"I read this passage in Lord Fraser of Tullybelton's speech as expressing the opinion that the principle in O'Reilly v. Mackman should not be extended to require a litigant to
"For my part, I find it difficult to conceive of a case where a citizen's invocation of the ordinary procedure of the courts in order to enforce his private law rights, or his reliance on his private law rights by way of defence in an action brought against him, could, as such, amount to an abuse of the process of the court."
"For each financial year the Committee shall cause payments to be made to doctors with whom arrangements for the provision of general medical services exist in its locality in accordance with such rates and subject to such conditions as the Secretary of State may determine after consultation with such organisations as he may recognise as representing doctors with whom arrangements for the provision of general medical services exist and publish in a Statement."
“ A practitioner will be eligible for the full rate of basic practice allowance shown in paragraph 1/Sch. 1 if:-
“ 1. The plaintiff has contracted with Kensington and Chelsea and Westminster Family Practitioner Committee to provide general medical services to National Health Service patients under the usual terms and conditions.
“ 2. In breach of the aforesaid terms and conditions:
“ 3. Further the defendants have notified the plaintiff their intention to continue to abate the Basic Practice Allowance.
"The rights and duties are no less real or effective for the individual practitioner. Private law rights flow from the statutory provisions and are enforceable, as such, in the courts but no contractual relations come into existence. The decision I make upon the application is nevertheless not dependent on this finding, for, whether or not the plaintiff's right to full payments under the scheme were (sic) contractually based, I accept that the duty which the committee discharges, when establishing for the purposes of a practitioner's eligibility whether or not he is devoting a substantial amount of time to general practice under the National Health Service, is a public law duty; the function is a public law function.
"The decision that has to be made has been firmly placed by the Minister giving directions pursuant to regulations upon the committee. The directions, as I note, provide that the committee will exercise its discretion in determining whether a practitioner is eligible for the allowance, considering each case on its merits and consulting with the local medical committee in those cases in which a practitioner's eligibility is in doubt. If the condition of eligibility is not satisfied, it is for the committee to make an appropriate reduction; in this case a 20 per cent. reduction was ordered. It is a decision which requires not only findings of fact as to what time was spent by the doctor in general practice in the health service but the setting of a yardstick, the standard against which the individual's activities are to be measured."
"We come back to the central issue of the existence of a contract. Mr. Susman accepts that a doctor on the medical list has no contract of service or of apprenticeship, but he submits that the doctor has a contract for services which is a contract for the doctor personally to execute work."
"It is clear from the Act of 1977 and the Regulations of 1974 that the family practitioner committee's designated
"There is in our view little to support Mr. Susman's suggestion that the family practitioner committee, still less the medical committee, enters into a contract with the doctor who successfully applies for a vacancy. The family practitioner committee is obliged to cause payments to be made to doctors, but it is a mere conduit pipe for such moneys which the Secretary of State must pay to it and which it must pass on to the doctors. It has no discretion in the amounts or the circumstances of the payments. Nor does the 'light supervision' (to use the industrial tribunal's words) which it exercises over the doctors signify a contract. Still less is there anything to indicate that the medical committee has a contract with the doctor, there being no continuing relationship between them. In summary, our view is that under the statutory arrangements the doctor on the one side and each of the family practitioner committee and the medical committee on the other have rights and obligations conferred by statute rather than by contract. It is not necessary and we think it wrong to seek to import a contract into a scheme of things which is governed by the very detailed statutory arrangements made by neither the family practitioner committee nor the medical committee."
"80.1 Separate arrangements obtain for making representations to the Secretary of State under the rent and rates scheme (see paragraphs 51.1-75). In other cases, a practitioner who is dissatisfied with any decision of a Committee concerning his remuneration (including recoveries in respect of overpayments) should in the first instance place before the Committee any additional information which he considers to have a bearing on the matter. If the Committee do not alter their decision and the practitioner is still dissatisfied, he may make representations in writing to the Secretary of State. Any representations should be made as soon as possible after receiving notice of the Committee's final decision and should be accompanied by a statement of the grounds on which the practitioner bases his representations. After considering the representations and any comments of the Committee the Secretary of State will give to the Committee such direction, if any, on the matter as he thinks fit."
