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2 A.C.

[HOUSE OF LORDS]

O'REILLY AND OTHERS

APPELLANTS

AND

MACKMAN AND OTHERS

RESPONDENTS

[CONJOINED APPEALS]

1982 Feb. 25; March 5

Peter Pain J.

1982 April 6, 7, 20; June 30

Lord Denning M.R., Ackner and O'Connor L.JJ.

1982 Oct. 11, 12, 13; Nov. 25

Lord Diplock, Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Bridge of Harwich and Lord Brightman

High Court - Procedure - Declaratory relief - Prisoners' claims against prison visitors - Proceedings by writ and originating summons - Whether judicial review only remedy - Whether claims abuse of process of court - Supreme Court Act 1981 (c. 54), s. 31 (1) (2) - R.S.C., Ord. 53, r. 1 (1) (2)

Judicial Review - Certiorari - Prison's board of visitors - Prisoners' claim against prison visitors - Whether judicial review only remedy - Supreme Court Act 1981, s. 31 (1) (2) - R.S.C., Ord. 53, r. 1 (1) (2)

The four plaintiffs, prisoners in Hull Prison, were charged with disciplinary offences before the board of visitors to the prison. In the case of each plaintiff the board held an inquiry found the charges proved and imposed penalties. Three of the plaintiffs brought actions by writ in the Queen's Bench

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Division of the High Court against the board alleging that it had acted in breach of the Prison Rules and the rules of natural justice and claiming a declaration that the board's findings against them and the penalties awarded were void and of no effect. The fourth plaintiff started proceedings by originating summons in the Chancery Division against the Home Office and the board of visitors alleging bias by a member of the board and claiming a declaration that the board's adjudication was void for want of natural justice. In all four cases the defendants applied to strike out the proceedings. Peter Pain J. dismissed the applications. The Court of Appeal reversed that decision and struck out the proceedings on the ground that they were an abuse of the process of the court and that the plaintiffs' only proper remedy was by way of judicial review under R.S.C., Ord. 53.

On the plaintiffs' appeal to the House of Lords with leave of the Court of Appeal:-

Held dismissing the appeals, that since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of visitors' adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals (post, pp. 274H - 275A, 285D-E,G-H, 286A-C).

Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, C.A. approved.

Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147, H.L.(E.) considered.

Per curiam. Whatever may have been the position before the rule was altered, in all proceedings for judicial review that have been started since 1977 the grant of leave to cross-examine deponents on applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires (post, pp. 282G - 283A).

Dictum of Geoffrey Lane L.J. in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2)[1979] 1 W.L.R. 1401, 1410, D.C. explained.

Decision of the Court of Appeal, post, p. 250F et seq.; [1982] 3 W.L.R. 604; [1982] 3 All E.R. 680 affirmed.

The following cases are referred to in the opinion of Lord Diplock:

Anisminic Ltd v. Foreign Compensation Commission [1968] 2 Q.B. 862; [1967] 3 W.L.R. 382; [1967] 2 All E.R. 986, C.A.; [1969] 2 A.C. 147, [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).

Cocks v. Thanet District Council [1983] 2 A.C. 286; [1982] 3 W.L.R. 1121; [1982] 3 All E.R. 1135, H.L.(E.).

George v. Secretary of State for the Environment (1979) 77 L.G.R. 689, C.A.

Edwards v. Bairstow [1956] A.C. 14; [1955] 3 W.L.R. 410; [1955] 3 All E.R. 48, H.L.(E.).

Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.).

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Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government[1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.(E.).

Racecourse Betting Control Board v. Secretary of State for Air [1944] Ch. 114; [1944] 1 All E.R. 60, C.A.

Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425; [1979] 2 W.L.R. 42; [1979] 1 All E.R. 701, C.A.

Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2)[1979] 1 W.L.R. 1401; [1979] 3 All E.R. 545, D.C.

Reg. v. Stokesley, Yorkshire Justices, Ex parte Bartram [1956] 1 W.L.R. 254; [1956] 1 All E.R. 563, D.C.

Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw[1951] 1 K.B. 711; [1951] 1 All E.R. 268, D.C.; [1952] 1 K.B. 338; [1952] 1 All E.R. 122, C.A.

Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171, C.A.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Vine v. National Dock Labour Board [1957] A.C. 488; [1957] 2 W.L.R. 106; [1956] 3 All E.R. 939, H.L.(E.).

The following additional cases were cited in argument in the House of Lords:

Attorney-General v. British Broadcasting Corporation [1981] A.C. 303; [1980] 3 W.L.R. 109; [1980] 3 All E.R. 161, H.L.(E.).

Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801, C.A. and H.L.(E.).

Company, In re A (sub nom. Racal Communications Ltd., In re) [1981] A.C. 374; [1980] 3 W.L.R. 181; [1980] 2 All E.R. 634, H.L.(E.).

De Falco v. Crawley Borough Council [1980] Q.B. 460; [1980] 2 W.L.R. 664; [1980] 1 All E.R. 913, C.A.

Din (Taj) v. Wandsworth London Borough Council [1983] 1 A.C. 657; [1981] 3 W.L.R. 918; [1981] 3 All E.R. 881, H.L.(E.).

Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386; [1980] 3 All E.R. 594.

Holland v. Phipp [1982] 1 W.L.R. 1150, D.C.

Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529; [1981] 3 W.L.R. 906; [1981] 3 All E.R. 727, H.L.(E.).

Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329; [1952] 1 All E.R. 1175, C.A.

Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754; [1981] 2 All E.R. 842, C.A.

Reg. v. Board of Visitors of Albany Prison, Ex parte Fell (unreported), July 8, 1981; November 11, 1981; Court of Appeal (Civil Division) Transcript No. 539 of 1981, C.A.

Reg. v. Board of Visitors of Hull Prison, Ex parte Coster (unreported), November 5, 1980, D.C.

Reg. v. Board of visitors of Nottingham Prison, Ex parte Moseley, The Times, January 23, 1981.

Reg. v. Governor of Brixton Prison, Ex parte Ahsan [1969] 2 Q.B. 222; [1969] 2 W.L.R. 618; [1969] 2 All E.R. 347, D.C.

Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720; [1974] 2 W.L.R. 805; [1974] 2 All E.R. 643, D.C.

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Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93, H.L.(E.).

Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952; [1980] 2 W.L.R. 1; [1979] 3 All E.R. 385; [1980] 1 All E.R. 80, D.C., C.A. and H.L.(E.).

Sirros v. Moore [1975] Q.B. 118; [1974] 3 W.L.R. 459; [1974] 3 All E.R. 776, C.A.

United Kingdom Association of Professional Engineers v. Advisory, Conciliation and Arbitration Service [1981] A.C. 424; [1980] 2 W.L.R. 254; [1980] I.C.R. 201; [1980] 1 All E.R. 612, H.L.(E.).

Uppal v. Home Office, The Times, October 21, 1978, Sir Robert Megarry V.-C.; The Times, November 11, 1978; Court of Appeal (Civil Division) Transcript No. 719 of 1978, C.A.

The following cases are referred to in the judgments in the Court of Appeal:

Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).

Arenson v. Arenson [1977] A.C. 405; [1975] 3 W.L.R. 815; [1975] 3 All E.R. 901, H.L.(E.).

Barnard v. National Dock Labour Board [1953] 2 Q.B. 18; [1953] 2 W.L.R. 995; [1953] 1 All E.R. 1113, C.A.

Becker v. Home Office [1972] 2 Q.B. 407; [1972] 2 W.L.R. 1193; [1972] 2 All E.R. 676, C.A.

Din (Taj) v. Wandsworth London Borough Council [1983] 1 A.C. 657; [1981] 3 W.L.R. 918; [1981] 3 All E.R. 881, H.L.(E.).

Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004; [1970] 2 W.L.R. 1140; [1970] 2 All E.R. 294, H.L.(E.).

Dyson v. Attorney-General [1911] 1 K.B. 410, C.A.

George v. Secretary of State for the Environment (1979) 77 L.G.R. 689, C.A.

Grunwick Processing Laboratories Ltd. v. Advisory, Conciliation and Arbitration Services [1978] A.C. 655; [1978] 2 W.L.R. 277; [1978] I.C.R. 231; [1978] 1 All E.R. 338, H.L.(E.).

Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386; [1980] 3 All E.R. 594.

Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529; [1981] 3 W.L.R. 906; [1981] 3 All E.R. 727, H.L.(E.).

Lambert v. Ealing London Borough Council [1982] 1 W.L.R. 550; [1982] 2 All E.R. 394, C.A.

Lyme Regis Corporation v. Henley (1834) 8 Bli.N.S. 690.

Meade v. Haringey London Borough Council [1979] 1 W.L.R. 637; [1979] I.C.R. 494; [1979] 2 All E.R. 1016, C.A.

Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754; [1981] 2 All E.R. 842, C.A.

Prescott v. Birmingham Corporation [1955] Ch. 210; [1954] 3 W.L.R. 990; [1954] 3 All E.R. 698, C.A.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government[1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.(E.).

Reg. v. Aston University Senate, Ex parte Roffey [1969] 2 Q.B. 538; [1969] 2 W.L.R. 1418; [1969] 2 All E.R. 964, D.C.

Reg. v. Board of Visitors of Albany Prison, Ex parte Fell (unreported), July 8, 1981, C.A.

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Reg. v. Board of Visitors of Hull Prison, Ex parte st. Germain [1979] Q.B. 425; [1979] 2 W.L.R. 42; [1979] 1 All E.R. 701, C.A.

Reg. v. Bolton (1841) 1 Q.B. 66.

Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R. 550; [1976] 3 All E.R. 184, C.A.

Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93, H.L.(E.).

Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd.[1980] A.C. 952; [1980] 2 W.L.R. 1; [1980] 1 All E.R. 80, H.L.(E.).

Reg. v. Sheffield Crown Court, Ex parte Brownlow [1980] Q.B. 530; [1980] 2 W.L.R. 892; [1980] 2 All E.R. 444, C.A.

Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, P.C.

Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw[1952] 1 K.B. 338; [1952] 1 All E.R. 122, C.A.

Rex v. Speyer [1916] 1 K.B. 595.

Sirros v. Moore [1975] Q.B. 118; [1974] 3 W.L.R. 459; [1974] 3 All E.R. 776, C.A.

Thornton v. Kirklees Metropolitan Borough Council [1979] Q.B. 626; [1979] 3 W.L.R. 1; [1979] 2 All E.R. 349, C.A.

Uppal v. Home Office, The Times, October 21, 1978, Sir Robert Megarry V.-C.; The Times, November 11, 1978; Court of Appeal (Civil Division) Transcript No. 719 of 1978, C.A.

The following additional cases were cited in argument in the Court of Appeal:

Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801, C.A.

Bousfield v. North Yorkshire County Council, The Times, March 4, 1982.

Congreve v. Home Office [1976] Q.B. 629; [1976] 2 W.L.R. 291; [1976] 1 All E.R. 697, C.A.

De Falco v. Crawley Borough Council [1980] Q.B. 460; [1980] 2 W.L.R. 664; [1980] 1 All E.R. 913, C.A.

Gouriet v. Union of Post Office Workers [1978] A.C. 435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, H.L.(E.).

Imperial Tobacco Ltd. v. Attorney-General [1981] A.C. 718; [1980] 2 W.L.R. 466; [1980] 1 All E.R. 866, H.L.(E.).

John v. Rees [1970] Ch. 345; [1969] 2 W.L.R. 1294; [1969] 2 All E.R. 274.

Mohamed v. Secretary of State for the Home Department (unreported), January 30, 1981, Court of Appeal (Civil Division) Transcript No. 215 of 1981, C.A.

Raymond v. Honey [1982] 2 W.L.R. 465; [1982] 1 All E.R. 756, H.L.(E.).

Reg. v. Barnet London Borough Council, Ex parte Nilish Shah [1982] Q.B. 688; [1982] 2 W.L.R. 474; [1982] 1 All E.R. 698, C.A.

Reg. v. Board of Visitors of Hull Prison, Ex parte Coster (unreported), November 5, 1980, D.C.

Reg. v. Board of Visitors of Hull Prison, Ex parte Luciano (unreported), December 13, 1979, D.C.

Reg. v. Board of Visitors of Nottingham Prison, Ex parte Moseley, The Times. January 23, 1981.

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Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720; [1974] 2 W.L.R. 805; [1974] 2 All E.R. 643, D.C.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A.C. 800; [1981] 2 W.L.R. 279; [1981] 1 All E.R. 545, C.A. and H.L.(E.).

United Kingdom Association of Professional Engineers v. Advisory, Conciliation and Arbitration Service [1981] A.C. 424, [1980] 2 W.L.R. 254; [1980] I.C.R. 201; [1980] 1 All E.R. 612, H.L.(E.).

The following cases are referred to in the judgment of Peter Pain J.:

Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).

Bousfield v. North Yorkshire County Council, The Times, March 4, 1982.

De Falco v. Crawley Borough Council [1980] Q.B. 460; [1980] 2 W.L.R. 664; [1980] 1 All E.R. 913, C.A.

Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386; [1980] 3 All E.R. 594.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government[1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.(E.).

Raymond v. Honey [1983] 1 A.C. 1; [1982] 2 W.L.R. 465; [1982] 1 All E.R. 756, H.L.(E.).

Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425; [1979] 2 W.L.R. 42; [1979] 1 All E.R. 701, C.A.

Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952; [1980] 2 W.L.R. 1; [1979] 3 All E.R. 385; [1980] 1 All E.R. 80, D.C., C.A. and H.L.(E.).

Uppal v. Home Office, The Times, October 21, 1978, Sir Robert Megarry V.-C.; The Times, November 11, 1978, Court of Appeal (Civil Division) Transcript No. 719 of 1978, C.A.

The following additional cases, supplied by courtesy of counsel, were cited in argument before Peter Pain J.

Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd.[1974] Q.B. 720; [1974] 2 W.L.R. 805; [1974] 2 All E.R. 643, D.C.

Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A.C. 800; [1981] 2 W.L.R. 279; [1981] 1 All E.R. 545, C.A. and H.L.(E.).

United Kingdom Association of Professional Engineers v. Advisory, Conciliation and Arbitration Service [1979] 1 W.L.R. 570; [1979] I.C.R. 303; [1979] 2 All E.R. 478, C.A.; [1981] A.C. 424; [1980] 2 W.L.R. 254; [1980] I.C.R. 201; [1980] 1 All E.R. 612, H.L.(E.).

SUMMONSES

By three writs and statements of claim in the Queen's Bench Division, the first three plaintiffs, Christopher Noel O'Reilly, Alexander Vernon John Derbyshire and David Martin Dougan, who were former prisoners at Hull Prison, claimed declarations against the defendants, Mr. E. W. Mackman, Mr. J. A. Rundle and Mr. C. Brady, of the board of visitors of H.M. Prison

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Hull, that the findings of and awards by the board were void and of no effect. They alleged, inter alia, that they were not given the opportunity to call witnesses in their defence and the board had acted in breach of the Prison Rules 1964 and/or the requirements of fairness and/or the rules of natural justice. The fourth plaintiff, Anthony Millbanks, who was also a former prisoner at Hull Prison, sought by originating summons a declaration against the defendants, the Home Office and the Board of Visitors of Hull Prison that the adjudication made against him by the board was void for want of natural justice, on the ground that the chairman of the board was hostile towards him.

By four summonses which were heard in chambers, the board of visitors and the Home Office sought orders that the statements of claim and the originating summons be struck out on the ground that they were an abuse of the process of the court and that the plaintiffs' actions be stayed or dismissed.

The facts are stated in the judgment of Peter Pain J. which was given in open court and in the judgments of the Court of Appeal (post, p. 250F) and in the opinion of Lord Diplock, post, p. 273G.

David Pannick for the plaintiffs, Derbyshire, Dougan and O'Reilly.

Stephen Sedley for the plaintiff, Millbanks.

Simon D. Brown for the board of visitors and the Home Office.

Cur. adv. vult.

March 5. PETER PAIN J. read the following judgment. I have before me four matters. Three of them are actions in each of which a former prisoner of Hull Prison is suing members of the board of visitors at the prison. In each case the plaintiff appeared before the board of visitors in respect of charges alleging offences against discipline in the riots at Hull Prison in December 1976. In each case the allegation is that the board acted in breach of the Prison Rules 1964 (S.I. 1964 No. 388) and in breach of natural justice, and a declaration is sought that the findings against the plaintiffs and the penalties awarded were void and of no effect. The fourth matter is an originating summons in which the plaintiff seeks a declaration that the adjudication made against him by the board of visitors at Hull Prison in 1979 is void for want of natural justice. This relates to disciplinary proceedings arising out of a riot at Hull Prison in April 1979 and the basic allegation is that the chairman of the board of visitors was biased.

As questions of some constitutional importance are in issue and as it is probable that the unsuccessful party will appeal, I had thought it right to adjourn the matters into open court for formal judgment. In all matters Mr. Brown, on behalf of the defendants, has sought an order that the statement of claim or originating summons be struck out on the grounds that (1) it discloses no reasonable cause of action and (2) that it is an abuse of the process of the court. For the purposes of these proceedings all four matters fall to be dealt within exactly the same way.

At the beginning of the proceedings Mr. Brown agreed that it could not be said that no reasonable cause of action was disclosed and the only matter I had to consider was whether there was an abuse of the process of the

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court. No criticism was made of the way in which each of the plaintiffs has conducted his case save for the contention that to bring these proceedings by way of writ and/or originating summons, instead of applying under R.S.C., Ord. 53 for a judicial review is an abuse of the process.

The decision of the Court of Appeal in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, made it clear for the first time that an allegation that disciplinary proceedings before the board of prison visitors had not been conducted in accordance with law was justiciable. This decision inevitably leads to further problems as to how such proceedings should be handled by the court.

The cases before me are clearly on all fours with Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386 in which Goulding J. decided that such an action should be struck out as being an abuse of the process of the court. The problem was neatly defined by Goulding J. in this way, at p. 1391:

"I think I have to ask myself in the end this question: is the impropriety of using the procedure of an action in the present case so gross that the court, in exercising its undoubted power to regulate its own business and avoid abuse of its process, can stop an action that is within the court's jurisdiction to determine and that might conceivably succeed, stop it at the earliest stage, when the issues have not yet been defined by pleadings, nor elucidated by particulars or discovery, simply in order to force the plaintiff to use the proper machinery in the light of the Rules of the Supreme Court considered as a whole?"

After careful consideration of the authorities and in particular the unreported case of Uppal v. Home Office, The Times, October 21, 1978, and November 11, 1978, and a cogent exposition of the practical difficulties which might flow if the plaintiff were permitted to proceed by way of writ, Goulding J. said, at p. 1395H: "... judicial discipline requires me to follow the view of the whole Court of Appeal in that case" - and he was referring to Uppal v. Home Office - "whether technically binding or not." I trust that I shall not be found lacking in judicial discipline if I take the view that the authorities constrain me to the opposite conclusion.

In Uppal v. Home Office, Sir Robert Megarry V.-C., at first instance said (see Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386, 1394):

"'First, Mr. Gibson'" - that was counsel for the defendants - "'said that these were the wrong proceedings in the wrong division: the plaintiffs ought to have sought some prerogative order by way of judicial review in the Queen's Bench, and so no declaration should be granted. I do not accept this; nor do I accept Mr. Gibson's watereddown version, seeking that I should make some obiter pronouncement that such cases ought to be brought in the Queen's Bench. Where two or more different types of proceedings are possible in the same court (and of course the Chancery Division and the Queen's Bench Division are both parts of the High Court) then I do not see why the plaintiffs should not be free to bring whatever type of proceeding they choose. I readily accept that the Queen's Bench Division has had a far greater experience of immigration cases than the Chancery Division has had:

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but that cannot require a plaintiff to proceed for judicial review in the Queen's Bench if he wishes to proceed for a declaration in the Chancery Division. I do not think the Chancery Division can be regarded as being avid for this jurisdiction: but it would be wrong to turn away or discourage a plaintiff who elects to bring one form of proceedings instead of the other.'"

When the matter came before the Court of Appeal the plaintiffs indicated by their counsel that they wished to abandon their appeal. I have had read to me a short transcript of the discussion in the Court of Appeal in the course of which Roskill L.J. expressed concern about the Vice-Chancellor's views but there was no argument as to whether they were correct or not. The transcript in fact occupies only one and a half pages. After that Roskill L.J. made the following observations [1980] 1 W.L.R. 1386, 1394-1395:

"'With the greatest respect to Sir Robert Megarry V.-C., I find myself unable to agree with the latter part of that passage. There is no doubt - and Mr. Gibson before us has not sought to say otherwise - that in theory the Chancery Division has jurisdiction to entertain an application of this kind. But as I said a moment ago this application is in principle indistinguishable from an application for judicial review; and, where an application for judicial review is sought, then as R.S.C., Ord. 53, r. 3 (1), provides, that application must be made to the Divisional Court. I feel bound to say that I find it not a little surprising that this form of procedure has been chosen rather than an application to the Divisional Court for judicial review. It is the Divisional Court which is equipped by reason of its experience, expertise and long practice to deal with these matters and to deal with them expeditiously; and I express the hope that in future it is the Divisional Court to which this type of problem will be submitted and that the temptation to deal with immigration problems by way of an originating summons in proceedings for a declaration in the Chancery Division will be avoided.'"

Then Roskill L.J. said further, at p. 1395:

"'There is, as I said a moment ago, and Mr. Gibson has not argued otherwise, jurisdiction in the Chancery Division to hear an application of this kind, but it would be wrong that this procedure should be adopted in order to by-pass the need for getting leave from the Divisional Court to move for the relevant order where what in truth is sought is judicial review. As this is a matter of some general importance, I venture to make that criticism of what Sir Robert Megarry V.-C. said with the greatest respect to him.'"

It appears to me that these observations were made obiter. I take it that the court was indicating that had the appeal been pursued it would in any event have been dismissed on the ground that the Court of Appeal thought the plaintiffs should have proceeded by way of R.S.C., Ord. 53 and that it therefore exercised its discretion to refuse a declaration in an action begun by writ. Since a declaration is an equitable remedy it is always open to the court to exercise a judicial discretion to refuse it.

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But to exercise discretion in this way at trial is very different from denying a plaintiff the opportunity of pursuing his action at all on the ground that he has been guilty of an abuse of the process of the court. I do not read Uppal v. Home Office as authority for the proposition that to sue by writ for a declaration is an abuse of the process where the alternative of applying under R.S.C., Ord. 53 for judicial review is available, but merely as authority that a plaintiff's failure to proceed under R.S.C., Ord. 53 where such procedure is plainly appropriate is one of the matters that may be weighed in the scales against the plaintiff when the court is deciding how to exercise its discretion.

Prior to the institution of the application for judicial review there was a long line of authority to the effect that a plaintiff could choose whether to apply for a prerogative writ or to sue for a declaration. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 290 Lord Goddard said (again quoting from the report of Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386, 1393):

"'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.'"

In Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, the principal remedy sought by the plaintiffs was a declaration that certain determinations by the defendants were void. They might have applied for an order of certiorari. Lord Reid at p. 169E, Lord Pearce at p. 196C and Lord Wilberforce at p. 214G made it clear in terms that the plaintiff was entitled to proceed in the way he had and indeed Lord Wilberforce took the view that the remedy the plaintiffs sought was the most suitable in the circumstances of the case.

In 1977, R.S.C., Ord. 53 was substantially amended to provide for the application of judicial review and I have to consider whether the changes made affect the plaintiff's right of choice. In Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952, Lord Scarman said this about the new procedure, at pp. 1025-1026:

"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. But the procedural reforms introduced are significant and valuable. Judicial review is now the procedure for obtaining relief by way of prerogative order, i.e. mandamus, prohibition or certiorari. But it is not confined to such relief: an applicant may now obtain a declaration or injunction in any case where in the opinion of the court 'it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.' Further, on an application, the court may award damages, provided that the court is satisfied that damages could have been awarded, had the applicants proceeded by action.

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The rule also makes available at the court's discretion discovery, interrogatories, and cross-examination of deponents. And, where the relief sought is a declaration, an injunction, or damages but the court considers it should not be granted on an application for judicial review, the court may order the proceedings to continue as if they had been begun by writ.

"Thus the application for judicial review, where a declaration, an injunction, or damages are sought, is a summary way of obtaining a remedy which could be obtained at trial in an action begun by writ: and it is available only where in all the circumstances it is just and convenient. If issues of fact, or law and fact, are raised which it is neither just nor convenient to decide without the full trial process, the court may dismiss the application or order, in effect, a trial."

Lord Diplock also made these observations, at p. 1013:

"In the same way, it would not in my view be open to a person claiming to have been injured by the purported but unlawful exercise by a public officer of statutory powers, to circumvent the public interest immunity against premature disclosure of the grounds on which the officer's exercise of the power was based, by applying under R.S.C., Ord. 53 for judicial review instead of bringing a civil action. Order 53 amends and simplifies the procedure for obtaining on a single application the kind of relief that was formerly obtainable only in an ordinary civil action against a public officer or authority and the kind of relief that was formerly obtainable only upon an application for a prerogative order of mandamus, prohibition or certiorari; but it does not alter the differing roles played by the court in applications for these two categories of relief."

These observations seem to me to point clearly to the conclusion that their Lordships thought that the plaintiff's choice remained as before. The matter was dealt with explicitly by the Court of Appeal in De Falco v. Crawley Borough Council [1980] Q.B. 460. Although the plaintiffs in that case were represented by the same counsel as the plaintiffs in Uppal v. Home Office, it does not appear from the report that the views of the court in Uppal v. Home Office were brought to the attention of the court. Lord Denning M.R. said, at p. 476:

"During the hearing, a point was raised about the procedure adopted by the applicants. They issued writs in the High Court claiming declarations and an injunction. It was suggested that they should have applied for judicial review: because that was the more appropriate machinery.

"Now the interesting thing is that this new Act, the Housing (Homeless Persons) Act 1977, contains nothing about remedies. It does not say what is to be done if the local authority fails to perform any of the duties imposed by the statute upon it. It has been held by this court that if the council fails to provide accommodation as required by section 3 (4), the applicant can claim damages in the county court: see Thornton v. Kirklees Metropolitan Borough Council[1979] Q.B. 626. I am very ready to follow that decision and indeed

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to carry it further: because this is a statute which is passed for the protection of private persons - in their capacity as private persons. It is not passed for the benefit of the public at large. In such a case it is well settled that, if a public authority fails to perform its statutory duty, the person or persons concerned can bring a civil action for damages or an injunction:" - and he refers to various authorities. "No doubt such a person could, at his option, bring proceedings for judicial review under the new R.S.C., Ord. 53. In those proceedings he could get a declaration and an injunction equally well. He could get interim relief also. So the applicant has an option. He can either go by action in the High Court or county court: or by application for judicial review."

The other judgments do not deal expressly with the point but I feel it must follow by implication that the other lords justices shared Lord Denning M.R.'s view. Goulding J. in Heywood v. Hull Prison Visitors[1980] 1 W.L.R. 1386 made the following observation on the De Falcodecision, at pp. 1392-1393:

"That conclusion, that the plaintiffs in the De Falco case had rightly proceeded by way of action for declarations and an injunction, was shared by the other two members of the Court of Appeal who decided the case ... It is only, I think, of limited assistance to the plaintiff in the present case because Lord Denning founded his observations on the hypothesis that the proceedings with which he was concerned were for the enforcement of a statute passed for the protection of private persons, and not passed for the benefit of the public at large. Also, I think the Court of Appeal, in considering that the applicant had an option, were not concerned how far in the preliminary stages of the proceedings the court can interfere with initial freedom of choice. So far as they go, the observations in the De Falco case reinforce the suggestion in Professor de Smith's book that it ought not to make any difference to judges through which door the petitioner enters the forum."

