Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1991] UKHL 8 (06 February 1992)

ROY
(RESPONDENT)

KENSINGTON AND CHELSEA AND
WESTMINSTER FAMILY PRACTITIONER COMMITTEE

(APPELLANTS)

Lord Bridge of Harwich

Lord Emslie

Lord Griffiths

Lord Oliver of Aylmerton

Lord Lowry

LORD BRIDGE OF HARWICH

My Lords,

The circumstances from which this appeal arises are fully
set out in the speech of my learned and noble friend Lord Lowry,
in which he has also undertaken a comprehensive review of the
relevant authorities. Agreeing, as I do, with the conclusion he
reaches, I shall state my own reasons briefly.

The decisions of this House in O’Reilly v. Mackman [1983] 2
A.C. 237 and Cocks v. Thanet District Council [1983] 2 AC 286,
have been the subject of much academic criticism. Although I
appreciate the cogency of some of the arguments advanced in
support of that criticism, I have not been persuaded that the
essential principle embodied in the decisions requires to be
significantly modified, let alone overturned. But if it is important,
as I believe, to maintain the principle, it is certainly no less
important that its application should be confined within proper
limits. It is appropriate that an issue which depends exclusively
on the existence of a purely public law right should be determined
in judicial review proceedings and not otherwise. But where a
litigant asserts his entitlement to a subsisting right in private law,
whether by way of claim or defence, the circumstance that the
existence and extent of the private right asserted may incidentally
involve the examination of a public law issue cannot prevent the
litigant from seeking to establish his right by action commenced
by writ or originating summons, any more than it can prevent him
from setting up his private law right in proceedings brought
against him. I think this proposition necessarily follows from the
decisions of this House in Davy v. Spelthorne Borough Council
[1984] AC 262 and Wandsworth London Borough Council v. Winder
[1985] AC 461. In the latter case Robert Goff L.J. in the Court
of Appeal, commenting on a passage from the speech of Lord
Fraser of Tullybelton in the former case, said at p. 480:

“I read this passage in Lord Fraser of Tullybelton’s speech
as expressing the opinion that the principle in O’Reilly v.
Mackman should not be extended to require a litigant to

proceed by way of judicial review in circumstances where
his claim for damages for negligence might in consequence
be adversely affected. I can for my part see no reason why
the same consideration should not apply in respect of any
private law right which a litigant seeks to invoke, whether
by way of action or by way of defence.

I entirely agree with this.

Here the respondent is a medical practitioner whose name is
on the list of those providing general medical services in the area
administered by the appellant Family Practitioner Committee in
accordance with Part II of the National Health Service Act 1977,
as amended. Accordingly, his entitlement to remuneration for the
services he provides is established by the National Health Service
(General Medical and Pharmaceutical Services) Regulations 1974
(S.I. 1974 No. 160), as amended, which provide by regulation 24 as
follows:

“For each financial year the Committee shall cause
payments to be made to doctors with whom arrangements
for the provision of general medical services exist in its
locality in accordance with such rates and subject to such
conditions as the Secretary of State may determine after
consultation with such organisations as he may recognise as
representing doctors with whom arrangements for the
provision of general medical services exist and publish in a
Statement.”

The regulation then sets out a list in paragraphs lettered from (a)
to (k) of the various fees and allowances for which the published
Statement is to make provision. Sub-regulation (2) provides:

“Where a doctor is on the medical list of more than one
Committee any payment due to the doctor may, where the
Statement so provides, be made on behalf of ail Committees
concerned.” (My emphasis.)

The Secretary of State has in fact issued a Statement under
regulation 24 which, in the form in which it was in force at the
material time, extends to more than 150 pages and which, as one
would expect, contains the most elaborate and detailed provisions
for determining and quantifying the remuneration due to general
practitioners in the National Health Service in all circumstances.
In many, if not most, cases the ascertainment of the precise
amount of the payment which regulation 24 requires the
Committee to “cause to be made” in respect of a doctor’s services
during any given period will depend simply on the application of
the relevant provisions of the Statement to the facts of the case.
But in certain instances the quantum of remuneration is made to
depend on a determination by the Committee involving some
element of subjective or discretionary judgment. Paragraph 12.1

1. - 2 –

of the Statement is such a provision. It is fully quoted in the
speech of my noble and learned friend, Lord Lowry and I need not
repeat it. It makes the doctor’s entitlement to the full rate of
basic practice allowance conditional on the opinion of the Family
Practitioner Committee that he is devoting “a substantial amount
of time” to his National Health Service practice. It was the
decision of the Family Practitioner Committee in November 1984
in purported reliance on this provision to withhold 20 per cent. Of
the respondent’s full rate of basic practice allowance as from 1
January 1985 which gave rise to this litigation.

I do not think the issue in the appeal turns on whether the
doctor provides services pursuant to a contract with the Family
Practitioner Committee. I doubt if he does and am content to
assume that there is no contract. Nevertheless, the terms which
govern the obligations of the doctor on the one hand, as to the
services he is to provide, and of the Family Practitioner
Committee on the other hand, as to the payments which it is
required to make to the doctor, are all prescribed in the relevant
legislation and it seems to me that the statutory terms are just as
effective as they would be if they were contractual to confer upon
the doctor an enforceable right in private law to receive the
remuneration to which the terms entitle him. It must follow, in
my view, that in any case of dispute the doctor is entitled to
claim and recover in an action commenced by writ the amount of
remuneration which he is able to prove as being due to him.
Whatever remuneration he is entitled to under the Statement is
remuneration he has duly earned by the services he has rendered.
The circumstance that the quantum of that remuneration, in the
case of a particular dispute, is affected by a discretionary decision
made by the Committee cannot deny the doctor his private law
right of recovery or subject him to the constraints which the
necessity to seek judicial review would impose upon that right.

I deliberately refrain from entering upon any question as to
the construction of paragraph 12.1(b) of the Statement or the basis
on which the trial judge should approach the Committee’s decision
made in November 1984. Those matters will best be resolved in
the light of all the evidence produced at the trial.

For these reasons and for those given in the speech of my
noble and learned friend Lord Lowry I would dismiss the appeal.

LORD EMSLIE

My Lords,

I have had the advantage of reading in draft the speeches
of my noble and learned friends Lord Bridge of Harwich and Lord
Lowry. For the reasons which they give I would dismiss the
appeal.

1. - 3 –

LORD GRIFFITHS

My Lords,

I have the advantage of reading in draft the speeches
prepared by my noble and learned friends, Lord Bridge of Harwich
and Lord Lowry and I agree with them, and for the reasons which
they give, I would dismiss this appeal.

LORD OLIVER OF AYLMERTON

My Lords,

I have the advantage of reading in draft the speeches
prepared by my noble and learned friends, Lord Bridge of Harwich
and Lord Lowry. I agree with them, and for the reasons which
they give, I would dismiss this appeal.

LORD LOWRY

My Lords,

Dr. Premananda Roy, the respondent, is a general medical
practitioner who has since 1954 practised in the area for which
the appellants, the Kensington and Chelsea and Westminster Family
Practitioner Committee, were at all material times responsible.
This committee is now known as the Family Health Services
Authority, but I shall call it “the Committee”.

Dr. Roy is on the list of doctors undertaking, for the
purposes of the statutory arrangements under the National Health
Service Act 1977, to provide general medical services in the area.
Regulation 24 of the National Health Service (General Medical and
Pharmaceutical Services) Regulations 1974 (SI 1974 No. 160) (“the
General Regulations”) required the Committee to cause payments
to be made to Dr. Roy and other doctors in accordance with the
Statement of Fees and Allowances (“the Statement”) which was
made and published under regulation 24 and which is required to
provide for basic and supplementary practice allowances.