"(b) Similarly, when an adverse determination was made, the respondent had no private law right to the balance of the practice allowance which the appellant, in its discretion, had denied him, but he could have applied for judicial review of that decision. If he had done so before availing himself of the right to make representations under paragraph 80.1 of the Statement, he would probably have had difficulty in obtaining the leave of the court. An adverse decision of the Secretary of State would also be amenable to judicial review on the usual grounds. To permit the respondent to proceed by ordinary action is to ignore and effectively by- pass the role of the Secretary of State.
"(c) It would only be if the appellant failed to pay the respondent sums which the Secretary of State had directed it to pay under paragraphs 80.1 of the Statement, or the sums to which the appellant had in any event determined that the respondent was entitled, that a right protected by private, as opposed to public, law could arise."
"For each financial year the Committee shall cause payments to be made to doctors with whom arrangements for the provision of general medical services exist in its locality in accordance with such rates and subject to such conditions as the Secretary of State may determine after consultation with such organisations as he may recognise as representing doctors with whom arrangements for the provision of general medical services exist and publish in a Statement. The determination shall make provision for the following matters -"
"and may be amended from time to time by the Secretary of State after consultation with such organisations and published as aforesaid."
"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words."
"I agree with the majority in the Court of Appeal, who held that this decision had no application to the facts of this case and that there were no words in the statute which deprived the appellants of their right to obtain a declaration. It was also argued that if there was a remedy obtainable in the High Court it must be by way of certiorari. I know of no authority for saying that if an order or decision can be attacked by certiorari the court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive, though no doubt there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari."
"The procedural issue on which the appeal turns will naturally fall for decision in the light of the principles expounded in the speech of my noble and learned friend, Lord Diplock, in O'Reilly v. Mackman[1983] 2 AC 237 in which judgment has just been delivered. But before attempting to apply those principles, it is necessary to analyse the functions of housing authorities under theHousing (Homeless Persons) Act 1977 . These functions fall into two wholly distinct categories. On the one hand, the housing authority are charged with decision-making functions. It is for the housing authority to decide whether they have reason to believe the matters which will give rise to the duty to inquire or to the temporary housing duty. It is for the housing authority, once the duty to inquire has arisen, to make the appropriate inquiries and to decide whether
"On the other hand, the housing authority are charged with executive functions. Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty."
"I have already indicated my agreement with the views of my noble and learned friend, Lord Diplock, as expressed in O'Reilly v. Mackman[1983] 2 AC 237 , and I gratefully adopt all his reasons for the conclusion that:
'it would ... as a general rule be contrary to public policy, and as such an abuse of the 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 and by this means to evade the provisions of Order 53 for the protection of such authorities.'
"Does the same general rule apply, where the decision of the public authority which the litigant wishes to overturn is not one alleged to infringe any existing right but a decision which, being adverse to him, prevents him establishing a necessary condition precedent to the statutory private law right which he seeks to enforce? Any relevant decision of a housing authority under the Act of 1977 which an
"Even though nullification of a public law decision can, if necessary, be achieved by declaration as an alternative to an order of certiorari, certiorari to quash remains the primary and most appropriate remedy. Now that all public law remedies are available to be sought by the unified and simplified procedure of an application for judicial review, there can be no valid reason, where the quashing of a decision is the sole remedy sought, why it should be sought otherwise than by certiorari. But an unsuccessful applicant for accommodation under the Act of 1977, confronted by an adverse decision of the housing authority as to, say, the question of his intentional homelessness, may strictly need not only an order of certiorari to quash the adverse decision but also an order of mandamus to the housing authority to determine the question afresh according to law."
"Prison rule 56, however, expressly empowers the Secretary of State to remit a disciplinary award and, since he would presumably do so in the case of a disciplinary award that had been declared by the High Court to be a nullity, such a declaration would achieve, though less directly, the same result in practice as quashing the award by certiorari.
"In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted outwith the powers conferred upon it by the legislation under which it was acting; and such grounds would include the board's failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it."
"The position of applicants for judicial review has been drastically ameliorated by the new Order 53. It has removed all those disadvantages, particularly in relation to discovery, that were manifestly unfair to them and had, in
"be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights for which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities."