It seems to me that the provisions of the Prison Rules 1964 which are made under the provisions of the Prison Act 1952 are for the protection of private persons just as much as the remedies under the Housing (Homeless Persons) Act 1977. A person who wishes to bring proceedings for breach of statutory duty has to show that (a) the matter is justifiable, and (b) he has locus standi. He will have locus standi if the statutory duty was imposed for the benefit of a limited class of people of whom the plaintiff is one and there is no other remedy for its breach. I hold that the plaintiff is a member of such a limited class, that is to say convicts who appear before the board of prison visitors on disciplinary charges. There is no right of appeal on the decision of the board of visitors so the plaintiff has no right to have their decision reviewed. It therefore seems to me that the weight of authority is clearly against striking out the plaintiff's case.

It might be thought that the plaintiffs have made their choice of procedural route capriciously. This is not so. I was told by their counsel

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that they anticipate in each case that there will be a substantial dispute as to fact and they have therefore chosen a route that provides for oral evidence as a matter of course rather than a route in which the evidence is nearly always taken on affidavit. This is clearly a rational choice. It is not for me to say whether it is a wise choice.

Goulding J. made this observation in the Heywood case [1980] 1 W.L.R. 1386, 1391:

"in proceedings seeking a review of a judicial or quasi-judicial determination, the machinery of an action as to discovery and giving of evidence may result in placing members of the tribunal concerned in a position not really compatible with the free and proper discharge of their public functions, or at least in attempts to put them in that position. In the present case counsel for the plaintiff has contemplated the possibility (though he by no means says it will be a necessity) of cross-examining members of the board of visitors. In principle, that seems to me an undesirable way of dealing with such questions.

I do not feel that I ought to allow that consideration to influence my decision, and indeed with the amendments that have been made under R.S.C., Ord. 53, it is plain that one might get discovery, cross-examination, and so on, even in proceedings under R.S.C., Ord. 53, though no doubt the court would be more reluctant to grant them. It may well be that following the decision in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, the boards of visitors will require some special protection. If this be so then it should be provided for in a change in the substantive law or in the rules of the court. I do not think it is for individual judges to effect such a change by striking out the case of a plaintiff who does not proceed by R.S.C., Ord. 53. The law recognises no limitation on the right of a convict or ex-convict to sue for what he conceives to be his rights, and an example of that is afforded by Raymond v. Honey [1982] 2 W.L.R. 465, which is a decision of the House of Lords reported in The Times of today's date, March 5,1982.

Mr. Brown contended that, since the appropriate remedy here would be certiorari to quash, the appropriate procedure is by way of judicial review. The answer to that lies in Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147, to which I have already referred.

For the purposes of completeness I will add that since this matter was argued before me the decision of Dillon J. in Bousfield v. North Yorkshire County Council, has been reported in The Times, March 4, 1982. In that case Dillon J. held that where it was claimed that a decision of an inferior tribunal ought to be quashed for error on the face of the record the appropriate procedure was by way of an application for judicial review before the Queen's Bench Divisonal Court; he struck out an originating summons seeking a declaration as to such a decision as being an abuse of the process of the court. The judge made it plain in his judgment that there was a distinction to be drawn between a case of error of law on the face of the record and a case where it was contended that the proceedings before the inferior tribunal were a nullity. I take the view therefore that his decision has no bearing on the matters which are before me.

With the greatest respect to Goulding J., I feel that the overwhelming

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weight of authority compels me to differ from him. I can well understand the force of the practical considerations which he sets out so cogently but I do not feel myself constrained by the decision in Uppal v. Home Officein the way that he felt himself to be. Once that constraint disappears, the authorities are all one way. The law offers the plaintiff a choice. If it is inconvenient for the choice to be exercised in a particular way, then the choice should be withdrawn or limited. But while the choice continues to exist it seems to me to be an abuse of language to say that the plaintiff is abusing the process of the court because he exercises the choice in the way he thinks best in his own interest.

All the summonses are dismissed.

Summonses dismissed.

Plaintiffs' costs in any event.

Leave to appeal.

Solicitors: Mincoff Science & Gold, Newcastle-upon-Tyne; Seifert Sedley & Co. for Millers, Manchester; Treasury Solicitor.

[Reported by Y. H. TAN, Barrister-at-Law.]

INTERLOCUTORY APPEAL from PETER PAIN J.

The defendants appealed against the judgment of Peter Pain J. on the grounds that the judge was wrong in law (1) in deciding that it was not an abuse of the process of the court to bring the proceedings by way of writ and by originating summons instead of under R.S.C., Ord. 53 and (2) in holding that those who wished to challenge the legal validity of adjudications of prison boards of visitors could do so at their choice by proceedings other than under R.S.C., Ord. 53.

Simon D. Brown for the defendants.

Michael Beloff Q.C. and David Pannick for the plaintiffs, O'Reilly, Derbyshire and Dougan.

Stephen Sedley for the plaintiff, Millbanks.

Cur. adv. vult.

June 30. The following judgments were read.

LORD DENNING M.R. Four men were in prison in Hull. They were all serving long sentences for serious crimes. O'Reilly is typical. He was serving 15 years for robbery. Over four days in September 1976 there was a riot in the prison, coupled with extreme violence. Men got on to the roof and stayed there day and night. They threw missiles and slates off the roof. They ransacked the canteen. They assaulted prison officers and staff. After the riot was quelled, many men were charged with offences against discipline contrary to the provisions of the Prison Rules. In each case the board of visitors held an inquiry. Take O'Reilly as an example. The board found him guilty on all charges. They ordered him to be kept in solitary confinement for 196 days and to lose remission of 510 days. Likewise with others.

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Many of the men complained about the conduct of the board of visitors. They said that the board had failed to comply with the rules of natural justice. Seven of them applied for judicial review to quash the decisions of the board. The Divisional Court held that judicial review was not available to them. The Court of Appeal reversed the Divisional Court and held that it was available: Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425. As a result there were several cases of judicial review in which some of the men succeeded in having the decisions quashed. I presume there were fresh hearings.

Ordinary writs are issued

Now these four men join in these proceedings. They are long out of time for judicial review. But they have issued ordinary writs in the High Court. They have got legal aid for the purpose. Take O'Reilly again as typical. He issued a writ on July 8, 1980. That is nearly four years since the riot took place. He has issued a writ against three gentlemen who were the board of visitors and heard his case - Mr. Mackman, Mr. Rundle and Mr. Brady. He has served with the writ a statement of claim. In it he has set out the finding and award of the board and has said:

"... the board failed to give the plaintiff an opportunity to call alibi witnesses in his defence notwithstanding that he requested them to do so and that the evidence thereof was relevant and material to his said defence."

He claims simply: "A declaration that the said finding of and award by the board was void and of no effect."

Thereupon the Treasury Solicitor applied to strike out the statement of claim on the ground that it is an abuse of the process of the court.

Now the interesting thing is this: two years ago another of these prisoners issued a similar writ and statement of claim against the board of visitors. Goulding J. struck it out: see Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386. Now this case about our four men was heard by Peter Pain J. on March 5,1982. He differed from Goulding J. and refused to strike out the statement of claim. Now there is an appeal to this court.

This looks as if it were merely a point of procedure. But it brings into play some of the fundamentals of our administrative law. I will divide my judgment into three parts. The first is concerned with an action against the board of visitors. The second is more general. It is concerned with actions against public authorities. The third part with modern machinery.

Part I

The board of visitors

It is as well to bear in mind the constitutional position of the board of visitors. It is set out in the Prison Act 1952 and the Prison Rules 1964 made thereunder. The visitors are appointed by the Secretary of State. At least two of them must be justices of the peace. When a prisoner is charged with a serious offence against discipline, the rules require the hearing to be conducted on the self-same lines as a hearing before justices.

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The accused is to be asked whether he pleads guilty or not guilty. Witnesses are called, examined and cross-examined. He makes his defence and calls his witnesses. And so forth. In all essentials, it is a judicial proceeding of the same character as a magistrates' court. The only difference is in the description of the offence and the kind of punishment.

No action lies against them

Such being the constitutional position, it is clear to my mind that the board of visitors are entitled to be protected from having actions at law brought against them. They are in the same position as magistrates. They owe a duty to the state to do their work to the best of their ability: see Arenson v. Arenson [1977] A.C. 405, 431, per Lord Kilbrandon. But this is not a duty owed by them to the parties before them. It is not a duty which a prisoner can enforce by action. Be they careless, ignorant or mistaken. Be they guilty of want of natural justice. Be they malicious or biased. Go they to sleep and do not heed the evidence. Nevertheless. no action lies against them. As I said in Sirros v. Moore [1975] Q.B. 118. 136 of any judge high or low:

"He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out."

The reason lies in public policy. No judge should be harassed by the thought that: "If I do this or that, I may be sued by this or that prisoner or this or that litigant." Rather than subject a judge to influences of that kind, the law says that no litigant can bring an action against him for anything done by him in his judicial capacity.

Nevertheless certiorari was available

This does not mean that nothing can be done by anyone. An unjust judge - of an inferior court or tribunal - is not free from control. Although he does not owe any duty to the prisoner or to the litigant, he does owe a duty to the state: and the state can call him to account. For this purpose our old books regarded the king as the state, and the state as the king. "L'Etat c'est moi," as Louis XIV said in 1655. It was for the king to call upon a judge of any inferior court and ask him to account for his actions. The king did it by the prerogative writ of certiorari. I gave its origin and described the nature of it in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338, 347 and 348. The very words "prerogative writ" show that it was issued by the royal authority of the king. No subject could issue it on his own. He had no right to issue it as of course as he could for trespass or trover. All that the subject could do was to inform the King's judges of his complaint. He could tell them about the unjust judge of any inferior court: the King's judges would then authorise the issue of the writ in the King's name.

The very titles of the proceedings show the difference. It goes from the earliest times down to the present day. When the prisoners at Hull told the judges of their complaint against the board of vistors, and they allowed certiorari to issue, it was entitled Reg. v. Board of Visitors of Hull Prison,

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Ex parte St. Germain [1979] Q.B. 425. Regina means the Queen. The Queen brought the proceedings. The title shows that the prisoners had made an ex parte application to the court: and that the court had given leave for proceedings to be brought in the Queen's name against the board of visitors. But when a prisoner sought to bring an action on his own (without the leave of the King), it was entitled Heywood v. Board of Visitors of Hull Prison. Heywood means the man Heywood. He himself brought the proceedings. The title shows that the prisoner had brought an action on his own cause, as of right, without leave, against the visitors.

No declaration against the board

In those circumstances, I see no difference between an action for damages and an action for a declaration. If a prisoner or litigant is not allowed to sue a justice of the peace for damages, neither should he be allowed to sue him for a declaration. Have you ever heard of an action against a magistrate asking for a declaration that he was biased? Or was guilty of any other kind of misconduct? I have not. Nor has anyone else. I am quite sure that no such action lies. That was the view of Lord Goddard in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 290, when he said: "no doubt there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari."

If such be true of justices of the peace, so it is of all other judges of inferior courts and of persons appointed under statute to carry out judicial duties. The like principle applies to each. No action lies. But is there a remedy by judicial review? This brings me to recent developments in administrative law.

The black-out

At one time there was a black-out of any development of administrative law. The curtains were drawn across to prevent the light coming in. The remedy of certiorari was hedged about with all sorts of technical limitations. It did not give a remedy when inferior tribunals went wrong, but only when they went outside their jurisdiction altogether. The black-out started in 1841 with Reg. v. Bolton (1841) 1 Q.B. 66 and became darkest in 1922, Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128. It was not relieved until 1952, Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338. Whilst the darkness still prevailed, we let in some light by means of a declaration. The most notable cases were Barnard v. National Dock Labour Board [1953] 2 Q.B. 18 and Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147. I sat in the preliminary hearings of both of them. We allowed each of those cases to go forward. It was because otherwise persons would be without a remedy for an injustice: see Barnard v. National Dock Labour Board [1953] 2 Q.B. 18, 43 and the Anisminic case [1969] 2 A.C. 147, 231B-C In effect it was only by leave that the action for a declaration was allowed to proceed.

Judicial review

In 1977 the black-out was lifted. It was done by R.S.C., Ord. 53. The curtains were drawn back. The light was let in. Our administrative

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law became well-organised and comprehensive. It enabled the High Court to review the decisions of all inferior courts and tribunals and to quash them when they went wrong. And what is more, it enabled the High Court to award damages and grant declarations. No longer is it necessary to bring an ordinary action to obtain damages or declarations. It can all be done by judicial review. This new remedy (by judicial review) has made the old remedy (by action at law) superfluous.

Does declaration still lie against the board?

The Law Commission in its Report on Remedies in Administrative Law in March 1976 (Law Com. No. 73, Cmnd. 6407) suggested that the new remedy by judicial review should not exclude any of the former remedies: see paragraphs 34 and 58 (a). But that suggestion does not appeal to me - at any rate so far as the remedy by action for a declaration is concerned. It was invented so as to avoid the technical limitations on certiorari. Now that those limitations have been swept away by R.S.C., Ord. 53, the remedy by an action for a declaration should be scrapped. Especially as it was contrary to principle - by which no action at law lay against an inferior court or the members thereof for anything done in their judicial capacity. The action for a declaration had many defects. It could be started, as of right, without the leave of the court. It could be started years and years after the event. It could involve long trials with discovery, cross-examination, and so forth. So many defects were present in that remedy by action that I am quite clear that now that the new procedure has been introduced, there should no longer be recourse to the remedy by action for a declaration. If a complaint is brought by ordinary writ - without leave - it can and should be struck out as an abuse of the process of the court.

