Health – Judicial review – Jurisdiction – Interested parties

R (on the application of McVey & Ors) (claimant) v Secretary of State for Health (defendant) & (1) Jonathan Simms (2) Holly Mills (interested parties): QBD (Admin) (Mr Justice Silber): 27 May 2010

The court was required to determine whether it had the jurisdiction to deal with a claim by the interested parties (S) which was different from the relief claimed by the claimants (M).

The defendant secretary of state had operated a compensation scheme, established under a trust deed, for the benefit of the victims of variant CJD and their families. M, who were relatives of the deceased victims of variant CJD or who were connected with them, had brought the main proceedings which related to the secretary of state’s treatment of proposals by the trust deed trustees for amending the trust deed.

S was granted leave to make representations in those proceedings. M sought orders firstly quashing a decision of the secretary of state rejecting the trustees’ proposals and secondly requiring the secretary of state to make a lawful reasoned decision as to whether to accept the trustees’ proposals. The court determined in R (on the application of McVey) v Secretary of State for Health [2009] EWHC 3084 (Admin) that the decision of the secretary of state to reject the trustees’ proposals was not irrational or unlawful as the secretary of state had articulated the reasons for his decision, taken account of the expertise of the trustees and exercised his discretion in accordance with the objects and purposes of the scheme set up under the trust deed when making his decision. After the court delivered its decision, it fell to consider representations made by S. Those representations were to the effect that the secretary of state was under a separate obligation, not resulting from the trustees’ proposals, to revise the compensation and to alter the compensation scheme to provide different compensation in respect of gratuitous care for patients undergoing treatment.

Held: (1) Under rule 54.1(2)(f) of the Civil Procedure Rules the role of an interested party was limited to making submissions in relation to the main claim but only to the extent that he was not merely affected by it but was directly affected by it. Apart from that, an interested party had no role or entitlement to be involved in the judicial review application. If the main claim was altered so that the interested party was not directly affected by it, then the court would cease to have jurisdiction to hear the interested party's claim.

(2) In the present case, the court had no jurisdiction to hear S’s claims as: (a) S were not directly affected by the main claim because at the time of the main hearing S’s claim did not arise out of the relief sought by M, which pertained to the trustees’ proposals in M’s capacity as relatives of deceased victims of variant CJD, but rather independent relief as living victims of new variant CJD; (b) any independent and discrete claim by any party in a judicial review application required permission and no such request for permission had been made by S; (c) there was no provision in the CPR which enabled an interested party to make an independent discrete claim against a defendant. Further, a court could not merely give advisory opinions in response to a judicial review application, especially in which the court had no jurisdiction to deal with an interested party’s claim, R v Entry Clearance Officer (Bombay) Ex parte Amin (1983) 2 AC 818 HL considered.

Judgment for defendant.

No appearance or representation for the claimants; Leigh-Ann Mulcahy QC, Lucy Colter (instructed by the in-house solicitor) for the defendant. Irwin Mitchell for the interested parties.