"Standing" for Pressure Groups and the
Representative Plaintiff

Barry H ough*

"It is manifest, that men who are in absolute liberty may ... give Authority to
One man, to represent them every one": Hobbes, Leviathan.

The common law has shown too great a respect for the individual. Pound
expressed it this way: "The common law ... is concerned, not with social
righteousness, but with individual rights. It tries questions of the highest social
import as mere private controversies between John Doe and Richard Roe. And
this compels a narrow and one-sided view ... ".1

In public interest litigation, therefore, the law has required that justice be done
for the benefit of the individual2 who seeks to vindicate his private legal rights.
Pound castigated this sanctity of the individual as damaging "for the needs of
society".3 Indeed, courts are perceived as condoning illegality where a remedy is
denied only for want of locus standi in the plaintiff.4 Further, such a result
undermines legislative policy by frustrating the enforcement of legal rights and
interests. And rights without remedies are mere "delusions".5

The reforms introduced by the new R.S.C. Ord. 53 have certainly liberalized
the standing doctrine.6 The question to be addressed in this article is whether these
changes have been sufficiently profound to permit litigation in the public interest
by representative individuals or pressure groups who seek the intervention of the
court on behalf of others more closely affected and, ultimately, for the benefit of

* Lecturer in Law, University College of Wales, Aberystwyth.
1. (1905) 5 Columbia L. Rev. 339, at p. 346.
2. A late example of this approach can be seen in Gouriet v. Union of Post Office Workers [1978] A.C.
435. For an account of the development of the law of locus standi, see Wade A dministrative Law 6th ed.
(1988), at pp. 688 et seq..
3. Supra n. 1, at p. 344.
4. Such a criticism was ventured by Professor Wade of R. v. Customs and Excise Commissioners, ex p.
Cook [1970] 1 W.L.R. 450: (1978) 94 L.Q.R. 5.
5. Per Sir K. Schiemann, [1990] P.L. 342, at p. 343; see also Rudolph von Ihering, Der Kamp ums Recht
(1872).
6. See, e.g., thediClumofSlade LJ,inR. v.H.M. Treasury,exp. Smedley [1985] Q.B. 657,atp. 669; also
R. v. Inland Revenue Commissioners, ex p. Federation of Self-Employed and Small Businesses Ltd. [1982]
A.C. 617 (per Lord Diplock) and 656 (per Lord Roskill).

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the public.7 The possibility of representative litigation is particularly important
for many groups of individuals in society who, whether from a lack of resources or
other forms of disadvantage, would otherwise not be able to seek a remedy in their
own right. These are precisely the individuals who are most likely to be in need of
the protection conferred by the rights in issue. Pressure groups or public spirited
litigants frequently possess the resources and expertise necessary to ensure the
vindication of rights or interests enjoyed by others either by promoting suitable
"test" cases, or by proceeding in their own name. "Test" cases are not always an
appropriate solution, however,8 and, if the organisation is then unable to proceed
in its own name, the rights or interests of those without the resources to defend
them may be prejudiced for want of enforcement.

Lord Diplock averted to the question of representative and pressure group
litigation in the Fleet St. Casuals case,9 in which he concluded:

"It would, in my view, be a grave lacuna in our system of public law if a pressure
group, like the federation ... were prevented by outdated rules of locus standi
from bringing the matter to the attention of the court to vindicate the rule of law
and get the unlawful conduct stopped."lo

Almost ten years after their lordships' decision it is proposed to consider the
extent to which pressure groups and other representative litigants have been
allowed to challenge a breach of public duty affecting others in a greater measure
than themselves.

Proceedings such as these raise complex questions. Quite apart from whether, in
public interest litigation, justice is done for the benefit of the public, 11 there
remains the question of whether the locus standi rules fall to be applied solely
against the representative litigant or whether the court can have regard to the
interests of the represented group to fortify the position of the representative. If
representation is to be allowed, in what circumstances is it legitimate and who is to
be regarded as a competent representative?

In recent years, the courts appear to have given a warmer but not unqualified
welcome to representative or group proceedings. Developments have nevertheless
been compromised by a failure to develop principles which will define their proper

7. The controversy surrounding locus standi has become more prominent recently: see, e.g.,
Schiemann, supra n. 5, in which a reconsideration of the purpose served by the rules is urged, and P.
Cane, [1990] P.L. 307 in which standing for representative groups is advocated as a necessary
assistance for not only the "poor and under privileged" but also members of the public whose protector
- the Attorney-General - may not take action against Central Government.
8. See, e.g., Wilkeley, (1985) 135 N.L.]. 1123 discussing the strategy of the Child Poverty Action
Group in R. v. Secretary of State for Social Services, ex p. Child Poverty Action Group and the Greater
London Council [1985] The Times, 8th August.
9. R. v. Inland Revenue Commissioners, ex p. Federation of Self-Employed and Small Businesses Ltd.
(1982J A.C. 617.
10. Ibid., at p. 644.
II. This was the rationale of allowing a more liberal standing requirement to operate in the case of the
prerogative orders. See, e.g., Craig, Administrative Law 2nd ed. (1989), especially at p. 365, and Wade,
(1978) 94 L.Q.R. 5.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

scope. In some cases the issue of principle has been passed over. Alternatively, the
courts have merely stretched the traditional approach by awarding locus standi to a
representative litigant on the ostensible ground that he satisfies the orthodox rules
in his own right. No doubt this is a just result but it has caused a perceptible
distortion of the locus standi rules. Such an approach would have been unnecessary
had the courts realized that different questions are raised in this type of case which
make it unsuitable for the analysis normally applied in single party proceedings.

The orthodox approach: the Fleet St. Casuals casel2

The Fleet St. Casuals case illustrates the traditional, if somewhat conservative,
approach to representative type litigation. In this case, the House of Lords trod the
well-beaten path in seeking to measure the sufficiency of the interest of the
representative litigant, as it had done in the earlier Gouriet case. 13 In Fleet St. the
applicant for judicial review was an association which represented the views ofthe
self-employed person and small businessman, alleging that the Inland Revenue
had abused its powers in undertaking not to pursue certain tax arrears owed by a
group of Fleet St. workers.

