On 3 December, the Court of Appeal (Asplin, Nicola Davies and Lewis LJJ) gave judgment in R (Shashikanth) v NHS Litigation Authority & Ors [2024] EWCA Civ 1477, concluding that the decision of an adjudicator appointed by the secretary of state determining a dispute arising out of a contract for the provision of primary care was amenable to judicial review. The judgment becomes one of the leading authorities in the field of amenability to judicial review and will be of general interest to public lawyers. It is also a decision with ramifications for large numbers of GPs in England, given the commonplace nature of the type of contract in question.
Background
The NHS commissions the provision of primary healthcare services by GPs through a number of standard form contracts, one of which is the general medical services contract. Dr Shashikanth, a GP practising in west London, held two such contracts.
A dispute arose between the NHS Hillingdon Clinical Commissioning Group (CCG) and Dr Shashikanth concerning his obligation to share patient data under the contracts. The CCG took the view that the introduction of new regulations taking effect on 1 October 2019 imposed an obligation on Dr Shashikanth to share this data. Therefore, by refusing to do so he was in breach of those regulations and, accordingly, a term of his contracts requiring him to comply with statutory obligations. The CCG consequently served termination notices on Dr Shashikanth for both contracts.
Dr Shashikanth then referred the dispute to an adjudicator empowered by the secretary of state to determine such disputes by the National Health Service Act 2006 and regulations made thereunder. The effect of this referral was to bar Dr Shashikanth from seeking redress in the civil courts, with the adjudicator’s decision binding both parties.
The adjudicator concluded that the relevant obligation applied directly to Dr Shashikanth, that he was in breach of his contracts and therefore the CCG had validly terminated his contracts.
Dr Shashikanth judicially reviewed this decision, arguing that the obligation that formed the basis for the termination notices did not apply to him and that the termination notices were invalid. He also argued that the data-sharing requested would put him in breach of his data protection obligations.
High Court decision
In the Administrative Court, NHS England (on behalf of the CCG) accepted that the relevant obligation did not apply to Dr Shashikanth and that the termination notices were invalid. NHS England sought to argue that the contract had been varied to incorporate such a requirement but that argument was rejected. Bourne J concluded that while the adjudicator had erred by concluding that the CCG had varied the terms of Dr Shashikanth’s contracts, the claim should be dismissed anyway because the decision of the adjudicator was not amenable to judicial review. Dr Shashikanth appealed to the Court of Appeal.
Court of Appeal decision
In a judgment with which Asplin and Nicola Davies LJJ concurred, Lewis LJ reversed the decision of Bourne J and allowed the appeal.
On the amenability issue, Lewis LJ noted the point – not in dispute in the appeal – that the source of the adjudicator’s power was statutory in nature. This meant that the starting point was that the decision was subject to judicial review. There was nothing in the nature of the decision, in Lewis LJ’s view, to rebut this presumption. This was not a case where a public body was exercising a private, as opposed to a public, function which would not be liable to judicial review.
Arguments raised by NHS England focusing on the fact that the substance of the dispute under adjudication related to a contract did not find favour with Lewis LJ. The fact that the dispute that the adjudicator was considering was contractual did not, in Lewis LJ’s view, alter the nature of the adjudicator’s power, which was statutory in source and public in nature – as noted in the judgment, judicial review is generally available in respect of inferior courts and tribunals. Moreover, the fact that Dr Shashikanth had elected to refer the matter to the adjudicator rather than pursue a claim in the civil courts, a point relied on heavily by NHS England, similarly did not bear on this issue.
NHS England also argued that Bourne J’s conclusion that a letter sent by the CCG effected a variation in the contracts despite failure to comply with the requirements set out in the contract was wrong. Lewis LJ dismissed these arguments and upheld Bourne J’s decision. The Court of Appeal concluded, therefore, that the adjudicator had erred in law and that his decision should be quashed.
Comment
Before the Court of Appeal’s decision, it seemed possible that the mere fact that disputes were contractual in nature was enough to convert a decision which was otherwise amenable to review into one that was not: see R (Haffiz) v NHS Litigation Authority [2020] EWHC 3792, as well as the decision below. This decision represents a return to orthodoxy, with such cases being found to be wrongly decided.
Lawyers will find paragraphs 43-45 of Lewis LJ’s judgment of interest for the crisp exposition of the principles concerning amenability to judicial review. The case may now be considered one of the leading modern authorities in the field of amenability to judicial review, alongside R v Take-over Panel, ex parte Datafin Plc [1987] 1 QB 825 and R (Beer) v Hampshire Farmers’ Market Ltd [2004] 1 WLR 233.
The judgment still leaves scope for future disputes, most obviously about the circumstances in which a decision of a public body is ‘private in nature’ and therefore not amenable to judicial review.
The case is an example of the court’s concern to protect the rule of law, and its unwillingness to tolerate instances where an otherwise meritorious case is dismissed on amenability grounds.
Vikram Sachdeva KC, Admas Habteslasie and Jake Thorold were counsel for Dr Shashikanth, instructed by Stewart Duffy of Weightmans
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