"In so doing he stressed that it was a general rule, subject to exceptions to be evolved on a 'case to case basis' and not a rule of universal application. In particular he drew attention to the possibility of exceptions where all parties consented or where the invalidity of the public law decision arose as a collateral issue in a claim for infringement of a right of a plaintiff arising under private law.
"O'Reilly v. Mackman was followed by Cocks v. Thanet District Council. There the plaintiff's private law right was not collateral to the public law issue. It only arose if, consequent upon the court determining that issue in his favour, the local authority made a further administrative decision favourable to him. In other words, at that stage the plaintiff was not in a position even to allege a private law right and the only issue was one of public law. The general rule was therefore applied. In Davy v. Spelthorne B.C.[1984] AC 262 in the House of Lords, a claim in negligence was allowed to proceed by action, it being clear that the Order 53 procedure was inappropriate and, if it could have been adopted at all, might well have defeated the claim. In Wandsworth v. Winder (29 March 1984 ) this court, by a majority, allowed a council tenant to resist a claim for an increased rent on the basis that the council had acted unlawfully in deciding to increase it. Some argument was addressed to us as to the true ratio decidendi. For our part we regard it as an illustration of the fact that
"The Irish Dairy Board's claim for damages is admittedly based upon alleged private law rights whether or not it is also based upon public law rights. If it can make good its case on the facts and the private law, the court will have no discretion whether or not to grant relief. The Order 53 procedure is wholly inappropriate to any non-discretionary claim and the prosecution of such a claim by the procedure of an action is in no way an abuse, or as we prefer to style it 'a misuse', of the process of the court. It is a completely proper use of that process. The claim for an injunction does indeed enable the court to exercise a discretion, but only as to the choice of remedy, i.e. damages or injunction, not as to granting any remedy at all. Although the plaintiffs would, if necessary, have contended that there are no public law issues, we assume for present purposes that Neill J. was right to reject this contention. However, we can see no way in which they can be severed from the private law issues and, if they can, we do not think that they should be. As it was put in argument, the public and private law issues were not even collateral one to another. They are inextricably mixed - 'homogenised' is the term which springs to mind in the context of the subject matter of the dispute.
"Neill J. had all these considerations in mind and he exercised his discretion. We can see no grounds for interfering with such a discretionary decision. Indeed, in our judgment, his decision was so plainly right that had he reached any other, we think that we should have been entitled and indeed bound to interfere."
"I read this passage in Lord Fraser of Tullybelton's speech as expressing the opinion that the principle in O'Reilly v. Mackman should not be extended to require a litigant to proceed by way of judicial review in circumstances where his claim for damages for negligence might in consequence be adversely affected. I can for my part see no reason why the same consideration should not apply in respect of any private law right which a litigant seeks to invoke, whether by way of action or by way of defence.
"For my part, I find it difficult to conceive of a case where a citizen's invocation of the ordinary procedure of the courts in order to enforce his private law rights, or his reliance on his private law rights by way of defence in an action brought against him, could, as such, amount to an abuse of the process of the court. But in any event I am satisfied that it cannot be right that his so proceeding should be held to amount to an abuse of process if the effect would be that his power to enforce his private law rights, or to rely upon them by way of defence, either would or might be adversely affected. I am unable to read Order 53 orsection 31 of the Supreme Court Act 1981 as intended in any way to curtail a citizen's private law rights."
"I do not see that the solution to the problem in the present case lies in the mere fact that here the challenge to the public law decision is made by way of defence. In my judgment the crucial question is whether in his defence the defendant is (as a defendant usually will be) relying upon his private law rights."
"It would in my opinion be a very strange use of language to describe the respondent's behaviour in relation to this litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is merely seeking to defend proceedings brought against him by the appellants. In so doing he is seeking only to exercise the ordinary right of any individual to defend an action against him on the ground that he is not liable for the whole sum claimed by the plaintiff. Moreover he puts forward his defence as a matter of right, whereas in an application for judicial review, success would require an exercise of the court's discretion in his favour. Apart from the provisions of Order 53 andsection 31 of the Supreme Court Act 1981 , he would certainly be entitled to defend the action on the ground that the plaintiff's claim arises from a resolution which (on his view) is invalid: see for example Cannock Chase District Council v. Kelly [1978] 1 W.L.R. 1, which was decided in July 1977, a few months before Order 53 came into force (as it did in December 1977). I find it impossible to accept that the right to challenge the decision of a local authority in course of defending an action for non-payment can have been swept away by Order 53, which was directed to introducing a procedural reform. As my noble and learned friend Lord Scarman said in Reg. v. Inland Revenue Commissioners, Ex parte Federation of Self Employed and Small Businesses Ltd. [1932] A.C. 617, 647G 'The new R.S.C., Ord. 53 is a procedural reform of great importance in the field of public law, but it does not - indeed, cannot - either extend or diminish the substantive law. Its function is limited to
'It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words.'
