THE REMEDIES (PREROGATIVE & NON-PREROGATIVE)

1.1 Introduction

The remedies themselves are at the heart of judicial review, including the three prerogative
remedies-quashing order, prohibiting order, and mandatory order (formerly known as
certiorari, prohibition and mandamus)-and the private law remedies of declaration and
injunction which have recently become available to public law litigants. Restitution and
damages may also be available in certain limited circumstances1.

The prerogative is an ancient source of power. Understanding of what it comprises has

changed over time. ‘Prerogative’ can be used to mean (a) those powers peculiar to the Crown,
for example, granting titles; (b) powers and rights not derived from statute but from (or
recognised by) common law; (c) personal rights enjoyed by the monarch. We are principally
concerned with ‘prerogative’ in the sense of that body of power, rights, immunities and duties
belonging to the Crown and not statute based2.

The non-prerogative???

1
Peter Leyland,Textbook on Administrative Law (Fourth Edition), Oxford University Press, p504
2
David Pollard, Constitutional and Administrative Law(Text With Materials), Second Edition,
Butterworths, p87.
2.1 Procedure For Application

In regard to the provisions set out below, it should be noted that the terminology has changed
with the introduction of Part 54 of the CPR, but the process established under RSC, Ord. 53
and the Supreme Court Act 1981 remains basically the same . In order to obtain a remedy
under the judicial review under procedure, an applicant had to follow the statutory procedure
set out the Supreme Court Act 1981, s 31(1), which provided that :

An application to the High Court for one or more of the following forms of relief, namely-

(a) An order of mandamus, prohibition or certiorari;

(b) A declaration or injunction under subsection (2); or
(c) An injunction under section 30 restraining a person not entitled to do so from acting
in an office to which that section applies,
Shall be made by way of an application for judicial review…
Now, under CPR, 54.2, which came into effect from 2000 :
The judicial review procedure must be used in a claim for judicial review where the
claimant is seeking-
(a) A mandatory order;
(b) A prohibiting order;
(c) A quashing order; or
(d) An injunction under section 30 of the Supreme Court Act 1981…

CPR, r 54.3 (1) provides : ‘The judicial review procedure may be used in a claim for judicial
review where the claimant is seeking-(a) a declaration; or (b) an injunction…’

Further, CPR, r 54.3(2) provides that ‘A claim for judicial review may include a claim
for damages but may not seek damages alone’. The circumstances in which damages can be
awarded are contained in s 31(4) of the Supreme Court Act 1981.
3.1 Public Law Remedies

Habeas corpus (which is not governed by the judicial review procedure but under CPR Sch 1,
RSC Ord. 54) and the quashing, prohibiting, and mandatory orders are known as the
prerogative remedies. These are ancient remedies which were once restricted to use by the
Crown (hence the word ‘prerogative’). But they have evolved to become available to
claimants who wish to challenge the decisions of judicial and administrative public bodies. It
should be remembered that the prerogative orders are issued only against public bodies3.

With the exception of habeas corpus, all prerogative remedies are discretionary.

 3.2 Certiorari and prohibition

Under the English Civil Procedure Rules, certiorari is now known as quashing order, and
prohibition, prohibiting order. In the main, the distinction between the two is this : the former
would quash a decision and the latter would prohibit the commission of an unlawful act, or its
continuance.

Both certiorari and prohibition are generally subject to the same principles. In relation to the
functions of both, this has been explained in the following manner.

Certiorari lies to bring decisions of inferior courts, tribunals, public authority or any
other body of persons before the High Court for review so that the court may
determine whether they should be quashed , or to quash such decisions. The order of
the prohibition is an order issuing out of the High Court and directed to an inferior
court or tribunal or public authority which forbids that court or tribunal or authority to
act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are
employed for the control of inferior courts, tribunals and public authorities… Whereas
certiorari is concerned with decisions in the past, prohibition is concerned with those
in the future4.

While the essence of the dictum remains applicable today, the developing law has resulted in
some specifics to be altered, and refined. The following can be particularly noted.

