ABSTRACT

In R v City Panel on Takeovers and Mergers ex parte Datafin Ltd (1987), the Takeover Panel had dismissed a complaint made by a bidder of ‘acting in concert’ contrary to the rules on takeovers. The bidder applied for judicial review. The court declined to grant the application on the basis that there were no grounds for judicial review (on which, see below) but, nevertheless, rejected the claim made by the City Panel that the court had no jurisdiction to consider the application. The Panel was subject to judicial review, despite its lack of statutory or prerogative source of power, because it was a body exercising public functions analogous to those which could be, or could have been in the absence of the Panel, exercised by a government department. Lord Justice Lloyd stated that, for the most part, the source of the power will be decisive. Accordingly, if a body is set up under statute or by delegated legislation, then the source of the power brings the body within the scope of judicial review. However, Lloyd LJ also recognised that in some cases the matter would be unclear. Where that situation existed, it was necessary to look beyond the source of the power and consider the ‘nature of the power’ being exercised. In Lloyd LJ’s view, ‘[i]f a body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review’.