“Challenges to public law decisions must generally be brought by judicial review, not private action”
Four prisoners sought declarations that disciplinary awards made by the Hull Prison Board of Visitors were null and void. They commenced proceedings by writ and originating summons rather than by application for judicial review under Order 53. The defendants applied to strike out the actions as an abuse of process.
Whether it is an abuse of process to bring an action by writ or originating summons seeking to challenge decisions of a public authority where the sole ground is that the decisions were invalid under public law.
The House of Lords held that it would generally be contrary to public policy and an abuse of process to permit challenges to public law decisions to be made by ordinary action rather than judicial review. The actions were struck out.
Lord Diplock held that the introduction of Order 53 in 1977 created a comprehensive procedural code for judicial review with important safeguards for public authorities (time limits, permission requirement, discretionary remedies). To allow plaintiffs to circumvent these protections by ordinary action would undermine the reform. There is a general rule that challenges to public law decisions must be brought by judicial review. However, his Lordship acknowledged exceptions where private law rights are also at stake. The purpose of the rule is to protect public authorities from groundless or unmeritorious challenges and ensure procedural fairness. As a matter of public policy, plaintiffs should not be permitted to evade the protections built into the judicial review procedure by framing their challenge as an ordinary action.
This case established the exclusivity principle in public law, requiring that purely public law challenges be brought by judicial review. It has been subject to subsequent qualification but remains a cornerstone of judicial review procedure.
Lord Diplock noted that the rule was not absolute and exceptions would exist where private law rights were also involved, though he did not define the scope of such exceptions precisely.
OSCOLA Citation
O'Reilly v Mackman [1983] 2 AC 237 (HL)
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