O’Reilly and others (A.P.) (Appellants)
v.
Mackman and others (Respondents)
JUDGMENT
Die Jovis 25° Novembris 1982
Upon Report from the Appellate Committee to whom was
referred the Cause O’Reilly and others (Assisted Persons)
against Mackman and others. That the Committee had heard
Counsel as well on Monday the 11th as on Tuesday the 12th
and Wednesday the 13th days of October last upon the
Petition and Appeal of Christopher Noel O’Reilly of 6
Emneth Close, Wells Road, Nottingham, Alexander Vernon
John Derbyshire currently detained at H.M. Prison,
Longlartin and David Martin Dougan of 50 Kennishead
Avenue, Glasgow G46 83H praying that the matter of the
Order set forth in the Schedule thereto, namely an Order
of Her Majesty’s Court of Appeal of the 30th day of June
1982 might be reviewed before Her Majesty the Queen in Her
Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might
have such other relief in the premises as to Her Majesty
the Queen in Her Court of Parliament might seem meet; as
also upon the Case of E. W. Mackman, J. A. Rundle and
C. Brady lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either
side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of Her Majesty the
Queen assembled, That the said Order of Her Majesty’s
Court of Appeal (Civil Division) of the 30th day of June
1982 complained of in the said Appeal be, and the same is
hereby, Affirmed and that the said Petition and Appeal be,
and the same is hereby, dismissed this House: And it is
further Ordered, That the Appellants’ Costs be taxed in
accordance with the provisions of Schedule 2 to the Legal
Aid Act 1974.
Cler: Parliamentor:
HOUSE OF LORDS
O’REILLY (A.P.) AND OTHERS
(APPELLANTS)
v.
MACKMAN AND OTHERS
(RESPONDENTS)
MILLBANKS (A.P.)
(APPELLANTS)
SECRETARY OF STATE FOR THE HOME OFFICE
AND OTHERS
(RESPONDENTS)
(CONJOINED APPEALS)
Lord Diplock
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brightman
Lord Diplock
my lords,
At the time of the commencement by the appellants of the actions in
which these consolidated appeals are brought each of the appellants was
serving a long sentence of imprisonment which even now has not expired.
By those actions, which were commenced in 1980, in the case of the
appellant Millbanks, by originating summons and, in the case of the other
appellants, by writ, each appellant seeks to establish that a disciplinary
award of forfeiture of remission of sentence made by the Board of Visitors
of Hull Prison (” the Board “) in the exercise of their disciplinary jurisdic-
tion under Rule 51 of the Prison Rules 1964 is null and void because
the Board failed to observe the rules of natural justice. Millbanks in the
indorsement to his originating summons alleges bias on the part of the
member of the Board who presided over the hearing of the disciplinary
proceedings against him. The other appellants in their statements of
claim allege that they were not given by the Board a fair opportunity to
present their respective cases.
The Board applied to the High Court (Peter Pain J.) that all the actions
be struck out as being an abuse of the process of the court. The judge
refused the applications but, on appeal to the Court of Appeal (Lord
Denning M.R., Ackner and O’Connor L.JJ.), the actions were struck out.
My Lords, it is not contested that if the allegations set out in the
originating summons or statements of claim are true each of the appellants
would have had a remedy obtainable by the procedure of an application
for judicial review under Order 53 of the Rules of the Supreme Court;
but to obtain that remedy, whether it took the form of an order of certiorari
to quash the Board’s award or a declaration of its nullity, would have
required the leave of the court under Order 53 rule 3 of the Rules of the
Supreme Court. That judicial review lies against an award of the Board
of Visitors of a prison made in the exercise of their disciplinary functions
was established by the judgment of the Court of Appeal (overruling a
Divisional Court) in Reg. v. Hull Visitors, Ex parte St. Germain [1979]
Q.B. 425—a decision that was, in my view, clearly right and has not been
challenged in the instant appeals by the respondents.
In the St. Germain case, the only remedy that had been sought was
certiorari to quash the decision of the prison visitors; but the alternative
remedy of a declaration of nullity if the Court considered it to be just and
convenient would also have been available upon an application for judicial
review under Order 53 after the replacement of the old rule by the new rule
in 1977. In the instant cases, which were commenced after the new rule
2
came into effect (but before the coming into force of section 31 of the
Supreme Court Act 1981), certiorari would unquestionably have been the
more appropriate remedy, since Rule 5 of the Prison Rules 1964, which
provides for remission of sentence up to a maximum of one-third, stipulates
that the ” rule shall have effect subject to any disciplinary award of forfei-
” ture . . . “. Prison Rule 56, however, expressly empowers the Secretary
of State to remit a disciplinary award and, since he would presumably do
so in the case of a disciplinary award that had been declared by the High
Court to be a nullity, such a declaration would achieve, though less directly,
the same result in practice as quashing the award by certiorari.
