Collateral Attack — Attacking Ultra Vires Action Indirectly in Courts and Tribunals
Judicial review in England is not the exclusive preserve of the superior courts. It is clear that all levels of trial court, whether criminal or civil, have some jurisdiction to determine 'vires' points when properly raised by way of defence to proceedings of which they are seised. But certain questions remain as to precisely what is and what should be the extent of that jurisdiction.' It is clear also that there are circumstances in which both a plaintiff in ordinary civil proceedings2 and a party who has brought proceedings before an administrative tribunal3 may in those proceedings attack public authority action on the basis that it is ultra vires. In order to explore the circumstances in which such attacks may be mounted, this article addresses the following two questions. In what circumstances may a plaintiff seek a determination of a public law issue in ordinary civil proceedings? ('The plaintiff question'). And in what circumstances may a party who has brought a case before an administrative tribunal invite the tribunal to adjudicate upon any public law issue arising? ('The tribunal question'). In the formulation of these two questions the term 'a public law issue' means an issue as to whether a public authority or body discharging a public function has acted ultra vires or in a manner which would otherwise attract the supervisory jurisdiction of the High Court.4 Where a particular case raises either of these questions and the case contains also a European Community law element, certain special considerations arise. It will thus be convenient to deal first with the purely domestic case law on each question (Parts A and B). In Part C the Community law dimension of both questions will be considered. Part D advocates a more coherent approach to the questions.