Judicial Review: Rights and Discretion in Public Law
| Author | Maurice Sunkin |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02541.x |
| Published date | 01 September 1983 |
| Date | 01 September 1983 |
Sept.
18931
NOTES
OF
CASES
645
Corporate fraud is today dressed up as mismanagement more easily
than ever before.
But
British courts are singularly ill fitted to investigate
and provide redress. An administrative agency or Commission would
more readily-and more acceptably-establish remedies for such
“
unfair mismanagement.” Such a body might yet
“
become a
Cor-
porations Ombudsman, ready to investigate, probe, or adjudicate in
the interests of shareholders, and it is to be hoped eventually of the
employees and the community.”
lo
That is what the problem is-still-all about.
W.
JUDICIAL
REVIEW
:
THE
House
of
Lords in
O’Reilly
v.
Mackman’
and
Cocks
v. Thariet
D.CS2
held that the Order
53
procedure for judicial review must generally be
used to challenge decisions of public authorities and that actions
commenced by writ or. summons are an abuse of pro~ess.~ Delivering
the only judgment in
O’Reilfy,
Lord Diplock said:
“
. . .
it would
. .
.
as ageneral rule be contrary
to
public policy, and
as such an abuse
of
process of the court, to permit a person
seeking
to
establish that a decision of a public authority infringed
rights to which he was entitled to protection under public law to
proceed by way
of
an ordinary action and by this means to evade
the provisions of Order
53
for the protection
of
public
authorities.”
*
Thus, their Lordships rejected the argument that litigants have an option
to proceed for declaratory
or
injunctive relief by whichever procedure
they believe
is
in their best
interest^.^
RIGHTS
AND
DISCRETION
IN
PUBLIC
LAW
lo
“
A Corporations Ombudsman?
”
(1960)
23 M.L.R. 663,670
(K.
W. Wedderburn).
’
[I9821
3
All E.R. 1124.
[I9821
3
All E.R. 1135.
See R.S.C., Ord. 53, r.
I
and
cf.
s.
31
(I)
of
the Supreme Court Act 1981 which unlike
the Order includes declaratory and injunctive relief with the prerogative orders as remedies
which,
’‘
shall be (obtained).
.
.
by..
.
application forjudicial review.”
At p.
I
I34 (emphasis added).
Payne
J.
at first instance in
O’Reilly
said, The law offers the plaintiff a choice. If it is
inconvenient for the choice to be exercised
in
a particular way, then the choice should be
withdrawn
or
limited. But whilst the choice continues to exist it seems to me to be an
abuse
of
language
to
say that the plaintiff is abusing the process
of
the court because he
exercises the choice in the way he thinks best
in
his own interests.” [I9821 3 All E.R. 680,
688. For earlier cases see Uppalv.
Home
Ofire
[I9781
The
Times,
November
1
I
;
Heywood
v.
Hull Prison Boardof Visitors
(19901
I
W.L.R. 386;
Din
v.
Wantlsworth L.B.C.
[I9811 3
All
E.R.
881,
per
Lord Wilberforce at p.
885;
Boiisfield
v.
North Yorks. Corinty Corirrcil
[I9821
The Times,
March 4;
Tillnrire Coininon, Heslington,
Re
[I9821 2 All E.R. 615;
Laniberr
v.
Euling
L.B.C.
(19821 2 All
E.R.
394,
per
Lord Denning, M.R. at p. 399;
lrlam Brick
Co.
v.
Warrington
B.C.
11982)
The Times,
February
5;
De
Falco
v.
Crawley
(infra).
See also Comment by
V.
Moore (19811 P.L. 349.
The Siipreme Coirrt Practice
1982,
Vol.
1,
53/1-14/12, p. 872 reads:
‘
It should,
of
course,
also be remembered that
a
person
who desires to challenge an administrative act or omission is able to do
so
by bringing his
claim in a writ action
.
.
.”(emphasis added). But c/(at para. 53/1-14/12A)
“
although the
jurisdiction of the Divisional Court of the
Q.B.D.
to
grant a declaration on an application
for judicial review is concurrent with the jurisdiction of the court to grant a declaration in
an action begun by writ, yet in practice the plaintiff will not be permitted to by-pass the
appropriate machinery for review.”
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