So no question arises as to the ” jurisdiction ” of the High Court to grant
to each of the appellants relief by way of a declaration in the terms sought,
if they succeeded in establishing the facts alleged in their respective state-
ments of claim or originating summons and the court considered a declara-
tion to be an appropriate remedy. All that is at issue in the instant appeal
is the procedure by which such relief ought to be sought. Put in a single
sentence the question for your Lordships is: whether in 1980 after Order 53
of the Rules of the Supreme Court in its new form, adopted in 1977, had
come into operation it was an abuse of the process of the court to apply
for such declarations by using the procedure laid down by the Rules for
proceedings begun by writ or by originating summons instead of using the
procedure laid down by Order 53 for an application for judicial review of
the awards of forfeiture of remission of sentence made against them by
the Board which the appellants are seeking to impugn?
In their respective actions, the appellants claim only declaratory relief. It
is conceded on their behalf that, for reasons into which the concession makes
it unnecessary to enter, no claim for damages would lie against the members
of the Board of Visitors by whom the awards were made. The only claim
was for a form of relief which it lies within the discretion of the court to
grant or to withhold. So the first thing to be noted is that the relief sought
in the action is discretionary only.
It is not, and it could not be, contended that the decision of the Board
awarding him forfeiture of remission had infringed or threatened to infringe
any right of the appellant derived from private law, whether a common law
right or one created by a statute. Under the Prison Rules remission of
sentence is not a matter of right but of indulgence. So far as private law is
concerned all that each appellant had was a legitimate expectation, based
upon his knowledge of what is the general practice, that he would be
granted the maximum remission, permitted by Rule 5(2) of the Prison
Rules, of one-third of his sentence if by that time no disciplinary award of
forfeiture of remission had been made against him. So the second thing
to be noted is that none of the appellants had any remedy in private law.
In public law, as distinguished from private law, however, such legitimate
expectation gave to each appellant a sufficient interest to challenge the
legality of the adverse disciplinary award made against him by the Board
on the ground that in one way or another the Board in reaching its decision
had acted outwith the powers conferred upon it by the legislation under
which it was acting; and such grounds would include the Board’s failure to
observe the rules of natural justice—which means no more than to act
fairly towards him in carrying out their decision-making process, and I
prefer so to put it.
The power of H.M. Boards of Visitors of a prison to make disciplinary
awards is conferred upon them by subordinate legislation: the Prison Rules
1964 made by the Secretary of State under sections 6 and 47 of the Prison
Act 1952. The charges against the appellants were of grave offences
against discipline falling within Rule 51. They were referred by the
governor of the prison to the Board under Rule 51(1). It thereupon became
the duty of the Board under Rule 51(3) to inquire into the charge and
decide whether it was proved and if so to award what the Board considered
to be the appropriate punishment. Rule 49 is applicable to such inquiry
3
by the Board. It lays down expressly that the prisoner ” shall be given
” a full opportunity of hearing what is alleged against him and of presenting
” his own case “. In exercising their functions under Rule 51 members of
the Board are acting as a statutory tribunal, as contrasted with a domestic
tribunal upon which powers are conferred by contract between those who
agree to submit to its jurisdiction. Where the legislation which confers
upon a statutory tribunal its decision-making powers also provides
expressly for the procedure it shall follow in the course of reaching its
decision, it is a question of construction of the relevant legislation, to be
decided by the Court in which the decision is challenged, whether a particular
procedural provision is mandatory, so that its non-observance in the
process of reaching the decision makes the decision itself a nullity, or
whether it is merely directory, so that the statutory tribunal has a discretion
not to comply with it if, in its opinion, the exceptional circumstances of a
particular case justify departing from it. But the requirement that a person
who is charged with having done something which, if proved to the
satisfaction of a statutory tribunal, has consequences that will, or may, affect
him adversely, should be given a fair opportunity of hearing what is
alleged against him and of presenting his own case, is so fundamental to any
civilised legal system that it is to be presumed that parliament intended
that a failure to observe it should render null and void any decision reached
in breach of this requirement. What is alleged by the appellants other
than Millbanks would amount to an infringement of the express Rule 48;
but even if there were no such express provision a requirement to observe
it would be a necessary implication from the nature of the disciplinary
functions of the Board. In the absence of express provision to the
contrary parliament whenever it provides for the creation of a statutory
tribunal must be presumed not to have intended that the tribunal should
be authorised to act in contravention of one of the most fundamental rules
of natural justice or fairness: audi alteram partem.