Paragraph 12.1 of the Statement reads:

“A practitioner will be eligible for the full rate of basic
practice allowance shown in paragraph 1/Sch. 1 if:-

1. 1. he provides general medical services and has 1,000 or
    more patients on his ordinary list or, if he is a
    member of a partnership, the average list is at least
    1,000 patients per practitioner; and
  2. he is in the opinion of the responsible Committee
    devoting a substantial amount of time to general
    practice under the National Health Service.”
  - 4 –

At the material time Dr. Roy had a list of 1,600 to 1,700
patients but the Committee after consulting the local medical
committee and obtaining the observations of Dr. Roy, considered
the matter on 25 October 1984 and formed the opinion that he
was not devoting a substantial amount of time to general practice
under the National Health Service and reduced his basic practice
allowance by 20 per cent. From 1 January 1985. Dr. Roy has had
frequent absences from his practice: between 1979 and 1987 he
was absent, for reasons connected with his family, sickness or
holidays, for periods ranging in total from 87 to 186 days in each
year; in only one year did the total of absences fall below 100
days and on average Dr. Roy was absent for between one-third and
one-half of each year. His absences have always been covered by
the employment of a locum who, when Dr. Roy was there, acted
as his practice manager. There have been no complaints from
individual patients concerning the service provided, whether by Dr.
Roy or by the locum, whose name was Dr. Som.

Dr. Roy challenged the Committee’s decision on the ground
that, through himself and his locum, he was, notwithstanding the
Committee’s opinion to the contrary, devoting a substantial amount
of time to general practice. The terms of service give a
practitioner who is dissatisfied with a decision of the Committee
concerning his remuneration the opportunity of placing additional
information before the Committee and, if they do not alter their
decision, the right under paragraph 80.1 of the Statement (to
which I shall refer hereafter) to make representations to the
Secretary of State. Dr. Roy was accordingly invited to submit
further information but he did not do so and the Committee’s
decision was confirmed by letter dated 16 January 1985.

There was, as well as the dispute about the practice
allowance, another question in issue, namely, the expense of
employing ancillary staff, and on 22 July 1986 Dr. Roy, suing in
person, issued against the Committee in the Queen’s Bench
Division of the High Court a writ indorsed with the following
statement of claim:

“1. The plaintiff has contracted with Kensington and
Chelsea and Westminster Family Practitioner Committee to
provide general medical services to National Health Service
patients under the usual terms and conditions.

“2. In breach of the aforesaid terms and conditions:

1. 1. The defendants have omitted or refused to reimburse
    the major part of the expense of employing ancillary
    staff since 1^st September 1985.
  2. The defendants have omitted or refused to pay the
    full amount of the basic practice allowance to the
    plaintiff since 1^st January 1985.

“3. Further the defendants have notified the
plaintiff their intention to continue to abate the Basic
Practice Allowance.

And the plaintiff claims:

– 5 –

(a) Repayment of the sums due under 2(a) and (b) above
amounting to £6,002 up to 30.6.86

Damages for mental distress and harassment
amounting to £2,000(sic)

TOTAL £8,002(sic)

(b) Interest pursuant to section 85 of the Supreme Court
Act 1981 TO BE ASSESSED.

(signed) Premananda Roy”

The Committee served a Defence and Counterclaim, which
denied liability, and reserved the right to apply to the court for
an order striking out the plaintiff’s claim on the ground that it
disclosed no cause of action and/or was an abuse of the process of
the court. The Committee then did apply by summons to strike
out the parts of the Statement of Claim which related to the
claim in respect of the basic practice allowance, namely,
paragraph 2(b), paragraph 3(a) (so far as it related to paragraph
2(b) and to mental distress and harassment) and paragraph 3(c).
The Master referred the summons to a judge for hearing and on 27
February, 1989 His Honour Judge White, sitting as a Judge of the
High Court, granted the relief claimed in the summons. On 22
March, 1990 the Court of Appeal (Neill, Nourse and Balcombe
L.JJ.) heard Dr. Roy’s appeal, reversed the judge’s order and
refused leave to appeal to your Lordships’ House. In the
meantime Dr. Roy has proceeded with the other part of his claim
and recovered judgment for £1,104 and interest thereon.

It may be helpful first to summarise the submissions in the
courts below and the conclusions reached thereon. The decisions
are reported at [1989] 1 Med. L.R. 10 and [1990] 1 Med. L.R. 328
respectively.

Dr. Roy’s case to the judge, by then presented through
counsel, alleged a contract and the Committee’s breach thereof.
(The damages claim for distress and harassment was abandoned.)
The Committee contended that, with regard to the practice
allowance, to claim in contract, and not by judicial review, was an
abuse of process, since the claim was founded on an alleged
breach of the Committee’s public duty. The judge considered that
the argument posed two questions: (1) Did the practitioner have a
contractual relationship with the Committee? (2) What duty is the
Committee discharging when it makes a decision under the
direction upon the eligibility of a practitioner for the full
allowance? He also observed that no previous decision on the
nature of the doctor-Committee relationship was forthcoming. He
found “contractual echoes” in the relationship, but considered those
echoes deceptive: the rights and duties of those within the scheme
stemmed from and xvere entirely dependent on statute and
regulation and were not, in the judge’s opinion, dependent on a
contractual relationship. He then proceeded ([1989] 1 Med. L.R.
10, 12):

– 6 –

“The rights and duties are no less real or effective for the
individual practitioner. Private law rights flow from the
statutory provisions and are enforceable, as such, in the
courts but no contractual relations come into existence.
The decision I make upon the application is nevertheless not
dependent on this finding, for, whether or not the plaintiff’s
right to full payments under the scheme were (sic)
contractually based, I accept that the duty which the
committee discharges, when establishing for the purposes of
a practitioner’s eligibility whether or not he is devoting a
substantial amount of time to general practice under the
National Health Service, is a public law duty; the function
is a public law function.

“The decision that has to be made has been firmly placed
by the Minister giving directions pursuant to regulations
upon the committee. The directions, as I note, provide that
the committee will exercise its discretion in determining
whether a practitioner is eligible for the allowance,
considering each case on its merits and consulting with the
local medical committee in those cases in which a
practitioner’s eligibility is in doubt. If the condition of
eligibility is not satisfied, it is for the committee to make
an appropriate reduction; in this case a 20 per cent.
reduction was ordered. It is a decision which requires not
only findings of fact as to what time was spent by the
doctor in general practice in the health service but the
setting of a yardstick, the standard against which the
individual’s activities are to be measured.”

Then, having referred to Cocks v. Thanet D.C. [1983] 2 A.C.
286 and O’Reilly v. Mackman [1983] 2 AC 237, the judge
expressed the view that the Committee’s decision was clearly a
public law decision and, as such, was to be challenged only on
judicial review: since the plaintiff, in order to win, had to impugn
a public law decision of the Committee, to allow him to proceed
by action would be to permit an abuse of process.

In the Court of Appeal Dr. Roy’s counsel (who had not
represented him at first instance) produced a new weapon. I refer
to R. v. East Berkshire Health Authority, ex parte Walsh [1985]
Q.B. 152, a decision of the Court of Appeal.

Mr. Walsh was a senior nursing officer employed under a
contract of service by the Health Authority. He was dismissed by
a district nursing officer and applied for judicial review to quash
the dismissal on the grounds that the district nursing officer had
no power to dismiss him and that there had been a breach of the
rules of natural justice in the procedure which led up to his
dismissal. The Health Authority, however, contended that judicial
review was not the appropriate procedure by which to remedy his
alleged grievance. The judge rejected the Health Authority’s
argument, but the Court of Appeal accepted it, holding that Mr.
Walsh, although his terms of service were determined by statute,
was seeking to enforce a private contractual right under his
contract of employment so that judicial review was inappropriate.