Abuse of process

Some point was made about the scope of "abuse of process." Reference was made to the opening paragraph of Lord Diplock's speech in Hunter v. Chief Constable of the West Midlands Police [1981] 3 W.L.R. 906, 909. But that should not be regarded as a statutory definition. Suppose a prisoner applied under R.S.C., Ord. 53 for judicial review of the decision of a board of visitors: and the judge refused leave. It would, to my mind, be an abuse of process of the court for him to start afresh an action at law for a declaration, thereby avoiding the need for leave. It is an abuse for him to try and avoid the safeguards of Order 53 by resorting to an action at law. So also if he deliberately omits to apply under Order 53 so as to avoid the necessity of obtaining leave. Where a good and appropriate remedy is given by the procedure of the court - with safeguards against abuse - it is an abuse for a person to go by another procedure - so as to avoid the safeguards.

Part II

Public authorities

Thus far I have regarded the board of visitors as in a special category. I have treated them like justices of the peace. But, in case I am wrong

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about this, I would go on to consider them simply as a public authority who can be supervised by means of judicial review. This raises a point of much importance: does a complainant have an option? Can he go by judicial review, or by ordinary action, as he pleases?

Private law and public law

In modern times we have come to recognise two separate fields of law: one of private law, the other of public law. Private law regulates the affairs of subjects as between themselves. Public law regulates the affairs of subjects vis-à-vis public authorities. For centuries there were special remedies available in public law. They were the prerogative writs of certiorari, mandamus and prohibition. As I have shown, they were taken in the name of the sovereign against a public authority which had failed to perform its duty to the public at large or had performed it wrongly. Any subject could complain to the sovereign: and then the King's courts, at their discretion, would give him leave to issue such one of the prerogative writs as was appropriate to meet his case. But these writs, as their names show, only gave the remedies of quashing, commanding or prohibiting. They did not enable a subject to recover damages against a public authority, nor a declaration, nor an injunction.

This was such a defect in public law that the courts drew upon the remedies available in private law - so as to see that the subject secured justice. It was held that, if a public authority failed to do its duty and, in consequence, a member of the public suffered particular damage therefrom. he could sue for damages by an ordinary action in the courts of common law: see Lyme Regis Corporation v. Henley (1834) 8 Bli.N.S. 690 and Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004. Likewise, if a question arose as to the rights of a subject vis-à-vis the public authority, he could come to the courts and ask for a declaration (see Dyson v. Attorney-General[1911] 1 K.B. 410 and Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260) or against a local authority: see Prescott v. Birmingham Corporation [1955] Ch. 210 and Meade v. Haringey London Borough Council [1979] 1 W.L.R. 637. And this remedy has been applied right up to the present time in ordinary actions brought without leave: see, for instance, Grunwick Processing Laboratories Ltd. v. Advisory, Conciliation and Arbitration Services [1978] A.C. 655 and Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754.

Section 31 of the Act of 1981

But now we have witnessed a break-through in our public law. It is done by section 31 of the Supreme Court Act 1981, which came into force on January 1, 1982. This is, to my mind, of much higher force than R.S.C., Ord. 53. That order came into force in 1977, but it had to be construed in a limited sense, because it could not affect the substance of the law: see Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1981] 2 W.L.R. 722, 745, perLord Scarman. Rules of court can only affect procedure: whereas an Act of Parliament comes in like a lion. It can affect both procedure and substance alike.

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I always thought that this great reform should be done by statute as the Law Commission recommended. When the Rule Committee made R.S.C., Ord. 53, some of us on the committee had doubts about whether some of it was not ultra vires, but we took the risk because it was so desirable. Now that the statute has been passed, I may say that it has in several respects altered the substance of the law for the better. For instance, section 31 (2) uses the significant words "having regard to," thus expanding the kind of bodies against whom relief can be obtained. It includes all public authorities and public officers, and indeed anyone acting in exercise of a public duty, including a university; see Reg. v. Aston University Senate, Ex parte Roffey[1969] 2 Q.B. 538. It also enlarges the scope of a declaration and injunction so as to apply wherever it is "just and convenient." And section 31 (3) gives the remedy to anyone who has "a sufficient interest," which is very wide in its scope. Those provisions rid us of a whole mass of technical limitations which were thought previously to exist.

High constitutional principle

Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty. I am glad to see that in Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1981] 2 W.L.R. 722, 737, Lord Diplock has endorsed the principle which I ventured to set out in Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R. 550, 559:

"I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.

To this I would add the valuable lecture by Patrick Neill Q.C. on "Locus Standi and the Mere Busy-Body" (The Denning Lecture 1982) not yet published. Especially his references to Rex v. Speyer [1916] 1 K.B. 595. 613.

Safeguards against abuse

When considering the merits of judicial review - as against an ordinary action - it is important to notice that judicial review has some safeguards against abuse, which are not available in ordinary actions.

(i) Leave to be obtained

In the first place, the applicant has to get leave of a High Court judge in order to start the proceedings. Lord Diplock emphasised the importance of it in Reg. v. Inland Revenue Commissioners, Ex parte National Federation

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of Self-Employed and Small Businesses Ltd. [1981] 2 W.L.R. 722. Speaking of the need for leave, he said, at p. 739:

"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

And as Lord Scarman said, at p. 749:

"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers."

(ii) Discovery limited

Another safeguard against abuse is the need to have a special order for discovery. As Lord Scarman said, at p. 749:

"Upon general principles, discovery should not be ordered unless and until the court is satisfied that the evidence reveals reasonable grounds for believing that there has been a breach of public duty: and it should be limited strictly to documents relevant to the issue which emerges from the affidavits."

(iii) Cross-examination limited

Another safeguard is to control the use of cross-examination. This can roam unchecked in ordinary actions, but is kept within strict bounds in judicial review. It is rarely allowed: see George v. Secretary of State for the Environment (1979) 77 L.G.R. 689 and Reg. v. Board of Visitors of Albany Prison, Ex parte Fell (unreported), July 8, 1981.

Part III

Modern machinery

No safeguards otherwise

None of these safeguards against abuse are available in an ordinary action - issued as of course - without leave - against a public authority or a public body. Some complainants - or their advisers - have seized upon this. They have brought actions at law instead of judicial review. Instances are ready to hand. An action was brought in the county court for damages against a local authority for breach of the Housing (Homeless Persons) Act 1977: see Thornton v. Kirklees Metropolitan Borough Council [1979] Q.B. 626. An action was brought in the Chancery Division for a declaration against the Home Office under the Immigration Act 1971: see Uppal v. Home Office, The Times, October 21, 1978. If such actions were to be permitted (as an alternative to judicial review) it would open the door to great abuse. Nearly all these people are legally-aided. If they were allowed to proceed by ordinary action, without leave, I can well see that the public authorities of this country would be harassed by all sorts of claims - long

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out of time - on the most flimsy of grounds. So much so that I pray in aid (in cases under the Housing (Homeless Persons) Act 1977) the reservations made by Lord Wilberforce in Din (Taj) v. Wandsworth London BoroughCouncil [1981] 3 W.L.R. 918, 922H. To which I would add my words in Lambert v. Ealing London Borough Council [1982] 1 W.L.R. 550. 557E: "The only way in which a local authority's decision in these cases can properly be interfered with is by way of judicial review."

Also in immigration cases the words of Roskill L.J. in Uppal v. Home Office, The Times, November 11, 1978; Court of Appeal (Civil Division) Transcript No. 719 of 1978:

"... I express the hope that in future it is the Divisional Court to which this type of problem will be submitted and that the temptation to deal with immigration problems by way of an originating summons in proceedings for a declaration in the Chancery Division will be avoided. ... There is ... jurisdiction in the Chancery Division to hear an application of this kind, but it would be wrong that this procedure should be adopted in order to by-pass the need for getting leave from the Divisional Court to move for the relevant order where what in truth is sought is judicial review."

The end result

In the light of these observations, I make this suggestion: that wherever there is available a remedy by judicial review under section 31 of the Supreme Court Act 1981, that remedy should be the normal remedy to be taken by an applicant. If a plaintiff should bring an action - instead of judicial review - and the defendant feels that leave would never have been granted under R.S.C., Ord. 53, then he can apply to the court to strike it out as being an abuse of the process of the courts. It is an abuse to go back to the old machinery instead of using the new streamlined machinery. It is an abuse to go by action when he would never have been granted leave to go for judicial review.

Alternatively, if he feels that leave would have been granted under R.S.C., Ord. 53, he can apply for the action to be transferred to the Order 53 list: and the case can then proceed under Order 53 just as if leave had been granted. The High Court has sufficient control over its proceedings to enable all this to be done. Just as an action in the ordinary list can be transferred to the commercial list, so it can be transferred to the Order 53 list which I would like to see called the administrative list. If this be thought to be too venturesome, the Rule Committee might make a rule to enable it to be done.

So also if it is brought in the Chancery Division, it should be transferred to the Queen's Bench Division under section 65 of the Supreme Court Act 1981 to be heard as upon an application for judicial review. Likewise if it is brought in the county court.

If this suggestion is acceptable, then it means that most cases will proceed under R.S.C., Ord. 53, as they should do. There may be some cases where the action for a declaration is allowed to proceed. One such is at

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present being heard in this court: Air Canada v. Secretary of State for Trade^*. But these should be regarded as exceptional.

Procedure

For the sake of completeness I should add that I am here speaking only of civil causes or matters. R.S.C., Ords. 53, 55 and 56 draw a distinction between a "criminal cause or matter" and a civil cause or matter. Criminal cases usually go to a divisional court and thence to the House of Lords. Civil cases go usually to a single judge and thence to the Court of Appeal and House of Lords. This distinction has often given us headaches: see Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425 and Reg. v. Sheffield Crown Court, Ex parte Brownlow [1980] Q.B. 530. All I am speaking of here is the civil jurisdiction of the Court of Appeal which is entrusted to the Civil Division of which the Master of the Rolls is the President: see section 1 (2) of the Criminal Appeal Act 1966 and section 3 of the Supreme Court Act 1981.

This new procedure means that we have now an administrative court. It is a division of the High Court which might well be called the Administrative Division. It is manned by judges specially versed in administrative law with an appeal to the Civil Division of the Court of Appeal, in which I myself have taken much interest in the past, and in which the Lord Chief Justice will in future be much interested.

Conclusion

My conclusion is that the only appropriate remedy in this case was by judicial review under R.S.C., Ord. 53. If leave had been sought, it would certainly have been refused. No judge would have granted it. It is far too late. I would, therefore, allow this appeal and strike out this action as being an abuse of the process of the court.

Postscript

I cannot refrain from referring to a few words I said in 1949 at the end of my Hamlyn Lecture, Freedom under the Law (1949) p. 126:

"Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certoriari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions, and actions for negligence ... We have in our time to deal with changes which are of equal constitutional significance to those which took place 300 years ago. Let us prove ourselves equal to the challenge."

Now, over 30 years after, we do have the new and up-to-date machinery. I would say with Lord Diplock in Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd.[1981] 2 W.L.R. 722, 737:

* Reporter's note. The Court of Appeal reserved their judgment on July 2, 1982.

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"To revert to technical restrictions ... that were current 30 years or more ago would be to reverse that progress towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts in my judicial lifetime."

So we have proved ourselves equal to the challenge. Let us buttress our achievement by interpreting section 31 in a wide and liberal spirit. By so doing we shall have done much to prevent the abuse or misuse of power by any public authority or public officer or other person acting in the exercise of a public duty.

I would allow the appeal.

ACKNER L.J. These appeals are concerned with determinations by the Board of Visitors of Hull Prison, the defendants, of alleged breaches of the Prison Rules 1964 by the plaintiffs. In Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, this court decided that the decision of the visitors, when exercising their disciplinary powers under the Prison Act 1952 and the Rules made thereunder is subject to judicial review by way of certiorari. The question which this appeal raises is whether such decisions by the visitors are justiciable only by judicial review under R.S.C., Ord. 53, as the defendants contend, or whether prisoners, the plaintiffs, may at their option apply for declaratory relief under R.S.C., Ord. 15 by writ or by originating application.

Three of the plaintiffs have proceeded by writs issued in July 1980 in respect of the visitors' adjudications at the end of 1976. The fourth plaintiff has proceeded by originating summons issued in September 1980, in respect of an adjudication made in May 1979. All four sets of proceedings seek declarations that the findings and awards are null and void by reason of alleged breaches of natural justice. Judicial review has not been sought under R.S.C., Ord. 53, partly because the prospect of obtaining leave, certainly in the first three cases mentioned above, is by reason of the delay exceedingly remote, and partly because the plaintiffs anticipate a substantial dispute on the facts. They have, therefore, chosen a route which provides for oral evidence as a matter of course rather than affidavit evidence, with little prospect of obtaining the right to cross-examine the deponents.

Mr. Brown, on behalf of the defendants, applied before Peter Pain J. to strike out these proceedings as an abuse of the process of the court, relying in particular on a decision of Goulding J. in Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386, where such a course was successful. Although Peter Pain J. accepted that that decision was on all fours, he declined to follow it, concluding, ante, pp. 249H-250A, that "the overwhelming weight of authority" compelled him to differ.

I think it is convenient to start by referring to a short statement by Lord Diplock in the recent case of Hunter v. Chief Constable of the West Midlands Police [1981] 3 W.L.R. 906 on the power to strike out. At the commencement of his speech, he said, at p. 909:

"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although

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not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would other vise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word 'discretion') to exercise this salutary power."

The position of the board of visitors is dealt with in detail in the St. Germain case [1979] Q.B. 425. Section 6 (2) of the Prison Act 1952 makes provision for the appointment for every prison of a board of visitors, of whom not less than two shall be justices of the peace. Section 47 of the Act empowers the Secretary of State to make rules for the regulation and management of prisons and for the discipline and control of persons required to be detained therein. Section 47 (2) provides that rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case. Rule 49 of the Prison Rules 1964 (S.I. 1964 No. 388) provides that where a prisoner is charged with an offence against discipline he shall be informed of the charge as soon as possible and, in every case, before the time when it is inquired into by the governor. It further provides, thus giving effect to section 47 (2) of the Act, that at any inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case.