In Millbanks’s case, there is no express provision in the Prison Rules that
the members of the Board who inquire into a disciplinary offence under
Rule 51 must be free from personal bias against the prisoner. It is another
fundamental rule of natural justice or fairness, too obvious to call for
express statement of it, that a tribunal exercising functions such as those
exercised by the Board in the case Millbanks should be constituted of
persons who enter upon the inquiry without any pre-conceived personal
bias against the prisoner. Failure to comply with this implied requirement
would likewise render the decision of the tribunal a nullity.
So the third thing to be noted is that each of the appellants, if he
established the facts alleged in his action, was entitled to a remedy in public
law which would have the effect of preventing the decision of the Board
from having any adverse consequences upon him.
My Lords, the power of the High Court to make declaratory judgments
is conferred by what is now Order 15 rule 16 of the Rules of the Supreme
Court. The language of the rule which was first made in 1883 has never
been altered, though the numbering of the rule has from time to time been
changed.
” No action or other proceeding shall be open to objection on the ground
” that a merely declaratory judgment or order is sought thereby, and the
” Court may make binding declarations of right whether or not any conse-
” quential relief is or could be claimed.”
This rule, which is in two parts separated by ” and “, has been very
liberally interpreted in the course of its long history, wherever it appeared
to the court that the justice of the case required the grant of declaratory
relief in the particular action before it. Since ” action ” is defined so as
to have included since 1938 an originating motion applying for prerogative
orders, Order 15 rule 16 says nothing as to the appropriate procedure by
which declarations of different kinds ought to be sought. Nor does it draw
any distinction between declarations that relate to rights and obligations under
4
private law and those that relate to rights and obligations under public law.
Indeed the appreciation of the distinction in substantive law between what
is private law and what is public law has itself been a latecomer to the
English legal system. It is a consequence of the development that has
taken place in the last thirty years of the procedures available for judicial
control of administrative action. This development started with the
expansion of the grounds upon which orders of certiorari could be obtained
as a result of the decision of the Court of Appeal in R. v. Northumberland
Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 KB 338; it was
accelerated by the passing of the Tribunals and Inquiries Act 1958, and
culminated in the substitution in 1977 of the new form of Order 53 of the
Rules of the Supreme Court which has since been given statutory confirma-
tion in section 31 of the Supreme Court Act 1981.
The importance of the Northumberland Compensation Appeal Tribunal
case is that it re-established, largely as a result of the historical erudition
of Lord Goddard displayed in the judgment of the Divisional Court ([1951]
1 K.B. 711) a matter that had long been forgotten by practitioners and had
been overlooked as recently as 1944 in a judgment, Racecourse Betting
Control Board v. Secretary for Air [1944] Ch. 114, given per incuriam by
a Court of Appeal of which Lord Goddard had himself been a member.
What was there re-discovered was that the High Court had power to quash
by an order of certiorari a decision of any body of persons having legal
authority (not derived from contract only) to determine questions affecting
the rights of subjects, not only on the ground that it had acted outwith
its jurisdiction but also on the ground that it was apparent upon the face
of its written determination that it had made a mistake as to the applicable
law.
However, this re-discovered ground on which relief by an order of
certiorari to quash the decision as erroneous in law could be obtained, was
available only when there was an error of law apparent ” on the face of
” the record ” and so was liable to be defeated by the decision-making
body if it gave no reasons for its determination.
In 1958 this lacuna, so far as statutory tribunals were concerned, was
largely filled by the passing of the first Tribunals and Inquiries Act, now
replaced by the Tribunals and Inquiries Act 1971. This Act required the
giving of reasons for their determinations by the great majority of statutory
tribunals from which there is no express statutory provision for an appeal
to the Supreme Court on a point of law. But boards of visitors of prisons
have never been included among those tribunals that are covered by that
Act. The Act also in effect repealed, with two exceptions, what had become
to be called generically ” no certiorari ” clauses in all previous statutes,
by providing in section 14(1) as follows: —
” 14.(1) As respects England and Wales any provision in
” an Act passed before the commencement of this Act that any order
” or determination shall not be called into question in any court, or
” any provision in such an Act which by similar words excludes any
” of the powers of the High Court, shall not have effect so as to
” prevent the removal of the proceedings into the High Court by order
” of certiorari or to prejudice the powers of the High Court to make
” orders of mandamus: . . . .”
