ABSTRACT

This chapter discusses to what extent private law can be used to control government and other bodies performing public functions. For Dicey, the fact that public bodies were liable in civil actions in the same way as any private individual was a fundamental tenet of the rule of law. One aspect of this theory is that no one is above the law; that is, that the law applies equally, regardless of whether actions are brought against the government or an individual. This may have been an appropriate path to follow at the time when Dicey was writing, given the atmosphere of free markets and the notion that government was regarded as being merely a collective of individuals acting in the capacity of government. Today, however, the state intervenes greatly in the life of the individual. On the one hand, there is a public interest in not intervening too greatly with government and this is reflected in the protection offered in the Order 53 procedure. In O’Reilly v Mackman (1983) Lord Diplock stated:

As such, under the Order 53 procedure, applications are subject to a three month time limit and require the leave of the court to proceed. The court can also refuse relief on the ground of undue delay, regardless of the specified time limit. On the other hand, the increasing involvement of government in our everyday lives means that it wields great power and the individual is in an unequal bargaining position. As such, the public need protection.