It was Lord Wilberforce who, in 1983, identified 'flexible proce dure' as a key influence by which in English law 'something resembling a system of public law is being developed' (Davy [1984] AC 276).Certainly, the unified procedure for seeking public law remedies, contained in the reformulated RSC ord 53, can be said to provide that 'flexibility, the absence of which was formerly a cause of injustice and expense to a litigant with right on his side' (Ex p.

Islam [1983] 1 AC 718).But whereas some specific procedural problems are expressly dealt with under ord 53, others are not.

For example, whilst ord 53, r.9(5) provides an express power for judicial review proceedings to be ordered 'to continue as if they had begun by writ', there is no 'converse power', 'to permit an action begun by writ to continue as if it were an application for judicial review' (O'Reilly [1983] 2 AC 284).In truth, procedural problems arise frequently in public law litigation.

Often they appear as impediments to justice, threatening at very least to extract a heavy price in terms of cost or delay.

Fortunately, there are countless examples of judges bending the procedural rules, or overriding them, or simply making them up as they go along.

This is one of the areas in which English law is, perhaps, least content to be ass-like.It is certainly a time for the bold.

As public law principles emerge and develop, their language open-textured, their scope malleable, lawyer and layperson alike can marvel at the way in which our trouble-shooting judges devise mechanisms to override technical procedural difficulties.

They deserve high marks for ingenuity, and often for artistic impression too.Take the problem that damages in judicial review are not self-standing but 'parasitic' upon other relief.

This presented Sedley J, hearing an application for leave to move for judicial review in July 1993, with a legal conundrum (Ex p.

Palmer (1994) 6 Admin LR 195).

Palmer was a housing case in which, prior to the application for leave, the council had reconsidered its decision and accepted that it had been under a duty to house Ms Palmer all along.This meant that the remedies sought by her became otiose, except that she had what Sedley J considered to be a viable damages claim.

The problem was that without any other relief, the damages claim had nothing on which to 'bite'.The judge could 'think of nothing likelier to bring the administration of justice into disrepute among right-thinking people than to turn a litigant with a viable claim for damages away', leaving her to the 'legal brambles' of a writ action which risked being struck out as a 'classic example' of the Cocks ([1983] 2 AC 286) 'condition precedent' scenario.The skilful Sedley J came up with a manoeuvre which he acknowledged was 'procedurally debatable'.

He granted the applicant leave to amend form 86A to claim a 'declaration of breach of statutory duty', whose 'sole utility [was] as the procedural peg on which to hang a damages claim'.

This was rather like (but rather more appetizing than) the Court of Appeal's willingness to allow an 'academic' judicial review challenge to continue solely as a procedural peg for resolving a live question as to costs (James Robert [1993] 1 PLR 108).With advisory opinions, as demonstrated by a decision of Brooke J in May 1991, there have been occasions when courts peremptorily refuse to entertain proceedings where 'what was sought was a declaration of an advisory nature which was not connected with any relevant decision' (Birmingham CC, ex p.

EOC [1994] ELR 292-293).

The resourceful Laws J simply makes the problem vanis h: 'I have no doubt that there are circumstances in which the public law court ought to exercise the jurisdiction, which it certainly possesses, to give advisory opinions' (Ex p.

Mehari [1994] QB 491).Next there is the problem of 'substitutionary' relief.

While the Law Commission has been busy inviting 'views as to whether there are any circumstances in which it might be appropriate to allow the High Court to substitute its order for that of the lower tribunal', Sedley J was engineering a novel form of order - a sort of 'partial certiorari' - which was designed to have precisely this effect (Ex p.

Tower Hamlets Traders [1994] COD 328).Public law actions brought by interest groups provide two related difficulties: the standing requirement and the need for legal capacity.

As to standing, there is a rich heritage of aversion to 'technical rules of locus standi...so greatly liberalised by judicial decision over the last 30 years' (National Federation [1982] AC).

