KB-2023-002277 - [2025] EWHC 1880 (KB)

.... 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 which he was entitled to protection under public law to proceed by way of ordinary action and by this means to evade the provisions of Ord. 53 for the protection of such authorities.

The emphasis can therefore be said to have changed since O’Reilly v Mackman… What is likely to be important when proceedings are not brought by a student against a new university under Order 53, will not be whether the right procedure has been adopted but whether the protection provided by Order 53 has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in Part 1….

Procedural exclusivity was once thought of as a principle which requires that ‘public law issues are ventilated only by way of judicial review’. It is now a much more focused, narrow principle. It requires that ‘public law issues raised as a claim outside judicial review may constitute an abuse of process, if the claim serves to circumvent or flout protections by reference to which permission for judicial review would be refused’. The obvious example of such a protection is delay. Reduced to its simplest form, the point is this. If I know that I would be refused permission for a CPR Part 54 judicial review by reason of some principled protection for public authorities, I cannot expect to be able to proceed instead and get the issues resolved by a High Court Judge, by using a CPR Part 8 Claim Form and seeking declarations of unlawfulness. If I choose to do that, I can expect to be met by an application to strike out the claim, based on the principled protection which I am sidestepping. It could be delay. Or it could in principle be some other ground on which permission for judicial review would be refused (see Administrative Court Judicial Review Guide 2021 §§6.3.3, 6.3.4) such as alternative remedy, or the claim being “academic”.

The claim against the SoS is of importance to the overall claim in the action; it is not an incidental feature. The statutory scheme for the grant of necessary wayleaves is a process subject to public law. Bodorgan’s case is that, here, the process which has been being operated by the SoS and which may lead to the grant of a wayleave by the SoS is invalid because there had been no valid application by the ‘licence holder’. This would mean that all the steps taken in that process are invalid and, should the SoS grant a wayleave, that would, on Bodorgan’s case, be invalid and of no effect. These are public law issues. It is undoubtedly because of the significance of these issues that the SoS has been joined as a defendant to the action.

It is not an answer to the above points to say that the SoS was not given a discretion to decide whether an application was or was not a valid one, or that the issue was simply a factual question as to whether an application had been made. It is a commonplace in public law challenges that it is said that conditions necessary to the existence of a power did not pertain.

It would be contrary to the public interest in sound administration, including that the acts of public bodies should not prejudice third parties, for a claim such as this to be brought against the SoS without regard to the safeguards in CPR Part 54, and in particular the need for expedition. If there is a valid application, then the licence holder need not comply with the notice to remove until the SoS has decided the issue of whether there should be a necessary wayleave. During that period the licence holder will not commit trespass. On the other hand, if there has been no valid application, then the licence holder can be guilty of trespass. If Bodorgan were correct, it would be open to the landlord to wait for several years before bringing a claim to establish that trespass. It would be unsatisfactory if, in circumstances in which a statutory process had been instituted and pursued, it could subsequently be said that that process was invalid and had never been validly commenced. It would expose third parties (here SEP) to potential liabilities notwithstanding that they had acted in good faith in compliance with the SoS’s understanding and implementation of the scheme under the 1989 Act.

Bodorgan could have brought challenge proceedings much more promptly. By 24 August 2017, the SoS had made it clear that he regarded there as having been a valid application, and that he was going to operate the procedure for deciding on whether there should be a necessary wayleave and if so on what terms. From this it was apparent, including to Bodorgan, that SEP would be prejudiced if there were subsequently to be a contention that there had been no valid application. It behoved Bodorgan, if it contended that there had been no valid application and that the SoS had no vires to grant a necessary wayleave, to move promptly.

I do not find convincing Bodorgan’s case that there was no abuse of process because Bodorgan was not provided with copies of the SoS’s 2017 correspondence with SEP until 2022. It would have been possible for Bodorgan to have sent a Pre Action Protocol letter in 2017 seeking the relevant documents. It is also notable that, even after Bodorgan had been provided with most of the correspondence sought in September 2022, it did not commence the current proceedings until May 2023. Thus, it failed to act, even at that stage, with the expedition which would be expected in relation to a challenge by way of judicial review.

Thus, in my view, the present claim against the SoS does raise public law issues, and does so in a way which circumvents protections, including in particular relating to delay, by reference to which permission to bring judicial review would be refused. It is accordingly an abuse of the process of the court.