When a prisoner is to appear before a board of visitors for the determination of a charge of an offence against discipline, he is provided with a printed form which sets out, in simple language, the procedure which the prisoner can expect to be followed. It shows that he will be asked whether he pleads guilty or not guilty to the charge, that there will be then evidence of witnesses in support of the charge whom he may question and that, after the evidence against him, he may make his defence to the charge or, if he has pleaded guilty, offer an explanation. It also explains to him the procedure for obtaining permission to call witnesses. As Megaw L.J. observed in the St. Germain case [1979] Q.B. 425, 444A, all this "points to a judicial proceeding."

Rule 50 deals with the governor's awards, and rule 51 deals with graver offences and brings in the board of visitors. Sub-rule (4) provides that the board shall inquire into the charge and, if they find the offence proved, shall make one or more of nine specified awards, including the forfeiture of remission for a period not exceeding 180 days. Rule 52 is concerned with "especially grave offences" where the forfeiture of remission award may exceed 180 days. Thus, the offences against discipline with which a board of visitors will be required to deal are likely to be substantially more serious than offences with which the governor can deal and the punishment which the board can award is very much more severe.

Megaw L.J. agreed at p. 445, with the view expressed by Lord Widgery C.J. in the Divisional Court, that the act which the board of visitors

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perform under this jurisdiction is a judicial act. He further accepted, at p. 448, Mr. Beloff's submission that the board of visitors were "enjoined to mete out punishment only after a formalised inquiry and/or hearing." Thus, the awards which a board of visitors make are properly to be regarded as punishments. It was common ground in the St. Germain case [1979] Q.B. 425, and it is equally so accepted before us, that the Prison Rules do not confer on a prisoner any rights which may be enforced by an action for damages on the ground that any statutory duty was owed to them: see Becker v. Home Office [1972] 2 Q.B. 407, 418.

One of the main authorities relied upon by the plaintiffs is Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260. In that case the question which arose was whether planning permission was required for carrying out certain quarrying in the Malvern Hills and, if so, whether conditions which had been imposed by the minister were valid. The time limit for certiorari had expired, and the quarrying company therefore asked instead for a declaration as to its rights. The plaintiffs particularly rely on this case because the declaration was granted by the House of Lords who rejected the minister's argument that the right remedy, if any, was certiorari. Part of Lord Goddard's speech is of particular relevance. He said, at p. 290:

"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."

No one doubts the correctness of the observation that "there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari." Thus, the first essential question is whether or not certiorari is the only appropriate remedy in respect of an award of a board of visitors which is alleged to be null and void by reason of breaches of natural justice. If it is the only appropriate remedy, it would clearly be an abuse of the process of the court to seek the remedy of a declaratory judgment.

Mr. Sedley, for one of the plaintiffs, contends that the reasons why a declaration cannot be obtained in respect of a conviction by justices is clear. He argues that it is contrary to public policy and therefore an abuse of the process of the court for there to be collateral litigation attacking a court of competent jurisdiction. A magistrates' court is such a court. It is subject to appeal or control by judicial review. The board of visitors is not a court of law and therefore the same considerations do not apply.

The analogy between proceedings before the justices and those before a board of visitors is too close to be dismissed so lightly. True, a board of visitors is not any ordinary court, but it is a statutory body set up to act as a disciplinary tribunal and to administer punishment where appropriate. A number of the members are likely to be justices of the peace. The procedure is virtually identical. There is a charge, to which a plea is made, following which, where the charge is contested, witnesses are called and

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cross-examination takes place. True, there is no appeal in the strict sense, but the board's decisions are subject to review on petition to the Home Secretary: see rule 56.

As a matter of public policy certiorari should, in my judgment, be held to be the only appropriate remedy in respect of the visitors' decisions. The process of judicial review provides a number of restraints which have particular relevance to the determination of a judicial tribunal:

1. Leave is required to bring proceedings. In a field where there are bound to be numerous disgruntled persons, whose real complaints are more likely to be directed to the correctness of the punitive decision (which is not justiciable) than the fairness of the procedure which was followed (which is justiciable), a "filter" is most desirable. The requirement of affidavit evidence in support of the application thus serves a very useful purpose.

2. Terms may be imposed as to costs and the giving of security: R.S.C.. Ord. 53, r. 3 (9). This can be a useful form of control over the potentially frivolous application.

3. There is a time bar of three months, although the court has power, for good reason, to extend this. In relation to judicial determinations, where there may be considerable difficulty in recollection of what exactly took place at the hearing, this is particularly important. Moreover, if the order of certiorari is granted, because of a failure to adhere to the correct procedure, a new hearing will, or should, often follow. This could be quite unreal if it was to take place years after the initial hearing.

4. The court retains firm control over discovery and cross-examination, the latter being rarely permitted. It is clearly most undesirable to place members of a tribunal in a position which is not really compatible with the free and proper discharge of their functions, and such would be the case if cross-examination were a matter of course.

Mr. Sedley strongly urged that it is manifestly unfair to compel his client, who is alleging bias against the chairman of the board, to seek judicial review where a bare denial of his client's allegation, which forms the basis of his assertion of bias, will mean defeat. However, the court has always had power to order cross-examination of a deponent, and this power is specifically spelt out in R.S.C., Ord. 53, r. 8. Although cross-examination may be rarely ordered, if the interests of justice require it to be allowed, it would be an erroneous exercise of discretion to refuse it.

I would, therefore, conclude that certiorari is the only proper remedy where it is sought to attack a decision of a board of visitors for want of natural justice.

If the views expressed above are correct, I have said sufficient to justify allowing these appeals. I have not, in doing so, felt obliged to go into the question which was much debated as to the effect of the new R.S.C., Ord. 53 which came into force in 1977 on the pre-existing right to apply for declaratory relief since, in my judgment, if, as I have found, the only proper remedy before 1977 was to apply for an order of certiorari, that is an end of the matter. However, out of deference to the able submissions addressed to us, my views can be summarised as follows:

1. R.S.C., Ord. 53, r. 1, is headed: "Cases appropriate for application for judicial review." It provides:

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"(1) An application for - (a) an order of mandamus, prohibition or certiorari, or (b) an injunction under section 9 of the Administration of Justice (Miscellaneous Provisions) Act 1938 restraining a person from acting in any office in which he is not entitled to act, shall be made by way of an application for judicial review in accordance with the provision of this Order.

"(2) An application for a declaration or an injunction (not being an injunction mentioned in paragraph (1) (b)) may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to - (a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari, (b) the nature of the persons and bodies against whom relief may be granted by way of such an order, and (c) in all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review."

In my judgment it is clear that this order does not, either expressly or by necessary implication, provide an exclusive remedy for the control of the exercise of administrative power. To quote Lord Scarman in Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952, 1025-1026:

"[R.S.C., Ord. 53, r. 2] made no alteration to the substantive law; nor did it introduce any new remedy. But the procedural reforms introduced are significant and valuable. Judicial review is now the procedure for obtaining relief by way of prerogative order, i.e. mandamus, prohibition or certiorari. But it is not confined to such relief: an applicant may now obtain a declaration or injunction in any case where in the opinion of the court 'it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.' Further, on an application, the court may award damages, provided that the court is satisfied that damages could have been awarded, had the applicant proceeded by action. The rule also makes available at the court's discretion discovery, interrogatories, and cross-examination of deponents. And, where the relief sought is a declaration, an injunction, or damages but the court considers that it should not be granted on an application for judicial review, the court may order the proceedings to continue as if they had been begun by writ.

"Thus the application for judicial review, where a declaration, an injunction, or damages are sought, is a summary way of obtaining a remedy which could be obtained at trial in an action begun by writ: and it is available only where in all the circumstances it is just and convenient. If issues of fact, or law and fact, are raised which it is neither just nor convenient to decide without full trial process, the court may dismiss the application or order, in effect, a trial."

2. If Parliament had desired that by reason of the reforms contained in R.S.C., Ord. 53 the remedy by way of judicial review should exclude the

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pre-existing remedy by way of an action for declaratory relief to control the exercise of administrative power, it could have simply so provided in the recent Supreme Court Act 1981. It would, however, have been somewhat of a surprise if it had done so, in view of the contrary recommendation made in 1976 by the Law Commission, who were responsible for the production of the new R.S.C., Ord. 53. Section 31 of the Supreme Court Act 1981 does, however, make specific provision for application for judicial review. It provides:

"(1) An application to the High Court for one or more of the following forms of relief, namely - (a) an order of mandamus, prohibition or certiorari; (b) a declaration or injunction under subsection (2): or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

"(2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to - (a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari; (b) the nature of the person and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be."

As the Notes in the Third Cumulative Supplement to The Supreme Court Practice (1982), para. 3332, correctly state, section 31 is a statutory codification of R.S.C., Ord. 53. I cannot construe that section and in particular the subsections set out above, as providing that declarations against public authorities when exercising their public law functions can only be obtained by application for judicial review under R.S.C., Ord. 53.

3. I accept that by reason of the radical procedural reforms in the supervisory jurisdiction of the court and the safeguards against abuse built into R.S.C., Ord. 53, that where the conduct of a public authority is to be challenged, then as a general rule it is more appropriate that it be done by a process of judicial review and not by way of an action. But, unless and until the law is amended, the litigant still has the option. Accordingly, it cannot in my judgment be said to be an abuse of the process of the court to seek the alternative route rather than to proceed by way of an application under Order 53.

4. However, it is common ground that declaratory relief is a discretionary remedy. Accordingly, it may be refused for undue delay. It may be also refused if, in reality, it is sought merely in order to circumvent the procedural safeguards contained in R.S.C., Ord. 53 and which the courts consider should attend the process of challenging a particular area of administrative activity, e.g. immigration control: see the observations of Roskill L.J. in Uppal v. Home Office, The Times, November 11, 1978; Court of Appeal (Civil Division) Transcript No. 719 of 1978, quoted by Lord Denning M.R. in his judgment. I can see no objection, in an appropriate case, to the trial of the preliminary issue - would the court in

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the exercise of its discretion grant the declaration sought by the plaintiff if the facts he alleges were proved? The purpose of trying such a preliminary issue would, of course, be to avoid the expense and potential oppression which could result from the obligation to give extensive discovery and to submit to wide-ranging cross-examination.

I also would allow the appeal.

O'CONNOR L.J. (read by Lord Denning M.R.). The four plaintiffs in these proceedings were all at some date prisoners in Hull Prison. The first three took part in a major riot at that prison in the summer of 1976. The fourth took part in a riot in April 1979. In due course all four men were charged with offences before the board of visitors of Hull Prison and various penalties were imposed. In 1980 they began proceedings, the first three by writs, the fourth by originating summons, claiming declarations that the adjudications of the visitors were null and void by reason of breaches of natural justice. The visitors applied to have the proceedings struck out as an abuse of the process of the court. Peter Pain J. refused the application. They appeal to this court.

Mr. Brown on behalf of the defendants submits that the only way a person aggrieved by an adjudication of the visitors can challenge it is by asking for judicial review; that means in this case certiorari to bring up and quash the decision.

Even during the period after the decision in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338, when the courts were developing the use of declarations and injunctions in administrative law, it was recognised that decisions of justices could not be challenged by this route. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 290, Lord Goddard said: "no doubt there are some orders, notably convictions by justices, where the only appropriate remedy is certiorari." Lord Goddard was only using the justices as an example, for he recognised that there could be others.

Once it had been decided by this court in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] 1 Q.B. 425 that judicial review was available to challenge the decisions of boards of visitors, then in my judgment it became clear that those decisions could not be challenged by actions for declarations. I think that there are two main reasons why this is so; the constitution of boards of visitors and the limits of any suggested relief by way of declaration.

As to the first reason, I gratefully adopt what has been said on this topic by Lord Denning M.R. and Ackner L.J.

As to the second reason, I start by looking at the relief claimed, and I take O'Reilly as the example. Five charges of offences against discipline were proved against him and he was awarded a total of 196 days solitary confinement and 510 days loss of remission of sentence. The statement of claim alleges that the board of visitors acted in breach of the Prison Rules and of the requirements of fairness and/or the rules of natural justice. So it is alleged that the finding and award of the board was made invalidly, improperly and was null and void and of no effect. The prayer is for "a declaration that the finding of, and award by the board, was void and of no effect." The real purpose of claiming this relief years after the event is

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to quash the award of loss of remission. If the action claiming the declaration went to trial, the court hearing the case would have no power to do more than to grant or refuse the declaration; contrast the power of the court under R.S.C., Ord. 53, r. 9, if minded to quash the award, to consider the propriety of remitting the matter for re-hearing and in its discretion deciding whether to remit or not. Here was a prisoner charged before the visitors with very serious offences, which the visitors found proved; if that finding was to be set aside, it seems to me that it should only be as a result of judicial review. The time limits, coupled with the power to remit, make judicial review the only appropriate remedy, and point unerringly to show that an action for a declaration should not be permitted.

That is sufficient for the decision of the present appeals, but Mr. Brown invited us to say that the effect of the Supreme Court Act 1981, which has given statutory backing to R.S.C., Ord. 53, is that judicial review is the only way in which decisions of administrative tribunals can be challenged. For my part I am not prepared to accede to that submission. I see the force of the argument that, if an applicant applies within time for judicial review and is refused leave, he ought not to be permitted to escape the safeguard by starting an action by writ for a declaration. It may well be that the facts of such a case may show that the later action is an abuse of the process of the court, but that is quite different from saying that the right to bring an action for a declaration where judicial review lies has been abolished. The real check on the action for a declaration is to remember that it is a discretionary relief.

I would allow this appeal.

Appeal allowed.

Proceedings struck out.

No order for costs.

Leave to appeal.

