Court of Appeal allows appeal concerning amenability to judicial review of decision by adjudicator
39 Essex Chambers barristers Vikram Sachdeva KC and Jake Thorold have successfully represented the appellant in a Court of Appeal case concerning the amenability to judicial review of a decision of an adjudicator appointed by the Secretary of State determining a dispute arising out of a contract governing the provision of primary care services.
The British Medical Association, who intervened to support the appeal, was represented by 39 Essex Chambers barrister Jenni Richards KC.
The Court of Appeal’s judgment becomes one of the leading authorities in the field of amenability to judicial review and will be of general interest to public lawyers because of the broad application of the principles it sets out. It is also a decision which will benefit the majority of GPs in England, given the commonplace nature of the type of contract in question.
In brief, the case concerned a dispute arising out of two contracts held by Dr Sashikanth with the NHS Hillingdon Clinical Commissioning Group for the delivery of primary medical services. As permitted by the National Health Service (General Medical Services Contracts) Regulations 2015, Dr Sashikanth elected to refer the dispute to an adjudicator appointed by the Secretary of State.
The adjudicator found against Dr Sashikanth, who subsequently issued judicial review proceedings in the High Court. The High Court (Bourne J.) concluded that while the adjudicator had erred in law, his decision was not amenable to judicial review because, in summary, the dispute was contractual in nature. Dr Shashikanth’s claim for judicial review was therefore dismissed.
The Court of Appeal has today unanimously overruled the High Court’s judgment. In short, the Court of Appeal concluded that while the underlying dispute was contractual in nature, the power being exercised by the adjudicator was statutory in source, and therefore was sufficiently public in nature to be amenable to judicial review.
The following passage from Lewis LJ’s judgment (with which Nicola Davies LJ and Asplin LJ agreed) is of broad application to questions of amenability to judicial review:
“Judicial review is only available against a body exercising public functions. There are, broadly, two approaches to the question of whether a person or a body is exercising a public function. First, if a person or body is exercising power derived from statute (or the prerogative, if the matter is justiciable), the person or body is generally assumed to be exercising public functions. The courts have recognised that there are cases where a power may be derived from statute but the nature of the decision is such that it does not involve the performance of a public duty to the individual in the particular circumstances of the case (see, for example, R (Tucker) v Director-General of the National Crime Squad [2003] ICR 599 where a decision to terminate the secondment of a police officer did not involve a public function). Furthermore, even if a decision is amenable to judicial review, the available grounds of challenge in public law may be more limited in certain contexts, such as in a commercial context (see, for example, The State of Mauritius v The (Mauritius) CT Power Ltd. [2019] UKSC 27 and Mercury Ltd v Electricity Corporation [1994] 1 WLR 521).
Secondly, the courts may have regard to the nature of the function being performed to determine whether that function has a sufficient public element such as to make it amenable to judicial review. A number of considerations may be relevant which include, but are not limited to, the extent of government or other public authority involvement in the function, whether and to what extent the exercise of the function is performed against a background of statutory powers, and the nature and importance of the function. As it was expressed by Sir John Donaldson MR at page 381E-F of his judgment in R v Take-over Panel, ex parte Datafin Plc [1987] 1 QB 825:
“Possibly, the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.”
Judicial review is also only available against public law bodies in respect of public law matters. Judicial review is not available to enforce purely private law rights such as rights derived from contract or tort. Such rights are enforceable by way of claims in the civil courts, not a claim for judicial review in the Administrative Court as explained in R v East Berkshire Area Health ex p. Walsh [1985] QB 152.”
The matter will now be remitted to the adjudicator to be determined in accordance with the Court of Appeal’s judgment.
The Court of Appeal’s full judgment can be read here.
39 Essex Chambers barristers acting for the appellant were instructed by Weightmans. Jenni Richards KC, acting for the British Medical Association, was instructed by Capital Law.
