Enfield Borough Council, R (on the application of) v Secretary of State for Health & Ors

This is an application made by the First Defendant (“the Secretary of State”) and by the Second to Fourth Defendants, who are NHS primary care trusts (“the PCTs”), to set aside the Order of His Honour Judge Pearl made on 8^th December 2008 granting permission to the Claimant (“Enfield”) to challenge by way of judicial review:

As is apparent from Enfield’s Grounds for Review, paragraph 37, at the heart of its complaint is the allegation that a decision was taken by the PCTs to discontinue specific NHS services, i.e. the full Accident & Emergency service and the consultant-led maternity service provided at Chase Farm Hospital, without carrying out the prior consultation of those liable to be affected by it as required by what is now s.242(2) of the National Health Service Act 2006 (“the 2006 Act”).

The nature of the Defendants’ application is unusual. CPR r.54.13 expressly states that there cannot be an application to set aside permission to claim judicial review. However, it was common ground before me that the Court has a residual inherent jurisdiction to do so: see R(Webb) v Bristol City Council [2001] EWHC Admin 696. In that case, as in the present case, the matter went before the judge on a paper application for permission when the time provided in the rules for Acknowledgment of Service had not yet elapsed. The defendant therefore had no chance to set out its grounds for objection to the grant of permission.

In the present case, the Claim Form was issued on 2^nd December 2008 and served on the 4^th December. That meant that the Defendants had until 25^th December to file the Acknowledgment of Service (“AOS”). The matter was put before the Judge on a paper application that included an application for expedition. He made his decision on 8^th December, only 6 days after the issue of the Claim Form. There is nothing on the face of the Order to indicate why the Judge thought it appropriate to make a decision to grant permission without at least affording the Defendants an opportunity to address the matter. Even in a case that is said to be one of extreme urgency, it is more usual for the Court to abridge time for the AOS and wait to see what the defendant has to say. Enfield had asked the Court to abridge time for the AOS to 10 days (see s.7 of the Claim Form) but the decision to grant permission on paper was taken within even that suggested timescale.

It may be that the Judge was influenced by an indication in the Claim Form that Enfield wanted the permission application to be considered by December 19^th 2008. That date was an error. Enfield actually wanted the application to be considered by 9^th January 2009 (s.2 of the Application for Urgent Consideration) and had intended to lodge an amended Claim Form to make this clear. The Judge cannot be criticised for failing to spot a discrepancy of this nature between the information in Form N463 and the Claim Form. It is possible that he thought that it would be difficult to meet the apparently desired deadline of 19^th December 2008 even if he abridged time for service of the AOS. However, there is no point in my indulging in further speculation as to why the Judge decided not to wait to see what the Defendants had to say. The fact that he took that course, for whatever reason, means that this is a case in which the inherent jurisdiction comes into play.

Of course if the Defendants had nothing of substance to say against the grant of permission, the unusual course adopted by the Judge would probably have made no difference. However, the Court should not lightly assume that a defendant would have nothing worthwhile to say, even in a case where (unlike the present) the claim appears on its face to be well above the threshold for permission. There is always a risk in granting permission on the evidence and submissions of one side alone.

In the present case, the Defendants have raised a number of arguments that would at least have merited consideration by the Court before determining whether or not to grant permission. Foremost among these was delay. Enfield had anticipated that this would be an issue, and sought to explain why the Claim Form was not issued earlier. The Defendants have submitted that even if that explanation were taken at face value it affords no proper excuse, and in any event they have been prejudiced by the delay in a way that cannot be compensated by an order for costs.

There also seems to me to be force in the point made by the Defendants that the explanation given by Enfield for part of the delay could have given an inadvertently misleading impression about the number of meetings of Enfield’s Cabinet that took place in the period between the Secretary of State’s decision and the issue of the Claim Form. It seems to me that in the light of the nature and substance of the arguments raised by the Defendants, the proper course for the Court to take is to consider the matter afresh, taking into account what the Defendants would have submitted had they been given the opportunity to do so envisaged by the Rules.

