The Gazette 1990

GAZETTE

JULY/AUGUST 1990

decision in O'Reilly -v- Mackman is that a Court may transfer judicial review proceedings from the public law to the private law channel but not vice versa. Thus, it is always safer to commence an action by way of judicial review applying inter alia for an award of damages. It is the normal practice in judicial review proceedings to attach a claim for damages. It may seem a bit confusing but if the Court considers the ma t t er to be exclusively public law, then (subject to misfeasance) damages will not be awarded. If the Court holds the matter to be a mixture of public and private law, then they have the . . . if the Court holds the metter to be exclusively public law . . . damages will not be awarded." discretion to award damages. If it is held to be exclusively private law, then the matter will be transferred out of the judicial review sphere to an ordinary Writ for damages. CASE 4 There is little doubt that the exist- ence of state aids can have a material influence on the market in any particular sector giving con- siderable financial assistance to the beneficiaries but equally disad- vantaging their competitors. Article 92 of the EEC Treaty prohibits aid granted by a Member State or through its resources in any form whatsoever unless it complies with certain specific exemptions. Article 93 (3) obliges Member States to notify the Commission in sufficient time of any plans to grant or alter existing aid. The question arose in AG -v- ICI PLC. 6 ICI claimed the method of valuation for tax purposes used by the Government with respect to inter company transfers of ethane by Shell and BP were so ad- vantageous that they amounted to state aid. The case failed on the substantive issues but in an obiter statement Woolf LJ expressed the view that had Article 93(3) been breached then ICI would have had a cause of action similar to the Garden Cottage Ltd. case. This, however, was before the Bourgoin decision and the vicissitudes of public law. Article 93(3) has been found by the ECJ to be directly

major concern to the practitioner. This is an enormously complex and unsatisfactory area of English law. If is perhaps worth adding that the protection given to a legislative act of the Government by the Court of Appeal decision in the Bourgoin case was later extended to cover not simply legislative acts but also administrative acts which are ultra vires. 6 In this situation (unless or until the Court of Appeal decision is challenged in the House of Lords) it may therefore be necessary to show that the administrative act was the result of a "misfeasance" or an "abuse of power". The Court of Appeal in the Bourgoin case held that a simple excess of power is a matter of public law giving rise only to injunctive relief, whereas an abuse of power or misfeasance was a matter of private law giving an entitlement to damages. Whilst the Court of Appeal also stated that there was no particular merit in the use of the phrase "public law rights" or "private law rights" this does seem to ignore the enormously important implications of O'Reilly -v- Mackman 1 in which the House of Lords held that if it is a question of public law then the rigours of Order 53 apply. " . . . it would . . . 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 wh i ch he was entitled to protection under public law to proceed by way of an ordinary action and by this means evade the provisions of Order 53 for the protection of such authorities" - per Lord Diplock. Consequently, where a person seeks to enforce his public law rights by starting an action by writ, the proceedings will be struck out and leave to apply for judicial review will have to be sought. This may however, be too late, as Order 53 provides inter alia; " No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule . . .(53(3)). An application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when

grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made". (0,53 R4.1). J am afraid this public law/private law issue is unresolved: " t he dividing line between them is impossible to draw with certainty" (per Wade, Administrative Law, p677). It is extremely important from both the procedural and substantive points of view to know whether your action is in the public or private law domain. Unfortuna- tely Parker LJ, who threw breaches of Article 30 into this particular area in his Bourgoin decision, does not offer any serious guidance of when a matter is public and when it is private. Depending on the exact nature of a breach of Article 7 of the EEC Treaty or the Public Procurement Directives it can be argued that in the particular breach concerned there was no discretion left to the public authority and that the public body were therefore obliged to follow certain procedures. If such an argument is successful I believe it may bring it out of the public law and into the private law area where the remedies for a breach of statutory duty apply. I discuss this theory in a little more detail in the second half of this paper. If it has been accepted that the issue is one of private law not public law, one must then examine whether the breach of duty is one for which damages can be expect- ed as a remedy. The English law on when there is an entitlement to damages for breach of statutory duty is itself complex. However, most Irish legal advisers will be familiar with these concepts. The criteria for deciding when an individual is entitled to damages for breach of statutory duty are very similar to the criteria under which the European Court of Justice will hold Community provisions to be of direct effect. Provided it is in the private domain, it can be argued that if a directive or treaty provision is found to be of direct effect then this, by its very nature, means that a breach of it will give an individual a right to damages for breach of statutory duty. From a practitioner's point of view, it is important to bear in mind • that one of the elements of the

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