Solicitors: Treasury Solicitor; Mincoff Science & Gold, Newcastle-upon-Tyne; Seifert Sedley & Co. for Millers, Manchester.

A. H. B.

APPEALS from the Court of Appeal.

These were conjoined appeals of the plaintiffs, Christopher Noel O'Reilly, Alexander Vernon John Derbyshire, David Martin Dougan and Anthony Millbanks, from a decision of the Court of Appeal (Lord Denning M.R., Ackner and O'Connor L.JJ.) on June 30, 1982 allowing the plaintiffs' appeals from a decision by Peter Pain J. on March 5, 1982, dismissing applications by the defendants, of the Board of Visitors of Hull Prison and the Secretary of State for the Home Office, to strike out the plaintiffs' statements of claim and originating summons on the ground that they were an abuse of the process of the court.

The plaintiffs, O'Reilly, Derbyshire and Dougan, by their writs and statements of claim issued in the Queen's Bench Division of the High

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Court on July 8, 1980, against the defendants, Eric Wilson Mackman, James A. Rundle and Charles C. Brady, of the board of visitors of Hull Prison, claimed declarations that the findings and awards made by the defendants in November and December 1976 against the plaintiffs in connection with offences at Hull Prison were void and of no effect. The plaintiff, Millbanks, by an originating summons issued in the Chancery Division on September 1, 1980, against the Home Office and Charles Rodney Wainhouse, Shirley Ann Streets and Eric Wilson Mackman, of the Board of Visitors of Hull Prison, claimed a declaration that the adjudication by the board of visitors made against the plaintiff on May 30, 1979, was void for want of natural justice.

The facts are stated in the opinion of Lord Diplock.

Michael Beloff Q.C. and David Pannick for the first three appellants. A declaration is a remedy available in respect of a disciplinary decision of a board of visitors which is alleged by an aggrieved prisoner to be in breach of natural justice and/or of the duty to act fairly. It is not necessarily an abuse of process for a person to seek such a declaration by writ or originating summons where an application for judicial review under R.S.C., Ord 53, is also available. In the present case the actions were not an abuse of process and the appellants' writs and statements of claim should not have been struck out.

On striking out as an abuse of process, see Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529.

A declaration is and has always been available to impugn a disciplinary order made by a board of visitors where the applicant alleges that the order is ultra vires by having been made in breach of the rules of natural justice. A declaration that a decision or order of a statutory tribunal is invalid may be made even though a remedy by way of certiorari to quash is also available: Anisminic Ltd. v. Foreign Compensation Commission[1968] 2 Q.B.862.

The rule that a declaration is not available to impugn orders of magistrates' courts is immaterial in the present case since such courts are inferior courts and not statutory tribunals as are boards of visitors. The orders of magistrates are self-proving and an order to quash is necessary. The appellants rely on Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 290, per Lord Goddard. That decisions of boards of visitors are justiciable was made clear in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425. The appellants adopt the Court of Appeal's analysis in that case. For its sequel, see Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1401. Analogy may be misleading in this field, see Attorney-General v. British Broadcasting Corporation [1981] A.C. 303 and In re A Company(sub nom. In re Racal Communications Ltd.) [1981] A.C. 374, and conceal differences of major significance between cases concerning statutory tribunals and those concerning courts of law. There is a fundamental distinction between statutory tribunals and courts of law. It is necessary to look at the function of the decision-making body to see whether its determination as recorded needs to be quashed as part of the remedy. Although a board of visitors is competent to impose penalties and must act judicially, that

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does not mean that a declaration is not an apt remedy: Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329. See also Halsbury's Laws of England, 4th ed., vol. 1 (1973), para. 82; Zamir, The Declaratory Judgment(1962) and the Law Commission Report on Remedies in Administrative Law (1976) (Cmnd. 6407). In the Court of Appeal in the instant case Lord Denning M.R. founded on Sirros v. Moore [1975] Q.B. 118 which, as a case of a claim for damages, is distinguishable.

Public policy does not require that disciplinary awards by boards of visitors should be immune from challenge in the courts and it cannot be relied on to draw any material distinction between challenge by certiorari and challenge by an application for a declaration. On general policy, see Ackner L.J. in the Court of Appeal. In Reg. v. Board of Visitors of Albany Prison, Ex parte Fell (unreported), November 11, 1981; Court of Appeal (Civil Division) Transcript No. 539 of 1981, Lord Denning M.R. did not start from the basis that cross-examination of a chairman should never be allowed.

There is no technical reason why a declaration is an ineffective remedy to challenge disciplinary awards made by a board of visitors which it is claimed is void. Before 1977 a declaration was a remedy available to impugn decisions of boards of visitors and there can be no objection to the granting of a declaration on the grounds that the decision awarding loss of remission has to be quashed. As to the power to remit the decision, see tho Law Commission Report on Remedies in Administrative Law (1976) (Cmnd. 6407), para. 53.

If the appellants' submissions are well founded, notwithstanding the reforms of the procedure for applications for judicial review, it remains open to a person aggrieved by a decision such as that of the board of visitors to apply to the court by way of originating summons for a declaration rather than to apply for judicial review. Such procedure is not unfair to the board of visitors nor does it bring the administration of justice into disrepute. Before the reform of R.S.C., Ord. 53, the use of the declaration as a remedy to control the ultra vires acts of public authorities had increased and was increasing. It was not regarded as unfair to public authorities or as something which should be stopped: see Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720. The mischief against which the reform of R.S.C., Ord. 53, was aimed was not better cured by making an application for judicial review the exclusive remedy: see the Law Commission Report on Remedies in Administrative Law (1976) (Cmnd. 6407), para. 31, and Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617. There is no indication in the language of R.S.C., Ord. 53, as amended or in section 31 of the Supreme Court Act 1981 that the remedy by way of an application for judicial review was intended as an exclusive remedy. Had the Rules Committee or Parliament wished to make it exclusive they could easily have done so. The legislature elected to retain variety. An action by way of writ or originating summons offers procedural advantages to a litigant in certain cases and it would be unjust to deprive him of them. The time limit is narrower for application for judicial review than for an action begun by writ because it is designed as a quick and cheap remedy. If the applicant wants the

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advantages offered by that procedure he must take the disadvantages. Where an application for judicial review is made out of time and is struck out the applicant can still proceed by writ.

In the case of an ordinary action started by writ, a public authority can be adequately protected against baseless and abusive claims and in the absence of express legislation should not be put in a position superior to that of private defendants. It is not unfair to a public authority to allow a private litigant to take the same steps against it as against a private defendant. On the power to remit a void decision, see Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1951] 1 K.B. 711.

Since the reform of the procedure for an application for judicial review under R.S.C., Ord. 53, the weight of judicial authority has been against the proposition that an application for judicial review should be the exclusive remedy in circumstances such as the present: see Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952; United Kingdom Association of Professional Engineers v. Advisory, Conciliation and Arbitration Service [1981] A.C. 424; Uppal v. Home Office,The Times, October 21, 1978; The Times, November 11, 1978; Heywood v. Board of Visitors of Hull Prison [1980] 1 W.L.R. 1386; De Falco v. Crawley Borough Council [1980] Q.B. 460; Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754; Reg. v. Board of Visitors of Hull Prison, Ex parte Coster (unreported), November 5, 1980; and Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1401.

Stephen Sedley for the fourth appellant. The appellant adopts the submissions made on behalf of the first three appellants. In principle the fourth appellant's case is on all fours with theirs but with factual and procedural differences arising from the fact that he has started by originating summons. If the issue is one of the exercise of the discretion of the judge at first instance, then there are material differences between the case of the fourth appellant and of the others.

If a declaration is the appropriate form of relief there is no reason why it should be sought exclusively by an application under R.S.C., Ord. 53. The fact that damages may be awarded on an application for judicial review does not mean that a person aggrieved cannot now proceed by writ or originating summons. The practical effect of the use of a declaration must be considered. It is the appropriate remedy where a combination of legal rights and the exercise of discretion is involved, as where the decision of a board of prison visitors results in a decision by the Home Secretary that he will not grant remission for good conduct: the declaration tells the Home Secretary that it would be right to grant remission. Cases such as the present are a proper occasion for the grant of a declaration because that operates on the Home Secretary, whereas orders of mandamus and prohibition do not and certiorari only operates to quash the determination made by the board of visitors. Holland v. Phipp [1982] 1 W.L.R. 1150 shows that a decision stands until it is quashed and a court must not arrive at a decision inconsistent with it as long as it stands.

It is not accepted that it was unnecessary to join the Home Office as a party to the present proceedings: see sections 21 and 38 (2) of the Crown Proceedings Act 1947. If it is held that an action for a declaration is not

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available here against the Home Office, circumstances could arise where that could have the effect of repealing section 21 of the Crown Proceedings Act.

In selecting the appropriate method of proceeding the factors for an applicant to consider will be speed and convenience, evidence, locus standi and the requirement of showing an arguable case, discovery, time limits and costs. The Crown's case in defence to an action started by writ must also be made good in proceedings for declaratory relief by originating summons. R.S.C., Ords. 5, 7 and 28, are relevant in this context. The court has a range of powers to enable evidence to be taken in the most just manner. Procedure by originating summons is speedy and effective if not obstructed and there is not much to choose between that and an application under R.S.C., Ord. 53. The safeguards against abuse of process are similar in relation to proceedings under Order 53 and proceedings by originating summons.

As regards the appropriate rules of evidence, to prevent justice being brought into disrepute the system must enable the parties to make out their respective cases as well as they may. Against the background of the present practice of the Divisional Court on applications under R.S.C., Ord. 53, a right to cross-examine may be essential. Compare the provisions for receiving evidence on an application under Order 53 with the provisions of R.S.C., Ord. 38, r. 23. The court has an identical discretion in each case.

There is no authority for the proposition advanced as a matter of law in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2)[1979] 1 W.L.R. 1401, 1410 that the Divisional Court is obliged to take facts in issue as deposed to by the board of visitors. The House could make a direction as to the desirable practice in future cases but that would not help the fourth appellant. It is not practicable to apply to the court for leave to cross examine in the light of the current practice of the Divisional Court which is not to allow cross-examination of deponents: see Reg. v. Board of Visitors of Nottingham Prison, Ex parte Moseley, The Times, January 23, 1981, and George v. Secretary of State for the Environment(1979) 77 L.G.R. 689. A respondent ought not to be able to succeed on the strength of a bare denial: Reg. v. Governor of Brixton Prison, Ex parte Ahsan [1969] 2 Q.B. 222. There is a sharp difference in practice between the Divisional Court and a High Court judge as regards cross-examination of deponents. If there is a difference in practice and an applicant is entitled to choose whichever is the most advantageous to him, or, if there is no difference, the respondents are not entitled to insist that one procedure has advantages over the other.

There is a distinction, but no difference as to the requirements of locus standi and showing an arguable case, between R.S.C., Ord. 53, procedure and procedure on an originating summons such as entitles the respondents to say that R.S.C., Ord. 53, procedure provides better protection for the Crown. Similarly, as regards the Crown the rules as to discovery and interrogatories are the same in proceedings under R.S.C., Ord. 53, as in those on originating summons; see R.S.C., Ords. 24 and 77.

The time limit for applications under R.S.C., Ord. 53, may be enlarged in appropriate cases and in proceedings by originating summons or writ time is a material element in deciding whether to grant a discretionary

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remedy. The criteria are similar. In the absence of a limitation period prescribed by Parliament for obtaining a declaration, it is not open to the courts to choose which time limit they prefer: Birkett v. James [1978] A.C. 297.

The fourth appellant adopts the Law Commission Report on Remedies in Administrative Law (Cmnd. 6407), para. 34. There is room for both applications under R.S.C., Ord. 53, and for proceedings by way of writ and originating summons. The mischief envisaged by the Law Commission did not include the mischief of duplicity.

Simon D. Brown and J. G. M. Laws for the respondents. The respondents do not contend that in no case is it permissible for a person aggrieved to proceed by writ or originating summons for a declaration. The general rule is that where an application for judicial review under R.S.C., Ord. 53, is available an applicant should apply to the court under Order 53. It is a matter for the court's discretion whether to allow an alternative proceeding by way of writ or originating summons to be used. Proceedings in respect of the decisions of boards of prison visitors are particular examples of where the general rule is to be applied. It is not contended that such boards are immune from suit.

Even before the 1977 amendments to R.S.C., Ord. 53, the courts would have struck out as an abuse of process all actions by writ or originating summons seeking declaratory relief against boards of visitors who had acted in their disciplinary capacity. That approach depends on general considerations of public policy and is not a technical rule of law. If that submission is too broad, the four claims in the present case would have been struck out as an abuse of process if made before 1977 because on their facts it was clearly desirable that they should be brought within the time-limit prescribed for applications under R.S.C., Ord. 53.

Following the 1977 amendments the courts can and should generally regard writ actions against boards of prison visitors as an abuse of process. Alternatively, on the facts, the proceedings in the present case were an abuse of process. Since 1977 a number of claims for declaratory relief which it was recognised could be properly made by writ before 1977 can now only be made on an application for judicial review and will be struck out if commenced otherwise. To allow alternatives would bring justice into disrepute.

It is recognised that it is not desirable to define the classes of declaratory claims which can properly be advanced by applications for judicial review. There are two possible main approaches: (1) A declaration against a public authority may only be sought by writ in exceptional circumstances such as where the need for such a declaration arises collaterally to a private cause of action as, for example, where a plaintiff seeks to establish a right or relief from liability. (2) There should be a presumption that an applicant seeking relief in this field of public law ought to proceed by way of application for judicial review and whether that presumption is rebutted depends on all the circumstances of the case. Here in particular the court must consider whether the applicant is in effect inviting the court to exercise a supervisory jurisdiction to control a public body carrying out public duties; whether the claimant asserts a private cause of action or there exists any other particular consideration suggesting that private law processes are

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preferable, whether there are more appropriate remedies than those available under R.S.C., Ord. 53; and whether general policy considerations suggest that the claim is the sort of challenge which should attract the procedural constraints and safeguards provided by R.S.C., Ord. 53.

