P ART 3: J UDICIAL R EVIEW , U LTRA V IRES AND N ATURAL
13.9 The Application for Judicial Review
13.9.5 The application for judicial review and the protection
It has been seen that the remedies available in the present context are concerned with the legality of action by public, administrative agencies arising from the exercise of their powers in public law. The applicant under Order 53 is therefore obliged to establish an infringement of his rights which are protected or mainly affected by public law. If that applicant attempts to avoid Order 53 and, for example, applies to the Chancery Division of the High Court for a declaration, the court would be obliged to strike out the action as an abuse of the court’s process (O’Reilly v Mackman (1982)). Whether a case is one which must be pur- sued through the Order 53 procedure with its own special characteristics and safeguards rather than any other procedure is a matter of some difficulty. In O’Reillyit was decided by the House of Lords that a claim by a prisoner that a prison board of visitors should stay within their statutory jurisdiction and com- ply with the rules of natural justice should be dealt with under Order 53. In an earlier case from the same context, Heywood v Hull Prison Board of Visitors(1980), a prisoner who had been found guilty of certain disciplinary offences and pun- ished by a board of visitors sought a declaration by writ in the Chancery Division that the decision was a nullity by virtue of breaches of natural justice.
It was decided that although the remedies – the application by writ to the
Chancery Division for a declaration and the Order 53 procedure – were in the alternative, the characteristics of and safeguards contained in Order 53 meant that that procedure should be used. The decision shows the importance of the need for leave to apply in Order 53, a requirement that does not apply in the proceedings before the Chancery Division. The decision also suggest some of the practical difficulties in distinguishing between a procedure such as that by writ for a declaration before the Chancery Division, as opposed to the Order 53 procedure before the Queen’s Bench Division. The process of discovering which is the correct procedure through additional litigation in the courts could prove very expensive and time-consuming for the individual. Some guidance emerges from two recent cases. In the first, Cocks v Thanet District Council (1982), it was decided by the House of Lords that a decision of a local authority under the Housing (Homeless Persons) Act 1977 (now part of the Housing Act 1985) to the effect that the applicant was intentionally homeless and not therefore entitled to permanent housing accommodation could be challenged only under Order 53.
In such a case the individual applicant’s rights would be affected by what was alleged to be an ultra vires decision. On the other hand, it was emphasised that once a decision of a local authority, for example, to grant permanent housing accommodation, had been given, this conferred private law rights.
Consequently, in the unlikely event of a local authority refusing to provide such accommodation subsequently, the individual applicant would be able to look beyond Order 53 for the legal enforcement of his rights in private law, for exam- ple, through an action for damages for breach of statutory duty (Thornton v Kirklees Metropolitan Borough Council (1979)). In the second case, Davy v Spelthorne Borough Council (1983), it was decided that an injunction to restrain a local authority’s implementation of an enforcement notice was a matter to be dealt with under Order 53 since the notice was made by a public administrative agency under public law powers with the intention that it should have effect against the applicant. In addition it was considered important by the court that the local authority should have the protection of the safeguards in Order 53. In addition a claim for damages was made in respect of allegedly negligent advice from the local authority as a result of which the applicant failed to appeal against the enforcement notice. In this case the claim arose from and affected the applicant’s rights in private law so that although such a claim for damages could be pursued through Order 53, it would not be an abuse of the court’s process if an alternative procedure was followed.
Both Cocks and O’Reilly v Mackman were distinguished by the House of Lords in Wandsworth London Borough Council v Winder (1985). Here the council sought possession of a house on the ground of non-payment of rent increases.
The tenant sought to defend himself on the ground that the increases were ultra vires. The council unsuccessfully argued that such a defence should be processed through an application for judicial review in the High Court. The House of Lords disagreed: the tenant was complaining about infringement of his rights in private law, not public law; the tenant had not started the proceed-
INTRODUCTION TOADMINISTRATIVELAW
ings; the tenant was not wanting to gain some right or entitlement from a public authority, as in Cocks; there was a need for a speedy decision on the dispute in the interests of good administration; the tenant had not started the proceedings and merely sought to exercise his right to advance a defence against the claim.
By contrast, in Avon County Council v Buscott(1988) a local authority decided to bring proceedings against trespassers. However, the Court of Appeal found that the court below was right to refuse an adjournment to allow argument of a case that eviction was unreasonable through the alleged failure of the Council to pro- vide sites for gipsies. This matter had to be raised in Order 53 proceedings; no defence was raised on the merits of the case as in Winder.
The decision in Cocks has been followed in the recent case of Ali v Tower Hamlets London Borough Council (1992), where the issue before the court was whether the alleged failure of the council to discharge its statutory duty under ss 65 and 69 of the Housing Act 1985 to provide ‘suitable accommodation’ for homeless persons could only be challenged by way of judicial review proceed- ings as the council contended. In upholding the council’s appeal, the Court of Appeal was of the opinion that whether or not accommodation was suitable was a matter of subjective judgment for the housing authority. The public law duties of the council were not discharged until the process of deciding on suit- able accommodation had been completed. Therefore, since at this stage no pri- vate law rights had accrued in favour of the applicant, he had been wrong to bring an action for an injunction in the county court. Any challenge to the hous- ing authority’s decision could only be made by way of judicial review proceed- ings. On this basis, Ali can be distinguished from the decision in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992). In this case, Dr Roy commenced by writ an action against the Family Practitioner Committee in respect of among other things, payment of part of his basic prac- tice allowance to which he believed he was entitled but which the Committee had withheld from him on account of the fact that in their view, he had failed to devote sufficient time to his National Health Service work. The Committee sought to have Dr Roy’s action struck out as an abuse of the process since it was argued on their behalf that the issues raised by the case were public law issues and that therefore, Dr Roy’s sole means of redress lay in judicial review pro- ceedings. The House of Lords refused to accept this argument. Whilst Dr Roy may or may not have been in a contractual relationship with the Committee, he nevertheless had ‘a bundle of rights which should be regarded as his individual private law rights against the Committee’, and one of these private law rights was the right to be paid for the work that he had done. Accordingly, the effect of the rule in O’Reilly v Mackmanis not such as to prevent a litigant possessed of a private law right from seeking to enforce that right by an ordinary action even when the proceedings necessarily involve a challenge to a public law decision.