The ‘exclusivity principle’

In O’Reilly v Mackman (1983), the applicants had taken part in a prison riot at Hull gaol and the Board of Visitors (who exercise disciplinary powers over prisoners) reduced the remission of sentence as punishment. The applicants tried to establish that the Board of Visitors had acted contrary to the rules of natural justice. This they attempted to do by means of an originating summons or writ.69 It was not contested that the issue was a matter of public law and that they could have employed the judicial review procedure, provided that they applied for leave within the requisite three months. No leave from the court is needed in relation to private law proceedings. The issue for the court was whether it was an abuse of the process of the court to use the alternative basis to bring the action. Lord Diplock stated:

Referring to the procedural disadvantages which had existed prior to the reforms introduced in 1977 by Order 53,70 Lord Diplock went on to state:

The decision in O’Reilly has been trenchantly criticised by Professor HWR Wade.71 The ‘exclusivity principle’ – keeping public and private law rigidly distinct – was introduced by Lord Diplock in O’Reilly, notwithstanding the Law Commission’s intention that procedural reforms introduced in 1977 were not intended to create a rigid distinction between public and private law proceedings.72 Before that time, although the distinction between public and private law was drawn, the system was not exclusive. Professor Wade regards the exclusivity principle, declared in O’Reilly, as amounting to a ‘serious setback for administrative law’. He goes on to state that:

Professor Wade regards this as an unnecessary restriction on access to the courts, a restriction which has been avoided in Scotland, Australia, New Zealand and Canada. His assessment of the House of Lords’ decision in O’Reilly is that:

The harshness with which the exclusivity principle could operate led Lord Diplock in O’Reilly to state that exceptions to the rule would exist where the case involved both public and private law elements, particularly where the public law element was collateral (auxiliary or secondary) to the private law element. What is evident in this matter is that a balance needs to be struck between too rigid a rule, which denies individuals the protection of judicial review, and too lax an approach, which would enable individuals either to pursue a remedy in judicial review when other procedures are in fact more appropriate or, conversely, to pursue other remedies when judicial review would be appropriate, in order to evade the requirements of judicial review. It is also evident that the judges are struggling to find the correct balance.