Latest illustrations of the liberalising trend include Otton J's recognition of the advantages of litigation by responsible public interest groups (Greenpeace [1994] 2 CMLR 548), rejecting the old 'amalgam of individuals' view.As to legal capacity, the problem is demonstrated by a decision of Auld J, who struck out judicial review proceedings by an unincorporated association on the grounds of legal incapacity (Darlington Taxi Owners [1994] The Independent, 13 January).

But the Auld school of thought is not the only one.

Faced with the same problem, Sedley J was prepared to look behind the applicant association, identifying individuals who lay behind it to allow the judicial review proceedings to continue (Tower Hamlets Traders, above).Sedley J's approach may have the same liberal attitude, but is rather the reverse of Glidewell LJ's rejection of the 'technicality' in Ex p.

Ross [1993] QB 45.

There, the judicial review had been brought in the name of its finance director (and a shareholder) Mr Ross.

Glidewell LJ thought that the proper applicant was Winchester Group plc.

Endorsing what the parties had done, he simply 'treated the applicant as Winchester's representative', which meant that 'this point therefore disappears'.Perhaps the most revealing, and dramatic, examples of procedural ingenuity have arisen in contexts where proceedings have been pursued in a form which it becomes clear to the court is misconceived.

An appeal which should have been judicial review, a judicial review which should have been an appeal, and so on.A little flexibility can go a long way, especially since the law concerning the respective roles of judicial review and other procedural means of challenge is, in the words of Lord Lowry, 'a procedural minefield' (Roy [1992] 1 AC 653).

Take the situation where the Court of Appeal finds itself faced with a criminal appeal raising public law issues, which clearly should have been pursued by way of judicial review.

Here, the procedural problem is that identified by Lord Diplock in Re A Company that: 'The Court of Appeal...has no original jurisdiction itself to entertain any original application for judicial review' ([1981] AC 381).This poses no difficulty for the judicial magicians.

The Court of Appeal has developed two procedural devices for dealing with the problem, the first found in Miall [1992] QB 836, the second in Foster [1992] 1 QB 49E.

Indeed, so far have we come since Re A Company that the House of Lords has now endorsed 'the original jurisdiction of the Court of Appeal to entertain an application for judicial review' ( Foster [1993] AC 761).The Miall device is to play 'let's pretend we're the High Court'.

Like Clark Kent disappearing into a telephone box and emerging as Superman, Court of Appeal judges have been prepared to adopt the 'flexible, desirable and time-saving approach' of magically reconstituting themselves as a Divisional Court, to hear what began as an appeal but what ingeniously becomes a judicial review (Lee [1993] 1 WLR 109).The Foster approach is to play 'let's pretend this is a renewed application for leave'.

The artful Lord Donaldson MR used this 'curious quasi-original jurisdiction in relation to judicial review' in Foster, as allowing the Court of Appeal to 'add the substantive application for judicial review to the primary appeal, [this being] the sensible and most cost-effective way of dealing with the matter'.The Foster device involves a further pretence, engineering a 'first instance' application for leave.

After all, there must be something to 'renew'.

In fact, two alternative fictions received the Donaldson endorsement: (a) a refusal of leave (by 'a Lord Justice - even one hearing the primary appeal'); or (b) the grant of leave, then to be 'set aside' and replaced by the Court of Appeal's own leave.

In other words, the Court of Appeal is prepared to play 'let's pretend we're a High Court and the Court of Appeal'.Fiction (b) had been foreshadowed by that procedural liberal Woolf J, who in Laker [1984] QB 142 had 'obligingly refused leave to move, thus enabling [the Court of Appeal] to give leave and to add the substantive application for judicial review to the appeal from Parker J without pause for breath' (Foster [1992] 1 QB).However, one does want to return to the absence of r.9(5)'s converse power.

After all, if a criminal appeal can be engineered into a hearing of a judicial review, why cannot a writ action? This leads us to the Court of Appeal in O'Reilly, where the progressive Lord Denning MR said the High Court had 'sufficient control over its proceedings' to enable a writ action to be 'transferred to the ord 53 list'.Consider next the situation where a judicial review challenge is procedurally misconceived.

Imagine a Divisional Court hearing a challenge by way of judicial review, where it is clear that the matter ought to have been pursued by means of an appeal by case stated.