The Defendants have submitted that there is a further reason why this is an appropriate case for exercise of the jurisdiction to set aside. They point out that, on the face of it, the Judge appears to have applied the wrong test for the grant of permission. He refers in his written reasons to the fact that the Claimant’s documentation discloses “what might turn out to be an arguable case”. It is well established that the purpose of the requirement to obtain permission to bring a claim for judicial review is to sift out the unarguable cases, and therefore an arguable case has to be made out at the time of the application for permission: see e.g. the remarks of Lord Donaldson in R v Secretary of State for the Home Department, ex parte Cheblak [1991] 1 WLR 890 at 901 and the discussion in Fordham at 21.1.8.

I would not have been sufficiently impressed by this argument to be willing to set aside the Order granting permission on that basis alone. I suspect that what the Judge said may simply be a somewhat infelicitous paraphrase of the test for the grant of permission, rather than a misdirection. However, the fact that he expressed himself in this way is a further reason why it would be fair for the Court to consider the matter afresh, after taking into account what the Defendants have to say.

The jurisdiction to set aside the grant of permission is an exceptional one and should be exercised sparingly, in an obvious case. It seems to me that I should only set aside the Order if, on consideration of all the material that has now been put before the Court, I would not be prepared to grant permission. For the reasons that are set out in this Judgment, after hearing detailed argument on the matter I have formed that view, and therefore I am going to set aside the Order.

At this juncture I should like to pay tribute to all Counsel in the case for the way in which they presented their arguments, which, without exception, were clear, cogent and concise.

A decision made by an NHS body to reconfigure the health care services to be provided under the National Health Service in a particular area of the country is a matter of public interest, and is always likely to stimulate public debate. It may engender strong feelings, particularly if the proposed reconfiguration includes the closure of certain local amenities. Parliament has therefore made provision for a process of public consultation before any such decision is taken. Although during the early pre-consultation process (up to March 2007) the relevant statutory provision was s.11 of the Health and Social Care Act 2001, thereafter the relevant legislative scheme was that set out in s.242(2) of the 2006 Act. There is no material distinction in the wording, and so I shall simply refer to the 2006 Act.

Section 242(2) provides, so far as is germane, as follows:

“Each body to which this section applies must make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on –

(a)

the planning of the provision of those services,

(b)

the development and consideration of proposals for changes in the way those services are provided, and

(c)

decisions to be made by that body affecting the operation of those services”.

In R v Brent LBC, ex parte Gunning [1985] 84 LGR 168 the Court held that there are four necessary elements to statutory consultation:

The Secretary of State has issued guidance on the consultation and involvement obligations of relevant NHS bodies, referred to as the “Policy Guidance” and the “Practice Guidance”. Although the guidance was issued in 2003 and related to s.11 of the earlier Act, it has been treated by all relevant bodies as applicable to their duties under the 2006 Act.

It is common ground that an NHS body has no obligation under s.242(2) to consult on proposals that are considered to be non-viable and, therefore, are not being put up for adoption: see R(F) v Healthy Futures [2007] EWHC 1611 (Admin), and R v Worcester Health Authority, ex parte Kidderminster and District Community Health Council [1999] EWCA Civ 1525 (a decision taken under the previous legislation). It is therefore legitimate for a primary care trust to consider a range of options and to discard some of them on clinical, financial or other grounds without consultation. There is only a duty to consult on a proposal that the NHS body is actively considering it may implement.

There are three hospitals within the area covered by the PCTs; Barnet Hospital, Chase Farm Hospital and North Middlesex Hospital. In the summer of 2006 the PCTs set up a Project Board to consider the potential reconfiguration of services as between the Barnet Hospital and Chase Farm Hospital sites, based on the needs of the population. They produced a report setting out the reasons why it was felt that change was needed. A Project Executive was established to take operational decisions, monitor progress and make recommendations to the Project Board, which in turn made recommendations to the Boards of the PCTs, who were the final decision makers. The Project Board developed a list of possible reconfiguration scenarios and eventually drew up a “long list” of ten. At a meeting on 29^th September 2006 the Project Board decided to shortlist four of the original scenarios for further consideration.