The subsection, it is to be observed, says nothing about any right to bring
civil actions for declarations of nullity of orders or determinations of
statutory bodies where an earlier Act of Parliament contains a provision
that such order or determination ” shall not be called into question in any
” court.” Since actions begun by writ seeking such declarations were
already coming into common use in the High Court so as to provide an
alternative remedy to orders of certiorari, the section suggests a
parliamentary preference in favour of making the latter remedy available
rather than the former. I will defer consideration of the reasons for this
preference until later.
5
Fortunately for the development of public law in England, subsection (3)
contained express provision that the section should not apply to any order
or determination of the Foreign Compensation Commission, a statutory body
established under the Foreign Compensation Act 1950, which contained in
section 4(4) an express provision:
” 4. (4) the determination by the Commission of any application
” made to them under this Act shall not be called in question in any
” court of law “.
It was this provision that provided the occasion for the landmark decision
of this House in Anisminic Ltd. v. Foreign Compensation Commission [1969]
2 A.C. 147, and particularly the leading speech of Lord Reid, which has
liberated English public law from the fetters that the courts had theretofore
imposed upon themselves so far as determinations of inferior courts and
statutory tribunals were concerned, by drawing esoteric distinctions between
errors of law committed by such tribunals that went to their jurisdiction,
and errors of law committed by them within their jurisdiction. The
breakthrough that Anisminic made was the recognition by the majority of
this House that if a tribunal whose jurisdiction was limited by statute or
subordinate legislation mistook the law applicable to the facts as it had
found them, it must have asked itself the wrong question, i.e. one into which
it was not empowered to inquire and so had no jurisdiction to determine. Its
purported ” determination”, not being a ” determination” within the
meaning of the empowering legislation, was accordingly a nullity.
Anisminic was an action commenced by writ for a declaration, in which
a minute of the Commission’s reasons for their determination adverse to
the plaintiff company did not appear upon the face of their determination,
and had in fact been obtained only upon discovery: but, as appears from
the report of my own judgment when Anisminic was in the Court of Appeal
[1968] 2 Q.B. 862 at p.893), the case had been argued up to that stage as if
it were an application for certiorari in which the minute of the Commission’s
reasons formed part of the ” record ” upon which an error of law appeared.
In the House of Lords the question of the propriety of suing by writ for
a declaration instead of applying for certiorari and mandamus played no
part in the main argument for the Commission. It appears for the first
time in the report of the Commission’s counsel’s reply, where an argument
that the court had no ” jurisdiction ” to make the declaration seems to have
been put forward upon the narrow ground, special to the limited functions
of the Commission, alluded to at pp.910/911 of my own judgment in the
Court of Appeal that the House overruled; but I did not purport to decide
the question because, in the view that I had (erroneously) taken of the effect
of section 4(4) of the Act, it appeared to me to be unnecessary to do so.
My Lords, Anisminic was decided by this House before the alteration was
made to Order 53 in 1977. The order of the Supreme Court dealing with
applications for the prerogative orders of mandamus, certiorari and prohibi-
tion in force at the time of Anisminic was numbered Order 53 and had been
made in 1965. It replaced, but in substance only repeated, the first twelve
rules of what had been Order 59 and which had in 1938 itself replaced the
former Crown Office Rules of 1906. The pre-1977 Order 53, like its
predecessors, placed under considerable procedural disadvantage applicants
who wished to challenge the lawfulness of a determination of a statutory
tribunal or any other body of persons having legal authority to determine
questions affecting the common law or statutory rights or obligations of
other persons as individuals. It will be noted that I have broadened the
much-cited description by Atkin L.J. in R. v. Electricity Commissioners,
Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B.
