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
challenged determination made by D-G concerning pricing of calls.
this by way of originating summons for a declaration
sought to strike out summons on ground that case should have been brought under
House of Lords found for Mercury.
presumptive exclusivity of Ord 53
procedure given in O’Reilly.
criterion used in that case to decide whether proceedings could be brought
outside Ord 53 was whether proceedings would constitute abuse of process of
abuse of process here, so OK to proceed outside Ord 53.
reasoning – assumption in O’Reilly was
that proceeding outside Ord 53 would be abuse