No problem for trouble-shooting judges.

The trick here, 'there being no prejudice to the defendant in so proceeding', is simply 'to give leave to the applicant to set down the case stated for hearing out of time and treat this hearing as being the hearing of the case stated' (Ex p.

DPP [1984] 1 QB 836).There is a host of situations in which there is genuine confusion as to whether judicial review is the appropriate procedure, or whether the applicant's challenge should instead be in (a) instituting writ/originating summons proceedings for a declaration; (b) defending (eg possession) proceedings; (c) bringing an application for habeas corpus; or (d) bringing a statutory application.None of this is a problem for the flexibly-minded.

There are countless examples where the courts simply permit judicial review to be heard together with each of these.

Nor is there any real obstacle in the fact that related proceedings are commenced in different divisions of the High Court.

Take an applicant's (QBD) judicial review challenge to a local authority's decision to pursue Chancery proceedings for an injunction.

The innovative Woolf LJ suggested that the two be heard together, either by transfer of the Chancery proceedings to t he QBD, or by a single judge sitting wearing both QBD and Chancery 'hats'.

After all, he observed, 'with the agreement of the heads of the divisions of the High Court', 'Chancery judges can and do sit as additional judges of the Queen's Bench Division to hear applications for judicial review' (Ex p.

DJB (1989) 1 Admin LR 20-21).A court may even hear together a judicial review brought by, and an originating summons against, an applicant (eg Ex p.

Football League [1992] 2 All ER 833).

Similar flexibility helps where there is doubt as to whether a challenge should be by way of application for judicial review to High Court judges or a petition to the visitors of the inns of court (who also happen to be High Court judges).

It is in such circumstances that we find Henry LJ, Popplewell and Rougier JJ sitting with both judicial and visitorial 'hats' to the ready (Ex p.

Halstead [1994] The Independent, 9 August), a device mooted earlier before Judge J (Ex p.

Toms [1994] The Times, 5 May).A situation where a public body wants to seek the courts' speedy assistance by launching judicial review proceedings to test the legality of its own decisions presents no difficulties either.

It has long been suggested that such self-challenges may be entertained (Winder [1985] AC 509).

Indeed, we do not have to look too far back in the law reports to find an interesting analogy: a combined judicial review and statutory application to quash, by which a coroner was permitted to challenge the verdict at an inquest over which he presided (Re Rapier [1988] 1 QB 26).Looking to the procedural future, the primary focus is naturally upon the Law Commission, whose report contains recommendations for procedural tidying.

But further procedural developments can certainly be anticipated.This is seemingly an age in which no sacred cow is safe.

Those at the legal helm have been able to effect a dramatic U-turn on injunctions against the Crown (M [1994] 1 AC 377, despite Factortame [1990] 2 AC 85).

And, as to the use of Hansard, ours are law lords who (in Pepper v Hart [1993] AC 593) overturned 'a series of rulings by this House, unbroken for a hundred years' (Hadmor Productions [1983] 1 AC 232).

Indeed, rulings which were so well entrenched that counsel had to be summoned back by their Lordships and invited to argue the hitherto unarguable.It should certainly not be assumed, for example, that we have heard the last word on the subject of interim declarations (eg Rossminster [1980] AC 952; also M at 423).

Nor damages for losses 'suffered through invalid administrative action' (Factortame (No.2) [1991] 1 AC 672), something which is available 'in more developed legal systems' (Hoffmann-La Roche [1975] AC 359).Our judges have frequently shown themselves able to solve apparent injustices by conjuring up procedural solutions.

But there remain times, particularly at lower judicial altitude, where judges' hands are tied by principle or practice.

At such times, far from producing a rabbit from a hat the judge may feel unable even to find the hat.

Suggesting that restrictive discovery practices in judicial review may be 'yet another example of how the trial of public law issues remains in places trapped in inapposite private law concepts and procedures', Sedley J said that hearing a judicial review without sight of the critical document had 'felt like Lord Bowen's blind man looking for a black hat in a dark room...' (Ex p.

S [1994] ELR 262).