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GAZETTE
JULY/AUGUST 1990
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
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
204