171 of bodies of persons subject to the supervisory jurisdiction of the High
Court by prerogative remedies (which in 1924 then took the form of
prerogative writs of mandamus, prohibition, certiorari, and quo warranto)
by excluding Lord Justice Atkins’s limitation of the bodies of persons to
whom the prerogative writs might issue, to those ” having a duty to act
“judicially.” For the next forty years this phrase gave rise to many
6
attempts, with varying success, to draw subtle distinctions between decisions
that were quasi-judicial and those that were administrative only. But the
relevance of arguments of this kind was destroyed by the decision of this
House in Ridge v. Baldwin [1964] AC 40, where again the leading speech
was given by Lord Reid. Wherever any person or body of persons has
authority conferred by legislation to make decisions of the kind I have
described, it is amenable to the remedy of an order to quash its decision
either for error of law in reaching it or for failure to act fairly towards the
person who will be adversely affected by the decision by failing to observe
either one or other of the two fundamental rights accorded to him by the
rules of natural justice or fairness, viz. to have afforded to him a reasonable
opportunity of learning what is alleged against him and of putting forward
his own case in answer to it, and to the absence of personal bias against
him on the part of the person by whom the decision falls to be made. In
Ridge v. Baldwin it is interesting to observe that Lord Reid said (at p.72)
” We do not have a developed system of administrative law—perhaps
” because until fairly recently we did not need it.” By 1977 the need had
continued to grow apace and this reproach to English law had been
removed. We did have by then a developed system of administrative law,
to the development of which Lord Reid himself, by his speeches in cases
which reached this House, had made an outstanding contribution. To the
landmark cases of Ridge v. Baldwin and Anisminic I would add a third,
Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997,
another case in which a too-timid judgment of my own in the Court of
Appeal was (fortunately) overruled.
Although the availability of the remedy of orders to quash a decision
by certiorari had in theory been widely extended by these developments,
the procedural disadvantages under which applicants for this remedy
laboured remained substantially unchanged until the alteration of Order 53
in 1977. Foremost among these was the absence of any provision for
discovery. In the case of a decision which did not state the reasons for it,
it was not possible to challenge its validity for error of law in the reasoning
by which the decision had been reached. If it had been an application
for certiorari those who were the plaintiffs in Anisminic would have failed;
it was only because by pursuing an action by writ for a declaration of
nullity that the plaintiffs were entitled to the discovery by which the
minute of the Commission’s reasons which showed that they had asked
themselves the wrong question, was obtained. Again under Order 53
evidence was required to be on affidavit. This in itself is not an unjust
disadvantage; it is a common feature of many forms of procedure in the
High Court, including originating summonses; but in the absence of any
express provision for cross-examination of deponents, as your Lordships
who are familiar with the pre-1977 procedure will be aware, even applica-
tions for leave to cross-examine were virtually unknown—let alone the
grant of leave itself—save in very exceptional cases of which I believe
none of your Lordships has ever had actual experience. Lord Goddard,
whose experience was at that time unrivalled, had so stated in R. v.
Stokesley, Yorkshire, Justices, Ex parte Bartram [1956] 1 W.L.R. 254 at 257.
On the other hand as compared with an action for a declaration
commenced by writ or originating summons, the procedure under Order 53
both before and after 1977 provided for the respondent decision-making
statutory tribunal or public authority against which the remedy of certiorari
was sought protection against claims which it was not in the public interest
for courts of justice to entertain.
First, leave to apply for the order was required. The application for
leave which was ex parte but could be, and in practice often was, adjourned
in order to enable the proposed respondent to be represented, had to be
supported by a statement setting out, inter alia, the grounds on which the
relief was sought and by affidavits verifying the facts relied on; so that a
knowingly false statement of fact would amount to the criminal offence of
perjury. Such affidavit was also required to satisfy the requirement of
uberrima fides, with the consequence that failure to make on oath a full
7
and candid disclosure of material facts was of itself a ground for refusing
the relief sought in the substantive application for which leave had been
obtained on the strength of the affidavit. This was an important safeguard,
which is preserved in the new Order 53 of 1977. The public interest in
good administration requires that public authorities and third parties should
not be kept in suspense as to the legal validity of a decision the authority
has reached in purported exercise of decision-making powers for any longer
period than is absolutely necessary in fairness to the person affected by the
decision. In contrast, allegations made in a statement of claim or an
indorsement of an originating summons are not on oath, so the requirement
of a prior application for leave to be supported by full and candid affidavits
verifying the facts relied on is an important safeguard against groundless or
unmeritorious claims that a particular decision is a nullity. There was also
power in the court on granting leave to impose terms as to costs or security.
