Procedural Exclusivity

The concept of Procedural Exclusivity comes from the concept of Judicial Review (JR) which
was introduced in 1979 in order 53. This was later codified in Section 31 of Senior Courts Act
1981. However, highlighting the history, this concept was known as “The Writ of Certiorari”
where a citizen used to seek the Attorney General permission for seeking the public law
remedy. However, this concept just uses to pile up cases of public in ordinary courts and as
a result no justice was being served. This system was celebrated by the Lord A.V Dicey who
use to consider this as an important aspect of Rule of Law (ROL). However, this system
actually allowed the public to expose public bodies in ordinary courts to the frivolous
litigations. Therefore, order 53 brought a change to it and a new system was introduced
where special courts were created for admin law matters namely Administrative Courts.

We note that the admin courts were created but were left with a loophole. Section 31 did
not allow the admin courts with exclusive jurisdictions. Here the public had a choice of
choosing whether to file their claim against public body in admin courts or to file it in
ordinary courts. Highlighting the fact, we note that the public use prefer for ordinary courts
as the process was easy and it was more convenient for an individual. The statute did not
categorically state that an individual only has the right to come to admin courts for admin
law matters because of which there was loophole.

Since there was a loophole, a solution was required to stabilize order 53 for which Lord
Diplock in the case of O’Reilly v Mackman 1983 created a concept of Procedural Exclusivity.
The new concept was stated to be Prima Facie (on the face of it) exclusively. He stated that
it would be contrary to the public policy and it will be an abuse of process of courts to allow
a public law matter to an ordinary court and to proceed it by way of an ordinary action. This
will evade the provision of Order 53. The new system of JR, Order 53 was established to
safeguard and protect the certainty of public authorities. Allowing an ordinary claim will
defeat this policy claim hence, to protect this Lord Diplock gave two exceptions. The
exceptions were that the claim can only be brought to ordinary courts if both the parties,
claimant and defendant have mutually agreed to it. Secondly, the public law matter is a
collateral issue to infringements of claimant’s private law matters. However, in initial years,
the courts took a strict step towards the people to follow the above concept but over the
time, the collateral issue exception has broadened to such an extent that the effectiveness
of the general rule has completely diminished.

Considering the Lord Diplock statement mentioned above, the initial approach by the courts
was highlighted in many case facts. Highlighting those, the first is Cocks case 1983, where an
individual wanted to file a claim against a public body in ordinary court however, the matter
was purely a public law where a statutory duty was breached hence, the courts did not
allow the person to opt for ordinary court because this would have avoided the application
of section 31. Moving on the second case, which was Davy 1984, the claimant filed a case
against government for negligence advice, the case was filed in the ordinary court and
hence the claimant was entertained as the claimant was suing the public body for the
private law matter (negligence) but not suing the government for the legality of order
passed against him. More to this, in the case of Winder 1985, we note that the counsel
increased the rental price, where the person living on rent had an issue and refused to do
so. Therefore, counsel brought action against the person and the person raised a defense
against the counsel stating that it is not the jurisdiction of counsel to raise the rental
amount. This action of counsel will fall under ultra vires. The House of Lords permitted that
the public law matter can be used as a defense in an ordinary case. The exception was
applied here as the courts allowed the person to file a claim against the counsel in ordinary
court.

As discussed above the initial approach, coming to the collateral issue which was later
broadened in the following cases. Highlighting the case of Roy v Kensington where the
House of Lord stated that the public law matters can be brought to an ordinary court until
they coincide with private law matters. Pure public law matters are only bound by the
exclusivity principal which is that they cannot be decided outside of Section 31. Same like
this, there was another case of Mercury v DG Telecommunication 1996, where we see
further broadening of the definition of collateral. Lord Sylnn in House of Lord stated that the
public law matter can be decided in an ordinary court only until it is not abusing the courts
process. Further mentioned that the exclusivity is merely presumptive and not conclusive.
This clearly highlights that the effectiveness as mentioned above is clearly getting
diminished. In fact, House of Lord has excluded the general rule which was the O’Reilly
exclusivity principal (not completely). More to this, Human Rights Act banged the table and
hence turned it against Section 31, where it gave a scapegoat for getting outside Section 31
by introducing Section 7 of HRA 1998, where it allowed that the HR claims can be brought in
ordinary courts. This is how the O’Reilly principal was over ruled with time.

As the above-mentioned exceptions were broadened, there was a need to limit exclusivity.
Exclusivity principal was not leading to justice for public as the public was confused on
knocking on wrong doors. There were many considered problems in the procedures as the
Civil Procedure Rule 1999 made the difference between ordinary courts and special courts
less substantive. Whereas the protection to public bodies was also available in public courts
which was less time-consuming compare to the special courts and more approachable but
was not healthy for the administrative bodies. More to this, a good aspect of it which was
that there was an increase to justice as for now all the cases were entertained and not like
before, because of procedure no case was rejected (The genuine ones). Civil Procedure Rule
1999, allowed the rights of discovery and examinations, summary of judgement and the
time limit for public was made shorter so that they can be in ease. As a result, the procedure
for both the courts became similar with no difference in terms of choice of jurisdiction for
both defendant and claimant. This was for the good of Public.

The concept of Admin and ordinary courts diminished where we highlight Professor Wades
1985 Article “Beyond O’Reilly’. In this article he stated that dividing the courts was not a
good option, there should have been a single court with having all jurisdictions of all
matters. The different approach of different matters should have been decided in inter
locutory stage. This would have avoided the concept of knocking wrong doors. Even in
recent approach we can note that the aim of Wade recommendation is being achieved.
Here one can say that few tears will shed if House of Lord decision in O’Reilly is over ruled.