Korashi, R (on the application of) v Swansea NHS Trust

On a renewed application for permission to appeal in judicial review proceedings, allegations of clinical risk which had already been independently investigated did not provide a proper factual or legal basis for reviewing an NHS Trust’s refusal to authorise patient contact. An alternative remedy does not invariably bar judicial review, but that principle does not apply where the alternative process has already taken place. Permission hearings may be dealt with briefly, provided adequate time is allowed for proper consideration. No bias or procedural unfairness was shown.

The appellant sought permission to appeal against Stanley Burnton J’s refusal on 19 January 2007 of permission to bring judicial review proceedings. He challenged an NHS Trust’s refusal to authorise him to contact patients of a consultant to investigate alleged negligent or unauthorised treatment. He also alleged bias and unfair conduct at the permission hearing, including the order of submissions, the judge’s reading of his statement and failure to consider an earlier judgment. Rix LJ had refused permission on paper. The central issues were whether the proposed claim was arguable and whether the hearing below was unfair.

1. Merits. Lord Justice Keene agreed with the lower court that there was no proper basis for judicial review. The allegations that patients were at risk had already been investigated, including by the General Medical Council’s independent case examiners. In those circumstances, there was no basis for treating the allegations as potentially well-founded in fact, or for implying a duty on the Trust to contact patients or permit the applicant to do so.
2. Alternative remedy. The principle identified in Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 was that an alternative remedy does not invariably prevent judicial review where judicial review is appropriate and offers significant advantages. That principle did not apply here. The proposed alternative remedy had already been pursued and investigated, which was materially different from a case where an applicant was being directed to an available remedy.
3. Fairness of the permission hearing. Applications for permission to seek judicial review are intended to be brief and focused. A judge may have regard to court time and may read written submissions personally, provided adequate time is allowed for the matter to be dealt with properly. The transcript disclosed no improper ordering of submissions, bias or other unfair conduct.
4. Disposition. Lord Justice Jacob agreed with Lord Justice Keene and added nothing. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division) ([2007] EWCA Civ 450): Rix LJ refused permission on paper. On renewal, Lord Justices Keene and Jacob refused the application.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Stanley Burnton J refused permission to seek judicial review on 19 January 2007.