O'Reilly (A.P.) and others v Mackman and others

Where a person seeks to establish that a public authority's decision infringed rights protected only by public law, the general rule is that the claim must be brought by an application for judicial review under Order 53 of the Rules of the Supreme Court. Using an ordinary action to evade Order 53's safeguards will ordinarily be an abuse of process.

Exceptions may arise where the validity of the public decision is a collateral issue in a private-law claim or no party objects to the procedure used. Other exceptions should be developed case by case. A statutory tribunal's failure to afford a fair hearing or freedom from personal bias will ordinarily render its decision a nullity.

The appellants were prisoners against whom the Board of Visitors of Hull Prison had made disciplinary awards forfeiting remission of sentence. They alleged that the Board had denied them a fair opportunity to present their cases or, in one case, had been affected by personal bias. They sought declarations that the awards were void, using ordinary actions rather than applications for judicial review under Order 53 of the Rules of the Supreme Court.

Peter Pain J refused the Board's applications to strike out the actions as abuses of process. The Court of Appeal, comprising Lord Denning MR, Ackner and O'Connor LJJ, allowed the Board's appeals and struck out the actions. The central question before the House was whether, following the 1977 reform of Order 53, the use of ordinary proceedings to obtain exclusively public-law relief was an abuse of process.

1. The appeals were dismissed unanimously. Lord Diplock delivered the leading speech. Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Bridge of Harwich and Lord Brightman agreed with it. The Court of Appeal's order striking out the actions was affirmed.

2. Per Lord Diplock, the prisoners had no relevant private-law right. Their expectation of remission gave them a sufficient interest in public law to challenge disciplinary awards for excess of statutory power or procedural unfairness. Their claims therefore sought protection of exclusively public-law rights.

3. A statutory tribunal must afford a person who may be adversely affected a fair opportunity to hear the allegations and present a case. Parliament is presumed to intend that breach of this fundamental requirement renders the resulting decision void. The tribunal must also be constituted without preconceived personal bias. These principles applied to the Board's disciplinary jurisdiction under the Prison Rules 1964.

4. The 1977 Order 53 created a comprehensive judicial-review procedure. It permitted declarations, injunctions and, where appropriate, damages. It also made discovery, interrogatories and cross-examination available when justice required. At the same time, its leave requirement, verified evidence and short time limit protected good administration, public authorities and affected third parties from groundless or tardy challenges.

5. Per Lord Diplock, it was therefore a general rule that a person alleging infringement of rights protected only by public law should proceed under Order 53. An ordinary action used to evade those safeguards was contrary to public policy and an abuse of process. The rule was not absolute. Possible exceptions included a challenge arising collaterally in a private-law claim and a case in which no party objected to the procedure. Further exceptions were to be developed case by case.

6. These actions sought only discretionary declarations that decisions of a statutory tribunal were nullities in public law. They were blatant attempts to avoid Order 53's protections and were properly struck out summarily. The appeals were dismissed and the appellants' costs were to be taxed under Schedule 2 to the Legal Aid Act 1974.

1. House of Lords: The consolidated appeals were dismissed unanimously. The Court of Appeal's order was affirmed.

2. Court of Appeal: Lord Denning MR, Ackner and O'Connor LJJ allowed the Board's appeals and struck out the ordinary actions as abuses of process.

3. High Court: Peter Pain J refused the Board's applications to strike out the actions.