European Surgeries Ltd, (R. on the application of) v Cambridgeshire Primary Care Trust & Anor

Judicial review requires a reviewable enactment or a decision, action or failure to act relating to a public function. A claimant cannot obtain judicial review of a public body’s supposed failure to reimburse a patient where the patient has made no reimbursement claim. The absence of a claim means that there is no decision, action or failure to act to review. This is a question about the availability of the judicial-review procedure, not merely standing. The court left the underlying Article 49 EC issues unresolved, including prior authorisation, treatment classification and the operation’s necessity. Any reimbursement claim by the patient would ordinarily be pursued by private-law action. Fresh evidence available at first instance was not admitted, and its admission would not have altered the result.

European Surgeries Ltd arranged for Mr Cooper to undergo cataract surgery at a private clinic. It sought judicial review and a mandatory order requiring the Primary Care Trust to reimburse him at the NHS tariff, alleging that a prior-authorisation requirement unlawfully restricted services under Article 49 EC.

By the trial, Mr Cooper had paid European Surgeries in full, had made no claim against the Trust and had not provided written consent to the proceedings. Bennett J upheld the Trust’s submission that there was no reviewable decision or failure to act and refused the claim without considering the substantive issues. The proceedings had been delayed pending the decision in R (Watts) v Bedford Primary Care Trust, C-372/04. The central issue before the Court of Appeal was whether the claim could be brought under CPR Part 54.

1. Application refused. Thomas LJ held that Mr Cooper’s late witness statement should not be admitted. The material could have been produced at the hearing before Bennett J, and there was no sufficient reason to admit it under the principles substantially following Ladd v Marshall. In any event, even if admitted, it would not have altered the result. Tuckey LJ agreed.
2. Judicial-review gateway. The case was not principally about standing under community law. It concerned whether the particular procedure chosen fell within CPR Part 54.1. That provision concerns the lawfulness of an enactment or of a decision, action or failure to act in relation to the exercise of a public function.
3. On the evidence, Mr Cooper had made no reimbursement claim against the Trust. Consequently, the Trust had made no decision, taken no relevant action and failed to do nothing that was reviewable under Part 54. The claimant’s commercial interest in establishing a general reimbursement obligation did not supply the necessary public-law decision or omission. The claim was therefore misconceived.
4. The decision did not determine whether an appropriate claim existed under Article 49 EC. The issues potentially included the classification of the treatment, the circumstances and justification for prior authorisation, and whether the operation was necessary. Some were unsuitable for judicial review. A reimbursement claim by Mr Cooper would ordinarily be pursued by an ordinary private-law action, but no such claim was being pursued.
5. Order: application refused.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 416, Thomas LJ refused the application on the ground that there was no reviewable decision, action or failure to act. Tuckey LJ agreed. The court also noted that Mummery LJ had previously refused permission to appeal.
2. Queen’s Bench Division, Administrative Court: Bennett J upheld the Trust’s preliminary submission that the claim was misconceived because Mr Cooper had made no reimbursement claim, and refused the judicial-review claim without deciding the substantive Article 49 EC issues.