Gouriet v Union of Post Office Workers (Gouriet v HM Attorney-General, Gouriet v Post Office Engineering Union)

A private person cannot sue to enforce a public right merely because every citizen has an interest in obedience to the law. Public rights are asserted in civil proceedings by the Attorney-General, either ex officio or in relator proceedings. An individual may sue only where the conduct also infringes a private right or causes special damage.

This restriction cannot be avoided by seeking a declaration or an interim injunction. Declaratory procedure does not empower a court to pronounce upon the law generally, and interlocutory powers do not create substantive jurisdiction. A civil injunction used solely to restrain criminal conduct is exceptional and requires the Attorney-General’s participation. The ordinary enforcement mechanism remains prosecution after an offence has been committed.

Gouriet v Union of Post Office Workers arose from proposals by two Post Office trade unions to interrupt postal and telecommunications services between the United Kingdom and South Africa. The proposed conduct potentially engaged sections 58 and 68 of the Post Office Act 1953 and section 45 of the Telegraph Act 1863.

Mr Gouriet had no private interest or prospect of special damage. After the Attorney-General refused consent to relator proceedings, he sued in his own name. Stocker J refused an interim injunction. The Court of Appeal, reported at [1977] 1 W.L.R. 328, granted temporary relief and later held unanimously that declarations could be sought. Its majority held that the Attorney-General’s decision was not reviewable and that no final injunction was available.

The Attorney-General and the unions appealed against the refusal to strike out the proceedings. Mr Gouriet appealed against the refusal of final injunctive relief. The central issue was whether a private citizen, lacking a private right or special damage, could seek civil relief to prevent threatened criminal conduct after the Attorney-General had refused consent.

1. Disposition. Lord Wilberforce delivered the leading speech. Viscount Dilhorne, Lord Diplock, Lord Edmund-Davies and Lord Fraser of Tullybelton reached the same result. The Attorney-General’s and the unions’ appeals were allowed unanimously; Mr Gouriet’s appeal was dismissed unanimously; and his claims were struck out.
2. Public rights. Per Lord Wilberforce, with materially similar reasoning from the other Law Lords, the distinction between private and public rights is fundamental. A private person cannot represent the public in civil proceedings merely because the person shares the public interest in observance of the law. The Attorney-General alone may assert such a public right, either ex officio or ex relatione. An individual may act independently where a private right is threatened or the public wrong will cause special damage.
3. Civil restraint of crime. Per Lord Wilberforce, Viscount Dilhorne and Lord Diplock, an injunction sought solely to restrain criminal conduct is an exceptional civil remedy. Its use may disturb Parliament’s chosen penalty, the criminal standard of proof and any right to jury trial. Recognised instances include persistent offending for which statutory penalties have proved inadequate and urgent danger which criminal proceedings cannot prevent. The decision whether the public interest requires that remedy belongs initially to the Attorney-General.
4. Declarations and interim relief. Per Lord Diplock, a civil court declares contested legal rights of parties before it; it does not declare the law generally or give advisory opinions. The declaratory jurisdiction could not overcome Mr Gouriet’s lack of standing. Viscount Dilhorne and Lord Edmund-Davies similarly held that Order 15 rule 16 of the Rules of the Supreme Court did not enlarge jurisdiction. Nor could an interlocutory injunction be granted where the court lacked jurisdiction to award final relief.
5. Attorney-General’s discretion. Although Mr Gouriet abandoned judicial review of the refusal, the House stated that the Attorney-General’s decision whether to initiate or permit relator proceedings was not reviewable by the courts. The Attorney-General could consider the public interest broadly and was not confined to excluding frivolous, vexatious or oppressive claims. Accountability for a serious error lay in Parliament rather than judicial review.
6. No private postal right. The statutory duty to provide postal services created no privately enforceable right because of section 9(4) of the Post Office Act 1969. Tort claims also encountered the immunities in section 29 of that Act and section 14 of the Trade Union and Labour Relations Act 1974.
7. Post Office Engineering Union. The absence of substantive jurisdiction was decisive. The Law Lords expressed differing views about whether section 17(1) of the Trade Union and Labour Relations Act 1974 had separately prohibited the ex parte injunction. Lord Wilberforce and Lord Fraser nevertheless regarded the evidential or procedural basis for that injunction as insufficient.

• House of Lords: In Gouriet v Union of Post Office Workers [1977] UKHL 5, the Attorney-General’s and unions’ appeals were allowed unanimously. Mr Gouriet’s appeal was dismissed and his claims were struck out.
• Court of Appeal: Reported at [1977] 1 W.L.R. 328. By a majority, the court held that the Attorney-General’s refusal was not reviewable and that no final injunction was available. It held unanimously that declarations could be sought and that interim injunctions were available pending their determination, although the injunctions were discharged as no longer necessary. Applications to strike out were dismissed.
• High Court: Stocker J refused Mr Gouriet’s application for an interim injunction because, following the Attorney-General’s refusal of consent to relator proceedings, the court lacked power to grant it.