Their lordships examined whether the Federation had a sufficient interest and,
in order to answer this, focused upon the interests of its members. The speeches
do, however, reveal a considerable difference of opinion as to the role and standard
of the sufficiency of interest required. 14 The majority decided that in this context
the federation did not have a locus standi to represent its members. The assessment
of taxes was a confidential matter between the Revenue and the individual
taxpayer in which, generally, another taxpayer could not have an interest.
Therefore, as Lord Wilberforce observed: "an aggregate of individuals each of
whom has no interest cannot of itself have an interest" .15

Their lordships kept open the possibility that in exceptional circumstances, an
actio popularis could be desirable. Most agreed that serious unlawful conduct by
the defendant would be capable of affording locus standi for the benefit of an

12. Supra n. 9.
13. Supra n. 2.
14. It was held by the majority that standing is to be judged in relation to the legal and factual context
(see, e.g., the speeches of Lords Wilberforce [1981] 2 W.L.R. 722, at p. 727, Lord Scarman at pp.
748-49 and Lord Roskill at p. 753). Lord Fraser, however, thought that it would be relevant to consider
more narrowly the statute under which the duty alleged to have been breached arises to ask whether the
applicant has an express or implied right to bring his application (at p. 742). It is respectfully submitted
that such an approach is fraught with difficulty because of the difficulty in identifying legislative
intention. A similar test was briefly adopted in the United States: see Association of Data Processing v.
Camp 397 US ISO (1970) but later apparently abandoned: Duke Power v. Carolina Environmental Study
Group 438 US 59 (1978).
IS. [1982] A.C. 617, at p. 633; see alsoR. v. Secretary of State for the Environment, ex p. Rose Theatre
Trust Co. [1990] I All E.R. 754, Schiemann J.

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applicant who might otherwise lack it.16
The majority held, however, that the applicant must demonstrate a sufficient

interest in relation to the merits of the case itself. This is significant because, as will
be demonstrated, representative litigants have been awarded locus standi, not by
virtue of their relationship with the legal and factual issues, but with their
relationship of proximity with a group of others who do have such an interest. This
is to adopt a wholly different principle from that enunciated in the Fleet St. case.

Since, however, an association is not competent to advance the interests of its
members unless their interest was itself "sufficient"17 the Federation was not
competent to seek judicial review in these circumstances.

The decision is strictly orthodox in its approach: the Federation, as the
applicant, was treated as the effective unit in the litigation. This is the stance which
the courts will normally adopt. Yet this orthodox model has had to endure a certain
measure of strong-arming to produce acceptable results. In reality a Nelsonian eye
is often turned to the traditional rules enabling the court to recognise that the real
unit in the matter is not the representative plaintiff but those represented who are
absent from the court-room.

The new technique
R. v. Social Services, ex p. Child Poverty Action Group and the Greater London
Councill8 is one of several decisions which suggest the abandonment of the
traditional model despite apparent lip-service to it. Here the Child Poverty Action
Group (C.P.A. G.) was awarded locus standi to challenge the administration ofthe
supplementary benefit system on behalf of a group of unidentified claimants
whose cases were not reviewed within the meaning of statute. Woolf J reasoned
that the C.P.A.G. was a body "designed" to represent the interests of claimants
and that it was a proper challenger. In contrast, the G.L.c. had no cognisable
status in this matter: it had attempted to represent the public interest by usurping
the role of the Anorney-General. An appeal to the Court of Appeal on the merits
was subsequently successfu}19but the question of locus standi was left open.

Although Woolf J ostensibly adopted the orthodox technique by examining the
position of the C.P.A. G., the resulting award of locus standi is not convincing as an
application of it. The c.P .A.G. was not a welfare claimant; and although a charity

16. Ibid., per Lord Wilberforce at p. 633; Lord Fraser at p. 647; Lord Roskill at p. 662. Lord Scarman
also held that the Federation lacked locus standi because it could not show a breach of duty by the
Revenue on the merits (at p. 654).
17.Cj.,R. v. Chief Adjudication Officer, expo Bland [1985] The Times, 6th February (infra) and the Rose
Theatre case, supra n. 13, as illustrations of this principle.
18. [1984] The Times, 16th August.
19. R. V. Secretary of State for Social Services, ex p. Child Poverty Action Group and the Greater London
Council [1985] The Times, 8th August. The same course was also adopted inR. V. Secretary of State for
Social Services, expo CPAG and Orhers [1989] 1AllE.R. 1047. As Lord Roskill observed in the Fleer Sr.
Casuals case, "refusal of the application on the merits ... implies that the [standing] question has been
answered affirmatively": [1982] A.C. 617, at p. 645.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

dedicated to the relief of poverty amongst children and families with children, it
could not be said that it had any private interest in the outcome of the proceedings.
In essence, it was seeking to assert the interests of all unidentified claimants and
the public. Woolf J was forced to disguise this by finding that the body was
"designed" to assist welfare claimants. This approach was certainly not a
recognised one since English law has never permitted a "private attorney-general"
to appoint himself responsible for matters of public interest.2o Moreover, such a
group encountered severe difficulty in the subsequent Rose Theatre case21 which
demonstrates that the concern of a single issue pressure group with one aspect of
proper administration may not be sufficient to give it standing to sue. So the
proposition that representation was appropriate because of the stated purpose of
the C.P.A.G. is not necessarily convincing.

The conclusion which must be drawn is that, in essence, the C.P.A.G.'s status
was "transferred" to it. The source of this can only have been either the rights and
interests of the individuals directly prejudiced by the action in question or the
public interest in having the matter settled. On either interpretation, the substance
of this decision appears to have repudiated the orthodox standing rules.

It is worthwhile considering some ofthe ingredients in the C.P.A. G. case. As in
the Royal College of Nursing case22 (considered infra), the alleged breach of public
duty would have amounted to a matter of serious and legitimate public concern.
The C.P.A.G. was clearly perceived as a body capable of providing effective
advocacy of the legal issues by virtue of its welfare activities and, as a separate
matter, it had a relationship of proximity with the group represented.23 The
absence of such a relationship of proximity also explains his lordship's decision
that the G.L.c. did not have standing to sue in the C.P.A.G. case. Whilst the
C.P .A.G., active in welfare matters, enjoyed a closer and more immediate concern
with the legal issues, the G.L.C. possessed responsibilities of an entirely different
and diverse nature.24

Since the real concern of each body lay in ensuring the due administration of the
benefit system, it is not entirely satisfactory to distinguish them on the grounds
that one lacked a sufficient interest in the matter and the other did not, nor by

20. E..g., Goun"et v. Union of Post Office Workers [1978] A.C. 435; but alsoR. v. Secretary of State for the
EnVIronment, ex p. Rose Theatre Trust Co. [1990] I All E.R. 754 in which it might also have been
observed that the Trust was a single issue pressure group "designed" to effect a change in policy
regarding the scheduling of the Rose Theatre as an ancient monument.
21. Supra n. 20.
22. [1981] A.C. 800.
23. Perhaps it would be more satisfactory to regard the relationship of proximity as existing between
those claimants with children and the C.P.A.G. rather than between the latter and all claimants
regardless of whether or not they were parents. If the C.P.A.G. had defined its representation
accordingly the result would not have differed since a successful challenge would have benefited all
relevant claimants.
24. The decision to refuse locus standi to the G,L.C. has been criticised on the grounds inter alia that it
had run benefits take up campaigns: see Wilkeley, (1985) 135N.L.J. 1123.