A decision as to the proper construction of section 31 of the Supreme Court Act 1981 cannot affect the present appeals. The mandatory requirement of section 31 (1) applies to all declarations where the court is minded to grant relief having regard to the considerations set out in section 31 (2). The court must give effect to that requirement. A declaration under section 31 (1) and (2) may be one sought on an application for judicial review or a declaration which the court thinks just and convenient having regard to the requirements of section 31 (2) (a), (b) and (c). Reg. v. Board of Visitors of Albany Prison, Ex parte Fell (unreported), July 8, 1981, shows the correct approach to applications for leave to cross examine in applications for judicial review. The respondents adopt the reasoning of Lord Diplock in Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, 638E.

Beloff Q.C. in reply. R.S.C., Ord. 18, r. 19, comes close to saying that the power to strike out is to be exercised where a party is using the pleadings for some improper purpose. A court must have that in mind when considering whether a particular course amounts to an abuse of process. Section 31 of the Supreme Court Act 1981 does not provide that a person desiring a declaration can only obtain one by applying for judicial review under R.S.C., Ord. 53. The very existence of the section reflects a view that it was necessary to legislate to achieve the change made by the Rules Committee when it added to the remedies which could be obtained on an application for judicial review. Equally if it were intended to subtract a remedy, legislation would be necessary.

If there are to be some exceptions to the general rule contended for by the respondents that a declaration can only be properly sought on an application for judicial review there would be difficulties in framing them and in the end no litigant would be certain what course was open to him.

Sedley in reply. The respondents' argument before Peter Pain J. was not directed to matters relevant to the exercise of the discretion. The House should consider whether the appellants should have an opportunity of advancing to the court the reasons why the discretion to allow the action to proceed should be exercised in their favour.

Assuming the court has a discretion, as long as there is a substantial dispute as to the facts, proceedings ought to be by writ or originating summons.

Their Lordships took time for consideration.

November 25. LORD DIPLOCK. My Lords, at the time of the commencement by the appellants of the actions in which these consolidated appeals are brought each of the appellants was serving a long sentence of imprisonment which even now has not expired. By those actions, which were commenced in 1980, in the case of the appellant Millbanks, by originating summons and, in the case of the other appellants, by writ, each

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appellant seeks to establish that a disciplinary award of forfeiture of remission of sentence made by the Board of Visitors of Hull Prison (the board) in the exercise of their disciplinary jurisdiction under rule 51 of the Prison Rules 1964 (S.I. 1964 No. 388) is null and void because the board failed to observe the rules of natural justice. Millbanks in the indorsement to his originating summons alleges bias on the part of the member of the board who presided over the hearing of the disciplinary proceedings against him. The other appellants in their statements of claim allege that they were not given by the board a fair opportunity to present their respective cases. The board applied to the High Court (Peter Pain J.) that all the actions be struck out as being an abuse of the process of the court. The judge refused the applications but, on appeal to the Court of Appeal (Lord Denning M.R., Ackner and O'Connor L.JJ.), the actions were struck out.

My Lords, it is not contested that if the allegations set out in the originating summons or statements of claim are true each of the appellants would have had a remedy obtainable by the procedure of an application for judicial review under R.S.C., Ord. 53; but to obtain that remedy, whether it took the form of an order of certiorari to quash the board's award or a declaration of its nullity, would have required the leave of the court under R.S.C., Ord. 53, r. 3. That judicial review lies against an award of the board of visitors of a prison made in the exercise of their disciplinary functions was established by the judgment of the Court of Appeal (overruling a Divisional Court) in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425: a decision that was, in my view, clearly right and has not been challenged in the instant appeals by the respondents.

In the St. Germain case, the only remedy that had been sought was certiorari to quash the decision of the board of visitors; but the alternative remedy of a declaration of nullity if the court considered it to be just and convenient would also have been available upon an application for judicial review under R.S.C., Ord. 53 after the replacement of the old rule by the new rule in 1977. In the instant cases, which were commenced after the new rule came into effect (but before the coming into force of section 31 of the Supreme Court Act 1981), certiorari would unquestionably have been the more appropriate remedy, since rule 5 (4) of the Prison Rules 1964, which provides for remission of sentence up to a maximum of one-third, stipulates that the "rule shall have effect subject to any disciplinary award of forfeiture. ..." 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.

So no question arises as to the "jurisdiction" of the High Court to grant to each of the appellants relief by way of a declaration in the terms sought, if they succeeded in establishing the facts alleged in their respective statements of claim or originating summons and the court considered a declaration to be an appropriate remedy. All that is at issue in the instant appeal is the procedure by which such relief ought to be sought. Put in a single sentence the question for your Lordships is: whether in 1980 after

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R.S.C., Ord. 53 in its new form, adopted in 1977, had come into operation it was an abuse of the process of the court to apply for such declarations by using the procedure laid down in the Rules for proceedings begun by writ or by originating summons instead of using the procedure laid down by Ord. 53 for an application for judicial review of the awards of forfeiture of remission of sentence made against them by the board which the appellants are seeking to impugn?

In their respective actions, the appellants claim only declaratory relief. It is conceded on their behalf that, for reasons into which the concession makes it unnecessary to enter, no claim for damages would lie against the members of the board of visitors by whom the awards were made. The only claim was for a form of relief which it lies within the discretion of the court to grant or to withhold. So the first thing to be noted is that the relief sought in the action is discretionary only.

It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by a statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by rule 5 (2) of the Prison Rules, of one third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.

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 power of boards of visitors of a prison to make disciplinary awards is conferred upon them by subordinate legislation: the Prison Rules 1964 made by the Secretary of State under sections 6 and 47 of the Prison Act 1952. The charges against the appellants were of grave offences against discipline falling within rule 51. They were referred by the governor of the prison to the board under rule 51 (1). It thereupon became the duty of the board under rule 51 (3) to inquire into the charge and decide whether it was proved and if so to award what the board considered to be the appropriate punishment. Rule 49 (2) is applicable to such inquiry by the board. It lays down expressly that the prisoner "shall be given a full opportunity of hearing what is alleged against him and of presenting his own case." In exercising their functions under rule 51 members of the board are acting as a statutory tribunal, as contrasted with a domestic tribunal upon which powers are conferred by contract between those who agree to submit to its jurisdiction. Where the legislation which confers

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upon a statutory tribunal its decision-making powers also provides expressly for the procedure it shall follow in the course of reaching its decision, it is a question of construction of the relevant legislation, to be decided by the court in which the decision is challenged, whether a particular procedural provision is mandatory, so that its non-observance in the process of reaching the decision makes the decision itself a nullity, or whether it is merely directory, so that the statutory tribunal has a discretion not to comply with it if, in its opinion, the exceptional circumstances of a particular case justify departing from it. But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement. What is alleged by the appellants other than Millbanks would amount to an infringement of the express rule 49; but even if there were no such express provision a requirement to observe it would be a necessary implication from the nature of the disciplinary functions of the board. In the absence of express provision to the contrary Parliament, whenever it provides for the creation of a statutory tribunal, must be presumed not to have intended that the tribunal should be authorised to act in contravention of one of the fundamental rules of natural justice or fairness: audi alteram partem.

In Millbanks's case, there is no express provision in the Prison Rules that the members of the board who inquire into a disciplinary offence under rule 51 must be free from personal bias against the prisoner. It is another fundamental rule of natural justice or fairness, too obvious to call for express statement of it, that a tribunal exercising functions such as those exercised by the board in the case of Millbanks should be constituted of persons who enter upon the inquiry without any pre-conceived personal bias against the prisoner. Failure to comply with this implied requirement would likewise render the decision of the tribunal a nullity. So the third thing to be noted is that each of the appellants, if he established the facts alleged in his action, was entitled to a remedy in public law which would have the effect of preventing the decision of the board from having any adverse consequences upon him.

My Lords, the power of the High Court to make declaratory judgments is conferred by what is now R.S.C., Ord. 15, r. 16. The language of the rule which was first made in 1883 has never been altered, though the numbering of the rule has from time to time been changed. It provides:

"No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed."

This rule, which is in two parts separated by "and," has been very liberally interpreted in the course of its long history, wherever it appeared to the court that the justice of the case required the grant of declaratory relief in the particular action before it. Since "action" is defined so as to have

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included since 1938 an originating motion applying for prerogative orders, Ord. 15, r. 16 says nothing as to the appropriate procedure by which declarations of different kinds ought to be sought. Nor does it draw any distinction between declarations that relate to rights and obligations under private law and those that relate to rights and obligations under public law. Indeed the appreciation of the distinction in substantive law between what is private law and what is public law has itself been a latecomer to the English legal system. It is a consequence of the development that has taken place in the last 30 years of the procedures available for judicial control of administrative action. This development started with the expansion of the grounds upon which orders of certiorari could be obtained as a result of the decision of the Court of Appeal in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338; it was accelerated by the passing of the Tribunals and Inquiries Act 1958, and culminated in the substitution in 1977 of the new form of R.S.C., Ord. 53 which has since been given statutory confirmation in section 31 of the Supreme Court Act 1981.

The importance of Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw is that it re-established, largely as a result of the historical erudition of Lord Goddard C.J. displayed in the judgment of the Divisional Court ([1951] 1 K.B. 711) a matter that had long been forgotten by practitioners and had been overlooked as recently as 1944 in a judgment, Racecourse Betting Control Board v. Secretary for Air [1944] Ch. 114, given per incuriam by a Court of Appeal of which Lord Goddard had himself been a member. What was there re-discovered was that the High Court had power to quash by an order of certiorari a decision of any body of persons having legal authority (not derived from contract only) to determine questions affecting the rights of subjects, not only on the ground that it had acted outwith its jurisdiction but also on the ground that it was apparent upon the face of its written determination that it had made a mistake as to the applicable law.

However, this re-discovered ground on which relief by an order of certiorari to quash the decision as erroneous in law could be obtained, was available only when there was an error of law apparent "on the face of the record" and so was liable to be defeated by the decision-making body if it gave no reasons for its determination.

In 1958 this lacuna, so far as statutory tribunals were concerned, was largely filled by the passing of the first Tribunals and Inquiries Act, now replaced by the Tribunals and Inquiries Act 1971. This Act required the giving of reasons for their determinations by the great majority of statutory tribunals from which there is no express statutory provision for an appeal to the Supreme Court on a point of law. But boards of visitors of prisons have never been included among those tribunals that are covered by that Act. The Act also in effect repealed, with two exceptions, what had become to be called generically "no certiorari" clauses in all previous statutes, by providing in section 14 (1) as follows:

"As respects England and Wales ... any provision in an Act passed before [the commencement of this Act] that any order or determination shall not be called into question in any court, or any provision in such an Act which by similar words excludes any of the

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powers of the High Court, shall not have effect so as to prevent the removal of proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus: ..."

The subsection, it is to be observed, says nothing about any right to bring civil actions for declarations of nullity of orders or determinations of statutory bodies where an earlier Act of Parliament contains a provision that such order or determination "shall not be called into question in any court." Since actions begun by writ seeking such declarations were already coming into common use in the High Court so as to provide an alternative remedy to orders of certiorari, the section suggests a parliamentary preference in favour of making the latter remedy available rather than the former. I will defer consideration of the reasons for this preference until later.

Fortunately for the development of public law in England, section 14 (3) contained express provision that the section should not apply to any order or determination of the Foreign Compensation Commission, a statutory body established under the Foreign Compensation Act 1950, which Act provided by section 4 (4) an express provision: "The determination by the commission of any application made to them under this Act shall not be called in question in any court of law." It was this provision that provided the occasion for the landmark decision of this House in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, and particularly the leading speech of Lord Reid, which has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported "determination," not being a "determination" within the meaning of the empowering legislation, was accordingly a nullity.

Anisminic Ltd. v. Foreign Compensation Commission was an action commenced by writ for a declaration, in which a minute of the commission's reasons for their determination adverse to the plaintiff company did not appear upon the face of their determination, and had in fact been obtained only upon discovery: but, as appears from the report of my own judgment when the Anisminic case was in the Court of Appeal ([1968] 2 Q.B. 862, 893), the case had been argued up to that stage as if it were an application for certiorari in which the minute of the commission's reasons formed part of the "record" upon which an error of law appeared. In the House of Lords the question of the propriety of suing by writ for a declaration instead of applying for certiorari and mandamus played no part in the main argument for the commission. It appears for the first time in the report of the commission's counsel's reply, where an argument

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that the court had no "jurisdiction" to make the declaration seems to have been put forward upon the narrow ground, special to the limited functions of the commission, alluded to at pp. 910-911 of my own judgment in the Court of Appeal that the House overruled; but I did not purport to decide the question because, in the view that I had (erroneously) taken of the effect of section 4 (4) of the Act, it appeared to me to be unnecessary to do so.

My Lords, Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147 was decided by this House before the alteration was made to R.S.C., Ord. 53 in 1977. The order of the Supreme Court dealing with applications for the prerogative orders of mandamus, certiorari and prohibition in force at the time of the Anisminic case was numbered Order 53 and had been made in 1965. It replaced, but in substance only repeated, the first 12 rules of what had been Order 59 and which had in 1938 itself replaced the former Crown Office Rules of 1906. The pre-1977 Order 53, like its predecessors, placed under considerable procedural disadvantage applicants who wished to challenge the lawfulness of a determination of a statutory tribunal or any other body of persons having legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. It will be noted that I have broadened the much-cited description by Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171, 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies (which in 1924 then took the form of prerogative writs of mandamus, prohibition, certiorari, and quo warranto) by excluding Atkin L.J.'s limitation of the bodies of persons to whom the prerogative writs might issue, to those "having the duty to act judicially." For the next 40 years this phrase gave rise to many attempts, with varying success, to draw subtle distinctions between decisions that were quasi-judicial and those that were administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v. Baldwin [1964] A.C. 40, where again the leading speech was given by Lord Reid. Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made. In Ridge v. Baldwin it is interesting to observe that Lord Reid said at p. 72 "We do not have a developed system of administrative law - perhaps because until fairly recently we did not need it." By 1977 the need had continued to grow apace and this reproach to English law had been removed. We did have by then a developed system of administrative law, to the development of which Lord Reid himself, by his speeches in cases which reached this House,

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had made an outstanding contribution. To the landmark cases of Ridge v. Baldwin and Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147 I would add a third, Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, another case in which a tootimid judgment of my own in the Court of Appeal was (fortunately) overruled.

