Raising Public Law Issues As A Plaintiff
| Published date | 01 July 1993 |
| Author | Anthony Tanney |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01889.x |
| Date | 01 July 1993 |
Raising Public Law
Issues
As A
Plaintiff
Anthony Tanney
*
Roy
v
Kensington
and
Chelsea and Westminster Family Practitioner Committee‘
represents the fourth time that the House of Lords has been asked to rule on the
proper scope of its earlier decision in
O’Reilly
v
Mackmun2
that public law issues
cannot usually be litigated by ordinary civil proceedings. In
O’Reilly,
Lord Diplock
had been inclined to except from this rule public law issues that arose collaterally
to a claim in private law, and it was upon the application of this exception that the
decision in
Roy
turned.3
The facts of
Roy
were as follows. The plaintiff was a GP listed with the defendant
Committee as undertaking to provide general medical services in its areas. The
Committee was under a statutory duty to pay the full basic practice allowance to
a GP on its list if,
inter alia,
‘he [was] in the opinion of the
.
. . Committee devoting
a substantial amount of time to general practice under the National Health Service.’
In October 1984, the Committee reduced the plaintiffs basic practice allowance
by twenty per cent, effective from the following January, on the ground that his
frequent absences from his practice meant that he no longer fulfilled
this
statutory
criterion. The plaintiff began proceedings by writ, alleging that in acting in this
fashion the Committee was in breach of the contract which it had made with him
by including him on the area list. The Committee argued that in challenging its
decision the plaintiff was raising a public law issue which could,
in
the circumstances,
be litigated only by Application for Judicial Review [AJR] under RSC Order
53,
and applied to have the action struck out. The judge granted the application but
his decision was overturned by the Court of Appeal. The Committee appealed to
the House of Lords.
Their Lordships dismissed the appeal. In their unanimous opinion (Lord Lowry
delivering the main speech), Dr Roy was asserting a private law right and, though
he was required to raise a public law issue in litigation to vindicate that right, he
could do so in proceedings begun by ordinary civil action. However, their Lordships’
reasoning is at best difficult to understand.
Private Rights and Discretionary Judgments
The first question for the House was whence derived the plaintiff’s private law rights.
The Court of Appeal had found that the act of listing amounted to the formation
of a contract between the plaintiff and the Committee. Indeed, Nourse LJ4 con-
*Lecturer in Law, University
of
Durham.
Thanks to Carl Emery, William Robinson and Pat Twomey
for
their help.
1
2
3
[1992] 1
All
ER
705.
[1982] 3
All
ER
1124.
Previous occasions were
Cocks
v
Thaner
DC
[1982] 3
All
ER
1135;
Davy
v
Spelthorne
BC
[1983] 3
All
ER
278;
and
Wandsworfh
LBC
v
Winder
[1984] 3
All
ER
976.
In
Winder,
it was established that
a
defendant
to private law proceedings who sought to negative liability
by demonstrating that an authority had acted unlawfully in public law could raise the public law issue
in the civil action.
Quoted in the judgment
of
Lord Lowry, at
727.
Sed
quaere
whether this approach to the incorporation
of
statutory powers into public authority contracts is consistent with that
of
Sir John Donaldson MR
in
R
v
Easr
Berkshire
Area
Health
Aufhorify,
ex
p Walsh
[1985]
QB
152,
at
165.
4
0
The
Modern
Law
Review
Limited
1993
575
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