In order to keep Chase Farm Hospital open, safe, and running the same services, substantial capital investment was required. Certain of the buildings needed to be redeveloped in order to make them fit for purpose. One structure (the Clock Tower) would have to be demolished on safety grounds and new outpatient facilities would have to be created to accommodate the services previously situated there. There was also a need for a new surgical block and the relocation of other services into a different wing of the hospital. Doing nothing was therefore plainly not a viable option and it was hardly surprising that after its initial consultations of various bodies, including the Patient and Public Engagement Group, the Project Board discarded it.

Initially a scenario involving carrying out the minimum amount of necessary work to Chase Farm to keep the same services on the site was considered and also rejected by the Project Board on the basis of a lack of clinical viability and sustainability. However, following a meeting between Sally Johnson, the Chief Executive of Enfield PCT, and the Enfield Overview and Scrutiny Committee and certain Enfield councillors on 17^th November 2006, the PCT agreed to consider a variation of that scenario to which I will refer as “Scenario E”. As well as the capital expenditure to which I have already referred, Scenario E involved hiring extra staff (particularly consultants) to take account of the requirements of the European Working Time Directive, which would significantly increase the yearly revenue costs. The money to pay for this would have to be diverted from other local healthcare services.

Scenarios A, B, C, D and E were considered by the Project Board with input from specialist consultants named Tribal Secta, (“Tribal”) who had been commissioned to provide independent financial advice on the financial impact of the various different scenarios. In January 2007 the Project Executive decided that it was doubtful whether Scenario E was clinically deliverable and, following further analysis from Tribal, that it would cause a £14 million deficit in the health economy by diverting money from other local health services. For these reasons the Project Executive recommended to the Project Board that Scenario E be rejected. Two other options were also rejected, reducing the number of viable scenarios to two. The reasons why Scenario E was considered not to be feasible were set out in a paper prepared for the Project Board meeting of 19^th January 2007 by the Project Executive. One of the Clinical Engagement Group representatives on the Project Board also reported that it was not clinically sustainable. The Project Board decided that, for reasons of financial feasibility and clinical sustainability, they should continue to consider only the two remaining scenarios, B and C.

Both Scenarios B and C involved discontinuing Chase Farm Hospital’s 24 hour Accident & Emergency service, and provided for a “local A&E” unit. They also discontinued its consultant-led maternity service although they offered the possibility of a midwife-led Birth Unit.

On 24^th January 2007 Tribal produced a report on financial forecasts which set out the financial figures for all five of the shortlisted Scenarios: Scenario B had a capital cost of £104.9 million and a £6 million revenue surplus, Scenario C a capital cost of £132.4 million and a revenue surplus of £5.8 million. Scenario E had a capital cost of £137.7 million and a revenue deficit of £15.6 million.

In April 2007 the Project Executive made an initial decision that the PCTs should consult on Scenarios B, C and E with a strong recommendation against Scenario E. However, following the taking of legal advice the Project Board decided in May 2007 that only Scenarios B and C should be put forward for a formal public consultation pursuant to s.242(2) of the 2006 Act. This was because Scenario E was considered to be neither financially viable nor clinically safe. In consequence of this, when the formal Consultation document was prepared, it set out Scenario E in detail and explained why it was not being included as an option. That document, entitled “Your Health, Your Future, Safer Closer Better” was published on 28^th June 2007. It put forward for consultation Scenarios B and C, now renamed Options 1 and 2, and expressly stated that Scenario E was not being consulted on because “it is not affordable and would mislead the public to consult on it”.

In July 2007 Enfield established a cross-borough committee with three other local councils, Barnet and Haringey LBCs and Hertfordshire County Council, to ensure a co-ordinated approach to scrutinise the proposals (“the Joint Scrutiny Committee”).