"The application for judicial review is a recent procedural innovation in our law. It is governed by R.S.C. Ord. 53, r. 2 which was introduced in 1977. The rule made no alteration to the substantive law; nor did it introduce any new remedy."
"Although at this stage the court is not concerned with the merits of the application but the question as to whether or not it was a matter which could be appropriately dealt with on an application for judicial review, it is right that I should indicate that an affidavit was filed on behalf of the council by Mr. Eric Cobb, who was the director and treasurer of Derbyshire County Council and county director from 1987 to6 April 1988 and who is now a consultant of the council, in which he purports to give an explanation on behalf of the council as to why it has adhered to its decision. I draw attention to that affidavit because at least it can be said, having regard to the contents of the
"However, this appeal and the appeal which was heard recently by this court in Reg. v. Derbyshire County Council, Ex parte Noble, [1990] I.C.R. 808 suggest that problems are being experienced as to when proceedings have to be taken by way of judicial review by employees - I use that term in a wide sense to include those who hold office under the Crown or on behalf of other public bodies - who wish to bring proceedings against their employer who is a public body. The problem appears to be due to a misunderstanding as to the effect of the decision of the House of Lords in O'Reilly v. Mackman[1983] 2 AC 237 on such proceedings."
"In relation to his personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees. If he has a cause of action and he wishes to assert or establish his rights in relation to his employment he can bring proceedings for damages, a declaration or an injunction (except in relation to the Crown) in the High Court or the county court in the ordinary way. The fact that a person is employed by the Crown may limit his rights against the Crown but otherwise his position is very much the same as any other employee. However, he may, instead of having an ordinary master and servant relationship with the Crown, hold office under the Crown and may have been appointed to that office as a result of the Crown exercising a prerogative power or, as in
"In giving his judgment in this case, Hoffman J. [1989] I.C.R. 550, 554, was of the view that there was no arguable distinction between the facts of this case and those of Mr. Bruce - referring to Reg. v. Civil Service Appeal Board, Ex parte Bruce [1988] I.C.R. 649. - I disagree. In this case, unlike Ex parte Bruce, which falls within the second category, the plaintiff is not making any complaint about disciplinary proceedings. He is seeking declarations as to the terms of his employment and a sum which he alleges is due for services rendered. If those claims have any merit they fall within the first category set out above. They are private law claims which require private rights to support them. Mr. Tabachnik firmly disavowed any suggestion that any public law claim is being advanced by the plaintiff. Whether or not he is an employee of the Crown or has a contract of service, or holds an office under the Crown, he is entitled to bring private law proceedings if he has reasonable grounds for contending that his private law rights have been infringed. As his claim is pleaded and advanced by Mr. Tabachnik, it is entirely unsuited to judicial review."
"While Mr. Tabachnik accepts that the plaintiff can be dismissed at pleasure because he holds an office or is employed by the Crown, this does not mean that he cannot have a private law right in relation to matters other than his dismissal. The fact that a prison officer can be dismissed at pleasure does not mean that there do not exist other terms as to his service which are contractually enforceable and in respect of which he can have a private law remedy. There is now a considerable number of dicta which indicate that it is possible for a servant of the Crown to have contractual rights. It is not necessary for me to refer to these authorities because they are all set out in Reg. v. Civil Service Appeal Board, Ex parte Bruce [1988] I.C.R. 649 and a number of them have already been referred to by Dillon L.J. In Ex parte Bruce itself Roch J. recognised that there could be terms of the appointment of a civil servant which could have legal effect. If there are
"The rights and duties are no less real or effective for the individual practitioner. Private law rights flow from the
"Since Dr. Roy's rights against the committee sound in contract, on the face of it there would appear to be no reason why he should not sue on the contract by ordinary action. Of course, as Mr. Briggs accepts, the court will not substitute its opinion for that of the committee in deciding whether Dr. Roy did devote a substantial amount of time to general practice. What the court can do is to decide whether the committee, in forming its opinion, did so on an incorrect view of the law and, if so, remit the question to the committee for reconsideration."
