Collateral Attack — Attacking Ultra Vires Action Indirectly in Courts and Tribunals
| Author | Carl Emery |
| Date | 01 September 1993 |
| Published date | 01 September 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01895.x |
Collateral Attack
-
Attacking
Ultra
Vires
Action
Indirectly in Courts and Tribunals
Carl
Emery”
Judicial review in England is not the exclusive preserve of the superior courts. It is
clear that all levels of trial court, whether criminal or civil, have some jurisdiction
to determine ‘vires’ points when properly raised by way of defence to proceedings
of which they are seised. But certain questions remain as to precisely what is and
what should be the extent of that jurisdiction.’ It is clear also that there are
circumstances in which both a plaintiff in ordinary civil proceedings2 and a party
who has brought proceedings before an administrative tribunal3 may in those
proceedings attack public authority action on the basis that it is
ultra
vires.
In order
to explore the circumstances in which such attacks may be mounted, this article
addresses the following two questions. In what circumstances may a plaintiff seek
a determination of
a
public law issue in ordinary civil proceedings? (‘The plaintiff
question’). And in what circumstances may a party who has brought a case before
an administrative tribunal invite the tribunal to adjudicate upon any public law
issue arising? (‘The tribunal question’).
In the formulation of these two questions the term ‘a public law issue’ means an
issue as to whether a public authority or body discharging a public function has
acted
ultra
vires
or in a manner which would otherwise attract the supervisory
jurisdiction of the High
Where a particular case raises either of these questions and the case contains also
a European Community law element, certain special considerations arise. It will
thus be convenient to deal first with the purely domestic case law on each question
(Parts A and B). In Part C the Community law dimension of both questions will be
considered. Part
D
advocates a more coherent approach to the questions.
A
The ‘Plaintiff Question’ in English Domestic Law
1
Preliminary Considerations:
The
Rule in
O’ReiZZy
v
Muckman
It has been clear since
O’ReiZZy
v
Mackman’
that ordinary civil proceedings6
may not be brought by a party whose complaint is solely that ‘a decision of a public
authority [has] infringed rights to which he was entitled to protection under public
*Durham University.
My colleagues Bob Sullivan, Anthony Tanney, Colin Warbrick and Tamara Hervey all read this article in
draft and made valuable comments for which (as for the comments of the anonymous reader for the MLR)
I
am
most grateful.
1
See Emery, ‘The
Vires
Defence
-
“Ultra Vires”
as a Defence to Criminal
or
Civil Proceedings’
2
See eg
Roy
v
Kensington Family Practitioner Committee
[1992]
1
AC 624 (dealt with at pp 645, 649
3 See eg
Foster
v
ChiefAdjudication Of/icer
[1993] 2 WLR 292
(HL),
below p 655.
4 The ‘otherwise’ in the text refers to the surviving but now largely obsolete supervisory jurisdiction to
5
[1983] 2 AC 237.
6 ie proceedings initiated by writ
or
by originating summons.
(1992) 51 CLJ 308.
below).
review
for
‘error on the face of the record.’
0
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1993
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fie Modem Law Review
[Vol.
56
law.’7 If a litigant wishes to seek an injunction or a declaration* by way
of
remedy for such infringement alone, he must proceed under RSC Order 53 by
application for judicial review. For the
1977
reform of the Order
53
procedure
largely eradicated the deficiencies of its predecessor and incorporates special
features designed on the one hand to facilitate in proper cases the grant of relief
against public authorities which have infringed a person’s ‘public law rights’; and,
on the other, to protect public authorities from ‘groundless, unmeritorious or
tardy’g challenges to the legality of their action. In these circumstances, for a
person whose sole complaint is that a public authority has acted
ultra vires
to
proceed by way
of
ordinary civil proceedings would be an ‘abuse
of
the process
of
the court.’ For he would be attempting ‘to evade the provisions of [RSC] Order 53
for the protection of such authorities.’1°
There are, however, very many and varied circumstances in which a party may
claim that a public authority has committed a breach
of
contract or tort or other
civil wrong against him, but where the success of that claim turns upon the
resolution of a public law issue. May such a party pursue his claim via ordinary
civil proceedings, seeking within those proceedings a determination of the public
law issue?
A
number of examples of cases of this type, hereafter referred to as ‘mixed
cases,’ are given in section B below. It will be convenient to conclude these
preliminary observations by contrasting briefly the raising of public law issues by
way of defence.
Defence Contrasted with Attack
Since the decision in
O’Reilly v Mackman,
the House of Lords has ruled, in
Wandsworth London Borough Council
v
Winder,”
that a
defendant
to a private
law action is not precluded by the rule in
O’Reilly
from raising public law issues by
way of defence, even though, of course, a successful
‘vires
defence’ may entail
that a court holds a public authority act or decision to be
ultra vires
well outside the
period within which (and free of the other procedural constraints subject to which)
the decision might have been attacked by application for judicial review. This is
essentially because, as Lord Fraser said in
Winder,
‘the arguments for protecting
public authorities against unmeritorious or dilatory challenges to their decisions
have to be set against the arguments for preserving the ordinary rights of private
citizens to defend themselves against unfounded claims.
’I2
However, the position
of a plaintiff differs from that of a defendant in certain important respects.
First, a plaintiff, unlike a defendant, has chosen the forum in which he mounts
his attack.
As
Lord Fraser observed in
Winder,
‘[the defendant] did not select the
procedure’13
-
on which basis it is difficult to characterise the raising of a
vires
defence as an abuse of process. Furthermore, the effect of applying the
O’Reilly
rule in the defence situation would be to require the defendant, in order to avoid
liability, to initiate a fresh set of proceedings (application for judicial review) in
tandem with the existing proceedings against him. But if in a mixed case the law
were to require a plaintiff who needs to raise a
vires
point to proceed by application
7
ibid
at 285,
per
Lord Diplock.
8
Or,
of course, as provided by the Supreme Court Act 1981,
s
31(1), any of the prerogative remedies.
9
ibid
at 282.
10
ibid
at 285. The provisions referred
to
are, chiefly, the leave, standing and time limit features of the
Order 53 procedure.
11
[1985] AC 461; see ‘The
Vires
Defence’ at p 326.
12 [1985] AC 461, at
509.
13
ibid.
644
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1993
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