Christopher Ramage, R (on the application of) v Newcastle Upon Tyne Hospitals NHS Foundation Trust

Judicial review is a remedy of last resort. Where an available internal complaints or appeal procedure provides an adequate means of challenging the decision, permission should generally be refused unless there is a good reason to proceed directly to judicial review.

This was particularly appropriate where the alternative procedure could evaluate compliance with the defendant’s policy, alleged justification for departing from it, and contested factual events. The possibility of later judicial review remained open if the alternative remedy failed to resolve a viable public law issue.

The claimant sought permission to challenge a hospital trust’s decision to issue a 12-month “Red Card” excluding him from secondary care treatment, subject to emergency treatment and referral treatment elsewhere.

Proceedings begun in the King’s Bench Division were transferred to the Administrative Court and treated as a judicial review claim. Permission was refused on the papers, and the claimant renewed his application for consideration at an oral hearing. He did not attend, but the court proceeded in his absence after considering the circumstances and the overriding objective.

The claimant alleged breaches of the Trust’s exclusion policy, including failure to apply exemptions and failure to issue a Yellow Card first. He also relied on the Equality Act 2010, public law unfairness or unreasonableness, Article 3 ECHR and bias. The central issue was whether judicial review should proceed despite the available Complaints Procedure.

1. Proceeding in the claimant’s absence. Having regard to the overriding objective in Civil Procedure Rules 1998 Part 1, the interests of justice and the public interest, it was appropriate to determine the renewed permission application. The claimant had requested an oral hearing, had been notified of it, and had not sought a remote or hybrid hearing.
2. Adequate alternative remedy. Judicial review is a remedy of last resort. The Trust’s Complaints Procedure was expressly available under the exclusion policy and was identified in the Red Card letter as the means by which the decision could be challenged. It remained available throughout the 12-month exclusion period.
3. The Complaints Procedure was an appropriate first forum for assessing whether the policy exemptions applied, whether a Yellow Card should have preceded the Red Card, and whether any departure from the policy was justified by good reason. It could also address the claimant’s factual account of the incident and his complaints about reasonable adjustments. Judicial review would rarely undertake a fact-finding evaluation of contested events.
4. The claimant had not explained why he had ignored the Complaints Procedure, despite being aware of it and despite the point being raised promptly by the Trust and accepted in the paper refusal. The alternative remedy therefore constituted a knockout ground for refusing permission.
5. The claim was dismissed on that basis. It was unnecessary to decide whether the proposed grounds disclosed an arguable case, lacked utility or were academic. Judicial review might remain available later if the alternative remedy failed to provide a solution and a viable public law issue remained. There was no order as to costs.

The proceedings were transferred from the King’s Bench Division to the Administrative Court and ordered to be treated as a judicial review claim. Permission was refused on the papers by a Deputy High Court Judge. The claimant renewed the application, which was dismissed at the oral hearing.