O’Reilly v Mackman

It was this statement of Lord Diplock that gave rise to the creation of the exclusivity rule: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 Ord 53 for the protection of such authorities. 2The most salient feature of the O’Reilly case, the procedural exclusivity rule determined that all matters concerning public law issues had to be litigated by way of judicial review. This had the effect of denying citizens the right to seek redress in the same matter in other proceedings where private rights were infringed. Procedural concerns are relevant to this issue.This exclusivity rule has generated a lot of confusion among the courts and surprisingly, it has never been overruled. Lord Woolf was very outspoken when addressing the confusion created by O’Reilly v Mackman’s procedural exclusivity rule. He said that the ‘procedural wrangling in that case’ has given rise to a waste of resources.3Lord Woolf carried his discussion of O’Reilly v Mackman a little further in Clark v Lincolnshire [2000] 3 All 742 when he noted that Lord Diplock’s exclusivity rule was concerned with minimizing the risk of an abuse of the civil process. Under Order 53 a complainant had to demonstrate that he had a real chance of success to proceed with the judicial review process. Lord Woolf said, ‘The emphasis can, therefore, be said to have changed since OReilly v Mackman. What is likely to be important when proceedings are not brought …under Ord 53, will not be whether the right procedure has been adopted but whether the protection provided by Ord 53 has been flouted incircumstances which are inconsistent with the object.