Furthermore, as Order 53 was applied in practice, as soon as the
application for leave had been made it provided a very speedy means,
available in urgent cases within a matter of days rather than months, for
determining whether a disputed decision was valid in law or not
A reduction of the period of suspense was also effected by the requirement
that leave to apply for certiorari to quash a decision must be made within a
limited period after the impugned decision was made, unless delay beyond
that limited period was accounted for to the satisfaction of the judge. The
period was six months under the pre-1977 Order 53; under the current
Order 53 it is further reduced to three months.
My Lords, the exclusion of all right to discovery in applications for
certiorari under Order 53, particularly before the passing of the Tribunals and
Inquiries Act 1958, was calculated to cause injustice to persons who had no
means, if they adopted that procedure, of ascertaining whether a public body,
which had made a decision adversely affecting them, had done so for reasons
which were wrong in law and rendered their decision invalid. It will be
within the knowledge of all of your Lordships that, at any rate from the
1950s onwards, actions for declarations of nullity of decisions affecting the
rights of individuals under public law were widely entertained, in parallel to
applications for certiorari to quash, as means of obtaining an effective
alternative remedy. I will not weary your Lordships by reciting examples of
cases where this practice received the express approval of the Court of
Appeal, though I should point out that of those cases in this House in which
this practice was approved. Vine v. National Dock Labour Board [1957]
A.C. 488 and Ridge v. Baldwin [ubi supra] involved, as well as questions of
public law, contracts of employment which gave rise to rights under
private law. In Anisminic the procedural question was not seriously argued,
while Pyx Granite Ltd. v. Ministry of Housing and Local Government [1960]
A.C. 260, which is referred to in the notes to Order 19 appearing in the
current White Book as an instance of the approval by this House of the
practice of suing for a declaration instead of applying for an order of
certiorari, appears on analysis to have been concerned with declaring that
the plaintiffs had a legal right to do what they were seeking to do without
the need to obtain any decision from the Minister. Nevertheless I accept
that having regard to disadvantages, particularly in relation to the absolute
bar upon compelling discovery of documents by the respondent public
authority to an applicant for an order of certiorari, and the almost invariable
practice of refusing leave to allow cross-examination of deponents to
affidavits lodged on its behalf, it could not be regarded as an abuse of the
process of the court, before the amendments made to Order 53 in 1977, to
proceed against the authority by an action for a declaration of nullity of the
impugned decision with an injunction to prevent the authority from acting
on it, instead of applying for an order of certiorari; and this despite the
fact that, by adopting this course, the plaintiff evaded the safeguards imposed
in the public interest against groundless, unmeritorious or tardy attacks
upon the validity of decisions made by public authorities in the field of
public law.
8
Those disadvantages, which formerly might have resulted in an applicant
being unable to obtain justice in an application for certiorari under Order
53, have all been removed by the new Order introduced in 1977. There
is express provision in the new rule 8 for interlocutory applications for
discovery of documents, the administration of interrogatories and the cross-
examination of deponents to affidavits. Discovery of documents (which may
often be a time-consuming process) is not automatic as in an action begun
by writ, but otherwise Order 24 applies to it and discovery is obtainable
upon application whenever, and to the extent that, the justice of the case
requires; similarly Order 26 applies to applications for interrogatories; and
to applications for cross-examination of deponents to affidavits Order 28
rule 2(3) applies. This is the rule that deals with evidence in actions begun
by originating summons and permits oral cross-examination on affidavit
evidence wherever the justice of the case requires. It may well be that
for the reasons given by Lord Denning in George v. Secretary of State
for the Environment (1979) 77 L.G.R. 689, it will only be upon rare
occasions that the interests of justice will require that leave be given for
cross-examination of deponents on their affidavits in applications for judicial
review. This is because of the nature of the issues that normally arise
upon judicial review. The facts, except where the claim that a decision
was invalid on the ground that the statutory tribunal or public authority
that made the decision failed to comply with the procedure prescribed by
the legislation under which it was acting or failed to observe the funda-
mental rules of natural justice or fairness, can seldom be a matter of
relevant dispute upon an application for judicial review, since the tribunal
or authority’s findings of fact, as distinguished from the legal consequences
of the facts that they have found, are not open to review by the court in
the exercise of its supervisory powers except on the principles laid down
in Edwards v. Bairstow [1956] AC 14 at p.36; and to allow cross-examina-
tion presents the court with a temptation, not always easily resisted, to
substitute its own view of the facts for that of the decision-making body
upon whom the exclusive jurisdiction to determine facts has been conferred
by Parliament. Nevertheless having regard to a possible misunderstanding
of what was said by Geoffrey Lane L.J. in Reg. v. Hull Visitors Ex parte
St. Germain (No, 2) [1979] 1 W.L.R. 1401 at 1410 your Lordships may
think this an appropriate occasion on which to emphasise that whatever
may have been the position before the rule was altered in 1977 in all
proceedings for judicial review that have been started since that date the
grant of leave to cross-examine deponents upon applications for judicial
review is governed by the same principles as it is in actions begun by
originating summons; it should be allowed whenever the justice of the
particular case so requires.
