European Surgeries Ltd, (R. on the application of) v Cambridgeshire Primary Care Trust & Anor

In 2003 the claimant, which was an organisation concerned with the provision of healthcare, arranged for a Mr Cooper, a man then aged 78, to have a cataract operation at a private clinic in Huntingdon. The operation was carried out by a German ophthalmic surgeon, Dr Schock. The claimant was paid £1,475 by the patient, Mr Cooper. There is a significant factual issue as to whether Mr Cooper in fact needed the operation or has benefited from it. The Primary Care Trust of the area, who are the respondents to the proposed judicial review, reimburse the costs of operations undertaken privately if there was prior authorisation. The tariff for an operation of this kind, if it had been pre-authorised was £756. It was this sum that the claimants sought be paid by the Primary Care Trust to Mr Cooper. The Primary Care Trust declined to pay.

Over four years ago on 13 January 2004 the claimant commenced proceedings, alleging that the failure to pay was a breach of Article 49 EC. It was stated that the Primary Care Trust was not entitled to impose a requirement of prior authorisation, as this was an unjustifiable restriction on the ability of the claimants to provide services as required by Article 49 EC.

The particular relief sought is important and is to be found in the claim form. What the claimants sought was a mandatory order that the defendant

“reimburse the Claimant’s patient, Mr Harry Cooper, at the appropriate NHS rate for his cataract surgery performed by the Claimant’s surgeon on 10 October 2003.”

They also sought a declaration that the defendant is obliged:

“to reimburse patients under its care for treatment by EU providers such as those contracted to the claimant on the terms set out by the European Court of Justice. In particular, a declaration that the Defendant may not require advance authorisation for patients undergoing outpatient treatment, whether in hospitals or elsewhere.”

Progress in the proceedings was delayed as a result of a reference made to the European Court of Justice in R (Watts) v Bedford Primary Care Trust (C-372/04),which was decided by the ECJ on 6 May 2006. After that decision the proceedings that had been brought by the claimants continued and came to trial before Bennett J on 20 November 2007.

At the time the matter came before Bennett J the position on the evidence before him was the following: (1) No claim was being made by Mr Cooper. (2) Mr Cooper had paid the claimants in full; they were not out of pocket. (3) The claimants had, despite the request of the Primary Care Trust, failed to produce the written consent of Mr Cooper to the proceedings being brought by the claimants.

The judge took the view that the absence of any statement from Mr Cooper stating that he wished to be reimbursed by the Primary Care Trust spoke for itself. The judge decided, in the light of the position as it appeared to him on the evidence before him, that the argument being advanced by the Primary Care Trust (supported by the Department of Health) to the effect that, as Mr Cooper was making no claim, the claim by the claimants was misconceived, was a submission that he should hear at the outset of the trial before him, before turning to consider the more difficult factual issues that were raised in the application.

Bennett J upheld the submission made by the Primary Care Trust and by the Department of Health. Although he accepted that the claimants had what he described as a commercial interest in establishing that the Primary Care Trust was bound to make a partial reimbursement for private operations, however, in relation to this particular case, as there was nothing due to the claimant and there was no claim by Mr Cooper, the Primary Care Trust had been under no duty to consider it.

He had regard to CPR Part 54.1 where a claim for judicial review is defined as:

“a ‘claim for judicial review’ means a claim to review the lawfulness of -

(1)

enactment; or

(2)

a decision, action or failure to act in relation to the exercise of a public function.”

He concluded that, on the facts as put before the court on the claimants’ case, there was no decision or failure to act in relation to the exercise of a public function, as the only public function in issue was the question as to whether the Primary Care Trust was obliged to reimburse Mr Cooper and Mr Cooper had not made a claim against it. He went on to say that if Mr Cooper had a claim, it was a claim that should have been brought by him but, on the facts as they were before him, the claimants had no claim. He pointed out that the community law cases relied on by the claimants did not help; they were all claims by persons which sought to assert their own rights and not someone else’s. He therefore concluded that the claim could not succeed and it was unnecessary for him to consider the further issues that arose on the claimants’ claim for judicial review and the defence raised to it.

The claimants sought, when their claim had thus been refused by Bennett J, permission to appeal. That permission only relates to the first ground of the claim, namely that relating to a mandatory order that the Primary Care Trust reimburse Mr Cooper at the appropriate NHS rate. The second claim for relief is no longer pursued.

Permission to appeal was refused by Mummery LJ on 8 February 2008; he considered that the judge had come to the correct conclusion. Two days later, on 10 February 2008, a witness statement was provided by Mr Cooper, the patient. He said at paragraph 4:

“I was from the outset and remain entirely in favour of the Claimant’s application for my fee to be refunded to me by the PCT. I would have taken action myself, were it not for the fact that litigation would have been too expensive and risky for someone in my position. The Claimant sent me a copy of the claim bundle and kept me informed at various stages. I have been served by the Claimant with a copy of the Appeal Bundle.”

It is convenient first to consider the new evidence from Mr Cooper and whether this court would consider admitting it. We do so even though there is no application to that effect. It seems to me that it would be very difficult to see how this evidence could properly be admitted under the tests applicable in this court, which substantially follow the law as established by the well-known decision in Ladd v Marshall. This material could easily have been made available at the time of the hearing before Bennett J and there is no reason, therefore, why this court should now admit it. However, even assuming it could be admitted before this court and an application to that effect were to succeed once it had been made, I do not think that it would make any difference to the outcome of this application.

Dr Roberts, in his submissions to us (both in his written skeleton argument and in his oral submissions today) has sought to try and persuade us that the claimant is entitled to bring these particular proceedings for judicial review. He has referred us to the decisions in various cases and argued that there is standing under community law to bring the claim.

However, in my view this case is not about standing. This case is about whether the particular and singular procedure that the claimants have chosen is one that can be brought within the terms of Part 54 which I have set out. It is clear to me that when regard is had to that Rule, there was no decision, action or failure to act, in relation to the exercise of a public function in relation to this claim. Even on the evidence that has been put before this court as late as 10 February 2008 there is still no claim that has been made by Mr Cooper against the Trust; there was therefore no decision, action or failure of the Trust. It seems to me that that is the short answer to this application.

The decision made by the judge does not seek to say there is no avenue under the law of this jurisdiction of England and Wales to bring an appropriate claim in respect of the issue about which these claimants complain. It is clear that the claim made involves a number of difficult factual issues; these include the issue as to the entitlement of the claimants and Mr Cooper; the question as to whether it was in hospital treatment or not; the issue as to the circumstances in which prior authorisation is sought and the justification for it; the factual issues in relation to whether the operation was necessary or not and other matters that go to circumstances which it would be necessary for a court to consider, if it was to make a decision under Article 49 EC. Some of those issues are by no means at all appropriate for a judicial review action in any event.

If Mr Cooper sought the reimbursement of the £747 which is in issue it would be expected that he would do that by an ordinary action as a private law claim; he has a remedy but that is not being pursued.

It seems to me, therefore, that the judge was entirely correct in reaching the decision he did and that the route by which these claimants have sought to bring their claim is misconceived. In those circumstances, as the Community leaves these issues to the national court and as the point is as narrow as the one I have set out, it seems to me this application should be refused as there is no real prospect of persuading the full court to the contrary.

I agree.