Review of Ouster Clauses in Administrative Law
![handle is hein.journals/nilq28 and id is 282 raw text is: 274 NORTHERN IRELAND LEGAL QUARTERLY
NOTES OF CASES
REVIEW OF OUSTER CLAUSES IN ADMINISTRATIVE LAW
The recent case in the Court of Appeal of R. v. Secretary of State for the
Environment, ex parte Ostler, like the 'House of Lords' decisions of Smith
v. East Elloe R.D.C.2 and Anisminic v. Foreign Compensation Commission3
before it, is another development in the debate about 'whether certainty and
finality in the administrative process, particularly when specifically provided
for by Parliament,' is more important than individual justice. Connected with
this debate is the 'argument about the extent -to which the adrrinistration
should be subject to the control of a judiciary representing the 'Rule of Law,
but inexpert in the skills of administration. The Court of Appeal in Ostler
favoured certainty and finality, and limited judicial review. On the facts the
case is finely 'balanced; the individual complainant, on the one hand, had
suffered, through no ifault of his own, considerable damage to his 'business,
but, on the other hand, 'Lord Denning ,MAR. points outs that a great deal of
expensive and irreversible work 'had been carried out in reliance upon the
illegal orders. Hence there was a clear issue between injiustice to the individual
and the smooth running of the administrative system. The writer 'believes that
the Court arrived at the right conclusion in favouring the system, 'for admin-
istrative uncertainty in itself can often lead to considerable injustice in this
type of case. Nevertheless, the reasoning by which the judges arrived at their
result is open to criticism, and 'may have adverse repercussions in other areas
of administrative law. It may well 'be that administrative finality can only be
achieved [by more stringent statutory time limits on remiedies for judicial
review generally,6 rat-her than complex litigation on particular statutory time
limit and ouster clauses.
The case concerns a compulsory 'purchase order in pursuance of a plan
to build an inner relief road through [Boston, 'Lincolnshire. Ostler applied to
the 'Divisional Court for an order to quash the compulsory purchase order
on the grounds that there 'had 'been secret deals at 'the public inquiry stage,
amounting to a breach o'f natural justice and 'good faith. The Housing Act
1959 Schedule 2, 'paragraph 2 provides for a six -week 'ti'me limit on such
actions, and Schedule 2, paragraph 4 provides: Subject to the provisions of
the last foregoing paragraph, a scheme or order ,to which this 'Schedule applies
shall not ... 'be questioned in any 'legal proceedings whatever .. .It was not
disputed that the applicant was outside ithe six 'week ti'me limit provided by
the statute, as his application was some eighteen -months after the confirma-
tion of the compulsory purchase order, so the short question for the Court
oif Appeal was whether the time limit applied to an application to quash the
order 'because it was a nullity. All three members of the Court held that it
did.
1 [1976] 3 All E.R. 90.
[1956] A.C. 736.
[1969] 2 A.C. 147.
E.g. Foreign Compensation Act 1959, s. 4(4); Highways Act 1959, Sch. 2.
[1976] 3 All E.R. 90, 93e andf.
See recommendations of Law Commission Working Paper No. 40 on Remedies
in Administrative Law (1971).
[Vol. 28, No. 3](ViewImageLocal?handle=hein.journals/nilq28&div=32&collection=journals&method=preview&ext=.png&size=3)
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