SUPREME COURT RULES: Reform of Administrative Law Remedies: The First Step
| Published date | 01 July 1978 |
| Date | 01 July 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00810.x |
| Author | M. H. Matthews,J. Beatson |
SUPREME COURT
RULES
REFORM
OF
ADMINISTRATIVE
LAW
REMEDIES: THE
FIRST
STEP
ADVOCATES
of the reform of administrative law remedies have had
to be patient, but now the Law Commission’s most recent pro-
posals have been implemented with some modifications by the
introduction of a new Order 53 of the Rules of the Supreme Court.*
The limited nature of this reform
is
underlined by the fact that it
was felt possible to secure it by subordinate legislation. At an
earlier stage the Law Commission had been concerned with both
the question of the introduction
of
a public law damages remedy
for loss not covered by the existing law of tort or contract and
the scope of and procedure governing existing remedies, but the
terms of reference of the recent report precluded
it
from going
beyond the evolution of a simpler and more effective procedure
for the existing remedies.
It is not clear that such a separation of substance and procedure
is either desirable or possible. Thus, the Commission accepted that
statutory
“
periods of limitation might reasonably be considered
as
a procedural aspect of remedies,”
but
these were not considered
because it was not possible to do
so
“
without regard to much wider
issues.”
On
the other hand, recommendations were made about
the effect of delay in seeking judicial review where no statutory time
limit is involved, and these have been implemented albeit with
a
substantial ~hange.~ It is possible to accept that there are distinc-
tions between ouster clauses, time bars and the effect of delay
per
se,
but, in the context
of
reform designed to achieve a rational system,
it is somewhat artificial to separate them totally. Furthermore, the
Commission’s approach to
locus
stundi
was ambivalent. The report
recommended that leave to apply for judicial review should
only
be granted to an applicant with
“
sufficient interest
”
and although
this requirement, now in the new Order 53,5 can be interpreted as
simply preserving the existing rules of standing, the reason for its
insertion in this form was to permit “further development of the
requirement of standing by the courts.” As the Commission was
of the opinion that
“
the trend
of
more recent decisions is towards
1
Law Commission No. 73 (1976) Cmnd. 6407. See Law Commission No. 20
(1969) Cmnd. 4059 and Law Commission Working Paper
No.
40 (1971) for earlier
consideration
of
the issue.
It
should be noted that the writ
of
habeas corpus, which
is
governed
by
Ord. 54,
is
completely unaffected by this reform although
it
is
per-
haps
in
relation to this remedy that the procedural reform concerning the award
of
damages (Ord. 53, r. 7discussed below, note
23)
would have been particularly
useful.
2
S.I. 1977, No. 1955 made
on
November 21, 1977. The new Ord. 53 came
into
effect
on
January
11,
1978.
For
comment see Diamond, 74 L.S.Gaz. 1090, Gamer
[1978] L.G.C.
120.
4
Zbid.
paras.
50,
59
(g);
Ord. 53, r. 4.
This
is
discussed below.
5
Ord. 53, r. 3
(5).
See Cmnd. 6407, paras. 13, 22, 27, 31
(b)
and 48. The old
Cmnd. 6407, para. 48.
Cmnd. 6407, para. 7.
order contained
no
reference to
locus
stundi.
437
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