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pointing to their different raisons d'etre.25 Arguably, both were acting as "private
attorneys-general". The only real distinction between them lay in their different
relationships with the claimants, and this is the crucial issue affecting locus standi.
The only test which distinguishes them is therefore that based on proximity.

Proximity of relationship was also treated as governing the standing issue in R.
v. Chief Adjudication Officer, ex p. Bland.26 Here a striking miner, his union, the
National Union of Mineworkers, and the Trades Union Congress each sought
judicial review of the Chief Adjudication Officer's advice regarding deductions
from supplementary benefits when individuals were taking part in an industrial
dispute. One of the N. U .M.'s principal objects was to protect the interests of its
members and it had called the strike which resulted in their claiming
supplementary benefit. The court held that the N. U.M. had locus standi, by virtue
of its relationship with the striking miners. This is of great significance since it
clearly demonstrates the new approach in representative type litigation. A
"sufficient interest" is not found "in the matter to which the application relates"
but in the proximity of relationship which the representative has with the group
represented who in tum have a cognisable interest in the substantive issues.

Applying this same test it can be seen that the T. U. C.'s relationship with Bland
and the striking miners was, in the court's own words "too remote" to establish
locus standi even though one of its objects was the protection of workers in all
unions affiliated to it.

Proceedings outside the application for judicial review
Section 31 of the Supreme Court Act 1981 applies the sufficiency of interest
formula to applications for judicial review. Locus standi under the old procedure is
not affected by s. 31 and it is likely that it continues to be governed by the more
restrictive locus standi requirement enunciated in the Gouriet caseY This is
highly significant because, if representation by non-interested litigants of third
party interests was permissible under the GouTiet regime, it would be difficult to
resist its impact under the new judicial review procedure where the safeguard of
the leave requirement operates to prevent abuses of the judicial process.28

The decision of the House of Lords in the Gouriet case that the plaintiff's locus
standi must rest upon his having a legal or equitable right of his own at issue or
upon his having suffered "special damage", appeared to signal that pressure group
and similar litigation should be exiled from proceedings outside of the application
for judicial review. Fortunately, some signals, no matter how lucid, are received

25. If the Child Poverty Action Group was permitted to represent all unidentified claimants, and not
just those with children, it is difficult to distinguish its position from that of the G. L.C. using orthodox
principles. Essentially both were policing the benefits system.
26. [1985] The Times, 6th February.
27. [I978J A.C. 435, although this may subsequently have been reconsidered: Liverpool Daily Post and
Echo Newspapers p.l. c. v. Pickering [1990] 1 All E.R. 335, especially per Lord Donaldson MR at p. 345.
28. Sir H. Woolf, [1'986] PL 220.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

with a blind eye with welcome results. This appears to have been the case following
Gouriet, for the House of Lords subsequently allowed a representative body to
advocate the interests of its members and others.

In The Royal College of Nursing v. D.H.S.S.,29 in an action also begun by writ
seeking a declaration, the Royal College of Nursing was permitted to test the
legality of a circular issued by the Department of Health and Social Security. The
Circular purported to clarify the ambit of the role of nursing staff in abortion cases
by suggesting that, provided an abortion was commenced by a registered medical
practitioner, the remainder of the process could be carried out by nurses. If the
Circular did not comply with the criminal law, nurses risked prosecution.

The objection might have been raised that the action was initiated by the
R.C.N., not one of the nursing staff placed at risk by the circular. The traditional
locus standi rules for declaration30 were that the applicant should show that a
private legal right of his own was at issue or that he had suffered special damage or
that the threat of prosecution threatened that such damage might be inflicted in
the future. The nurses individually fulfilled this requirement. It would have been
possible for one of the nurses, perhaps representing all others, to argue the matter
in court. More problematic was the position of the Royal College which did not
itself become involved in the abortion process. Its rights were unaffected by the
circular and to the extent that it suffered at all, it would certainly have been to a far
lesser degree than the nurses. Thus it could not have relied on the special damage
rules.31

The House of Lords, rejecting the R.C.N.'s case on the merits, unfortunately
failed to avert expressly to the locus question. The matter seems to have been
assumed sub silentio. Yet had the R. C.N.'s standing been challenged, it is difficult
to accept that those objections would have succeeded. In matters of this kind, the
courts have openly expressed concern at the effect of the locus rules. Woolf J, for
example, has stated: " ... it would be regrettable if a court had to come to the
conclusion that in a situation where the need for intervention of the court had been
established this intervention was prevented by rules as to standing. "32 This, of
course, questions the rationale of the locus standi doctrine, the logic of which is
precisely to prevent the courts from intervening notwithstanding any need to do so.
Nevertheless, in the R.C.N. case, the substantive issues were of overwhelming
public concern and it was necessary to clarify the legal status of the circular both
for the sake of the nurses and to address public anxiety. It would have been highly

29. [1981] A.C. 800.
30. The traditional locus standi rules for declaratory relief are considered in Gouriet v. Union of Post
Office Workers, supran. 27, and also inBarrsv. Bethell [1982] 1 All E.R. 106, atp. 114. Forthe "special
damage" rules see, e.g., Benjamin v. Storr (1874) L.R. 10 C.P. 400, at p. 407 per Brett J; Stoke Parish
Council v. Price [1899] 2 Ch. 277; Stockwellv. Southgate Corpn. [1936] 2 All E.R. 1343, at pp. 1351-2.
31. An example oflitigation by trade associations is to be found in London Association of Shipowners and
Brokers v. London and IndiaJoint Docks Committee [1892] 3 Ch. 242 in which a trade association lacked
locus standi to sue.
32. R. v. Attorney General, ex p. Imperial Chemical Industn"es p.l.c. [1985] 1 C.M,L.R. 588, at p. 618.

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unsatisfactory for the courts to fail to offer guidance as to the legality of the nurse's
actions by virtue of the R.C.N.'s possible lack of locus standi.

Moreover, the R.C.N. was fully cognisant of the issues involved and thus
capable of providing effective advocacy of the nurses rights; indeed, the College in
so far as it was the corporate advocate of nurses' interests, enjoyed a relationship of
proximity with the nurses.33 Significantly, therefore, there are unmistakeable
parallels with the C.P.A.G. and G.L.C. cases.

