The public/private law headache: relief for sufferers?

Abstract

This thesis concerns the distinction between public and private law in English administrative law, concentrating upon judicial remedies and procedures. Chapter 1 of the thesis examines the circumstances that led to the decision of the House of Lords in O'Reilly v. Mackman (that in some cases public law issues may be raised only by Application for Judicial Review (AJR) under RSC Order 53) and outlines in broad terms the problems for litigants which the decision has posed. Also discussed is the "obverse" of the O'Reilly rule, laid down in R v. East Berks. Area Health Authority, ex parte Walsh (CA), that disputes raising no public law issue cannot be litigated by AJR. Chapter 2 examines post-O’Reilly cases in which public law issues have been permissibly raised other than by AJR. These are cases in which a public law matter has had to be resolved in order to settle a dispute concerning liability in either private or criminal law. It is concluded that the recent decision of the House of Lords in Roy v. Kensington Family Practitioner Committee leaves unresolved some of the uncertainties in this area. In O'Reilly, and in other cases, public law has been defined in terms of the scope of the prerogative remedies. The scope of certiorari is accordingly considered in chapter 3, where it is observed that the courts have effected a significant extension of public law - an extension which may continue into areas once axiomatically "private". Chapter 4 examines when a statutory duty is enforceable by action for damages and when, by contrast, only mandamus or injunction upon an AJR are available. Chapter 5 concludes with an overview of the problems caused by both O'Reilly and ex parte Walsh. To the extent that advocates of reform have seen obstacles in their path, those obstacles, it is concluded, are possibly illusory.