Seemed
to indicate that procedural exclusivity may not apply where abuse of process
involved, even if right is purely public [which in this case it appeared to
be].
to indicate that procedural exclusivity may not apply where abuse of process
involved, even if right is purely public [which in this case it appeared to
be].
Mercury
challenged determination made by D-G concerning pricing of calls.
challenged determination made by D-G concerning pricing of calls.
Did
this by way of originating summons for a declaration
this by way of originating summons for a declaration
D-G
sought to strike out summons on ground that case should have been brought under
Ord 53.
sought to strike out summons on ground that case should have been brought under
Ord 53.
Unanimous
House of Lords found for Mercury.
House of Lords found for Mercury.
Recognised
presumptive exclusivity of Ord 53
procedure given in O’Reilly.
presumptive exclusivity of Ord 53
procedure given in O’Reilly.
But
criterion used in that case to decide whether proceedings could be brought
outside Ord 53 was whether proceedings would constitute abuse of process of
court.
criterion used in that case to decide whether proceedings could be brought
outside Ord 53 was whether proceedings would constitute abuse of process of
court.
No
abuse of process here, so OK to proceed outside Ord 53.
abuse of process here, so OK to proceed outside Ord 53.
[Flawed
reasoning – assumption in O’Reilly was
that proceeding outside Ord 53 would be abuse
of process.]
reasoning – assumption in O’Reilly was
that proceeding outside Ord 53 would be abuse
of process.]