"Constructive" representation: the initiative of the court
The courts themselves appear able to convert litigation begun in a single party
form into one of "constructive" representation in order to salvage the litigation
from locus standi problems. To do so is to abandon the traditional model, but the
tradition of allegiance to orthodoxy does not deter such radicalism. In R. v. London
Borough of Lambeth, ex p. Sharp,34 for example, a local planning authority
proposed to grant itself planning permission for a certain development. The
application was required to be published specifying a date by which any objections
should be received. The date was omitted from the published notice. The
applicant for review, however, had only read the notice and taken action after the
expiry of the probable date by which objections ought to have been made. Even if
the notice had contained a date, the applicant would still have been out of time: he
had simply seen it too late to take action. Strictly, he had not been prejudiced by
the local authority's omission. His concern essentially was in the lawful
administration of the planning system.

It was held, however, both at first instance and on appeal, that he had locus
standi to seek review and the court proceeded to quash the planning permission in
question. In the appeal, Woolf LJ observed:

" ... he is making the application not only on his own behalf but, in effect, on
behalf of the publ£c. In considering whether or not relief should be granted, the
court, in my view, must have very well in mind the fact that regulations such as the
one under consideration are designed to give the public generally notice of
proposals of this sort. "35

This appears to be an extreme example36 in which the interest of the public and
not the individual constitutes the standing to advance the substance of the claim.

Is there a consistency of approach which unifies Ex p. Sharp, the C.P.A. G. and
the R. C.N. cases? Turning firstto the nature of the breach of public duty, it might
be argued that Sharp's case was less convincing than, for example, the R. C.N. case.

33. The synonymity of interest means, in effect, that it was as if the nurses themselves were before the
court. This is essentially the approach adopted in the United States: Hum v. Washington State Apple
Advertising Com. 53 L Ed. 2d 383 (1977).
34. (1986) 55 P & C.R. 233.
35. Ibid., at p. 240 (italics added).
36. This approach is not an unprecedented one: see the judgment of Lord Denman C] in Ricketts v.
Bodenham (1836) 4 Ad. & E. 433, at p. 441.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

The latter involved serious questions affecting the right to life which demands
judicial intervention rather more persuasively than, say, the publication rules in
planning matters. But it would appear that the gravity of the possible breach of
duty is not necessarily determinative in itself: it must be considered alongside
other factors. One influential consideration in Ex p. Sharp may have been that the
ultra vires action affected a large number of individuals but no one individual in
particular. If the applicant's action failed on locus grounds, it was unlikely any
other citizen could succeed. Thus it may have been that the implied representation
was used as a device to give some embodiment to the otherwise abstract public
interest. If this is so, Sharp suggests that even where the breach is not of one of the
highest or most sacrosanct forms of public duty, but the harm it causes is diffuse, a
representative status may possibly be employed as a device for vindicating the
public interest.37 Even so, the decision must be the high-water mark of the public
interest model of judicial review and the consequent reluctance to see review as
merely a system for defending the private rights of the applicant. Such reasoning
can arguably be made to apply in every case in which a litigant would wish to act as
a "private attorney-general" with obvious effects for the future survival of the
locus standi doctrine. If correct, it would threaten to erode the entire doctrine of
standing since any public litigation can be seen, to a greater or lesser extent, to
represent the public interest.

Ex p. Sharp is not the only instance in which the courts have allowed the
applicant to draw strength from the interests of the public at large. In R. v.
Pelixstowe Justices, ex p. Leigh,38 for example, the applicants, a newspaper and a
journalist, sought judicial review of a policy of magistrates not to reveal their
identities. The journalist had not been present in court during the trial in question
but merely wished to comment on the manner in which the trial had been reported
in other newspapers.

On behalf of the justices, it was objected that the journalist's position was akin to
that of a pressure group since he had not been present in court and that he had no
cognisable interest in the matter. Nevertheless, the court held that the role of the
press as guardian and watchdog of the public interest gave the journalist locus
standi to seek a declaration but not for a mandamus. The ingredients which may
have led to such a result are interesting: as in theR.C.N. and C.P.A.G. cases, the
resolution of the substantive issues was manifestly in the public interest and, in
this case, the court found that the justices were acting unlawfully. The court was
clearly reluctant to find its hands tied by locus objections and so there was an award
of standing to a plaintiff whose own position, whilst not perhaps nominal, certainly
drew heavily upon his perceived characteristics as a representative of the public
interest in open justice. The desire, however, to adhere to a traditional approach
defining the unit of litigation as the journalist plaintiff alone, forces the court to

37. Contrast, e.g., GauMet v. Union of Post Office Workers [1978] A.C. 435 andR. v. Secretary of State
for the Environmem, ex p. Rose Theatre Trust Co. [1990] 1 All E.R. 754.

38. [1987] 2 W.L.R. 380.

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adopt what might ostensibly be regarded as a distortion of locus standi principles39
for it is difficult to distinguish his position from that of, for example, the G.L. C. in
the C.P.A. G. case, or, more generally, any public spirited litigant concerned at an
abuse of power. 40 In sum, the proof of illegality and the importance of the subject
matter seems to permit "constructive representative litigation" by individuals
effectively acting as "private attorneys-general".

Representative litigation is also a possibility acknowledged in diverse strands of
authority outside of the above categories. Such developments may serve to bestow
some legitimacy on the decisions already surveyed since they betray an essential
community of approach from which a general principle may be derived. It is
proposed to look at representative proceedings and class actions both in English
and United States Federal Law, and also the litigation by a representative of a
third party's constitutional rights in the United States.

Representative proceedings under R.S.C. Ord.15 r. 12.
Historically, the courts have permitted one self-appointed individual to represent
a class of individuals. The governing conditions are that all must demonstrate "one
common interest in all the objects of the suit". 41 Neither the leave of the court nor a
representation order are required before this form of proceeding can be
employed.42 It has been stated that there must be a "common interest", a
"common grievance" and the relief sought must be beneficial to all whom the
plaintiff seeks to represent.43 Thus a pre-condition to a representative action is that
all must share a "unity of interest" in the action. This is reflected in R. S.C. Ord. 15
r. 12 which now provides:

"Where numerous persons have the same interest in any proceedings ... the
proceedings may be begun ... by or against anyone of them representing all or as
representing all except one or more of them" (emphasis supplied).

In such a case, all members of the group represented are bound by the decision
in the case.44

Representative proceedings have been employed principally in private law but
need not be so confined. A significant feature of these proceedings has been that
the courts have permitted a self-appointed representative to take proceedings the
effect of which may be to bind others as to their legal rights without their consent.