Each member of the Court of Appeal expressed the view
that Ex parte Walsh was decisive of what they saw as the two

– 7 –

main issues in the case which is now before your Lordships, as
showing, first, that Dr. Roy had a contract (for services, although
not of service) with the Committee, and secondly, that his proper
remedy was by action against the Committee and not by judicial
review of their decision.

The Committee’s present appeal is brought pursuant to leave
granted by an appeal committee of this House on 12 November
1990. In its support two new weapons have been brought to bear.
They consist of a reported case, Wadi v. Cornwall and Isles of
Scilly Family Practitioner Committee [1985] I.C.R. 492, a decision
of the Employment Appeal Tribunal in which the judgment was
delivered by Peter Gibson J., and an argument, which was not
advanced in either court below, and which, at its highest, contends
that Dr. Roy was in law bound to make representations in writing
to the Secretary of State before he could challenge in the courts,
by any means, the decision of the Committee.

Wadi’s case was cited to reinforce the argument that there
was no contract between Dr. Roy and the Committee. Dr. Wadi
had. in response to an advertisement applied unsuccessfully to his
local family practitioner committee for a vacant position in a
general medical practice. He was not interviewed or shortlisted
and, concluding that he had been rejected on the ground of his
race or colour, he then complained to an industrial tribunal,
alleging unlawful discrimination contrary to section 4(1) of the
Race Relations Act 1976. The industrial tribunal’s decision that
the Act did not apply was upheld by the Employment Appeal
Tribunal.

Peter Gibson 3. described (at pp. 494E-495H) what he aptly
styled “the highly complex statutory scheme affecting general
practitioners in the National Health Service”. As he pointed out,
section 4 of the 1976 Act makes it clear that an applicant for
employment by an employer cannot lawfully be discriminated
against by him and “employment” is defined by section 78(1) of the
Act as “employment under a contract of service or of
apprenticeship or a contract personally to execute any work or
labour”. There must be, the judge said, “a contract of one of the
designated descriptions” between the employer and the employee
(in the extended meaning of those terms) for there to be
employment and (at p. 496B) “whether such a contract exists . . .
is at the centre of the debate before us.” Having noted certain
propositions of the 1976 Act, he continued at p. 496G:

“We come back to the central issue of the existence of a
contract. Mr. Susman accepts that a doctor on the medical
list has no contract of service or of apprenticeship, but he
submits that the doctor has a contract for services which is
a contract for the doctor personally to execute work.”

The judge noted at p. 497C the argument on the other side “that
the doctor works pursuant to arrangements made under a statutory
scheme conferring rights and obligations” (emphasis supplied) “but
not under a contract with anybody” and summed up as follows at
p. 497F:

“It is clear from the Act of 1977 and the Regulations of
1974 that the family practitioner committee’s designated

– 8 –

role in the statutory scheme is merely to administer on
behalf of the district health authority the arrangements
which it is the duty of the district health authority to make
with medical practitioners.”

and also at p. 498A:

“There is in our view little to support Mr. Susman’s
suggestion that the family practitioner committee, still less
the medical committee, enters into a contract with the
doctor who successfully applies for a vacancy. The family
practitioner committee is obliged to cause payments to be
made to doctors, but it is a mere conduit pipe for such
moneys which the Secretary of State must pay to it and
which it must pass on to the doctors. It has no discretion
in the amounts or the circumstances of the payments. Nor
does the ‘light supervision’ (to use the industrial tribunal’s
words) which it exercises over the doctors signify a
contract. Still less is there anything to indicate that the
medical committee has a contract with the doctor, there
being no continuing relationship between them. In summary,
our view is that under the statutory arrangements the
doctor on the one side and each of the family practitioner
committee and the medical committee on the other have
rights and obligations conferred by statute rather than by
contract. It is not necessary and we think it wrong to seek
to import a contract into a scheme of things which is
governed by the very detailed statutory arrangements made
by neither the family practitioner committee nor the
medical committee.”

My Lords, what I may call the new argument depends on
paragraph 80.1 of the Statement:

“80.1 Separate arrangements obtain for making
representations to the Secretary of State under the rent and
rates scheme (see paragraphs 51.1-75). In other cases, a
practitioner who is dissatisfied with any decision of a
Committee concerning his remuneration (including recoveries
in respect of overpayments) should in the first instance
place before the Committee any additional information
which he considers to have a bearing on the matter. If the
Committee do not alter their decision and the practitioner
is still dissatisfied, he may make representations in writing
to the Secretary of State. Any representations should be
made as soon as possible after receiving notice of the
Committee’s final decision and should be accompanied by a
statement of the grounds on which the practitioner bases his
representations. After considering the representations and
any comments of the Committee the Secretary of State will
give to the Committee such direction, if any, on the matter
as he thinks fit.”

(I have emphasised certain words in the above paragraph on which
I will comment presently.)

The argument may be partly deduced from paragraph 16 of the
Appellant’s printed case:

– 9 –

“(b) Similarly, when an adverse determination was made,
the respondent had no private law right to the balance of
the practice allowance which the appellant, in its discretion,
had denied him, but he could have applied for judicial
review of that decision. If he had done so before availing
himself of the right to make representations under paragraph
80.1 of the Statement, he would probably have had difficulty
in obtaining the leave of the court. An adverse decision of
the Secretary of State would also be amenable to judicial
review on the usual grounds. To permit the respondent to
proceed by ordinary action is to ignore and effectively by-
pass the role of the Secretary of State.

“(c) It would only be if the appellant failed to pay the
respondent sums which the Secretary of State had directed
it to pay under paragraphs 80.1 of the Statement, or the
sums to which the appellant had in any event determined
that the respondent was entitled, that a right protected by
private, as opposed to public, law could arise.”

In oral argument, however, Mr. Collins Q.C. appeared to go further
than this, submitting that to have made representations in writing
to the Secretary of State is a condition precedent to the
practitioner’s right, whatever it may be, to sue or to seek judicial
review. If this is right, it means that the only permissible way, in
the first place, for a doctor to challenge any decision of the
Committee concerning his remuneration is by proceeding under
paragraph 80.1. I have said “in the first place” because I
understood Mr. Collins to be contending that paragraph 80.1
constitutes not an ouster but simply a necessary postponement of
the court’s jurisdiction. The result of his contention, if it be
correct, would, however, place a limit on the court’s jurisdiction,
because he submits that the only remedy open to a doctor who is
dissatisfied with the Secretary of State’s decision would (so far as
it could help him) be by judicial review of that decision, with all
the limitations which confinement to that remedy would involve.
It is convenient to deal with the point now, because it is an
objection in limine to court proceedings of any kind.

My Lords, Regulation 24(1) of the General Regulations
provides:

(There follows a list of different kinds of payment lettered
(a) to (k).)

“and may be amended from time to time by the Secretary
of State after consultation with such organisations and
published as aforesaid.”

– 10 –

I will not discuss the question, which was not debated before your
Lordships, whether in a statement of fees and allowances made
and published under Regulation 24(1) the Secretary of State would
have any power to restrict whatever right of access to the courts
a dissatisfied doctor may otherwise possess. I content myself with
saying that I lean against attributing such an intention and effect
to a provision of the statement if another reasonable interpretation
is available. The point can in my opinion be adequately dealt with
by considering the words of paragraph 80.1 itself. The procedure
laid down is informal; this much is indicated by the words “should”
and “may”. And the power to “make representations” may be
contrasted with the right to “appeal” to the Secretary of State
which is conferred by other provisions of the 1977 Act and the
Regulations. It has obviously been evolved with the reasonable,
indeed laudable, intention of resolving quickly and inexpensively
queries raised by doctors about their pay. The working out of the
procedure is somewhat loose and uncertain; for example, if the
Committee alter their decision, but not as much as the
practitioner has requested, can the latter then make
representations to the Secretary of State? When I say further
that I can find no necessary implication, much less an express
statement, that the aggrieved doctor is confined to making
representations to the Secretary of State, the weakness of the
exclusionary argument becomes clear. The language used in
paragraph 80.1 is not that of finality or exclusivity and I consider
that to hold that acceptance of the Committee’s decision is the
only alternative to making representations would be a most
unreasonable construction. I readily concede that, depending on
the circumstances, a doctor who does not first resort to the
paragraph 80.1 procedure could be penalised in costs. Furthermore
(depending on the nature of the point at issue), he may (but not
must) be refused leave to apply for judicial review on the ground
that he has not exhausted his statutory remedy. In an extreme
case (for example, where he complains of an elementary
mathematical error) an action begun by writ might be struck out
as an abuse of process.

