Difficult divide: when public lawyers go private

Judicial review is concerned with the improper exercise of public powers and duties. However, with the
trend towards public functions being contracted out to the private sector and public bodies exercising many
private functions in which they can sue or be sued, public lawyers increasingly need to know when to bring a claim
in either law.

Correctly identifying whether something was a private or public act used to be critical as cases could be struck out for using the wrong procedure. In O’Reilly v Mackman, the House of Lords stressed the rigid divide.

The general rule was that it would be contrary to public policy, and an abuse of process, to permit a person who was entitled to protection under public law to proceed by way of an ordinary private law action against a public law body.

The concern was that claimants would use private law to circumvent the limitation period and permission stage
in judicial review.

However, since the CPR
54.20 came in, which confers
a comprehensive power to transfer cases in and out of
the Administrative Court, the consequences of choosing
the wrong forum have become less significant. The courts generally dislike dealing with arid and costly procedural disputes about the correct
form of proceedings and have embraced the CPR’s flexibility.

Human rights

Despite this, it is still essential to be aware of the distinction between private and public law rights and obligations. Whether your client should bring a public or private law action depends on the decision under challenge and the remedy they are seeking.

If your client wants a decision quashed or a prohibitory or mandatory order, judicial review is the only option. If all your client wants is damages, though, judicial review is not permitted unless the application is under the Human Rights Act 1998.

Where clients seek a mixture of public and private remedies, judicial review can seem attractive as the permission stage may provide an early indication of the merits of the claim and the procedure is relatively streamlined.

Judicial review is a good way
to explore a point of law and legal aid may be more readily available where the lawfulness of a public body’s actions are in dispute.

However, the courts are prepared to strike out claims where it is clear that judicial review or private law has been chosen to gain a tactical advantage. The courts have made it clear that it is a remedy of last resort. A claimant cannot use judicial review to enforce purely private law rights against a public body. Simply because an issue of public importance is involved is not a good enough reason (see Sher v Chief Constable of Greater Manchester [2011] 2 All ER 364 at 65).

Human rights claims can be brought either by way of judicial review or an action in the county or High Court. Where the cases involve complex factual disputes it may be best to proceed by
way of a private law action.

SJ

Sarah Sackman is a barrister practising from Francis Taylor Building