O’Reilly Again: Oh Really? Procedural Exclusivity in Judicial Review

Abstract

1. It is almost 40 years since Lord Diplock introduced the concept of procedural exclusivity into English law: a rule of public policy that may lead to a claim against a public authority being struck out as an abuse of process if pursued by a procedure other than judicial review. For decades following the decision in O’Reilly, the courts’ time has been absorbed adjudicating upon ‘the undesirable complexities of this over-legalistic procedural dichotomy’. More recently, the focus has properly shifted to seeking a balance between the legitimate need to protect public decision-making from unmeritorious or tardy claims and the interests of challengers in having their claims decided on the merits rather than being struck out on procedural grounds. The whole episode calls into question whether it was ever appropriate to introduce so radical a reform by means of judicial decision.