First, the reference to the expression “having legal authority” can properly be changed as to
read as “subject to judicial review”. As noted, judicial review is no longer solely justified on
3
Peter Leyland,Textbook on Administrative Law (Fourth Edition), Oxford University Press, p505
4
Wan Azlan Ahmad, Administrative Law in Malaysia, Thomson, Sweet & Maxwell Asia, p237.
the basis that a decision making authority derives its power from legislation since statutory
basis is no longer the exclusive criteria for subjecting authorities to judicial review, the test
being whether the authority in question performs a function which can be described as public.

Secondly, the reference to “body of persons” should include individuals or ministers, as

opposed to a plural entity. The point to note is that both remedies relate to any body of
persons having legal authority whose decisions affect the common law or statutory rights or
obligations of other persons as individuals.

Thirdly, the key expression within Atkin LJ’s formulation is that the authority should be
“acting judicially”. The current law is much traceable to the speech of Lord Reid in Ridge v
Baldwin, and for the law post-O’Reilly v Mackman period, much clarity and consistency
could be achieved by abandoning references to the need for the authority to have acted
judicially and its place to substitute: Having satisfied that the authority had acted in excess of
its power, is this an appropriate case that the remedy should be made available to the
applicant? The developing law has brought into the realm of the remedies many aspects of
governmental activities: in Malaysia, certiorari has been granted in respect of decisions of,
for example, the Industrial Courts, Registrar of Companies, Prison Superintendent, Local
Council and Datuk Bandar. Exceptionally, it may be available in respect of statutory
instrument.

Fourthly, the remedies are available to quash nullities although there is, strictly speaking,
nothing to quash for, looking from the view point of an applicant, he or she needs to be
certain whether the act complained of is or is not binding on him or her.

Fifthly, the reference to “rights” should be interpreted in a manner that is consistent with the
scope of judicial review, and could in appropriate circumstances be taken to refer to interests.
Further, a reference to “rights” here should not be narrowed down to only rights conferred by
written law. The expression should extend to all rights recognised as enforceable under
judicial review and should therefore cover, in addition to profesional membership in so far as
that body derives its power under statute, public law entities.

Sixthly, prerogative remedies do not extend to what are strictly matters of private law where
the source of power governing the relationship between the parties in consensual submission,
such as in contract. Thus, the remedies are not available in respect of private employment or
membership of social club, save where, in the absence of contractual rights, a decision of one
party would have a direct bearing on the livelihood of the complainant.

Seventhly, the remedy of certiorari may be granted to quash decisions of authorities whose
functions appear to have narrowed down to the carrying out of factual inquiries, or functions
that appear advisory, if their decisions have legal consequences, as illustrated by the position
of the coroners’ court.

While certiorari and prohibition are available against authorities acting under statutory
powers, they are also available against public authorities acting under prerogative powers. As
noted, they are not available where the defendant body is not in exercising a public law
function, but is strictly a private law entity. This would be so, for example, where the power
is nothing more than contractual.

 3.3 Quashing order (formerly certiorari)

A quashing order is the most commonly sought of the prerogative remedies in judicial review
proceedings, and will often be the only remedy which is required. Although wide-ranging, it
is mainly applied to the decisions of public bodies acting under statutory authority, and has
the effect of invalidating the ultra vires decision of the administrative body concerned. This
may be a court (other than the superior court), tribunal or other public authority. It is not
entirely confined to ultra vires action, however, and this remedy may also be used to quash an
abuse of power, to protect common law rights of a public nature, and to curb any excess of
authority in the use of prerogative powers. But it does not apply to private, domestic bodies
deriving authority from contract, or where public bodies are challenged on an issue of private
law (see R v BBC, ex p Lavelle [1983] 1 All ER 241). It is not available to a private company
registered under the Companies Acts 1948 (see Law v National Greyhound Racing Club Ltd
[1983] 3 All ER 300). A quashing order will not be against the Crown as such, but since it
will be available against ministers of the Crown in their official capacity, this is not a serius
omission5.

