McVey & Ors, R (on the application of) v Secretary of State for Health

An interested party in judicial review proceedings may participate only to the extent that it is directly affected by the claim. It cannot use that status to introduce an independent and discrete claim against the defendant. Such a claim requires separate permission and cannot be determined without jurisdiction. The court cannot give an advisory opinion on issues raised by an interested party where the claim is outside its jurisdiction. Substantively, a challenge to a failure to amend a trust-based compensation scheme requires an identifiable power or duty to make the amendment and, for irrationality, conduct satisfying the high threshold that no reasonable decision-maker could regard it as justifiable. The availability of comprehensive alternative care funding, together with the absence of a relevant proposal by the trustees, defeated the challenge.

The claimants challenged the Secretary of State’s rejection of proposals by trustees of a vCJD compensation trust to revise the scheme. That claim was dismissed in the main judgment, [2010] EWHC 437 (Admin).

Two interested parties, living victims of vCJD who had received experimental treatment, then sought declarations that the Secretary of State had unreasonably failed to revise the scheme to compensate relatives for gratuitous care and had acted irrationally in addressing that issue. Their proposed relief was materially different from the claim argued by the claimants. The court therefore considered whether it had jurisdiction to determine the interested parties’ claims and, if so, whether the claims had merit.

1. The interested parties’ claims were dismissed for want of jurisdiction. Under CPR Part 54.1(2)(f), an interested party is a person directly affected by the claim. Its role is confined to making submissions on the main judicial review claim. Once the main claim no longer directly affects it, its entitlement to participate ends.

2. The proposed relief was an independent and discrete claim, not relief arising from the claimants’ challenge to the trustees’ radical proposals. It therefore required permission under section 31(3) of the Senior Courts Act 1981 and CPR 54.4. No permission had been sought. The CPR contained no mechanism allowing an interested party to bring an independent claim against the defendant in judicial review proceedings. CPR Parts 20.4 and 20.7, which concern additional claims in ordinary civil proceedings, did not provide such a mechanism.

3. The court could not express conclusions merely for advisory purposes. Judicial review is effective by quashing an administrative decision without substituting the court’s own decision, as explained in R v Entrance Clearance Officer Bombay ex parte Amin [1983] 2 AC 818. Without jurisdiction, the court could neither hear the claim nor give an advisory opinion.

4. In any event, the merits challenge would fail. Clause 34.1 of the Trust Deed was triggered by a proposal from the trustees, and no relevant proposal had been made. The interested parties identified no legal basis for a free-standing power or duty requiring the Secretary of State to amend the trust deed independently of the trustees.

5. There was also no irrationality. Care was provided through the separate Care Fund and Care Package, without a limit on duration, including clinically necessary nursing care, equipment, adaptations and respite care. The threshold for irrationality was high: the decision had to be one which no reasonable person could consider justifiable, following Luby v Newcastle-under-Lyne Corporation [1964] 2 QB 647, approved in Wandsworth LBC v Winder [1985] AC 461. The claims accordingly failed on the merits as well.

First-instance judicial review decision. The judgment records that the related main claim had previously been dismissed in [2010] EWHC 437 (Admin).