By Evarist Baimu Nyaga Mawalla - Home

A paradigm,but not the only case of public duty,is where the power to take the decisionwas derived from public law,e,g a statute, statute, statutoty instrument, prerogative orsome other aspect of the common law. A paradigm case of private duty is where thedecision-maker and the person affected are in contractual relations with each other andthe decision arose exclusively out of, or related exclusively to,the contractualrelationship,Similarly,perhaps ,if the decision affects the person’s (private) right to earn aliving,then the decision maker’s duty might be a private one An example o no duty wouldbe a decision by the committee of the Garrick Club not to admit a person seekingelection; (If the decision effected an existing member he woild have contractual rightsunder (b) above)The circumstances in which a public duty exists are not confined to situations where thesource of the power lies in public law (the situation considered by; Lord Diplock inCouncil of civil Service Union v. Minister for Civil Service (1985) A.C 374.409b). Thereare three ways of resting the existence of a public law duty; (i) the aforementioned“source”test; (ii) “consequences” test: where the decision is made under a system whichhas a public law character by reason of the fact that it has consequences in the field ofpublic law including law including for example, the fact that measures taken in theexercise of public law powers ; (iii) the “function” test; where the system under which thedecision is made performs the functions of a public law system.In refusing leave to apply fro judicial review in the present case, Hodgson J. hadin mind both Reg. v. East Berkshine Health Authority Ex parte Warsh (1985)Q.B 152and Law v. national Greyhound Racing Club Ltd (1983) 1 W.L.R 1302; yet thecircumstances of both cases are different from those of the present case because of thecontractual relationships involved making them essentially private duty cases.The factual and legal background to the Code on Takeover and Merges; the bankof England was an important progenitor of not the onlie begetter. The bank of England isa statutory body with wide powers; see Bank of England Act 1946 section 4. The Bankclearly performs its relevant function in part in collaboration with the Department ofTrade and Industry. Between them they gave birth to the Joint Review Body which isengaged in general supervision of the securities market. For the origins of the Code ofTake overs and Mergers, see Halsbury Laws of England 4 th ed. (1974), vol, 7,para 791.The code is a code of ethics, not a code of law. Until recently, the Council of theSecurities Industry had been involved in its enforcement, but in 1985 the Panel on Takeoversand Mergers assumed sole responsibility.(The Securities and Investments Board is not yet in full operation) The code is statutorilyrecognised; see, for example paragraph 10 of the Schedule to the Restrictive TradePractices Act 1976 Sanctions for breach of the code are set out in the introduction to thecode and include expulsion from the securities markets and reference to the Departmentof Trade and Industry, the Stock Exchange or other appropriate body, which would usestatutory or contractual powers to penalize any transgressor. A breach of the code is ipso143