5
Peter Leyland, Textbook on Administrative Law, Oxford Press, p505.
  3.4 Prohibiting order (formerly prohibition)

A prohibiting order operates in a different fashion to a quashing order, by having the effect of
preventing the illegal action from occurring in the first place. That is, in the relatively few
cases where applicants will be aware that unlawfulness is about to arise, assuming that there
is a function to be performed, the prohibiting order instructs the official body not to act. At
the same time, like a quashing order, a prohibiting order is used to help maintain good
standards of public administration. The rules governing the availability of the remedy are are
virtually identical to those applying to a quashing order. Although prohibiting orders have no
function in correcting errors of law, they can be used in conjunction with a quashing order in
order to achieve that purpose. In R v Kent Police Authority, ex p Godden [1971] 3 All ER 20,
prohibition was issued against a police authority to stop a doctor concerned may already have
formed a view of the matter6.

 3.5 Mandatory order (formerly mandamus)

Mandamus, or mandatory order, is a prerogative writ or an order in a nature of that writ

which compels public authorities to perform their duties:

Compendiously stated, mandamus may be granted to an applicant of sufficient

standing who proves that the respondent has refused to comply with the applicant’s
demand that the respondent perform a duty of a public nature, and that there is no
other equally convenient, beneficial and effectual remedy available to the applicant7.

It is also can be defined as, where there is a violation of right in the Bill of Rights, a
complainant can apply to a court for a mandamus to vindicate the breach of the right.

In City Council of Pretoria, the court found that the city council had discriminated
against white residents by taking selective enforcement measures to collect for
electricity and water use. The Court held that although there was a breach of a right,
the respondent was not entitled to take measures on his own, such as the withholding
of payments to the city council. Instead, the respondent should have applied to a court
‘for a declaration of rights or a mandamus in order to vindicate the breach. By means
of such an order the council could have been compelled to take appropriate steps as

6
Peter Leyland, Textbook on Administrative Law, Oxford Press, p508
7
Wan Azlan Ahmad, Administrative Law in Malaysia, Thomson, Sweet & Maxwell Asia, p246.
 soon as possible to eliminate the unfair discrimination and to report back to the court
in question’8.

For the purposes of the remedy, the authority whose decisions have been challenged must
owe the applicant, or the category of individuals for which the applicant is one, a duty of a
public nature. The remedy does not extend to a pure private law duty.

The principal grounds for the grant of mandamus are jurisdictional errors and abuse of
discretionary power.

In any given case, the claim for mandamus, being a discretionary remedy, is subject to well-
established limitations, the principal ones being:

1. Where there is a clear legislative intention of conferring wide discretion on the

authority, and the case involves decisions respecting the allocation of resources,
2. The impracticability of what the authority may be required to undertake;
3. Where constant supervision is required to ensure compliance;
4. The degree of public inconvenience caused;
5. Where there has been unreasonable delay, which would depend very much on the
particular factual matrix of a particular case;
6. On account of futility; and
7. Where the applicant is guilty of improper conduct, exemplified by fraud in securing
licence.

A mandatory order is another distinct weapon in the armoury of the court. It is an order of the
High Court which commands a public body to perform a public duty, and is usually
employed to compel public bodies to exercise powers given to them. Disobeying a mandatory
order places the body concerned in contempt of court. It ma\y be used in combination with
another remedy, most commonly a quashing order. In such a case, the decision will be set
aside by the quashing order and a fresh decision will be obtainable by a mandatory order.
However, as Lord Scarman noted in relation to mandamus in R v Inland Revenue
Commissioners, ex p National Federation of Self-employed and Small Business Ltd [1982]
AC 617 : Mandamus is the most elusive of the prerogative writs and orders. The nature of the

8
Ziyad Motala, Constitutional Law (Analysis and Cases), Oxford Southern Africa, p.91
interest an applicant must show, the nature of the duty which is available to enforce, and the
persons or bodies to whom it may issue have varied from time to time in its development9.

 3.6 Writ of Qua Warranto

This is an old cause of action at common law, the more modern terminology being
information in the nature of qua warranto. Its purpose is to enable “a person who claimed or
usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in
order that the right to the office or franchise be determined”. In Malaysia, the legal basis of
jurisdiction has been judicially noted but the applicable principles of law associated with the
remedy were not examined. The rare instance where its availability was canvassed by a local
court was in relation to the challenge raised respecting the office of the president of Ipoh
Council which was held at the same time by the Menteri Besar. This avenue of challenging
administrative action is restricted to offices of public nature, and there must be a possession
or user of the office in question.