The consultation process came to an end on 19^th October 2007, and the PCTs then considered the responses. They included numerous responses from the public on Scenario E even though it was not put forward as a specific option. On 11^th December 2007, the three PCT Boards met separately to consider a report from the Project Board. Each Board unanimously agreed to adopt Option 1, together with a range of implementation proposals.

Meanwhile, the Joint Scrutiny Committee had been carrying out its own review. On 21^st January 2008, it decided to exercise its power to report the PCTs’ decision to the Secretary of State under Regulation 4(5) and (7) of the Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 (“the 2002 Regulations”). Regulation 4(7) provides that:

“in any case where an overview and scrutiny committee considers that the proposal would not be in the interests of the health service in the area of the committee’s local authority, it may report to the Secretary of State who may make a final decision on the proposal and require the local NHS body to take such action or desist from taking such action as he may direct.”

The report was submitted on 31^st March 2008. Among the many complaints it raised was the complaint that the consultation process had been inadequate because the two options offered no choice in respect of the reconfiguration of the A&E and maternity services at Chase Farm. The Joint Scrutiny Committee said that this meant that a decision had already been taken about what would happen to them – necessarily, without any public consultation. The other complaints are not material for present purposes.

In response to the Joint Scrutiny Committee’s report, the Secretary of State commissioned advice from the Independent Reconfiguration Panel (“IRP”), a non-departmental public body whose role includes the provision of formal advice to the Secretary of State where contested proposals for health service changes in England have been reported to him. In its report of 31^st July 2008 the IRP made certain recommendations, which essentially supported the PCTs’ decision to implement Option 1. On the consultation process, the IRP said that it considered it to be acceptable practice that only two options were put forward and concluded that there was no requirement to put forward an option of “no change” if there was evidence to support appropriate analysis and non-feasibility.

On 3^rd September 2008, the Secretary of State accepted the IRP’s advice and decided that he was content with the proposals and that he was content that they be implemented, on condition that the IRP’s recommendations be “fully taken into account”. As to the criticisms of the PCTs’ consultation he stated that “I accept the IRP’s findings and consider that the PCTs met their legal obligations in terms of overall consultation”.

So far as the original decisions of the PCTs are concerned, Mr Andrew Arden Q.C., on behalf of Enfield, contended that there is an important distinction to be drawn between adopting something that has never been in place, and abandonment of that which is already in place. It is one thing to discard, on financial or other grounds, a particular proposal for change, and quite another to decide to close down existing amenities. In the latter situation, there is an obligation to consult before the decision is made. That would be a key issue between the parties if Enfield’s application for judicial review were allowed to proceed to a full hearing.

Mr Arden referred to the case of R (Morris) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin) in which Mr Justice Hodge quashed a decision to close certain wards in Altrincham General Hospital which had been taken without a full public consultation.

So far as the Secretary of State’s decision is concerned, Mr Arden submitted that the IRP’s analysis was legally flawed because it did not appear to reach any conclusion about the criticism that a decision had already been taken to close the existing facilities before the consultation was carried out. In any event, that criticism was well founded: the consultation process and therefore the decision to go ahead with Option 1 were unlawful. A process that shuts out consideration of something on which the public are entitled to comment is not a proper Gunning consultation. Therefore it was not open to the Secretary of State, as a matter of law, to accept the IRP’s findings. He submitted this was not a case of irrationality but of illegality: it was not open to the Secretary of State to approve something that was unlawful.

Mr Neil Garnham Q.C., who appeared for the PCTs, submitted that Enfield’s challenge to the consultation process was difficult to comprehend. Enfield appeared to be putting forward the proposition that if the PCTs contemplated change, they were obliged to consult on the possibility of making no change, and that cannot be right. If Enfield’s challenge was a challenge to the decision not to leave things as they are, that decision was taken back in September 2006, and certain officers of Enfield who had been involved in the pre-consultation process had agreed at that time that doing nothing was not a viable option; (Mr Arden, however, pointed out that Enfield, as a body, had made no such determination).