If the effect of paragraph 80.1 were thought to be more
doubtful than in my opinion it is, the principle enunciated in Pyx
Granite Co. Ltd. v. Ministry of Housing and Local Government
[1960] A.C. 260 would lend support to the interpretation which I
prefer. In that case the Ministry unsuccessfully contended that
the court had no jurisdiction to make the declarations sought by
the plaintiff quarry owners on the ground that the Minister’s
decision was “final” by virtue of sections 15 and 17 of the Town
and Country Planning Act 1947. Viscount Simonds said at page
286:

“It is a principle not by any means to be whittled down that
the subject’s recourse to Her Majesty’s courts for the
determination of his rights is not to be excluded except by
clear words.”

Since there was not a no certiorari clause in the Planning Act, the
“finality” of the Minister’s decision did not preclude an ultimate
challenge by certiorari (see the respondents’ argument at pp. 275-
6), and therefore, despite the differences in subject-matter and
statutory background, the relevant arguments had something in
common with those which were or could have been advanced in
the instant case.

– 11 –

Having once referred to the Pyx Granite case, I might also
invite your Lordships’ attention to the observation of Lord Goddard
on another point. Having adverted to the leading case of
Barraclough v. Brown [1897] A.C. 615, he continued (p.290):

“I agree with the majority in the Court of Appeal, who held
that this decision had no application to the facts of this
case and that there were no words in the statute which
deprived the appellants of their right to obtain a
declaration. It was also argued that if there was a remedy
obtainable in the High Court it must be by way of
certiorari. I know of no authority for saying that if an
order or decision can be attacked by certiorari the court is
debarred from granting a declaration in an appropriate case.
The remedies are not mutually exclusive, though no doubt
there are some orders, notably convictions before justices,
where the only appropriate remedy is certiorari.”

This brings me back conveniently to the Committee’s original
contention in the courts below, which was that Dr. Roy should
have “proceeded not by action but by an application for judicial
review. The authorities relied on were (and still are) Cocks v.
Thanet District Council [1983] 2 AC 286 and O’Reilly v.
Mackman [1983] 2 AC 237, two cases heard consecutively by the
same appellate committee, in which the judgments were later
delivered on the same day.

Cocks v. Thanet D.C. was a case in which the plaintiff had
applied to the council, which was the local housing authority, for
permanent accommodation. The council provided temporary
accommodation. The plaintiff then sued in the county court for a
declaration that the council owed, and was in breach of, a duty to
house him permanently under the Housing (Homeless Persons) Act
1977. The case was removed into the High Court for
determination of the preliminary issue whether the plaintiff was
entitled to proceed in the county court or should go by judicial
review. The judge held that the plaintiff could proceed in the
county court but, on a leapfrog appeal, this House held that he
must proceed by judicial review. The leading opinion was
delivered by my noble and learned friend Lord Bridge of Harwich,
with whom the other members of the appellate committee agreed.
He said at p. 292D:

“The procedural issue on which the appeal turns will
naturally fall for decision in the light of the principles
expounded in the speech of my noble and learned friend,
Lord Diplock, in O’Reilly v. Mackman [1983] 2 AC 237 in
which judgment has just been delivered. But before
attempting to apply those principles, it is necessary to
analyse the functions of housing authorities under the
Housing (Homeless Persons) Act 1977. These functions fall
into two wholly distinct categories. On the one hand, the
housing authority are charged with decision-making functions.
It is for the housing authority to decide whether they have
reason to believe the matters which will give rise to the
duty to inquire or to the temporary housing duty. It is for
the housing authority, once the duty to inquire has arisen,
to make the appropriate inquiries and to decide whether

– 12 –

they are satisfied, or not satisfied as the case may be, of
the matters which will give rise to the limited housing duty
or the full housing duty. These are essentially public law
functions. The power of decision being committed by the
statute exclusively to the housing authority, their exercise
of power can only be challenged before the courts on the
strictly limited grounds (i) that their decision was vitiated
by bias or procedural unfairness; (ii) that they have reached
a conclusion of fact which can be impugned on the
principles set out in the speech of Lord Radcliffe in
Edwards v. Bairstow [1956] AC 14; or (iii) that, in so far
as they have exercised a discretion (as they may require to
do in considering questions of reasonableness under section
17(1) (2) and (4)), the exercise can be impugned on the
principles set out in the judgment of Lord Greene M.R. in
Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 KB 223. All this is trite law and the
contrary has, so far as I know, never been argued in any
case which has come before the courts under the Act of
1977.

“On the other hand, the housing authority are charged with
executive functions. Once a decision has been reached by
the housing authority which gives rise to the temporary, the
limited or the full housing duty, rights and obligations are
immediately created in the field of private law. Each of
the duties referred to, once established, is capable of being
enforced by injunction and the breach of it will give rise to
a liability in damages. But it is inherent in the scheme of
the Act that an appropriate public law decision of the
housing authority is a condition precedent to the
establishment of the private law duty.”

I refer to two further passages in the speech of my noble
and learned friend:

(1) at p. 294C:

“I have already indicated my agreement with the views of
my noble and learned friend, Lord Diplock, as expressed in
O’Reilly v. Mackman [1983] 2 AC 237, and I gratefully
adopt all his reasons for the conclusion that:

‘it would … 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.’

“Does the same general rule apply, where the decision of
the public authority which the litigant wishes to overturn is
not one alleged to infringe any existing right but a decision
which, being adverse to him, prevents him establishing a
necessary condition precedent to the statutory private law
right which he seeks to enforce? Any relevant decision of
a housing authority under the Act of 1977 which an

– 13 –

applicant for accommodation wants to challenge will be of
that character. I have no doubt that the same general rule
should apply to such a case.”

(2) at p. 295B:

“Even though nullification of a public law decision can, if
necessary, be achieved by declaration as an alternative to
an order of certiorari, certiorari to quash remains the
primary and most appropriate remedy. Now that all public
law remedies are available to be sought by the unified and
simplified procedure of an application for judicial review,
there can be no valid reason, where the quashing of a
decision is the sole remedy sought, why it should be sought
otherwise than by certiorari. But an unsuccessful applicant
for accommodation under the Act of 1977, confronted by an
adverse decision of the housing authority as to, say, the
question of his intentional homelessness, may strictly need
not only an order of certiorari to quash the adverse decision
but also an order of mandamus to the housing authority to
determine the question afresh according to law.”

In O’Reilly v. Mackman, the facts of which I need not
rehearse, Lord Diplock, who delivered the leading opinion, said at
p. 274F:

“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 statements
of claim or originating summons and the court considered a
declaration 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
R.S.C., Ord. 53 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 in the Rules for proceedings begun by writ or by
originating summons instead of using the procedure laid
down by Ord. 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

– 14 –

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. 5o the second thing to be noted is that none
of the appellants had any remedy in private law.” (emphasis
supplied.)

“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.”

Then, after a most learned, fascinating, controversial and
challenging survey of the prerogative jurisdiction and its
development, Lord Diplock concluded his speech with the following
observations (p. 284G):

“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.” (emphasis supplied.)

