European Surgeries Ltd v Secretary of State for Health

A claimant cannot obtain judicial review merely to secure an advisory opinion about rights that may arise in future cases. The claimant must assert a justiciable legal right or seek concrete relief affecting it. Where reimbursement is sought for medical treatment, the relevant claim ordinarily belongs to the patient who paid for the treatment, particularly where the patient has made no demand and has assigned no right of action. The existence of a cross-border element under EC Treaty Article 49 does not itself give a service provider standing to obtain reimbursement for a customer. Declarations will not be granted to provide advance clearance for a business model where future cases will depend on their individual facts.

The claimant arranged private cataract surgery for Mr Cooper, performed by a German surgeon. Mr Cooper paid the claimant in full. The claimant later asked the Cambridgeshire Primary Care Trust to reimburse Mr Cooper at the relevant NHS tariff, relying on Article 49 of the EC Treaty. Mr Cooper had not himself sought reimbursement, and the claimant had suffered no loss.

The claimant sought a mandatory order requiring reimbursement and a declaration concerning reimbursement for treatment by EU providers, including whether prior authorisation could be required. The proceedings had been stayed pending the European Court of Justice ruling in The Queen on the application of Yvonne Watts v Bedford Primary Care Trust and The Secretary of State for Health, [2006] EU ECJ C-372/04. The central issues were whether the claimant had a justiciable claim and whether the proposed declaration was impermissibly advisory.

1. The claim was dismissed. The claimant was not the person who had paid for treatment, was not out of pocket, was not acting as Mr Cooper’s agent, and had produced no valid assignment. Mr Cooper had made no demand for reimbursement. Any individual right to reimbursement therefore belonged, if it existed, to him. The claimant had no domestic-law claim requiring the PCT to consider its request or to pay Mr Cooper.
2. The claimant also had no justiciable claim under Community law. The authorities relied on by the claimant, including Clean Car Autoservice GesmbH v Landeshauptmann von Wien, Case C-350/96, A Verholen & Others v Sociale Verzekeringsbank, Cases C-87/90, C-88/90 and C-89/90, and Carpenter v Secretary of State for the Home Department, Case C-60/00, involved applicants asserting rights and seeking concrete relief. The present claimant sought no concrete relief for itself. Its commercial interest in being able to offer customers possible reimbursement did not create a justiciable claim.
3. The court also distinguished Watts. There, the patient who had paid for treatment sought reimbursement herself. That was materially different from a service provider seeking reimbursement for a customer who had made no claim.
4. The declaration sought was academic. It would amount to advance guidance for future cases involving different factual circumstances, including clinical necessity, NHS commissioning, delay and the location of treatment. Following the principle identified in Gouriet and others v HM Attorney-General and others, [1978] AC 435, and R (Rusbridger) v Attorney-General, [2003] UKHL 38, courts determine live, practical disputes rather than give advisory opinions.
5. The court therefore declined to determine the substantive Article 49 issue. The claim was misconceived and dismissed.