The only way of keeping the Chase Farm A&E facilities and maternity units open was to adopt Scenario E. Scenario E was not an option of “no change” even though it would have maintained the existing services at Chase Farm, because the expenditure of implementing it would have meant inevitable reductions in other healthcare services to the people of Enfield (which would also require consultation). There was no obligation to consult on that scenario because it was non-viable. In any event, it was made clear in the Consultation Document that both the Options put forward would involve closing the 24 hour A&E facility and discontinuing the consultant-led maternity services at Chase Farm, so the PCTs had fulfilled their duty to consult on those changes insofar as they formed part of the plans for the reconfiguration of services.

Although the distinction drawn by Mr Arden does have a certain surreal quality that would be likely to cause mystification to anyone other than a lawyer, it does seem to me that there is a sufficiently viable argument to get across the threshold of arguability. Mr Garnham acknowledged that he would need to produce a “knockout blow” to stop the application against his clients on its merits alone, and in my judgment he has not achieved that. That is not to say that Enfield’s argument is particularly attractive, however attractively Mr Arden presented it.

The challenge to the Secretary of State’s decision is a different matter altogether. Mr Clive Sheldon, who appeared for the Secretary of State, pointed out that the real target of challenge is not the substance of the Secretary of State’s decision, namely, that the proposals relating to the distribution of services between Barnet, Chase Farm and North Middlesex Hospitals and the associated development of community and primary care services are in the interests of the local health service and health service users. Nor is there any complaint about the Secretary of State’s judgment as to whether in the circumstances the consultation by the PCTs on the proposal that they decided to adopt was adequate. Rather, the complaint is that the consultation process was unlawful because the PCTs failed to consult on a proposal that they considered was not viable.

Mr Sheldon submitted that it was reasonable (and lawful) for the Secretary of State to have reached the conclusion that the PCTs had complied with their obligations under s.242 of the 2006 Act, and that the consultation process was adequate, even if he turned out to be wrong – though Mr Sheldon joined forces with Mr Garnham in submitting that the conclusion was right. There were therefore no viable grounds for judicial review of that decision. I accept that submission. In my judgment the challenge to the decision of the Secretary of State’s decision was fundamentally misconceived. It was not his function to rule on the legality of the consultation process. That is a matter for the Court.

However, even if that analysis is wrong, and the challenge to the Secretary of State’s decision is arguable, which in my judgment it is not, and even if it were successful, it would achieve nothing. Mr Sheldon pointed out that the power of the Secretary of State, following a written report from an overview and scrutiny committee, if he forms the view that the consultation has been inadequate in relation to content or time allowed, is only to “require the NHS body concerned to carry out such consultation or such further consultation with the overview and scrutiny committee as he considers appropriate” (regulation 4(5) of the 2002 regulations). Accordingly, the Secretary of State was in no position to direct the PCTs to carry out a public consultation on Scenario E. Regulation 4(7), on which Mr Arden placed reliance, particularly the last line, only empowers the Secretary of State to require the NHS authority to take action if he reaches the conclusion that the proposal is not in the interests of the health service in that particular area. That is something quite different from the adequacy or otherwise of the process by which the proposal has been reached. The Secretary of State reached the decision that the proposal was in the interests of the local health service and he was entitled to do so.

Mr Sheldon submitted that even if the Secretary of State were to order further consultation with the Joint Scrutiny Committee, the PCTs would inevitably reach the same conclusion that Scenario E was not a viable option. Whether or not that is right (and there seems to be a great deal of force in the point), extra consultation with the Joint Scrutiny Committee is not the same thing as a full Gunning consultation. In my judgment there would be no point in quashing the decision of the Secretary of State, as that would simply bring everyone back to the position in December 2007. This point also has repercussions for the issue at the heart of the response of all the Defendants to the application for judicial review, namely delay, to which I now turn.