“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

– 15 –

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 Order 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 infringements
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,” (emphasis
supplied) “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 today [Cocks v.
Thanet District Council [1983] 2 AC 286].

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 defendants for which Order 53
provides.

I would dismiss these appeals.”

O’Reilly v. Mackman, Cocks v. Thanet District Council and
two other cases which reached your Lordships’ House were referred
to In An Bord Bainne Co-operative Limited v. Milk Marketing
Board [1984] 2 C.M.L.R. 584, in which the Irish Dairy Board sought
damages and an injunction to restrain the Milk Marketing Board
from selling at differential prices milk for making butter,
according to whether the butter was to be sold to an intervention

– 16 –

agency or into the United Kingdom domestic market. The grounds
of the action were (a) breach of E.E.C. Regulations 1422/78 and
1565/79 and of the U.K. Milk Marketing Scheme (Amendment)
Regulations 1981 and (b) abuse of a dominant position under
Articles 86 and 90(2) of the Treaty of Rome. The defendants
applied to strike out the grounds under (a) arguing that the claim
alleged a cause of action in the field of public law and could be
brought only by way of judicial review under Order 53 and that
the defendant’s action amounted to an abuse of process. The
Court of Appeal, affirming the decision of Neill J. ([1984] 1
C.M.L.R. 519) and dismissing the appeal, held that the action was
based on private law rights, whether or not it was also based on
public law rights, and that the right procedure was by action and
not by judicial review.

Sir John Donaldson, M.R., delivering the judgment of the
court, observed that the appeal was “only the latest in a line of
cases which sterns from the decision of the House of Lords in
O’Reilly v. Mackman.” He then referred to the facts of that case
and to Lord Diplock’s formulation of the “general rule” that it
would:

“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 for
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.”

The Master of the Rolls continued (at p. 588):

“In so doing he stressed that it was a general rule, subject
to exceptions to be evolved on a ‘case to case basis’ and
not a rule of universal application. In particular he drew
attention to the possibility of exceptions where all parties
consented or where the invalidity of the public law decision
arose as a collateral issue in a claim for infringement of a
right of a plaintiff arising under private law.

“O’Reilly v. Mackman was followed by Cocks v. Thanet
District Council. There the plaintiff’s private law right was
not collateral to the public law issue. It only arose if,
consequent upon the court determining that issue in his
favour, the local authority made a further administrative
decision favourable to him. In other words, at that stage
the plaintiff was not in a position even to allege a private
law right and the only issue was one of public law. The
general rule was therefore applied. In Davy v. Spelthorne
B.C. [1984] AC 262 in the House of Lords, a claim in
negligence was allowed to proceed by action, it being clear
that the Order 53 procedure was inappropriate and, if it
could have been adopted at all, might well have defeated
the claim. In Wandsworth v. Winder (29 March 1984) this
court, by a majority, allowed a council tenant to resist a
claim for an increased rent on the basis that the council
had acted unlawfully in deciding to increase it. Some
argument was addressed to us as to the true ratio decidendi.
For our part we regard it as an illustration of the fact that

– 17 –

the rule in O’Reilly v. Mackman is indeed subject to
exceptions where, although the principal issue is one of
public law, private law rights are involved and it would
cause the citizen injustice to be required to use the judicial
review procedure. We do not regard it as a decision which
turns upon the accident that the citizen was the defendant,
although this was important in the sense that the choice of
forum has not been his and he was entitled to argue that he
should not be penalised for that choice.”

Giving the court’s reasons for dismissing the appeal, the
Master of the Rolls concluded (at p. 589):

“The Irish Dairy Board’s claim for damages is admittedly
based upon alleged private law rights whether or not it is
also based upon public law rights. If it can make good its
case on the facts and the private law, the court will have
no discretion whether or not to grant relief. The Order 53
procedure is wholly inappropriate to any non-discretionary
claim and the prosecution of such a claim by the procedure
of an action is in no way an abuse, or as we prefer to style
it ‘a misuse’, of the process of the court. It is a
completely proper use of that process. The claim for an
injunction does indeed enable the court to exercise a
discretion, but only as to the choice of remedy, i.e.
damages or injunction, not as to granting any remedy at all.
Although the plaintiffs would, if necessary, have contended
that there are no public law issues, we assume for present
purposes that Neill J. was right to reject this contention.
However, we can see no way in which they can be severed
from the private law issues and, if they can, we do not
think that they should be. As it was put in argument, the
public and private law issues were not even collateral one
to another. They are inextricably mixed – ‘homogenised’ is
the term which springs to mind in the context of the
subject matter of the dispute.

“Neill J. had all these considerations in mind and he
exercised his discretion. We can see no grounds for
interfering with such a discretionary decision. Indeed, in
our judgment, his decision was so plainly right that had he
reached any other, we think that we should have been
entitled and indeed bound to interfere.”

The decision in Wandsworth London Borough Council v.
Winder was affirmed by this House and is reported at [1985] A.C.
461. In that case the decisions in O’Reilly v. Mackman and Cocks
v. Thanet District Council were distinguished. In the Court of
Appeal Robert Goff L.J., commenting on a passage in Davy v.
Spelthorne B.C. [1984] AC 262, 274, said at p. 480:

“I read this passage in Lord Fraser of Tullybelton’s speech
as expressing the opinion that the principle in O’Reilly v.
Mackman should not be extended to require a litigant to
proceed by way of judicial review in circumstances where
his claim for damages for negligence might in consequence
be adversely affected. I can for my part see no reason why
the same consideration should not apply in respect of any
private law right which a litigant seeks to invoke, whether
by way of action or by way of defence.

– 18 –

“For my part, I find it difficult to conceive of a case where
a citizen’s invocation of the ordinary procedure of the
courts in order to enforce his private law rights, or his
reliance on his private law rights by way of defence in an
action brought against him, could, as such, amount to an
abuse of the process of the court. But in any event I am
satisfied that it cannot be right that his so proceeding
should be held to amount to an abuse of process if the
effect would be that his power to enforce his private law
rights, or to rely upon them by way of defence, either
would or might be adversely affected. I am unable to read
Order 53 or section 31 of the Supreme Court Act 1981 as
intended in any way to curtail a citizen’s private law
rights.”

His observation at p. 481B should also be noted:

“I do not see that the solution to the problem in the
present case lies in the mere fact that here the challenge
to the public law decision is made by way of defence. In
my judgment the crucial question is whether in his defence
the defendant is (as a defendant usually will be) relying
upon his private law rights.”

I would further invite your Lordships’ attention to the speech of
Lord Fraser of Tullybelton in Winder’s case, where he said at p.
509E:

“It would in my opinion be a very strange use of language
to describe the respondent’s behaviour in relation to this
litigation as an abuse or misuse by him of the process of
the court. He did not select the procedure to be adopted.
He is merely seeking to defend proceedings brought against
him by the appellants. In so doing he is seeking only to
exercise the ordinary right of any individual to defend an
action against him on the ground that he is not liable for
the whole sum claimed by the plaintiff. Moreover he puts
forward his defence as a matter of right, whereas in an
application for judicial review, success would require an
exercise of the court’s discretion in his favour. Apart from
the provisions of Order 53 and section 31 of the Supreme
Court Act 1981, he would certainly be entitled to defend
the action on the ground that the plaintiff’s claim arises
from a resolution which (on his view) is invalid: see for
example Cannock Chase District Council v. Kelly [1978] 1
W.L.R. 1, which was decided in July 1977, a few months
before Order 53 came into force (as it did in December
1977). I find it impossible to accept that the right to
challenge the decision of a local authority in course of
defending an action for non-payment can have been swept
away by Order 53, which was directed to introducing a
procedural reform. As my noble and learned friend Lord
Scarman said in Reg. v. Inland Revenue Commissioners, Ex
parte Federation of Self Employed and Small Businesses Ltd.
[1932] A.C. 617, 647G ‘The new R.S.C., Ord. 53 is a
procedural reform of great importance in the field of public
law, but it does not – indeed, cannot – either extend or
diminish the substantive law. Its function is limited to

– 19 –

ensuring “ubi jus, ibi remedium”.’ Lord Wilberforce spoke to
the same effect at p. 631 A. Nor, in my opinion, did
section 31 of the Supreme Court Act 1981 which refers only
to ‘an application^’ for judicial review have the effect of
limiting the rights of a defendant sub silentio. I would
adopt the words of Viscount Simonds in Pyx Granite Co.
Ltd. v. Ministry of Housing and Local Government [1960]
A.C. 260, 286 as follows:

‘It is a principle not by any means to be whittled
down that the subject’s recourse to Her Majesty’s
courts for the determination of his rights is not to be
excluded except by clear words.’

