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Report No. 275

b. International Perspective

5.40 Taking a look at foreign jurisdictions for a clearer understanding of the term 'public function', we find that in the case of Poplar Housing and Regeneration Community Association Ltd v. Donoghue,125the then Chief Justice Lord Woolf proposed a liberal interpretation of the term 'public function'.

He proposed that in order to make an otherwise private act a public one, there must be "a feature or a combination of features which impose a public character or stamp on the act." Such public characteristics may include statutory authority for the task carried out; the degree of control exercised by the public body over the exercise of the function; and how closely the acts in question are "enmeshed in the activities of the public body."

5.41 In the case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v. Wallbank,126 the House of Lords recognised the significance of using a "public function" analysis. Lord Nicholls concluded that there could be "no single test of universal application" in relation to the definition of 'public function'. It was, however, added that the relevant factors for the claimants included the extent to which the function was being publicly funded, the exercise of statutory powers, there placing of Central Government or local authority in performing the function, or the rendering of a public service.

5.42 Therefore, it can be inferred that, contrary to popular belief, the terms 'public authority' and 'public function', can be effectively used in reference to private bodies, who by virtue of the nature of their functions, obtain a character typically assumed by the State.

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