toward privatization and the blurring of public/private distinctions make the divide artificial and cumbersome. He has further advocated that the commencement of judicial review proceedings should occur through ordinary claims as per "CPR Part 7 or 8," while reserving the allocation of "public law" cases for the Administrative Court. Furthermore, it has been proposed by him that removing the permission requirement and the three-month time limit, as “CPR Part 3” for striking out claims and “CPR Part 24” for summary judgment, along with discretion to refuse discretionary remedies, already provide adequate protection to defendants. In articulating his stance, Professor Wade concurs, contending that that procedural exclusivity imposes unwarranted constraints on access to judicial recourse, thereby fostering a contradictory and inherently bifurcated framework of legal remedies. He advocates that regardless of the nature of claims, a single procedural perspective should be adopted, akin to Scotland, as a viable solution to this issue.

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