Roy v Kensington and Chelsea and Westminster Family Practitioner Committee

The House of Lords held that a medical practitioner whose entitlement to remuneration is prescribed by statute and regulations may enforce that entitlement in an action for payment or declaration in the ordinary civil courts, rather than being confined to judicial review. The court confirmed that the principle in O'Reilly v Mackman remains authoritative but its application is confined: where a litigant asserts a subsisting private law right (whether contractual or statutory) the fact that its resolution involves an incidental public law issue does not, of itself, require the litigant to proceed by judicial review. The Statement of Fees and Allowances provisions at paragraph 12.1 (eligibility for basic practice allowance) and paragraph 80.1 (making representations to the Secretary of State) do not operate as an absolute condition precedent ousting the ordinary courts' jurisdiction.

Background and facts:

• Dr Premananda Roy was a general practitioner on the medical list for the appellants' area and had a list of some 1,600–1,700 patients.
• The Family Practitioner Committee reduced Dr Roy's basic practice allowance by 20% from 1 January 1985 under paragraph 12.1(b) of the published Statement of Fees and Allowances on the ground that he was not devoting "a substantial amount of time" to NHS practice.
• Dr Roy's practice involved frequent absences covered by a locum; no patient complaints were recorded about service provision.

Procedural history:

• Dr Roy sued in the Queen's Bench Division claiming payment and a declaration; the Committee applied to strike out parts of the claim. His claim to challenge the deduction under paragraph 12.1 was struck out by the High Court judge ([1989] 1 Med. L.R. 10).
• The Court of Appeal reversed on 22 March 1990 ([1990] 1 Med. L.R. 328), holding that Dr Roy had private law rights enforceable by action and that judicial review was not the only available procedure.
• The Committee obtained leave to appeal to the House of Lords, which delivered judgment on 6 February 1992.

Issues framed:

• Whether the doctor had private law rights (contractual or statutory) to the allowance such that he could sue in an ordinary action rather than be confined to judicial review.
• Whether the court should treat an action as an abuse of process where the substance of the dispute involved a public law decision by the Committee.
• Whether paragraph 80.1 of the Statement, which permits representations to the Secretary of State, is a condition precedent ousting or postponing court proceedings.

Court’s reasoning and conclusions:

• The House accepted that the statutory scheme gave rise to a bundle of private law rights enforceable in the ordinary courts, even if no conventional contract for services could be established in every case.
• The court emphasised that O'Reilly v Mackman and Cocks v Thanet remain important but their application must be confined; where private law rights predominate the litigant may proceed by action. The presence of an incidental or even significant public law element does not automatically convert the remedy into one available only by judicial review.
• Paragraph 80.1 was held to provide an informal, non‑exclusive procedure for resolving pay disputes and did not operate as an absolute condition precedent to court proceedings. Although failure to use the internal procedure might have cost consequences or affect leave for judicial review in some circumstances, it did not deprive the courts of jurisdiction.
• The House therefore affirmed the Court of Appeal: the claim to payment and declaration could properly be pursued by action.

Appeal dismissed. The House held that Dr Roy possessed private law rights to remuneration under the statutory scheme (whether contractual or statutory in character) and was entitled to enforce them in an ordinary action; the rule in O'Reilly v Mackman does not require an exclusive route of judicial review where private law rights are asserted, and paragraph 80.1 of the Statement did not operate as a condition precedent depriving the courts of jurisdiction.

High Court (Queen's Bench) — Judge White struck out parts of the claim (reported [1989] 1 Med. L.R. 10); Court of Appeal (Neill, Nourse and Balcombe L.JJ.) reversed on 22 March 1990 (reported [1990] 1 Med. L.R. 328); House of Lords (Appellate Committee) dismissed the Committee's appeal on 6 February 1992 ([1991] UKHL 8).