Paragraph 5 - the exclusivity principle

Question 1

In what case did the House of Lords decide that judicial review should be an exclusive procedure?

Answer 1

O’Reilly v Mackman [1983]

Question 2

What does an exclusive procedure mean?

Answer 2

This meant that it should be the only procedure available for those challenging the decision of public authority

Question 3

What was one of the exceptions outlined by Lord Diplock in O’Reilly v Mackman?

Answer 3

Where there was a public law issue but was collateral to a private law issue, you do not need to stop the case and restart the judicial review under judicial review track. Instead, under lord Diplock’s judgement, the case can continue

Question 4

Why has it proven very difficult to distinguish between private and public law issues?

Answer 4

For example, an action against a public authority might be a private law action, such as damages for negligence. If this is the case this is not a judicial review proceeding.

Question 5

What is the case for difficulty distinguishing private and public law

Answer 5

Davy v Spelthorne Borough Council [1984]

Question 6

What has the enactment of the civil procedure rules led courts to

Answer 6

Taking a more flexible and pragmatic approach to whether a claimant should proceed under private law or judicial review

Question 7

Example of courts taking a flexible pragmatic approach to whether a claimant should proceed under private law or judicial review

Answer 7

Clark v University of Lincolnshire and Humberside