The argument of the appellants in the present case would be
directly in conflict with that observation.”

In this passage the contrast drawn between “a matter of
right” and “an exercise of the court’s discretion” echoes the
observation of the Master of the Rolls at p. 589 in the Irish Dairy
Board case supra. It will also be seen that Lord Fraser invoked
the Pyx Granite principle, as he had already done in Davy v.
Spelthorne B.C. supra at p. 274, not merely against barring a
subject from the courts, but against excluding him from a
particular mode of procedure. The observation attributed to Lord
Scarman recalls what he had earlier said in R. v. I.R.C., Ex parte
Rossminster Ltd. [1980] AC 952 at p. 1025:”

“The application for judicial review is a recent procedural
innovation in our law. It is governed by R.S.C. Ord. 53, r.
2 which was introduced in 1977. The rule made no
alteration to the substantive law; nor did it introduce any
new remedy.”

Indeed, it seems to me that Lord Scarman, had the occasion
demanded it, might well have added the words “or abolish any
existing remedy.”

In R. v. Derbyshire County Council, Ex parte Noble [1990] I.
C.R. 808 a deputy police surgeon, whose services were dispensed
with, unsuccessfully sought judicial review of a police committee’s
decision. The Court of Appeal affirmed the Divisional Court’s
decision that judicial review was an inappropriate remedy, since
the applicant’s grievance arose in connection with his private
rights. I refer to the case mainly for the sake of a passage in
the judgment of Woolf L.J. at p. 813 A-C:

“Although at this stage the court is not concerned with the
merits of the application but the question as to whether or
not it was a matter which could be appropriately dealt with
on an application for judicial review, it is right that I
should indicate that an affidavit was filed on behalf of the
council by Mr. Eric Cobb, who was the director and
treasurer of Derbyshire County Council and county director
from 1987 to 6 April 1988 and who is now a consultant of
the council, in which he purports to give an explanation on
behalf of the council as to why it has adhered to its
decision. I draw attention to that affidavit because at least
it can be said, having regard to the contents of the

– 20 –

affidavit, that the present application is one which is
unsuitable for disposal on an application for judicial review –
unsuitable because it clearly involves a conflict of fact and
a conflict of evidence which would’, require investigation and
would involve discovery and cross-examination. Cross-
examination and discovery can take place on applications for
judicial review, but in the ordinary way judicial review is
designed to deal with matters which can be resolved without
resorting to those procedures.”

The concluding observations, by a judge who is an
acknowledged authority on the subject, remind us that oral
evidence and discovery, although catered for by the rules, are not
part of the ordinary stock-in-trade of the prerogative jurisdiction.
That fact alone must constitute an important qualification of the
general theory propounded by Lord Diplock in O’Reilly v.
Mackman.

McClaren v. Home Office [1990] I.C.R. 824 was concerned
with an action brought, in connection with a dispute over working
hours, by a prison officer against the Home Office, which then
applied to strike out the action on the ground that the plaintiff
ought to have proceeded by judicial review. Woolf L.J., after
agreeing with Dillon L.J. in the Court of Appeal that the
plaintiff’s appeal against the Divisional Court’s order striking out
his action should be allowed, continued as follows at p. 835G:

“However, this appeal and the appeal which was heard
recently by this court in Reg. v. Derbyshire County Council,
Ex parte Noble, [1990] I.C.R. 808 suggest that problems are
being experienced as to when proceedings have to be taken
by way of judicial review by employees – I use that term in
a wide sense to include those who hold office under the
Crown or on behalf of other public bodies – who wish to
bring proceedings against their employer who is a public
body. The problem appears to be due to a misunderstanding
as to the effect of the decision of the House of Lords in
O’Reilly v. Mackman [1983] 2 AC 237 on such
proceedings.”

The Lord Justice did not discuss in terms that
“misunderstanding”, but a hint of its nature, as perceived by him,
may perhaps be gathered from three passages in his judgment, (1)
at p. 836 B-D:

“In relation to his personal claims against an employer, an
employee of a public body is normally in exactly the same
situation as other employees. If he has a cause of action
and he wishes to assert or establish his rights in relation to
his employment he can bring proceedings for damages, a
declaration or an injunction (except in relation to the
Crown) in the High Court or the county court in the
ordinary way. The fact that a person is employed by the
Crown may limit his rights against the Crown but otherwise
his position is very much the same as any other employee.
However, he may, instead of having an ordinary master and
servant relationship with the Crown, hold office under the
Crown and may have been appointed to that office as a
result of the Crown exercising a prerogative power or, as in

– 21 –

this case, a statutory power. If he holds such an
appointment then it. will almost invariably be terminable at
will and may be subject to other limitations, but whatever
rights the employee has will be enforceable normally by an
ordinary action. Not only will it not be necessary for him
to seek relief by way of judicial review, it will normally be
inappropriate for him to do so: see Kodeeswaran v.
Attorney-General of Ceylon [1970] AC 1111; Reg. v. East
Berkshire Health Authority, Ex parte Walsh [1984] I.C.R. 743
and Reg. v. Derbyshire County Council, Ex parte Noble.”

(2) at pp. 837G-838A:

“In giving his judgment in this case, Hoffman J. [1989]
I.C.R. 550, 554, was of the view that there was no arguable
distinction between the facts of this case and those of Mr.
Bruce – referring to Reg. v. Civil Service Appeal Board, Ex
parte Bruce [1988] I.C.R. 649. – I disagree. In this case,
unlike Ex parte Bruce, which falls within the second
category, the plaintiff is not making any complaint about
disciplinary proceedings. He is seeking declarations as to
the terms of his employment and a sum which he alleges is
due for services rendered. If those claims have any merit
they fall within the first category set out above. They are
private law claims which require private rights to support
them. Mr. Tabachnik firmly disavowed any suggestion that
any public law claim is being advanced by the plaintiff.
Whether or not he is an employee of the Crown or has a
contract of service, or holds an office under the Crown, he
is entitled to bring private law proceedings if he has
reasonable grounds for contending that his private law rights
have been infringed. As his claim is pleaded and advanced
by Mr. Tabachnik, it is entirely unsuited to judicial review.”

(I would suggest, in fairness to the appellants in the present case,
that one has to read the sentence beginning “Whether or not” as
part of counsel’s argument and not as a view propounded by Woolf
L.J., but the thought expressed is significant.)

Finally, at p. 839 A-D:

“While Mr. Tabachnik accepts that the plaintiff can be
dismissed at pleasure because he holds an office or is
employed by the Crown, this does not mean that he cannot
have a private law right in relation to matters other than
his dismissal. The fact that a prison officer can be
dismissed at pleasure does not mean that there do not exist
other terms as to his service which are contractually
enforceable and in respect of which he can have a private
law remedy. There is now a considerable number of dicta
which indicate that it is possible for a servant of the Crown
to have contractual rights. It is not necessary for me to
refer to these authorities because they are all set out in
Reg. v. Civil Service Appeal Board, Ex parte Bruce [1988]
I.C.R. 649 and a number of them have already been referred
to by Dillon L.J. In Ex parte Bruce itself Roch J.
recognised that there could be terms of the appointment of
a civil servant which could have legal effect. If there are

– 22 –

such terms then they would give rise to private rights. In
the case of prison officers they would result from the
exercise by the Home Office of its statutory powers which
are incidental to its statutory power to appoint prison
officers; but even if they were derived from the
prerogative, this would not alter the nature of the rights
created, only the source of the authority for creating the
rights.