39. It is difficult to distinguish the Rose Thea~re case, supra n. 36, e.g., and also, perhaps, Holmes v.
Checkland [1987J The Times, IS April.
40. Journalists have also been held to have standing inR. v. Reiga~eJJ, ex p. A rgus Newspapers (1985) 5
Cr. App. R. (S) 181 and R. v. ArundelJJ, ex. p. Wes~mins~er Press Lcd. [1985J I W.L.R. 708.
41. Calvert, Par~ies ~oSui~s in Equi~y (1837), p. 42.
42. In an application for judicial review the leave requirement would still operate and this could
provide an opportunity to filter out representation which would not properly safeguard the interests of
those represented. But there would be no such protection if the proceedings were begun by writ.
43. Per Lord Macnaghten in Duke of Bedfordv. Ellis [1901] A.C. I, at p. 8; see also per Sir Raymond
Evershed MR in Smi~h v. CardiffCorpora~ion ]1954] I Q.B. 210, at p. 221.
44. Rules of the Supreme Court, Order IS rule 12 (3).

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

This is so notwithstanding the general prohibition on the litigation of third party
rights.45 Since this is an acknowleged means of resolving disputes concerning
private legal rights, there would seem to be little objection to its use in public law
which is not often concerned with the strict legal rights of the parties. The
principles governing representation in this context may vindicate parallel
developments in public law. Representative proceedings, whether brought under
R.S.C. Ord. 15 r. 12 or informally, as in, for example, the C.P.A.G. case, raise
similar questions, and it would not seem desirable to have radically different sets of
rules for each type of representative process. Proceedings under R.S.C. Ord. 15r.
12do, therefore, provide a ready-made framework of rules which could constitute
at least the foundation for the evolution of representative style proceedings for
judicial review. It is particularly significant that strict observance of the locus
standi requirements has not been a feature of representative proceedings under
R.S.c. Ord. 15 r. 12 in private law, and it seems paradoxical to insist upon strict
observance in public law. This may lend some support to the locus standi
developments in public law which have already been surveyed.

The policy of the courts has usually been to adopt a liberal approach towards the
representative action under R.S.c. Ord. 15 r. 12.46 This has required some
re-interpretation of the requirements of the "unity of interest" principle.

The importance of the "unity of interesttt
The "unity of interest" theory, requiring the representative plaintiff and the class
represented to have the "same interest" in the proceedings, would suggest that any
locus standi requirement must be satisfied by each of them without exception.
Conversely, a departure from the "unity of interest" approach towards a
"substantive" approach47 would permit differences of interest and, possibly, an
evolution of sui generis standing rules in this context.

Practice both in England and the United States, has been to dilute the "unity of
interest" requirement, yet on this side of the Atlantic at least some common
interest must be identified before the representation is appropriate. In essence,
however, the courts here, as in the United States, have begun to experiment with a

45. One example of which is the doctrine of privity of contract: Dunlop Pneumatic Tyre Co. Ltd. v.
Selfridge & Co. Ltd. [1915] A.C. 847.
46. The modern prindples of the representative action were enunciated by Lord Eldon in such cases as
Adair v. New River Co. (1805) II Yes. 429 and Cockburn v. Thompson (1809) 16 Yes. 321. In
commenting upon these decisions in Duke of Bedford v. Ellis, Lord Macnaghten observed that "Lord
Eldon took as broad and liberal a view on this subjectas anybody could desire": [1901] A.C. I, at p. 10.
This policy was applied by his lordship in the Ellis case and has been followed ever since: seeJohn v.
Rees [1969] 2 All E.R. 274; and most recently in Irish Shipping v. Commercial Union Assurance Co. p.l. c.
[1989] 3 All E.R. 853 and Chrzanowska v. GlaxoLaboraton'es Ltd. [1990] The Independent, March 13.
47. Here the court acts for the sake of the group represented to redress the grievance inflicted upon
them by the defendant. The locus standi of the representative would not be considered to be of primary
significance; his status would be nominal. The required adversity is found to exist between the
defendant and the class: see Chayes, (1976) 89 Harv. L. Rev. 1318, especially pp. 1353 et seq.. The
community of interest theory is also discussed at pp. 1331 et seq..

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different conceptual basis for representative proceedings. This is "substantive" in
character48 and permits the court to resolve the dispute between those whose
rights or interests are affected and the defendant despite different interests inter se
or different interests as between themselves and the representative plaintiff. In
some cases, the necessary adversarial positions are essentially those of the class
represented and of the defendant and the courts have sometimes shown little
concern with the ability of the representative to satisfy the normal locus standi
rules.

The evolution of the "unity of interest" requirement
The dilution of the "unity of interest" requirement can be witnessed in a series of
decisions. In John v. Rees,49 for example, where a representative action was
brought by a chairman of an unincorporated association on behalf of all members
of the association, a unity of interest was held to exist even though some members
were actively hostile to his claims. Megarry J stated:

"Some may support one faction, some another. But if the named parties to the
action together put forward every view that is seriously advanced, I cannot see that
any real harm is done to a person whose part in the action is merely that he is
represented by the plaintiff, even if the plaintiff is supporting a different cause,
provided that there is a defendant who does stand for the cause espoused by the
person being represented: actions are decided by reference to justice according to
law, and not by counting heads. The remedy for someone who is not consoled by
this thought is ... for him to apply to be joined as a defendant."5o

The idea of a "common interest" was further extended inM. Michaels (Furriers)
Ltd. v. Askew.51 Here an injunction was granted by the Court of Appeal against
named defendants representing themselves and all other members of an
unincorporated pressure group to restrain the picketing of the plaintiffs premises.
Members of the pressure group, neither named nor before the court, some of
whom may not even have taken part in the action, were made subject to the
injunction. Yet some of them might have raised objections to the manner of the
picketing which might have allowed them separate defences and therefore
precluded their having a common interest in the proceedings. Nevertheless, the
Court held that the community of interest lay in the common objectives which all
members ofthe group shared in campaigning against the fur trade.52John v. Rees
and M. Michaels (Furriers) Ltd. v. Askew suggest that the primary consideration is
essentially the substantive one: what are the legal merits of the case as a whole?

