Roy v Kensington and Chelsea and Westminster Family Practitioner Committee

The general requirement to use judicial review applies where an issue depends exclusively on a purely public law right. A litigant who asserts a subsisting private law right may proceed by ordinary action, even if determining that right incidentally requires examination of a public law decision.

A detailed statutory scheme may confer an enforceable private law right to payment without creating a contract. A discretionary determination affecting the amount due does not remove that right. An informal procedure permitting representations to a minister is not an exclusive remedy or a condition precedent to proceedings unless clear language gives it that effect. Nevertheless, failure to use an available procedure may affect costs, permission for judicial review or, in an extreme case, whether an action is an abuse of process.

Roy v Kensington and Chelsea and Westminster Family Practitioner Committee concerned a general practitioner whose remuneration was governed by the National Health Service Act 1977, the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974 and a statutory Statement of Fees and Allowances. The Committee reduced his basic practice allowance by 20 per cent after deciding that he was not devoting a substantial amount of time to National Health Service general practice.

The doctor began an ordinary action for payment and declaratory relief. The High Court struck out the relevant claims as an abuse of process, holding that the Committee's public law decision could be challenged only by judicial review: [1989] 1 Med LR 10. The Court of Appeal reversed that order: [1990] 1 Med LR 328.

The central issues were whether the statutory scheme gave the doctor an enforceable private law right despite uncertainty about the existence of a contract; whether the public law element required exclusive use of judicial review; and whether paragraph 80.1 of the Statement required prior representations to the Secretary of State.

1. Appeal dismissed unanimously. Lord Bridge of Harwich and Lord Lowry delivered substantive speeches. Lord Emslie, Lord Griffiths and Lord Oliver of Aylmerton agreed with both. The Court of Appeal's order permitting the ordinary action to proceed was affirmed, and the Committee was ordered to pay the doctor's costs.

2. Per Lord Bridge and Lord Lowry, the essential principle in O'Reilly v Mackman [1983] 2 AC 237 remained valid but had to be kept within proper limits. A claim depending exclusively on a purely public law right should ordinarily be brought by judicial review. Where a litigant asserts a subsisting private law right, the incidental need to examine a public law decision does not prevent an ordinary action. The decisions in Davy v Spelthorne Borough Council [1984] AC 262 and Wandsworth London Borough Council v Winder [1985] AC 461 supported that conclusion.

3. Per Lord Bridge, the statutory terms governing the services and payments were as effective as contractual terms in conferring an enforceable private law right to earned remuneration. It was unnecessary to decide whether a contract existed. The Committee's discretionary role in determining the amount payable did not remove the doctor's right to recover by action the remuneration shown to be due.

4. Per Lord Lowry, paragraph 80.1 of the Statement created an informal procedure under which a dissatisfied practitioner could make representations to the Secretary of State. Its language was neither exclusive nor final, and use of that procedure was not a condition precedent to an action or to judicial review. The principle in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 supported the construction that access to the courts is excluded only by clear words. Failure to use the procedure could nevertheless affect costs, justify refusal of permission for judicial review in an appropriate case or, in an extreme case, render an ordinary action abusive.

5. Per Lord Lowry, the action was not plainly an abuse of process. The doctor had a contractual or statutory private law right to remuneration; that right dominated the proceedings; claims of this type might involve disputed facts; judicial review could not directly yield an order for payment; and the claim was joined with another claim properly brought by action. Requiring judicial review would also introduce permission, time-limit and discretionary-relief constraints into enforcement of an individual private right. Cocks v Thanet District Council [1983] 2 AC 286 was distinguishable because the claimant there had no existing private law right until the public authority made the requisite statutory decision.

6. Lord Bridge expressly left the construction of paragraph 12.1(b), and the proper assessment of the Committee's decision, for resolution at trial on the evidence.

1. House of Lords: The Committee's appeal was dismissed unanimously. The Court of Appeal's order was affirmed, with costs to the doctor.
2. Court of Appeal: Neill, Nourse and Balcombe LJJ allowed the doctor's appeal, reversed the High Court's striking-out order and refused permission to appeal: [1990] 1 Med LR 328.
3. High Court: Judge White granted the Committee's application to strike out the claims concerning the basic practice allowance as an abuse of process: [1989] 1 Med LR 10.