Once it is conceded, as in my view it has to be, that there
is at least an arguable case for contending that the
relationship between prison officers and the Home Office
could have a contractual element, then (subject to it not
affecting the power of the Crown to dismiss) the extent and
the effect of the contractual element is a matter to be
determined after evidence and full argument at the hearing.”

I have already referred to the judgment of the Court of
Appeal, which concluded that there was a contract for services
between Dr. Roy and the Committee and that it was therefore in
order for Dr. Roy to sue the Committee for a declaration of his
rights and an order for payment. (Your Lordships have not the
benefit of the Court of Appeal’s view on what the position would
have been assuming that no contract existed.) I cannot altogether
accept the reasoning which led the members of the Court of
Appeal to conclude that there was a contract, because, although
there may well have been a contract for services, I am not
satisfied that there was. Ex parte Walsh [1985] QB 152 does not
in my view provide a reliable argument in favour of saying that
there was a contract in the present case and Wadi’s case indicates
the contrary. At the same time, I would be foolish to disregard
the fact that all the members of a distinguished Court of Appeal
held that a contract for services existed between Dr. Roy and the
Committee. It shows, to say the least, that there are “contractual
echoes in the relationship”, as Judge White put it, and makes it
almost inevitable that the relationship, as was said of that which
arose in Wadi v. Cornwall and Isles of Scilly Family Practitioner
Committee [1985] I.C.R. 492 gave rise to “rights and obligations”
and that Dr. Roy’s rights were private law rights. I would here
observe that the mere fact that the Act and the Regulations
constitute a statutory scheme which lays down the doctor’s “terms
of service” (an expression which has contractual overtones) and
creates the relationship between him and the Committee, is not
fatal to the idea of a contract, but that relationship did not need
to be contractual. Moreover, the discretion which the scheme
confers on the Committee is not typically characteristic of a
contractual relationship, and the same can be said of the appellate
and supervisory role given to the Secretary of State.

But the actual or possible absence of a contract is not
decisive against Dr. Roy. He has in my opinion a bundle of rights
which should be regarded as his individual private law rights
against the Committee, arising from the statute and regulations
and including the very important private law right to be paid for
the work that he has done. As Judge White put it at [1989] 1
M.L.R. 10, 12:

“The rights and duties are no less real or effective for the
individual practitioner. Private law rights flow from the

– 23 –

statutory provisions and are enforceable, as such, in the
courts but no contractual relations come into existence.”

The judge, however, held that, even if the doctor’s rights to full
payments under the scheme were contractually based, the
Committee’s duty was a public law duty and could be challenged
only on judicial review. Mr. Collins admitted that, if the doctor
had a contractual right, he could (subject always to paragraph
80.1) vindicate it by action. But, my Lords, I go further: if Dr.
Roy has any kind of private law right, even though not
contractual, he can sue for its alleged breach.

In this case it has been suggested that Dr. Roy could have
gone by judicial review, because there is no issue of fact, but that
would not always hold good in a similar type of case. And I do
not forget that he might have been faced with the argument which
succeeded in Ex parte Walsh. In any event, a successful
application by judicial review could not lead directly, as it would
in an action, to an order for payment of the full basic practice
allowance. Other proceedings would be needed.

‘”An important point is that the court clearly has jurisdiction
to entertain the doctor’s action. Furthermore, even if one accepts
the full rigour of O’Reilly v. Mackman, there is ample room to
hold that this case comes within the exceptions allowed for by
Lord Diplock. It is concerned with a private law right, it involves
a question which could in some circumstances give rise to a
dispute of fact and one object of the plaintiff is to obtain an
order for the payment (not by way of damages ) of an ascertained
or ascertainable sum of money. If it is wrong to allow such a
claim to be litigated by action, what is to be said of other
disputed claims for remuneration? I think it is right to consider
the whole spectrum of claims which a doctor might make against
the Committee. The existence of any dispute as to entitlement
means that he will be alleging a breach of his private law rights
through a failure by the Committee to perform their public duty.
If the Committee’s argument prevails, the doctor must in all these
cases go by judicial review, even when the facts are not clear. I
scarcely think that this can be the right answer.

My Lords, whether Dr. Roy’s rights were contractual or
statutory, the observations made by the Court of Appeal
concerning their enforcement are important. Balcombe L.J. said
([1990] 1 M.L.R. at p. 331):

“Since Dr. Roy’s rights against the committee sound in
contract, on the face of it there would appear to be no
reason why he should not sue on the contract by ordinary
action. Of course, as Mr. Briggs accepts, the court will not
substitute its opinion for that of the committee in deciding
whether Dr. Roy did devote a substantial amount of time to
general practice. What the court can do is to decide
whether the committee, in forming its opinion, did so on an
incorrect view of the law and, if so, remit the question to
the committee for reconsideration.”

Then, having effectively distinguished O’Reilly v. Mackman and
Cocks v. Thanet District Council, he commented in relation to Ex
parte Walsh –

– 24 –

“This court accepted that his Terms of Tenure were
determined by statute but nevertheless held that he was
seeking to enforce a private contractual right under his
contract of employment so that judicial review was
inappropriate.”

The Lord Justice continued (p. 331):

“I would add that even if there were an element of public
duty in the formation by the committee of its opinion under
paragraph 12.1 of the Statement of Fees and Allowances,
this would not be sufficient to prevent Dr. Roy enforcing
his private (contractual) rights by ordinary action – see
O’Reilly v. Mackman [1983] 2 A,C. 237, per Lord Diplock at
p. 285: Gillick v. West Norfolk and Wisbech A.H.A. [1986]
A.C. 112 per Lord Fraser of Tullybelton at p. 163 and per
Lord Scarman at p. 178.”

Nourse L.J. said at p. 332:

“In his argument on behalf of the committee Mr. Greening
accepted that in general the contract between the
committee and the practitioner gives rise to private law
rights and duties. But he nevertheless submitted that the
committee’s duty to form an opinion under paragraph 12.1(b)
of the Statement of Fees and Allowances is a public law
duty which can only be enforced or controlled in proceedings
for judicial review. For my part, I would reject that
submission on the simple ground that the mutual rights and
duties under a contract of those who are the parties to it,
whether they be public bodies or private individuals, exist,
and can only exist, in the field of private law. Although a
public body which carries out a duty imposed on it by
contract can often be said to be performing a public duty,
it is not a ‘public law’ duty for the purposes of the
classification which is in point.

“The duty imposed on the committee by paragraph 12.1 of
the Statement of Fees and Allowances is to form an opinion
as to whether the practitioner is devoting a substantial
amount of time to general practice under the National
Health Service and to give a decision accordingly. If that
duty is not properly discharged, the practitioner’s remedies
are a declaration that the decision is of no effect, an order
setting it aside and, if appropriate, an injunction directing
the committee to reconsider the matter and form a fresh
opinion on a correct basis. It can certainly be said that
these remedies are suggestive of proceedings for judicial
review. But they are equally available under the law of
contract and Mr. Greening did not argue to the contrary.
Moreover, the great majority of the rights and duties under
the contract, for example the duty to pay and the right to
receive the basic practice allowance once the necessary
opinion has been formed, can only exist in the field of
private law. If Mr. Greening’s argument is correct, difficult
questions may arise as to whether particular rights and
duties must be protected and enforced by the one procedure
or the other. On practical grounds no less than on principle
there is everything to be said for the view that private law
applies throughout.

