Syed, R (on the application of) v Royal College Of Surgeons Of England & Ors

Judicial review must ordinarily be commenced promptly. When assessing delay, the court may consider the events occurring during the delay, the availability of alternative remedies, and what the applicant could realistically achieve by judicial review. An unsatisfactory explanation may make the delay unacceptable. The court retains a discretion under Civil Procedure Rules 1998, rule 54.20 to allow proceedings to continue as a private-law claim, but it is not obliged to do so. Where the claim is essentially public law in character and conversion offers no sufficient advantage, the claimant should commence any private-law action in the usual way.

The applicant sought permission to appeal from Scott Baker J’s refusal of permission to apply for judicial review. The challenge concerned an adverse report prepared under the Royal College of Surgeons’ non-statutory Rapid Response Scheme. The applicant alleged procedural unfairness, irrationality and serious flaws in the report, and alternatively sought to continue the proceedings as a negligence or negligent-misstatement claim.

The Court of Appeal considered the eight-month delay, other available proceedings and remedies, the proposed joinder of the British Association of Urological Surgeons, and whether the proceedings should continue as a private-law action.

1. Permission refused. Lord Justice Pill delivered the judgment, and Lord Justice Tuckey agreed. The application was refused principally because the judicial-review claim had not been brought promptly.
2. Judicial review is a public-law remedy and prompt commencement is important in the public interest and in the interests of persons likely to be affected. In assessing delay, the court may consider events occurring during the period, the existence of other remedies, and what could realistically be achieved in the proposed proceedings. The applicant’s explanation was not satisfactory. In the circumstances, the delay was unacceptable.
3. The court deliberately made no finding on the merits of any possible claim against the Royal College or the report’s signatories. It also held that there was no apparent basis for subjecting the British Association of Urological Surgeons to judicial review merely because it had appointed one of the reporting surgeons.
4. Although the court had power under rule 54.20 of the Civil Procedure Rules 1998 to permit the proceedings to continue as a private-law action, it was not obliged to do so. This was essentially a public-law claim, and conversion offered no sufficient advantage. The action should therefore end. Any private-law claim should be commenced in the ordinary way.
5. The order did not create an estoppel preventing a fresh private-law claim. Any such claim would be considered on the usual basis in the Queen’s Bench Division. Costs were adjourned for written submissions.

• High Court of Justice, Queen’s Bench Division, Administrative Court: Scott Baker J refused permission to apply for judicial review on 30 July 2001. Permission had previously been refused on paper by Moses J.
• Court of Appeal (Civil Division): refused permission to appeal. Costs were adjourned for written submissions.