Its grant remains a matter of discretion, and the factors that may be taken into account include
futility, the existence of satisfactory alternative remedy, and the remedy would not be granted
where it is vexatious to do so10.

 3.7 Habeas Corpus

The remedy of habeas corpus is available to secure the release of a person who has been
unlawfully detained. Where a complaint is made to the High Court or any judge that a person
is unlawfully detained the court must inquire into the complaint, and unless satisfied that the
detention is lawful, must order him to be produced before the court and release him.
Abdoolcader J explained:

Habeas Corpus is a high prerogative writ of summary character for the enforcement of this
cherished civil right of the personel liberty and entitles the subject of detention to a judicial
determination that the administrative order adduced as warrant for the detention is legally
valid.

9
Peter Leyland, Textbook on Administrative Law, Oxford Press, p508-509.
10
Wan Azlan Ahmad, Administrative Law in Malaysia, Thomson, Sweet & Maxwell Asia, p259.
If the detention could not be justified, the detained person must be released: the grant is of
right and not a matter of discretion. Thus, the existence of some other effective remedy
should not operate as a bar for refusing its grant. It has also been noted that:

The detaining authority may have to consider the possibility of criminal prosecution,
and a failure of this in the circumstances of an individual case may justify a
conclusion that the detaining authority did not apply his mind whether the detention in
issue was necessary when an ordinary criminal prosecution could serve the purpose.
An act of detaining a person amounts to a mala fide exercise of power where the
detaining authority has prematurely made up its mind in relevant and material
respects: thus, a decision to detain in excess of the period originally allowed under the
legislation may not stand.

The remedy is not appropriate as a mean to challenge the legality of trial or on admissibility
of evidence, or the manner or condition of detention. The application should be directed at
the authority having custody of the detained person, that is, the authority with the power to
see that the applicant is released: thus where he is in the custody of the Minister of Home
Affairs, application should not be made in respect of detention by the Police11.

11
Wan Azlan Ahmad, Administrative Law in Malaysia, Thomson, Sweet & Maxwell Asia, p259-260.
4.1 The Cases of Prerogative Power

1. Council of civil Service Unions v Minister for the Civil Service [1985] AC 374 House
of Lords (Lords Fraser, Scarman, Roskill, Diplock and Brightman)
 Reviewability of prerogative power – scope of judicial review
 Facts :

Acting pursuant to delegated prerogative power, art 4 of the Civil Service Order in
Council 1982, the Minister for the Civil Service (the Prime MInister) issued on oral
instruction to the unions representing those civil servants employed at Government
Communication Headquarters (GCHQ), altering the conditions of service so as to
prohibit membership of trade unions by the civil servants employed there.

 Held :

Delegated prerogative power was not immune from judicial review; the scope of such
powers could be ascertained by reference to their object, or procedure by which they
were to be exercised.

2. Laker Airways v Department of Trade [1977] 2 WLR 234 Court of Appeal (Civil
Division) (Lord Denning MR, Roskill and Lawton LJJ)
 Exercise of prerogative power where statutory alternative existed –
reviewability of prerogative power
 Facts :

The plaintiff were designated as recognised transatlantic carriers by the Secretary of

State in 1973. The procedure was carried out within the terms of the Bermuda
Agreement 1946.

 Held (inter alia) :

(Per Loskill and Lawton LJJ) The existence of a power under the 1971 Act to revoke
licences granted to carriers by necessary implication fettered the freedom of the
Department to use prerogative powers to do [Link] Department had misused its
powers and acted ultra vires12.

12
Michael T Molan,150 Leading Cases of Constitutional and Administrative Law, Old Bailey Press, p45-47
 BIBLIOGRAPHY

1. Peter Leyland,Textbook on Administrative Law (Fourth Edition), Oxford University Press

2. David Pollard, Constitutional and Administrative Law(Text With Materials), Second Edition,
Butterworths

3. Wan Azlan Ahmad, Administrative Law in Malaysia, Thomson, Sweet & Maxwell Asia

4. Ziyad Motala, Constitutional Law (Analysis and Cases), Oxford Southern Africa

5. Michael T Molan, 150 Leading Cases of Constitutional and Administrative Law, Old Bailey
Press