– 25 –

“In order that there may be no doubt about the matter, I
will add that if a practitioner wishes to question an initial
decision by the committee not to accept his application to
be included on their list of doctors, he must in that case
take proceedings for judicial review. At that stage no
contract has come into existence and the practitioner’s only
right is a public law right to have his application properly
considered. There is the same two-stage process as there
was in Cocks v. Thanet District Council [1983] 2 AC 286,
albeit that there the private law rights and duties which
arose at the second stage were statutory and not
contractual. At p. 292H Lord Bridge of Harwich said:

‘Once a decision has been reached by the housing
authority which gives rise to the temporary, the
limited or the full housing duty, rights and obligations
are immediately created in the field of private law.
Each of the duties referred to, once established, is
capable of being enforced by injunction and the
breach of it will give rise to a liability in damages.
But it is inherent in the scheme of the Act that an
appropriate public law decision of the housing
authority is a condition precedent to the
establishment of the private law duty.’

“Similarly in the present case, an appropriate public law

decision of the committee is a condition precedent to the

creation of the contract and the private law rights and
duties which arise under it.”

I wish also to mention two passages in the judgment of
Neill L.J. He said at p. 332:

“Had the FPC at the outset declined to include Dr. Roy’s
name on the medical list, Dr. Roy would have had no
contractual remedy, but he could have tested the lawfulness
of the decision of the FPC by seeking judicial review. At
that stage, he had a public law right to have his application
considered by the FPC in accordance with the law. But
once a contract came into existence between the FPC and
Dr. Roy, rights and duties were created in the field of
private law.”

I suggest that the comment remains apt, even if the private law
rights and duties were non-contractual. The judgment continued:

“This distinction between public law duties, rights and
remedies on the one hand and private law duties, rights and
remedies on the other hand was explained by Lord Bridge of
Harwich in Cocks v. Thanet District Council [1983] 2 A.C.
286 in a well-known passage at pp. 292-293 in relation to
the several functions of a housing authority under what is
now part III of the Housing Act 1985. In the present case,
the public law decision of the FPC to include Dr. Roy’s
name on the medical list brought into existence private law
rights and duties. These duties included a duty imposed on
the FPC to consider fairly any issues which might arise for
determining whether Dr. Roy was eligible for the full rate

– 26 –

of basic practice allowance. In the present case, the
matter on which the FPC had to form an opinion was
whether Dr. Roy was devoting a substantial amount of time
to general practice under the National Health Service.”

The judgments to which I have referred effectively dispose
of an argument pressed by the Committee that Dr. Roy had no
right to be paid a basic practice allowance until the Committee
had carried out their public duty of forming an opinion under
paragraph 12.1(b), with the supposed consequence that, until that
had happened, the doctor had no private law right which he could
enforce. The answer is that Dr. Roy had a right to a fair and
legally correct consideration of his claim. Failing that, his private
law right has been infringed and he can sue the Committee.

Mr. Collins sought to equate the Committee’s task under
paragraph 12.1(b) with the Council’s duty in phase 1 of Cocks v.
Thanet and the Committee’s duty to pay with the Council’s duty
in phase 2. For an answer to that argument I refer to the
judgments in the Court of Appeal and would also point out that
Mr. Cocks was simply a homeless member of the public in phase
1, whereas Dr. Roy had already an established relationship with
the Committee when his claim under paragraph 12.1 fell to be
considered.

Dr. Roy’s printed case contained detailed arguments in
favour of a contract between him and the Committee, but before
your Lordships Mr. Lightman simply argued that the doctor had a
private law right, whether contractual or statutory. With regard
to O’Reilly v. Mackman he argued in the alternative. The “broad
approach” was that “the rule in O’Reilly v. Mackman” did not
apply generally against bringing actions to vindicate private rights
in all circumstances in which those actions involved a challenge to
a public law act or decision, but that it merely required the
aggrieved person to proceed by judicial review only when private
law rights were not at stake. The “narrow approach” assumed that
the rule applied generally to all proceedings in which public law
acts or decisions were challenged, subject to some exceptions when
private law rights were involved. There was no need in O’Reilly
v. Mackman to choose between these approaches, but it seems
clear that Lord Diplock considered himself to be stating a general
rule ‘with exceptions. For my part, I much prefer the broad
approach, which is both traditionally orthodox and consistent with
the Pyx Granite principle, as applied in Davy v. Spelthorne B.C. at
p. 274 and in Wandsworth L.B.C. v. Winder at p. 510. It would
also, if adopted, have the practical merit of getting rid of a
procedural minefield. I shall, however, be content for the purpose
of this appeal to adopt the narrow approach, which avoids the
need to discuss the proper scope of the rule, a point which has
not been argued before your Lordships and has hitherto been
seriously discussed only by the academic writers.

Whichever approach one adopts, the arguments for excluding
the present case from the ambit of the rule or, in the alternative,
making an exception of it are similar and to my mind convincing.

(1) Dr. Roy has either a contractual or a statutory private law
right to his remuneration in accordance with his statutory terms of
service.

– 27 –

(2) Although he seeks to enforce performance of a public law
duty under paragraph 124, his private law rights dominate the
proceedings.

(3) The type of claim and other claims for remuneration
(although not this particular claim) may involve disputed issues of
fact.

(4) The order sought (for the payment of money due) could not
be granted on judicial review.

1. 1. The claim is joined with another claim which is fit to be
    brought in an action (and has already been successfully prosecuted.)
  2. When individual rights are claimed, there should not be a
    need for leave or a special time limit, nor should the relief be
    discretionary.
  3. The action should be allowed to proceed unless it is plainly
    an abuse of process.

(8) The cases I have cited show that the rule in O’Reilly v.
Mack man, assuming it to be a rule of general application, is
subject to many exceptions based on the nature of the claim and
on the undesirability of erecting procedural barriers.

My Lords, I have already disclaimed the intention of

discussing the scope of the rule in O’Reilly v. Mackman but, even

if I treat it as a general rule, there are many indications in

favour of a liberal attitude towards the exceptions contemplated

but not spelt out by Lord Diplock. For example:

1. 1. The Law Commission, when recommending the new judicial
    review procedure, contemplated the continued coexistence of
    judicial review proceedings and actions for a declaration with
    regard to public law issues. Associated Provincial Picture Houses
    Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 is a famous
    prototype of the latter.

(2) This House has expressly approved actions for a declaration
of nullity as alternative to applications for certiorari to quash,
where private law rights were concerned: Wandsworth L.B.C. v.
Winder at p. 477 per Robert Goff L.J.

(3) “The principle remains intact that public authorities and
public servants are, unless clearly exempted, answerable in
the ordinary courts for wrongs done to individuals. But by
an extension of remedies and a flexible procedure it can be
said that something resembling a system of public law is
being developed. Before the expression ‘public law’ can be
used to deny a subject a right of action in the court of his
choice it must be related to a positive prescription of law,
by statute or by statutory rules. We have not yet reached
the point at which mere characterisation of a claim as a
claim in public law is sufficient to exclude it from
consideration by the ordinary courts: to permit this would be
to create a dual system of law with the rigidity and
procedural hardship for plaintiffs which it was the purpose
of the recent reforms to remove.” Davy v. Spelthorne B.C.
at p. 276 per Lord Wilberforce.

– 28 –

In conclusion, my Lords, it seems to me that, unless the
procedure adopted by the moving party is ill suited to dispose of
the question at issue, there is much to be said in favour of the
proposition that a court having jurisdiction ought to let a case be
heard rather than entertain a debate concerning the form of the
proceedings.

For the reasons already given I would dismiss this appeal.

– 29 –

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