48. Ibid ..
49. [1969] 2 All E.R. 274.
50. Ibid., at pp. 283-4.
51. (1983) 127 S.]. 597.
52. Protection for the absentee class members was found to exist in the rule which prevents
enforcement of the judgment against them without the leave of the court: cf. NIREX LId. v. BarlOn
[1986] The Times, Oct. 14th. These decisions are discussed by K. Uff, (1987) 6 Civ. J. Q. IS.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

This subordinates the question of the legal identity of the individual asserting
those rights leaving the court free to address the merits. In so far as there is an
adherence to the "unity of interest" requirement, it seems capable of being
satisfied by having regard almost to the lowest common denominator in the action:
the membership by all individuals of the association in question. 53

That this may have implications for locus standi rules can be seen in the House of
Lords' decision in Duke of Bedford v. E//is54 which is the leading decision on
representative proceedings. The judgment of Lord Macnaghten has come to be
regarded as classical55 and definitive of the courts' jurisdiction. In brief, the facts
were that six named plaintiffs sought to represent a class of other market traders in
an action against the owner of the market alleging that the latter had violated
certain rights enjoyed by the traders under statute. The difficulty was that the
statement of claim alleged that the Duke had breached the Act in relation to certain
classes of trader and types of pitch. None of the named plaintiffs in their personal
capacity, however, asserted a cause of action in some of the matters raised,
although clearly some class members would have such rights at issue. The Duke
applied to have the claim struck out.

By a majority, the House of Lords held that the plaintiffs could maintain their
claims notwithstanding their lack of a personal stake in some of the matters raised.
Lord Macnaghten's reasoning is strongly biased towards a substantive approach
which focuses upon the group's grievances advocated by the claimants as its
representatives rather than on technical locus qualifications of the representative
plaintiffs themselves. He observed:

"If the persons named as plaintiffs are members of a class having a common
interest, and if the alleged rights of the class are being denied or ignored, it does not
matter in the least that the nominal plaintiffs may have been wronged or
inconvenienced in their individual capacity. They are none the better for that and
none the worse. They would be competent representatives if they had never been
near the Duke. "56

Lord Macnaghten clearly envisaged that the class representatives should be
representatives of a class; a complete homogeneity of personal interest in the
outcome is clearly not required. He observed that it is the rights of the class which
are denied or ignored; the class representatives need not share those rights: they
are not disqualified even if they are not even inconvenienced by the unlawful
actions of the defendant. He made the point unequivocally by stating that they
have a purely "nominal" status. Clearly it is the substantive claims of the class
which prevail over the qualifications of the individuals who assert those claims.

53. See also the decision of Hirst J in Pan A t/anric A ssurance Co. v.Pine Top Insurance Co. Ltd. [1988] 2
Lloyd Rep. 505 in which his lordship followed Megarry 1's decision in John in legally similar
circumstances.
54. [1901] A.C. 1.
55. See,per Megarry J, inJohnv. Rees,supra n. 51: also Smith v. CardlffCorpn. [1954] I Q.B. 210, atp.
219, per Sir Raymond Eve!shed MR.
56. [1901] A.C. I, at p. 7.

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The U.S. experience: class actions and the "standing doctrine"57
The US courts ostensibly adhere to orthodox standing rules where the challenge is
brought by an individual or association seeking to act in a representative capacity.
The requirements will normally be satisfied only where the representative alleges
some injury to himself. 58 An association may, however, bring suit on behalf of its
members provided that they will suffer the necessary cognisable injury. 59

Nevertheless, the US Courts have appeared to be receptive to the public policy
considerations weighing upon the standing doctrine. Chayes has argued60 that
whilst early decisions attempted to assimilate class actions to ordinary litigation by
treating the representative plaintiff as the focus of the standing issue, more recent
decisions treat the class as the effective unit in the litigation. The court shifts its
attention to the resolution of the legal issues in dispute between the class and class
opponent. Hence, creative techniques have been employed to fashion exceptional
rules which ultimately avoid the general standing principles.

In parentheses, it is worthwhile noting one such technique which permits the
rigours of the standing doctrine to be mitigated, i.e. , the use of an amicus curiae. An
individual or pressure group, such as an environmental or civillibenies group,
may apply for leave to intervene as an amicus even though it is not a party to the
suit. Intervention is strictly in the discretion of the court61 and the consent of the
parties may be required before it is permitted. In practice, however, the courts will
readily favour a motion for intervention and the briefs of an amicus can be as
influential as those of the panies. Leave to file a brief, however, only permits
intervention in litigation already commenced by others. Thus the initiative of
bringing suit does not lie with the amicus. Where such a challenge has already been
undertaken, it is a particularly effective way for a pressure group to influence the
decision of the court on the merits without necessarily having standing to appear as
a party.

Other means of avoiding standing problems seem to be permitted in Federal
class actions in the United States. These are of great interest partly because, like
the English representative proceedings, they are rooted in Chancery practice,
upon which Lord Eldon exercised such a powerful influence: each shares a
common lineage. This makes a study of the U.S. jurisprudence of particular
relevance. The issues are governed by Rule 23 of the Federal Rules of Civil
Procedure which, in conformity with its English heritage, adopts the unity of
interest theory. As with the English experience, a narrow interpretation of the
theory has been found to be too restrictive, and the courts have responded by
rejecting the idea that the representative parties and class members should

57. The person seeking relief must generally show that he has suffered "injury in fact": Association of
Data Processing v. Camp 25 LEd. 2d 150 (1970) which can be defined as some actual or threatened
injury; see, generally, Hough, [1986] Denning L. J. 85.
58. Havens Realty Corporation v. Coleman 71 LEd. 2d 214 (1982).
59. Warth v. Seldin 45 LEd. 2d 343 (1975).
60. (1976) 89 Harv. L. Rev. 1318, at p. 1464.
61. Re Ohlhauser's Estate (SD) 101 NW 2d 827.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

invariably be required to demonstrate a single and homogeneous interest in the
suit. As in Duke ofBedfordv. Ellis a recasting of the unity of interest or, in the U.S.,
the "typicality" requirement, opens the courthouse door to representation by
non-interested parties. In U.S. Parole Commissioner v. Geraghty,62 for example, a
prisoner, who had been denied parole by virtue of release guide-lines, challenged
the guide-lines on behalf of himself and other prisoners. After certification of the
suit but before the hearing of the matter by the Court of Appeals he was released
and thus lost his personal interest in the suit. The Supreme Court rejected the
submission that his action was mooted. A "live" dispute continued between the
defendant and class members. In an interesting judgment the Supreme Court
considered the role of the "standing" doctrine:

"The personal stake requirement is to assure that the case is in a form capable of
judicial resolution. The imperative of a dispute capable of resolution are sharply
presented issues in a concrete factual setting and self-interested parties vigorously
advocating opposing positions. This can exist with respect to class certification
notwithstanding the fact that the named plaintiffs claim on the merits has expired.
Vigorous advocacy can be assured through means other than the traditional
requirement of a personal stake in the outcome."63

Blackmun J further conceded that whilst a class representative has the "right"
to proceed if he obtains the certificate of the court, that right "is more analogous to
the private attorney general concept than to the type of interest traditionally
thought to satisfy the [standing] requirement."64

Further, in Sosna v. Iowa65 the court stated that upon certification "the class of
unnamed persons described in the certification acquired a legal status separate
from the interest asserted by the appellant. "66

These decisions clearly reflect a move away from the traditional mould of single
party litigation in which locus standi rules fall to be applied against the named
defendant. Re-definition of the unit oflitigation has taken place so as to focus upon
the class with whom there remains a dispute with the defendant.

