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

An interested party in judicial review proceedings may make submissions only on the main claim and only while directly affected by it. A party cannot use that status to introduce a separate claim without permission. The court has no jurisdiction to determine such a claim or give an advisory opinion.

Where a trust deed makes amendment dependent on proposals by its trustees, the Secretary of State has no free-standing duty to amend it in the absence of such a proposal, absent some separate legal basis. An irrationality challenge has a high threshold. It fails where the existing care arrangements reasonably address the relevant needs and the claimant has not shown that the decision was one which no reasonable decision-maker could justify.

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

Jonathan Simms and Holly Mills had been joined as interested parties but sought declarations concerning a separate alleged duty to revise the scheme to compensate families for gratuitous care provided to living patients receiving experimental treatment. The Secretary of State challenged the court’s jurisdiction to determine that claim. The issues were whether the interested parties could pursue the separate claim within the existing judicial review and, if so, whether the substantive challenge succeeded.

1. Jurisdiction. An interested party under CPR Part 54.1(2)(f) is a person directly affected by the claim. That status permits participation in the main judicial review only to the extent of that direct effect. Once the proposed relief is independent of the claimant’s case, the interested party is no longer directly affected in the relevant sense.
2. An independent and discrete judicial review claim requires permission under section 31(3) of the Senior Courts Act 1981 and CPR 54.4. No such permission had been sought. The CPR contained no provision enabling an interested party to bring an independent claim against the defendant within those proceedings. CPR Parts 20.4 and 20.7 did not alter that conclusion.
3. The court also could not give an advisory opinion on issues raised without jurisdiction. 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.
4. Merits. Clause 34.1 of the Trust Deed made amendment dependent on a proposal by the trustees. No proposal had been made concerning gratuitous care for the interested parties. The interested parties identified no trust-law basis for a free-standing power or duty of the Secretary of State to amend the deed independently.
5. Even if such a power existed, the failure to exercise it was not irrational. The Care Fund and Care Package provided clinically and practically necessary care, without a fixed duration, and could fund nursing, social care, equipment, housing adaptations, private carers and respite care. The high threshold for irrationality was not met: the decision had to be one which no reasonable person could consider justifiable, applying Luby v Newcastle-under-Lyne Corporation [1964] 2 QB 647.
6. The claims therefore failed on jurisdiction and, alternatively, on the merits.