O'Reilly v Mackman

Factual and Procedural Background

The Appellants were serving long sentences of imprisonment when the Board of Visitors of The Prison imposed disciplinary awards forfeiting part of their remission under Rule 51 of the Prison Rules 1964. Alleging breaches of natural justice—bias in one case and denial of a fair hearing in the others—the Appellants began civil actions in 1980 (one by originating summons, the rest by writ) seeking declarations that the awards were null and void.

The Board applied to strike out the actions as an abuse of process. A High Court judge refused, but the Court of Appeal (Civil Division) allowed the strike-out on 30 June 1982. The consolidated appeals were then brought to the House of Lords. After hearing argument in October 1982, the House delivered judgment on 25 November 1982, affirming the Court of Appeal and dismissing the appeals.

Legal Issues Presented

1. Whether, after the 1977 revision of Order 53 of the Rules of the Supreme Court, it is an abuse of the court’s process for a prisoner to seek declaratory relief through ordinary civil proceedings (writ or originating summons) instead of by an application for judicial review when challenging a public-law decision.
2. Consequently, whether the High Court should strike out such ordinary actions and require the challenge to proceed, if at all, by judicial review.

Arguments of the Parties

Appellants’ Arguments

• The Board’s disciplinary decisions were void because of procedural unfairness (denial of a fair hearing or bias), entitling the Appellants to declaratory relief.
• Although judicial review was available, Order 15 r.16 permits declaratory actions, and the court’s discretion to refuse a declaration should be exercised, if at all, only after a full trial.

Respondents’ Arguments

• The actions were an abuse of process because they attempted to bypass Order 53’s safeguards (leave requirement, affidavit evidence, promptness) that protect public authorities and the public interest in legal certainty.
• All the relief sought could and should have been pursued by judicial review; therefore the actions ought to be struck out at the outset.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the leading opinion, Judge Diplock traced the evolution of English public-law procedure. Prior to 1977, applicants often resorted to ordinary actions for declarations because the prerogative-order procedure lacked discovery, cross-examination and damage claims. The 1977 revision of Order 53 removed these disadvantages by:

• Allowing discovery, interrogatories and cross-examination where justice requires;
• Permitting claims for damages and for declarations or injunctions within the same judicial-review proceeding;
• Providing a leave requirement, affidavit evidence and strict time limits to protect public bodies and ensure prompt certainty.

Because all the Appellants sought was public-law relief (a declaration that the Board’s awards were void), Order 53 offered a complete and adequate mechanism. Commencing ordinary civil actions enabled the Appellants to:

• Avoid the leave filter and affidavit obligations;
• Delay proceedings beyond the three-month limit applicable to judicial review;
• Prolong uncertainty for the prison authorities and third parties.

The House held that, now that Order 53 affords a comprehensive and fair procedure, using an ordinary action solely to attack a public-law decision is generally contrary to public policy and thus an abuse of process. While exceptional cases may justify departure (e.g. where private-law rights are simultaneously in issue or all parties consent), none applied here. Consequently, the Court of Appeal was correct to strike out the actions.

Holding and Implications

Appeals DISMISSED; Court of Appeal order AFFIRMED.

The Appellants’ actions were struck out as abuses of process, and their costs are to be taxed under the Legal Aid Act 1974. The decision confirms a general rule that challenges to public-law decisions must proceed by judicial review under Order 53, not by ordinary civil actions, absent exceptional circumstances. This reinforces procedural safeguards for public bodies and promotes prompt legal certainty, but leaves open the possibility of case-by-case exceptions.