"This court accepted that his Terms of Tenure were determined by statute but nevertheless held that he was seeking to enforce a private contractual right under his contract of employment so that judicial review was inappropriate."
"I would add that even if there were an element of public duty in the formation by the committee of its opinion under paragraph 12.1 of the Statement of Fees and Allowances, this would not be sufficient to prevent Dr. Roy enforcing his private (contractual) rights by ordinary action - see O'Reilly v. Mackman [1983] 2 A,C. 237, per Lord Diplock at p. 285: Gillick v. West Norfolk and Wisbech A.H.A. [1986] A.C. 112 per Lord Fraser of Tullybelton at p. 163 and per Lord Scarman at p. 178."
"In his argument on behalf of the committee Mr. Greening accepted that in general the contract between the committee and the practitioner gives rise to private law rights and duties. But he nevertheless submitted that the committee's duty to form an opinion under paragraph 12.1( b ) of the Statement of Fees and Allowances is a public law duty which can only be enforced or controlled in proceedings for judicial review. For my part, I would reject that submission on the simple ground that the mutual rights and duties under a contract of those who are the parties to it, whether they be public bodies or private individuals, exist, and can only exist, in the field of private law. Although a public body which carries out a duty imposed on it by contract can often be said to be performing a public duty, it is not a 'public law' duty for the purposes of the classification which is in point.
"The duty imposed on the committee by paragraph 12.1 of the Statement of Fees and Allowances is to form an opinion as to whether the practitioner is devoting a substantial amount of time to general practice under the National Health Service and to give a decision accordingly. If that duty is not properly discharged, the practitioner's remedies are a declaration that the decision is of no effect, an order setting it aside and, if appropriate, an injunction directing the committee to reconsider the matter and form a fresh opinion on a correct basis. It can certainly be said that these remedies are suggestive of proceedings for judicial review. But they are equally available under the law of contract and Mr. Greening did not argue to the contrary. Moreover, the great majority of the rights and duties under the contract, for example the duty to pay and the right to receive the basic practice allowance once the necessary opinion has been formed, can only exist in the field of private law. If Mr. Greening's argument is correct, difficult questions may arise as to whether particular rights and duties must be protected and enforced by the one procedure or the other. On practical grounds no less than on principle there is everything to be said for the view that private law applies throughout.
"In order that there may be no doubt about the matter, I will add that if a practitioner wishes to question an initial decision by the committee not to accept his application to be included on their list of doctors, he must in that case take proceedings for judicial review. At that stage no contract has come into existence and the practitioner's only right is a public law right to have his application properly considered. There is the same two-stage process as there was in Cocks v. Thanet District Council[1983] 2 AC 286 , albeit that there the private law rights and duties which arose at the second stage were statutory and not contractual. At p. 292H Lord Bridge of Harwich said:
'Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty.'
"Had the FPC at the outset declined to include Dr. Roy's name on the medical list, Dr. Roy would have had no contractual remedy, but he could have tested the lawfulness of the decision of the FPC by seeking judicial review. At that stage, he had a public law right to have his application considered by the FPC in accordance with the law. But once a contract came into existence between the FPC and Dr. Roy, rights and duties were created in the field of private law."
"This distinction between public law duties, rights and remedies on the one hand and private law duties, rights and remedies on the other hand was explained by Lord Bridge of Harwich in Cocks v. Thanet District Council [1983] 2 A.C. 286 in a well-known passage at pp. 292-293 in relation to the several functions of a housing authority under what is now partIII of the Housing Act 1985 . In the present case, the public law decision of the FPC to include Dr. Roy's name on the medical list brought into existence private law rights and duties. These duties included a duty imposed on the FPC to consider fairly any issues which might arise for determining whether Dr. Roy was eligible for the full rate