Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1997] 30 HLR 645 (CA).

Judicial review – private law – appropriate proceedings

Remedies for protecting both private and public law rights can be given in both private law proceedings and on application for judicial review. It is a general rule that it is contrary to public policy, and as such an abuse of process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action in private law.

However, if it is not clear whether judicial review or an ordinary action is the correct procedure it will be safer to make an application for judicial review than commence an ordinary action since there then should be no question of being treated as abusing the process of the court by avoiding the protection provided by judicial review. If judicial review is used when it should not be, the court can protect its resources either by directing that the application should continue as if begun by writ or by directing it should be heard by a judge who is not nominated to hear cases in the Crown Office List.

If a case is brought by an ordinary action and there is an application to strike out the case, the court should, at least, if it is unclear which form of procedure is appropriate, ask itself whether, if the case had been brought by judicial review, leave to proceed would have been granted when the action was commenced. If it is clear leave would have been granted, then that is at least an indication that there had been no harm to the interest judicial review is designed to protect. In addition, the court should consider by which procedure the case could be appropriately tried. If the answer is that an ordinary action is equally or more appropriate than an application for judicial review, that again should be an indication that the action should not be struck out.

Leave a Reply

Your email address will not be published.