By Evarist Baimu Nyaga Mawalla - Home

The formalism thus introduced into our procedure has been the subject of strong criticismthus introduced into our procedure has been the subject of strong criticism by Sir PatrickNeill in a Child & Co Oxford Lecture given in 1985, and by other academic writers.The curiosity of the present case is that it is so to speak the other way round. The plaintiffis seeking a remedy in public law. It is the defendant who asserts that the plaintiff remedyin public law. It is the defendant who asserts that the plaintiff’s remedy, if any (and Mr.Alexander for the panel concedes nothing) lies in private law Mr. Alexander has castaway the protection afforded by R.S.C ., Ord. 53 in the hope perhaps that the panel mayin the words of Mr. Level be subject to no law at all.On this part of the case Mr. Alexander has advanced arguments on two levels. Onthe level of pure policy he submits that it is undesirable or decisions or rulings of thepanel to be reviewable. The intervention of the court would at best impede at worstfrustrate the purposes for which the panel exists. Secondly on a more technical level hesubmits that to hold that the panel is subject to the supervisory jurisdiction o the HighCourt would be to extend that jurisdiction further than it has ever been extended before.On the policy level. I find myself unprersuaded. Mr. Alexander made much of theword “self regulating” No doubt self –regulation has many advantages. But I was unableto see why the mere fact that a body is self-regulating makes it less appropriate forjudicial review. Of course there will be many self regulating bodies which are whollyinappropriate for judicial review.The committee of an ordinary club affords an obvious example. But the reasons why aclub is not subject to judicial review is not just because it is self- regulating. The panelwields ecormous power. It has a giant’s strength.The fact that it is self- regulating, which means, presumably, that it is not subject toregulation by other, and in particular the Department of Trade and Industry, makes it notless but more appropriate that it should be subject to judicial review by the courts.It has been said that “it is excellent to have a giant’s strength, but it is tyrannous to use itlike a giant. Nobody suggests that there is any present danger of the panel abusing itspower. But it is at least possible to imagine circumstances in which a ruling or decision ofthe panel might give rise to legistimate complaint. An obvious example would be if itreached a decision in flagrant breach of the rules of natural justice.If is no answer to say that there would be a right of appeal in such a case. For acomplainant has no right to appeal where the decision is that there has been no breach ofthe code. Yet a complaint is just as much entitled to natural justice as the companyagainst whom the complaint is made.Nor is it any answer that a company coming to the market must take it as it findsit. The City is not a club which one can join or not at will. In that sense, the word “self-170