By Evarist Baimu Nyaga Mawalla - Home

It could be used as a ploy. The importance of finally was stressed by Sir John DonaldsonM.R. in Reg. v. Monopolies and Mergers Commission Ex parte Argyll Group Plc (1986)1 W.L.R 763, 774H. This is a valid policy consideration when considering whether toextend jurisdiction.The Code on Take-overs and Mergers already contains certain safeguards forthose affected by its decisions, including a right of appeal Where a party is affected byvirtue of their membership of the Stock Exchange they can rely on the contractualrelationship already existing to provide a private law remedy.The panel is only susceptible to judicial review if it satisfies the traditional criteriafor determining whether it is fulfilling a public duty. This depends on power; moreparticularly, the source of that power. To suggest, as do the applicants, that a body whosepower does not derive from a public source can still be subject to public law if itperforms a public law function with public law function with public law consequences, isto deny a fundamental aspect of public law. Moreover the fact that either the RestrictiveTrade Practices Act 1976 or the Restrictive Trade Practice (Service) Order 1976 refer toan agreement or recommendation or activity of another body does not render thefunctions of that body public law functions. The exempted agreements listed in Schedule3 to the Act are clearly not within the ambit of public law. So far as the Stock Exchange(Listing) Regulations 1984 are concerned, the fact that a part (the Stock Exchange)governed by public law implements (directly or indirectly) a decision by a third party (thepanel) not within the public law domain does not bring that third party into the public lawforum. In any case the Stock Exchange is only subject to public law by virtue of thoseregulations.The source of its power remains of critical importance to any determination as towhether a body is subject to judicial review. That source might lie in primary orsecondary legislation More over, it is clear from Council of Civil Service Unions v.Minister for the Civil Service (1985) A.C 374 that If the Crown exercises its prerogativethrough a statutory instrument, then the source is such as to render it liable to judicialreview. Review might also lie if the Crown exercised its prerogative without a StatutoryInstrument. The applicants second (consequences) and third (function) tests represent anextension of the law because they enable review to take place without looking at thecritical element, namely the source of the power to take the decision under review.The seriousness of the consequences, or of the public interest involved, is not the correcttest. Public law operates against those bodies which could be the subject of prerogativewrits. The Order 53 procedure has not expanded the scope of operation o public law inthe sense of having extended the category of bodies which could be subject to prerogativeorders In O’Reilly v. Mackman (1983) 2 A.C. 237, Lord Diplock observed that Order 3did not create new remedies but was essentially procedural. In Council of Civil ServiceUnions v. Minister for the Civil Service (1985) A.C. 374,408-409, Lord Diplock, settingour the types of action which were reviewable, emphasized throughout the importance ofthe source of public law powers. See also Reg.v. Criminal Injuries Compensation Board,Ex parte Lain (1967) 2 Q.B. 864 and Reg. v. Post Office, Ex parte Byrne (1975) I.C.R.146