Judicial exclusivity in actions against public authorities: civil procedure rule, O’Reilly and human rights

Abstract

Purpose This paper aims to provide an account of the legal development concerning civilian right to pursue legal action against public authorities. Review includes historical recap of the state of law practiced prior to 1977 and the decision in the case of O’Reilly that forcefully limit individual’s right to bring action. Despite its blatant disregard of the relevant statute, the O’Reilly decision remains a valid precedent. The essay then considers subsequent law reform and the effect of the Human Rights Act 1998 in limiting the applicability of the O’Reilly principle. The essay aims to benefit law students and non-legal lay person. Design/methodology/approach The paper adopts a hermeneutics positivism approach in considering relevant case laws that is precedent to the matter under discussion. Thereupon, an interpretivism approach is applied to examine subsequent reforms and its impact on civilian right to seek justice. Findings Judicial exclusivity restrains right to seek justice, but is it not totally discredited due to public policy. UK membership in the EU is an obstacle to judicial sovereignty, but it is also an avenue to dilute exclusivity. Social implications This paper is presented in a simple easy-to-understand form that enable lay-person to understand the current state of law in matters concerning public law violation by public authorities and avenues available to them. Originality/value The paper contributes to reinforce understanding on the conflict between common law and statute, and current state of law concerning individual’s right to access to the court of law in cases related to public laws and public authorities.