Another handicap under which an applicant for a prerogative order under
Order 53 formerly laboured (though it would not have affected the
appellants in the instant cases even if they had brought their actions before
the 1977 alteration to Order 53) was that a claim for damages for breach
of a right in private law of the applicant resulting from an invalid decision
of a public authority could not be made in an application under Order 53.
Damages could only be claimed in a separate action begun by writ;
whereas in an action so begun they could be claimed as additional relief
as well as a declaration of nullity of the decision from which the damage
claimed had flowed. Rule 7 of the new Order 53 permits the applicant for
judicial review to include in the statement in support of his application
for leave a claim for damages and empowers the court to award damages
on the hearing of the application if satisfied that such damages could have
been awarded to him in an action begun by him by writ at the time of the
making of the application.
Finally rule 1 of the new Order 53 enables an application for a declara-
tion or an injunction to be included in an application for judicial review.
This was not previously the case; only prerogative orders could be obtained
in proceedings under Order 53. Declarations or injunctions were obtainable
only in actions begun by writ or originating summons. So a person seeking
to challenge a decision had to make a choice of the remedy that he sought
9
at the outset of the proceedings, although when the matter was examined
more closely in the course of the proceedings it might appear that he was
not entitled to that remedy but would have been entitled to some other
remedy available only in the other kind of proceeding.
This reform may have lost some of its importance since there have come
to be realised that the full consequences of Anisminic in introducing the
concept that if a statutory decision-making authority asks itself the wrong
question it acts without jurisdiction, have been virtually to abolish the
distinction between errors within jurisdiction that rendered voidable a
decision that remained valid until quashed, and errors that went to
jurisdiction and rendered a decision void ab initio provided that its validity
was challenged timeously in the High Court by an appropriate procedure.
Failing such challenge within the applicable time limit, public policy,
expressed in the maxim omnia praesumuntur rite esse acta, requires that
after the expiry of the time limit it should be given all the effects in law
of a valid decision.
Nevertheless, there may still be cases where it turns out in the course of
proceedings to challenge a decision of a statutory authority that a declaration
of rights rather than certiorari is the appropriate remedy. Pyx Granite
[ubi supra] provides an example of such a case.
So Order 53 since 1977 has provided a procedure by which every type of
remedy for infringement of the rights of individuals that are entitled to
protection in public law can be obtained in one and the same proceeding by
way of an application for judicial review, and whichever remedy is found
to be the most appropriate in the light of what has emerged upon the
hearing of the application, can be granted to him. If what should emerge is
that his complaint is not of an infringement of any of his rights that are
entitled to protection in public law, but may be an infringement of his rights
in private law and thus not a proper subject for judicial review, the court
has power under rule 9(5), instead of refusing the application, to order
the proceedings to continue as if they had begun by writ. There is no
such converse power under the Rules of the Supreme Court to permit an
action begun by writ to continue as if it were an application for judicial
review; and I respectfully disagree with that part of the judgment of
Lord Denning M.R. which suggests that such a power may exist; nor do I see
the need to amend the rules in order to create one.
My Lords, at the outset of this speech, I drew attention to the fact that
the remedy by way of declaration of nullity of the decisions of the Board
was discretionary—as are all the remedies available upon judicial review.
Counsel for the plaintiffs accordingly conceded that the fact that by adopting
the procedure of an action begun by writ or by originating summons instead
of an application for judicial review under Order 53 (from which there have
now been removed all those disadvantages to applicants that had previously
led the courts to countenance actions for declarations and injunctions as an
alternative procedure for obtaining a remedy for infringement of the rights
of the individual that are entitled to protection in public law only) the
plaintiff had thereby been able to evade those protections against groundless,
unmeritorious or tardy harassment that were afforded to statutory tribunals
or decision-making public authorities by Order 53, and which might have
resulted in the summary, and would in any event have resulted in the speedy,
disposition of the application, is among the matters fit to be taken into
consideration by the judge in deciding whether to exercise his discretion by
refusing to grant a declaration; but, it was contended, this he may only
do at the conclusion of the trial.