Although the reliance placed upon vigorous advocacy as a substitute
requirement for traditional "standing" may be questioned,67 the above decisions
suggest that the traditional private law model of dispute settlement can be made
flexible. A personal stake, as the orthodox locus requirement, can be abandoned as
the governing threshold issue if other factors enable the court to intervene; thus

62.63 LEd. 2d 479 (1980).
63. Ibid., at p. 495 (emphasis added).
64. Ibid ..
65.419 U.S. 393 (1975).
66. Ibid., at p. 399.
67. It requires an analysis of what the representative might be in a position to argue and what might
have been advanced by those represented although they are not, of course, before the court. Because
the problem here is one of hypothesis, it is arguable that the court is in essence relying upon the
proximity of relationship between the class advocate and the class which is the real nature of the locus
test in representative type litigation.

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traditional locus standi qualifications are not by itself determinative of competence
to sue.

Safeguards
In the United States, Rules of Court confer protection against any abuse of this
form of proceeding. As soon as practicable68 after the commencement of
proceedings, the putative class representative must obtain the leave, or the
certificate, of the court that the proceedings are properly brought in class form.
One of the principal objects of this is to ensure, inter alia, that the representative
parties "fairly represent the class"69so as to avoid possible prejudice to their rights
and interests.

The state of the U.S. class action
The euphoria which initially surrounded the expanded use of the class action in
the United States has undoubtedly subsided; indeed in more recent years, in
response to a more restrictive judicial stance towards it,70its use appears to have
declined.71 Its utility has been compromised by a number of converging factors
embracing, for example, difficulties in identifying common questions which in
turn renders the construction of a viable class a problematic issue.72On this side of
the Atlantic, however, and especially in the context of mass tort litigation, it seems
that confidence in the evolution of a class action remains high.73

Significantly, perhaps, the creative use of the standing rules in public interest
cases does not appear to have been the focus of the criticism levelled against the
class action.74 In this regard the experiment has, perhaps, proved to be more
satisfactory. It demonstrates, perhaps, that traditional locus standi rules can be
remodelled without significant harm for the judicial process and this may
encourage experimentation outside the class action strictu sensu. The lesson may be
that, if other forms of representative style proceedings are to be permitted on this
side of the Atlantic, the group must be capable of definition with reasonable

68. Rule 23 (c) (I).
69. Rule 23 (a) (4). InHansberry v, Lee 311 U.S. 32 (1940) this was held to be satisfied ifthe interests of
the absentee dass members were assured. It may introduce some discretion into the standing question.
70. See Chayes, (1982) HaT'/). L. Rev. I, at p. 28.
71. See H. Patrick Glenn (1986) 6 O.].L.S. 252. He indicates that in 1976 over 3000 Federal dass
actions were filed but that this fell to a mere 987 in 1984.
n.Ibid ..
73. See, e.g., Irish Shipping v. Commercial Union Assurance Co. p.l.c. [1989] 3 All E.R. 853 expanding
the cl!-tegoriesof relief available in representative proceedings; and Chrzanowska v. Glaxo Laboratories
Ltd. [1990]The Times, March 13th in which the court recognised its power to order that costs be met by
members of the group represented who were likely to benefit from the proceedings. R. Tur advocates
reform in the field of consumer protection so as to enable a more effective vindication of consumers'
rights: (1982) 2 Legal Studies 135.
74. See H. Patrick Glenn, supra n. 70. Chayes appears to argue, however, that the approach to standing
in dass actions is not strictly consistent with orthodox rules but that it should nevertheless be
welcomed: 96 HaT'/). L. Rev. I, at p. 44.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

certainty. An additional reason for this would be the difficulty a representative
plaintiff would encounter in establishing proximity of relationship with the
members of a loosely defined group.

Constitutional jus tertii in the United States
Another line of United States authority,75 permitting the litigation by "strangers"
of constitutional rights belonging to third parties, deserves to be noticed for its
reliance on proximity as a technique for expanding cognisable forms of public
interest litigation. Whilst it is not a true example of lowering the standing
threshold since the litigant must satisfy normal standing rules, it does appear to
accept that in limited and controlled circumstances litigation by a stranger of
rights belonging to others may present a dispute capable of resolution.

Singleton v. Wulff6 provides an early example of this type of case. Here, a state
anti-abortion statute was successfully challenged by licensed physicians on the
ground that it violated the constitutional rights of their patients. The lifting of the
prohibition on litigation by third parties was held to be permissible provided that
the plaintiffs were "nearly as effective a proponent of the right" as the right-
holder.77 A necessary if not sufficient condition for this would be the proximate
relationship between the plaintiff and the right-holders.78 It would also be
necessary to demonstrate that those represented suffered some impediment to the
assertion of their own legal rights.79 A potential desire for privacy might, for
example, dissuade individuals from taking proceedings in their own name thus
permitting by default the violation of the rights otherwise guaranteed by the
Constitution.80 Since the women and physicians enjoyed a close relationship, it
was held that there would be no loss of effective advocacy if the case were litigated
by the physicians. Subsequent developments have tended to expand this
exceptional line of authority.81

Arguably, the postulated difficulties facing right-holders in enforcing their own

75. This topic is further discussed by Sedler, "Standing to Assert Constitutional Jus Terrii in the
Supreme Court", 71 Yale L.J. 599; also "Standing to Assert Constitutional Jus TertiI", 88 Harv. L.
Rev. 423.
76.49 LEd. 2d 826 (1976).
77. Ibid., at pp. 833-4, citing Griswold v. Connecticut 14 LEd. 2d 510, in which a licensed physician was
allowed to assert the privacy rights of married patients to receive contraceptive advice. The court here
emphasised the "confidential" nature ofthe relationship between the physicians and the right-holders
and held that if the physicians were unable to sue on their behalf their rights may well be diluted
because of their desire to avoid the publicity of litigation.
78. Ibid., at pp. 834-5.
79. Ibid., at p. 834.
80. Ibid., at p. 835. Another relevant issue here was seen to be the imminent mootness of the litigation.
Her pregnancy would be terminated either by natural or artificial means whereupon she would prima
facie lose her standing to pursue the matter.
81. See, e.g., Carey v. Population Services 97 S. Ct. 2010 (1977) and Virginia v. American Booksellers
Association 98 LEd. 2d 782 (1988).