Although the availability of the remedy of orders to quash a decision by certiorari had in theory been widely extended by these developments, the procedural disadvantages under which applicants for this remedy laboured remained substantially unchanged until the alteration of Order 53 in 1977. Foremost among these was the absence of any provision for discovery. In the case of a decision which did not state the reasons for it, it was not possible to challenge its validity for error of law in the reasoning by which the decision had been reached. If it had been an application for certiorari those who were the plaintiffs in the Anisminiccase would have failed; it was only because by pursuing an action by writ for a declaration of nullity that the plaintiffs were entitled to the discovery by which the minute of the commission's reasons which showed that they had asked themselves the wrong question, was obtained. Again under Order 53 evidence was required to be on affidavit. This in itself is not an unjust disadvantage; it is a common feature of many forms of procedure in the High Court, including originating summonses; but in the absence of any express provision for cross-examination of deponents, as your Lordships who are familiar with the pre-1977 procedure will be aware, even applications for leave to cross-examine were virtually unknown - let alone the grant of leave itself - save in very exceptional cases of which I believe none of your Lordships has ever had actual experience. Lord Goddard C.J., whose experience was at that time unrivalled, had so stated in Reg. v. Stokesley, Yorkshire, justices, Ex parte Bartram [1956] 1 W.L.R. 254, 257.

On the other hand as compared with an action for a declaration commenced by writ or originating summons, the procedure under Order 53 both before and after 1977 provided for the respondent decision-making statutory tribunal or public authority against which the remedy of certiorari was sought protection against claims which it was not in the public interest for courts of justice to entertain.

First, leave to apply for the order was required. The application for leave which was ex parte but could be, and in practice often was, adjourned in order to enable the proposed respondent to be represented, had to be supported by a statement setting out, inter alia, the grounds on which the relief was sought and by affidavits verifying the facts relied on: so that a knowingly false statement of fact would amount to the criminal offence of perjury. Such affidavit was also required to satisfy the requirement of uberrima fides, with the consequence that failure to make on oath a full and candid disclosure of material facts was of itself a ground for refusing the relief sought in the substantive application for which leave had been obtained on the strength of the affidavit. This was an important safeguard, which is preserved in the new Order 53 of 1977. The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the

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legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. In contrast, allegations made in a statement of claim or an indorsement of an originating summons are not on oath, so the requirement of a prior application for leave to be supported by full and candid affidavits verifying the facts relied on is an important safeguard against groundless or unmeritorious claims that a particular decision is a nullity. There was also power in the court on granting leave to impose terms as to costs or security.

Furthermore, as Order 53 was applied in practice, as soon as the application for leave had been made it provided a very speedy means, available in urgent cases within a matter of days rather than months, for determining whether a disputed decision was valid in law or not. A reduction of the period of suspense was also effected by the requirement that leave to apply for certiorari to quash a decision must be made within a limited period after the impugned decision was made, unless delay beyond that limited period was accounted for to the satisfaction of the judge. The period was six months under the pre-1977 Order 53; under the current Order 53 it is further reduced to three months.

My Lords, the exclusion of all right to discovery in application for certiorari under Order 53, particularly before the passing of the Tribunal and Inquiries Act 1958, was calculated to cause injustice to persons who had no means, if they adopted that procedure, of ascertaining whether a public body, which had made a decision adversely affecting them, had done so for reasons which were wrong in law and rendered their decision invalid. It will be within the knowledge of all of your Lordships that, at any rate from the 1950s onwards, actions for declarations of nullity of decisions affecting the rights of individuals under public law were widely entertained, in parallel to applications for certiorari to quash, as means of obtaining an effective alternative remedy. I will not weary your Lordships by reciting examples of cases where this practice received the express approval of the Court of Appeal, though I should point out that of those cases in this House in which this practice was approved, Vine v. National Dock Labour Board [1957] A.C. 488 and Ridge v. Baldwin [1964] A.C. 40 involved, as well as questions of public law, contracts of employment which gave rise to rights under private law. In Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 the procedural question was not seriously argued, while Pyx Granite Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, which is referred to in the notes to Order 19 appearing in the Supreme Court Practice (1982) as an instance of the approval by this House of the practice of suing for a declaration instead of applying for an order of certiorari, appears on analysis to have been concerned with declaring that the plaintiffs had a legal right to do what they were seeking to do without the need to obtain any decision from the Minister. Nevertheless I accept that having regard to disadvantages, particularly in relation to the absolute bar upon compelling discovery of documents by the respondent public authority to an applicant for an order of certiorari, and the almost invariable practice of refusing leave to allow cross-examination of deponents

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to affidavits lodged on its behalf, it could not be regarded as an abuse of the process of the court, before the amendments made to Order 53 in 1977, to proceed against the authority by an action for a declaration of nullity of the impugned decision with an injunction to prevent the authority from acting on it, instead of applying for an order of certiorari; and this despite the fact that, by adopting this course, the plaintiff evaded the safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks upon the validity of decisions made by public authorities in the field of public law.

Those disadvantages, which formerly might have resulted in an applicant's being unable to obtain justice in an application for certiorari under Order 53, have all been removed by the new Order introduced in 1977. There is express provision in the new rule 8 for interlocutory applications for discovery of documents, the administration of interrogatories and the cross-examination of deponents to affidavits. Discovery of documents (which may often be a time-consuming process) is not automatic as in an action begun by writ, but otherwise Order 24 applies to it and discovery is obtainable upon application whenever, and to the extent that, the justice of the case requires; similarly Order 26 applies to applications for interrogatories; and to applications for cross-examination of deponents to affidavits Ord. 28, r. 2 (3) applies. This is the rule that deals with evidence in actions begun by originating summons and permits oral cross-examination on affidavit evidence wherever the justice of the case requires. It may well be that for the reasons given by Lord Denning M.R. in George v. Secretary of State for the Environment (1979) 77 L.G.R. 689, it will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise upon judicial review. The facts, except where the claim that a decision was invalid on the ground that the statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v. Bairstow [1956] A.C. 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament. Nevertheless having regard to a possible misunderstanding of what was said by Geoffrey Lane L.J. in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1401, 1410 your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating

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summons; it should be allowed whenever the justice of the particular case so requires.

Another handicap under which an applicant for a prerogative order under Order 53 formerly laboured (though it would not have affected the appellants in the instant cases even if they had brought their actions before the 1977 alteration to Order 53) was that a claim for damages for breach of a right in private law of the applicant resulting from an invalid decision of a public authority could not be made in an application under Order 53. Damages could only be claimed in a separate action begun by writ; whereas in an action so begun they could be claimed as additional relief as well as a declaration of nullity of the decision from which the damage claimed had flowed. Rule 7 of the new Order 53 permits the applicant for judicial review to include in the statement in support of his application for leave a claim for damages and empowers the court to award damages on the hearing of the application if satisfied that such damages could have been awarded to him in an action begun by him by writ at the time of the making of the application.

Finally rule 1 of the new Order 53 enables an application for a declaration or an injunction to be included in an application for judicial review. This was not previously the case; only prerogative orders could be obtained in proceedings under Order 53. Declarations or injunctions were obtainable only in actions begun by writ or originating summons. So a person seeking to challenge a decision had to make a choice of the remedy that he sought at the outset of the proceedings, although when the matter was examined more closely in the course of the proceedings it might appear that he was not entitled to that remedy but would have been entitled to some other remedy available only in the other kind of proceeding.

This reform may have lost some of its importance since there have come to be realised that the full consequences of the Anisminic case, in introducing the concept that if a statutory decision-making authority asks itself the wrong question it acts without jurisdiction, have been virtually to abolish the distinction between errors within jurisdiction that rendered voidable a decision that remained valid until quashed, and errors that went to jurisdiction and rendered a decision void ab initio provided that its validity was challenged timeously in the High Court by an appropriate procedure. Failing such challenge within the applicable time limit, public policy, expressed in the maxim omnia praesumuntur rite esse acta, requires that after the expiry of the time limit it should be given all the effects in law of a valid decision.

Nevertheless, there may still be cases where it turns out in the course of proceedings to challenge a decision of a statutory authority that a declaration of rights rather than certiorari is the appropriate remedy. Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260 provides an example of such a case.

So Order 53 since 1977 has provided a procedure by which every type of remedy for infringement of the rights of individuals that are entitled to protection in public law can be obtained in one and the same proceeding by way of an application for judicial review, and whichever remedy is found to be the most appropriate in the light of what has emerged upon the hearing of the application, can be granted to him. If what should

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emerge is that his complaint is not of an infringement of any of his rights that are entitled to protection in public law, but may be an infringement of his rights in private law and thus not a proper subject for judicial review, the court has power under rule 9 (5), instead of refusing the application, to order the proceedings to continue as if they had begun by writ. There is no such converse power under the R.S.C. to permit an action begun by writ to continue as if it were an application for judicial review; and I respectfully disagree with that part of the judgment of Lord Denning M.R. which suggests that such a power may exist; nor do I see the need to amend the rules in order to create one.

My Lords, at the outset of this speech, I drew attention to the fact that the remedy by way of declaration of nullity of the decisions of the board was discretionary - as are all the remedies available upon judicial review. Counsel for the plaintiffs accordingly conceded that the fact that by adopting the procedure of an action begun by writ or by originating summons instead of an application for judicial review under Order 53 (from which there have now been removed all those disadvantages to applicants that had previously led the courts to countenance actions for declarations and injunctions as an alternative procedure for obtaining a remedy for infringement of the rights of the individual that are entitled to protection in public law only) the plaintiffs had thereby been able to evade those protections against groundless, unmeritorious or tardy harassment that were afforded to statutory tribunals or decision-making public authorities by Order 53, and which might have resulted in the summary, and would in any event have resulted in the speedy disposition of the application, is among the matters fit to be taken into consideration by the judge in deciding whether to exercise his discretion by refusing to grant a declaration; but, it was contended, this he may only do at the conclusion of the trial.

So to delay the judge's decision as to how to exercise his discretion would defeat the public policy that underlies the grant of those protections: viz., the need, in the interests of good administration and of third parties who may be indirectly affected by the decision, for speedy certainty as to whether it has the effect of a decision that is valid in public law. An action for a declaration or injunction need not be commenced until the very end of the limitation period; if begun by writ, discovery and interlocutory proceedings may be prolonged and the plaintiffs are not required to support their allegations by evidence on oath until the actual trial. The period of uncertainty as to the validity of a decision that has been challenged upon allegations that may eventually turn out to be baseless and unsupported by evidence on oath, may thus be strung out for a very lengthy period, as the actions of the first three appellants in the instant appeals show. Unless such an action can be struck out summarily at the outset as an abuse of the process of the court the whole purpose of the public policy to which the change in Order 53 was directed would be defeated.

My Lords, Order 53 does not expressly provide that procedure by application for judicial review shall be the exclusive procedure available by which the remedy of a declaration or injunction may be obtained for infringement of rights that are entitled to protection under public law; nor does section 31 of the Supreme Court Act 1981. There is great variation between individual cases that fall within Order 53 and the Rules Committee

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and subsequently the legislature were, I think, for this reason content to rely upon the express and the inherent power of the High Court, exercised upon a case to case basis, to prevent abuse of its process whatever might be the form taken by that abuse. Accordingly, I do not think that your Lordships would be wise to use this as an occasion to lay down categories of cases in which it would necessarily always be an abuse to seek in an action begun by writ or originating summons a remedy against infringement of rights of the individual that are entitled to protection in public law.

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 many cases, made applications for prerogative orders an inadequate remedy if justice was to be done. This it was that justified the courts in not treating as an abuse of their powers resort to an alternative procedure by way of action for a declaration or injunction (not then obtainable on an application under Order 53), despite the fact that this procedure had the effect of depriving the defendants of the protection to statutory tribunals and public authorities for which for public policy reasons Order 53 provided.

Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view 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.

My Lords, I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons. Whether there should be other exceptions should, in my view, at this stage in the development of procedural public law, be left to be decided on a case to case basis - a process that your Lordships will be continuing in the next case in which judgment is to be delivered today [Cocks v. Thanet District Council [1983] 2 A.C. 286].

In the instant cases where the only relief sought is a declaration of nullity of the decisions of a statutory tribunal, the Board of Visitors of Hull Prison, as in any other case in which a similar declaration of nullity in public law is the only relief claimed, I have no hesitation, in agreement with the Court of Appeal, in holding that to allow the actions to proceed would be an abuse of the process of the court. They are blatant attempts to avoid the protections for the defendants for which Order 53 provides.

I would dismiss these appeals.

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LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Diplock. I agree with it and for the reasons stated in it would dismiss these appeals.

LORD KEITH OF KINKEL. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Diplock. I agree with it and for the reasons stated in it I would dismiss these appeals.

LORD BRIDGE OF HARWICH. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Diplock. I entirely agree with it and for the reasons he gives I would dismiss these appeals.

LORD BRIGHTMAN. My Lords, I also would dismiss these appeals for the reasons given by my noble and learned friend, Lord Diplock.

Appeals dismissed.

No order as to costs save that the plaintiffs' costs be taxed in accordance with Schedule 2 to the Legal Aid Act 1974.

Solicitors: Edwin Coe & Calder Woods; Seifert Sedley & Co.; Treasury Solicitor.

T. J. M.