ABSTRACT
O’Reilly and Winder were both considered extensively in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (above), in which Lord Lowry examined the ‘broad’ or ‘liberal’ approach to judicial review and the ‘narrow’ or ‘restrictive’ approach. A broad approach lessens the importance of the distinction between public and private law and would allow either the Order 53 procedure to be used or for the pursuit of a private law remedy. A narrow approach, however, would dictate that if the matter is primarily a matter of private law then the judicial review procedure is inappropriate. While Lord Lowry ‘disclaimed any intention of discussing the scope of the rule in O’Reilly’, he nevertheless went on to make a case for a more liberal approach. Lord Lowry stated that:
Lord Slynn advanced the argument for a more flexible approach to the choice of proceedings in Mercury Communications Ltd v Director General of Telecommunications (1996). In that case, the effect of O’Reilly v Mackman was further limited. A dispute arose between Mercury Communications and British Telecom (BT), both of which are public limited companies licenced by the Secretary of State under the Telecommunications Act 1984. Mercury Communications was dependent upon the rental of part of BT’s network. The
Director General, exercising powers under the 1984 Act, determined the dispute, and his decision affected the terms of the contract between Mercury and BT. Mercury initiated private proceedings in the Commercial Court by originating summons. At first instance, the Director General and BT failed to have the proceeding struck out, the court applying the O’Reilly principle. On appeal, however, it was argued, successfully, that this was an abuse of process. The case went to the House of Lords, which reversed the decision of the Court of Appeal. Lord Slynn emphasised that when determining the issue of the choice of private or public law proceedings, flexibility must be retained. It was recognised that the Director General had statutory functions and performed public duties. However, this did not eliminate the possibility of private law proceedings. Since the Director General’s decision had been imposed as part of a contract, this could be regarded as a contractual dispute. Accordingly, the commencement of private law proceedings was equally well suited to determine the issue as judicial review proceedings. The issue of the appropriateness of proceedings was a matter to be determined by the courts on a case by case basis. Lord Slynn stated that:
The House of Lords reconsidered the question of the appropriate form of proceedings once more in O’Rourke v Camden London Borough Council (1997). In this case, the plaintiff had applied to the local authority for accommodation, under the Housing Act 1985, on his release from prison. Section 63(1) of the Housing Act provides that a local authority is under a duty to provide accommodation in respect of those who are ‘homeless and [had] a priority need’, and that includes persons who are ‘vulnerable as a result of ... physical disability or other special reason’. Initially, the authority refused him accommodation, but subsequently provided accommodation for a 12 day period, after which the plaintiff was evicted and no alternative accommodation offered. The plaintiff brought a private action against the council for wrongful eviction without providing alternative accommodation, and claimed damages. The House of Lords ruled that the question of whether section 63 of the Housing Act gave rise to public or private law proceedings depended on the intention of parliament. The duty to provide accommodation was a matter of public law and the Act ‘was a scheme of social welfare, intended on grounds of public policy and public interest to confer benefits at the public expense not only for the private benefit of people who found themselves homeless but also for the benefit of society in general’. The provision of accommodation, and the type of accommodation, was ‘largely dependent on the housing authority’s judgment and discretion’. Accordingly, it was ‘unlikely’ that parliament had intended section 63 to give rise to a private action.
