+
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7
[Agreed. Underhill was approved and followed in
International General Electric Co. of New York
V.
Commissioners of Custom and Excise 1962 2 A.E.R. 399
and in other cases.]
(6) The net result would appear to be that in judicial review applications the High Court cannot exercise its authority under Order 53, sub-section 3(10)
to give interim relief against the Crown or a Crown officer by way of injunction or declaration. I assume that you would take the same position with respect to a "stay", were it to be sought under that provision against an officer of the Crown where the effect would be the same as an interim
injunction against the Crown.
[Agreed. But since Hodgson J raised his hare in Herbage (No.1) in 1986, there has been doubt as
to the position in 0.53 proceedings. Now that it is laid to rest by the decision in Factortame, the position in both kinds of proceedings is restored
to the status quo ante. Before Herbage there was a campaign for change in Hong Kong and the matter was presented in November 1986 in the argument attached. The proposal for change was rejected. The campaigners (who included members of the judiciary) decided that Herbage (No.1) allowed them to make the change then desired. Now that Factortame has been decided I anticipate a possible resurrection of this issue in the Supreme Court Rules Committee.
In 1986 as a legal policy adviser I was more inclined to the view that interim relief against the Crown was not an issue of great importance to the executive. Since practising as senior civil litigator for the
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