PUBLIC/PRIVATE DIVIDE/STANDING IN JUDICIAL REVIEW - Essay Example

Sources of power, private law, and public law issues, order 53 and Locus Standi should be discussed gradually. This question raises some issues from public body, private and public law issues, and locus standi. In order to answer this question, it is necessary to have a clear knowledge about pre-1977, S 31(1) of Supreme Court Act 1981, O .53, and situation after reform. It is also necessary to explain the background to this development and decision of O'Reilly v Mackman 1, public body, private and public law issues, sources of power and the exceptions of O'Reilly v Mackman.

Prior to 1977, people were likely to use private law for its advantages. The problems were short time limit, requirements of LS, unavailability of discovery, and inflexibility regarding remedies. However, the decision of the Architectural Academy (AA) regarding the subject of scholarship will be amenable to claims for judicial review if it is public body and the issues are public law issues. Four weeks before the beginning of the coming academic year, the trustees of the AA decide to cease offering financial scholarships with immediate effect.

JR is only available against public bodies, not private bodies. The sources of inferior bodies power is the traditional approach to determine a public body. In R v Panel on take-overs and Mergers ex parte Datafin Ltd 2, the CA held that the Panel was amenable to JR despite the fact that it was a self-regulatory body operated by the City whose powers derived neither from statute nor the prerogative. This functional approach can be illustrated bellow. Section 6(3) provides that public authority will include 'any person certain of whose functions of a public nature' and s6 provides they uphold convention rights [Poplar Housing v Donoghue], [Leonard Cheshire Foundation] 3.

In R v Criminal Injuries Compensation Board ex p Lain 4, the board should be subject to review as if it was set up under statute. In Harriot 5, an ad hoc committee and in Scott v National Trust 6, the national trust could be public body. Hoffman LJ observed in ex p The Aga Khan 7 felt that Jockey Club was not to be subject to JR because it did not form part of a system of governmental control. Court adopts sources of power test. The Aga Khan is to taken as indicative of the correct approach in determining reviewability.

However, form the question it is clear that AA would be amenable to claims for judicial review, if court adopt sources of power test, because the powers derives from statutes.In Cocks v Thanet DC 8, HL held that an action against local authority for breach of statutory duty is abuse of process. It would only be allowed by way of JR. In Ali v Tower Hamlets LBC 9 CA held that determination of suitability of accommodation also fell within the public law. Clarification finally came in British steel PLC v Customs and Excise Commissioner 101) If litigation touches only on public law issue, the complaint must generally seek remedy by way of JR.2) Where the complaint enjoys a