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rights can all be overcome.82 The real foundation of this line of authority therefore
rests upon the first ground only: that the nature of the relationship permits
representation by a non-interested party who could otherwise not be heard on the
issue. This is seen as generating "vigorous advocacy" by the representative of
rights of the group thereby avoiding possible prejudice to those individuals.
Proximity of relationship is thus the governing consideration.

Although these rules operate in the context of constitutional guarantees, this
line of authority acknowledges that the traditional limits on third party litigation in
the public interest are not inherent and that they can be changed. The radical shift
towards a public law model oflitigation through re-fashioned locus standi rules has
not produced unacceptable results for the adversarial system in the United States
even though the courts have experimented rather more boldly than their English
counterparts.

A unity of approach
Common themes permeate all the above cases, whether decided under English or
United States Federal law, demonstrating that representation is legitimate
according to the nature of the relationship between the representative plaintiff and
the group represented. In the English representative action, the rule is that a 'unity
of interest' must bind the representative plaintiff and class members alike. Three
affiliated conditions lie within the penumbra of the governing principle: the
representative plaintiff and those represented must share a common interest in the
proceedings, they should share a common grievance, and the relief sought should
be beneficial to all. 83 Although the precise ambit of these· rules remains blurred,
they are considered to embrace the additional requirement that the plaintiff must
"fairly represent" the class.84 This essentially incorporates a rule requiring
effective advocacy and forges an obvious link with jurisprudence in the United
States. The overall effect is to relate legitimate representation to a synonymity, or
proximity, of relationship between representative and group. This can be traced
through all the decisions in which representation has been permitted. Thus locus
standi for representatives appears to extend beyond cases in which the
representative plaintiff demonstrates a "sufficient interest" of his own in the
matter in issue to cases in which he enjoys a relationship of proximity with others
who can demonstrate such a nexus.

Whilst Duke of Bedford v. Ellis85 represents one of the most considered attempts
at exploring the limits of permissible representation In English law, it is unlikely

82. Privacy objections carry little weight because it is open for the litigation to be conducted using a
pseudonym: per Powell J in Singleton v. Wulff 49 L Ed. 2d 826 (1976), at p. 834 n. 6. An example is
provided by Roe v. Wade 35 LEd. 2d 147 (1973). Proceedings may, however, be conducted in open
court.
83. Duke of Bedford v. Ellis [1901] A.C. 1; Smith v. CardIff Corpn. [1954] 1 Q.B. 210; Pan Atlantic
Assurance Co. Ltd. v. Pine Top Insurance Co. Ltd. [1988] 2 Lloyd's L.R. 505.
84. Taff Vale Rly. Co. v. Amalgamated Society of Railway Servants [1901] A.C. 426, at p. 438.
85. [1901] A.C. 1.

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"STANDING" FOR PRESSURE GROUPS AND THE REPRESENTATIVE PLAINTIFF

that the idea of proximity, will reach maturity as an identical twin of Lord
Managhten's "unity of interest" test. Whilst the modern approach would not deny
that, for example, the relief sought should not be detrimental to the interests of any
involved, the courts do not seem to insist upon any requirement that the relief
should actually benefit all. The representative party, normally lacks a personal
stake in the outcome of the proceedings and his personal interests would therefore
scarcely be advanced at all. Nevertheless, one similarity may be that the
"proximity" and "unity of interest" tests each require that the representative
should be capable of advancing all those matters which absentee group members
might have advocated had they been before the court.86 Thus proximity, may be
closely related to, but not synonymous with, the "unity of interest" requirement in
representative proceedings. Examples of sufficiently proximate relationships
show that they may derive either from an experience shared by both the
representative and the group represented,87 or from a close association with the
group represented;88 but these categories should not be regarded as closed.

However, the English courts have attempted to camouflage these developments
behind the ostensible application of the "sufficient interest" formula and to
mis-employ its apparent elasticity to hold that the representative litigants have "a
sufficient interest" in their own right. This is to stretch the orthodox rules almost
to breaking point. It would be desirable to recognise that different principles are in
fact being applied in these cases; and the failure to articulate these principles has
generated confusions. Ex p. Sharp, for example, creates particular difficulties. The
litigant had no greater interest than the public at large and essentially sought to act
as a "private attorney-general" . The award of standing in that case must be seen as
controversial. Moreover, the technique employed to achieve this - the re-
moulding the litigation from a single party model into a quasi-representative one-
is a dangerous one if only because it is a course which could be followed in most
public interest litigation with a highly corrosive effect for the doctrine of locus
standi. It is difficult to see how, if standing is to survive at all, such an approach can
be legitimate.89

86. In the United States vigorous advocacy may be a critical factor: Geraghty v. U.S. Parole
Commissioner 63 LEd. 2d 479. In English law, Megarry J inJohn v. Rees, supra n. 49, stressed that the
class representatives should be able to put forward every view that could seriously be advanced by the
class members themselves if they were before the court (although there may be problems with such an
approach: supra n. 67. Note also the "fair representation" requirement (text to n. 84).
87. E.g., Roe v. Wade 35 LEd. 2d 147(1973) in which the prohibition on seeking abortion imposed by
state laws had been encountered by members of the group and the representative plaintiff: see also Ex
p. Bland, supra n. 17, and other decisions surveyed.
88. E.g., the shared trading experiences vis Iivis the Duke in Covent Garden: Duke of Bedford v. Ellis
[1901] A.C. 1.
89. Subject to the exceptions formulated in the Fleet Sr. Casuals case which will permit standing to be
awarded to a non-interested litigant in exceptional circumstances: supra n. 16.

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Conclusion
Representative and pressure group litigation is likely to become increasingly
prevalent as the expense of litigation puts access to formal justice beyond the
means of private individuals. The organisation and combining together of
individuals to protect their interests is often essential since the individual alone is
in an unequal match for public authorities. This follows afortiori in the case of the
less affluent members of society. It is a process which should be nurtured since
these private groups are likely to be more effective guardians of the public interest
in enforcing the duties constraining public bodies than the archaic office of the
Attorney-General90 who will not, it seems, take action against Central
Government. Litigation by these groups advances public policy by giving effect to
the legislative purpose in conferring rights in the first place.

In representative cases, the representative seems competent to proceed
provided that he enjoys a proximate relationship with others who would have locus
standi if they took proceedings in their own name. This is not a large advance in
legal principle but in so far as it opens the court-house door to pressure groups and
other bona fide representative litigants, it is surely much to be welcomed. The only
matter for regret is that the courts have planted this seedling clandestinely in the
tangled undergrowth ofthe orthodox standing rules. It is time to acknowledge it
and to allow it to flourish amidst the other fruits of the common law.

90. See Hough, (L988) 8 Legal Studies 189.

96