So to delay the judge’s decision as to how to exercise his discretion would
defeat the public policy that underlies the grant of those protections: viz.
the need, in the interests of good administration and of third parties who may
be indirectly affected by the decision, for speedy certainty as to whether it
has the effect of a decision that is valid in public law. An action for a
declaration or injunction need not be commenced until the very end of the
limitation period; if begun by writ, discovery and interlocutory proceedings
may be prolonged and the plaintiffs are not required to support their
10
allegations by evidence on oath until the actual trial. The period of
uncertainty as to the validity of a decision that has been challenged upon
allegations that may eventually turn out to be baseless and unsupported by
evidence on oath, may thus be strung out for a very lengthy period, as the
actions of the first four appellants in the instant appeals show. Unless
such an action can be struck out summarily at the outset as an abuse of the
process of the court the whole purpose of the public policy to which the
change in Order 53 was directed would be defeated.
My Lords, Order 53 does not expressly provide that procedure by
application for judicial review shall be the exclusive procedure available by
which the remedy of a declaration or injunction may be obtained for
infringement of rights that are entitled to protection under public law; nor
does section 31 of the Supreme Court Act 1981. There is great variation
between individual cases that fall within Order 53 and the Rules Committee
and subsequently the legislature were, I think, for this reason content to
rely upon the express and the inherent power of the High Court, exercised
upon a case-to-case basis, to prevent abuse of its process whatever might be
the form taken by that abuse. Accordingly, I do not think that your
Lordships would be wise to use this as an occasion to lay down categories
of cases in which it would necessarily always be an abuse to seek in an
action begun by writ or originating summons a remedy against infringement
of rights of the individual that are entitled to protection in public law.
The position of applicants for judicial review has been drastically
ameliorated by the new Order 53. It has removed all those disadvantages,
particularly in relation to discovery, that were manifestly unfair to them
and had, in many cases, made applications for prerogative orders an
inadequate remedy if justice was to be done. This it was that justified the
courts in not treating as an abuse of their powers resort to an alternative
procedure by way of action for a declaration or injunction (not then
obtainable on an application under 0.53), despite the fact that this procedure
had the effect of depriving the defendants of the protection to statutory
tribunals and public authorities for which for public policy reasons Order 53
provided.
Now that those disadvantages to applicants have been removed and all
remedies for infringements of rights protected by public law can be obtained
upon an application for judicial review, as can also remedies for infringe-
ments of rights under private law if such infringements should also be
involved, it would in my view as a general rule be contrary to public policy,
and as such an abuse of the 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 such authorities.
My Lords, I have described this as a general rule; for though it may
normally be appropriate to apply it by the summary process of striking
out the action, there may be exceptions, particularly where the invalidity
of the decision arises as a collateral issue in a claim for infringement of a
right of the plaintiff arising under private law, or where none of the parties
objects to the adoption of the procedure by writ or originating summons.
Whether there should be other exceptions should, in my view, at this stage
in the development of procedural public law, be left to be decided on a
case to case basis—a process that your Lordships will be continuing in the
next case in which judgment is to be delivered to-day.
In the instant cases where the only relief sought is a declaration of
nullity of the decisions of a statutory tribunal, the Board of Visitors of
Hull Prison, as in any other case in which a similar declaration of nullity
in public law is the only relief claimed, I have no hesitation, in agreement
with the Court of Appeal, in holding that to allow the actions to proceed
would be an abuse of the process of the court. They are blatant attempts
to avoid the protections for the respondents for which Order 53 provides.
I would dismiss these appeals.
11
Lord Fraser of Tullybelton
my lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Diplock. I agree with it and for the
reasons stated in it would dismiss these appeals.
Lord Keith of Kinkel
my lords,
I have had the advantage of reading in draft the speech prepared by
my noble and learned friend, Lord Diplock. I agree with it and for the
reasons stated in it I would dismiss these appeals.
Lord Bridge of Harwich
my lords,
I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Diplock. I entirely agree with it and for the reasons
he gives I would dismiss these appeals.
Lord Brightman
MY LORDS,
I also would dismiss these appeals for the reasons given by my noble
and learned friend. Lord Diplock.
Source: https://www.bailii.org/