Even on Enfield’s best case, the Claim Form was issued on the last day of the three months that is the maximum period allowed under the CPR for bringing an application for judicial review of the decision of the Secretary of State – and well outside the period for bringing any challenge by way of judicial review of the decisions of the PCTs. No application for an extension of time was made in respect of the challenge to those decisions. Mr Garnham complained that this delay was compounded by the fact that the letter before action was not served on the PCTs until 24^th November 2008 and invited them to respond in 7 days, precisely half the time provided in the Judicial Review Protocol.

It is incumbent on a Claimant for judicial review to bring such a claim promptly, and in any event within three months from the date of the decision complained of. Although this Court recognizes the particular demands and pressures faced by local authorities, and the practical difficulties that are involved in convening the necessary meetings, putting papers together and taking decisions about them within a short timescale, local authorities are subject to exactly the same time limits as anyone else who wishes to apply for judicial review and they should be well aware of this.

On any view, the application to challenge the decisions of the PCTs was well out of time. Mr Arden conceded, as he had to, that an application for judicial review of the decisions of the PCTs that are under challenge could have been made long before the Secretary of State’s decision. Mr Garnham and Mr Sheldon pointed out that Enfield knew that Scenario E was not going to be included in the formal consultation process, and that the A&E facility and maternity units at Chase Farm were not going to keep their present form, even before the start of that process in June 2007. Therefore they submitted that the time for bringing a claim for judicial review ran out, at the very latest, in September 2007.

There is force in those submissions. However, even if one took the generous view that the absence of consultation on Scenario E was not finally set in stone until the formal decision was taken by the PCTs in December 2007 to adopt Option 1, time ran out at the very latest in March 2008. The obligation to act “promptly” does not entitle the applicant to wait until the last day of the three month period – see Rv Secretary of State for Trade and Industry ex parte Greenpeace Ltd [1998] Env LR 415. In a case like this, where Enfield was already aware that a decision had been taken not to consult on Scenario E, it was not entitled to sit on its hands. However instead of bringing an application for Judicial Review promptly after December 2007, Enfield decided to let the Joint Scrutiny Committee make its reference to the Secretary of State.

The Defendants pointed out that the reference to the Secretary of State was made by the Joint Scrutiny Committee and not by Enfield, and submitted that for that reason alone it could not be regarded as an alternative remedy to Judicial Review. Mr Arden’s response to that was that this was the statutory framework for challenge to the decision of the PCTs, and it did not matter that the Committee was a joint committee. It was the body that was entitled to make the application to the Secretary of State and Enfield could have done the same thing through a scrutiny committee of its own. I agree that what really matters is the nature and substance of the alleged alternative remedy. If that remedy is open to a particular body that represents (among others) the party who would be entitled to bring the claim for Judicial Review, then the fact that the party cannot claim the alternative remedy in its own name, or has not done so, is not a good reason in itself for refusing to treat it as a genuine alternative remedy.

Mr Arden submitted that Enfield was caught between a rock and a hard place. If it had sought judicial review before going down the route of statutory challenge pursuant to the 2002 Regulations, the Court might well have taken the view that it had not exhausted all viable alternative remedies and that the application was premature. He pointed to authorities such as R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593 where Lord Steyn said, at paragraph 42 “The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption. But it is a jump in legal logic to say that he must apply for such relief in respect of the resolution on pain of losing his right to judicial review of the actual grant of planning permission which does affect his rights”. That observation might well have justified Enfield in waiting until the decision to implement Option 1 was made in December 2007. I am less persuaded that it entitled Enfield to wait until after the very thorough process of statutory review had led to the Secretary of State’s decision that Option 1 could go ahead.

Mr Arden submitted that there was no effective decision to implement the Option 1 proposal until the Secretary of State confirmed the PCTs’ decision – the PCTs themselves had to wait to find out what the Secretary of State would do before making a start on its implementation. He also relied on R (Cowl) v Plymouth CC [2002] 1 WLR 803 in which it was stressed that the paramount importance was to avoid litigation wherever possible. In the light of this, he submitted it was not unreasonable for Enfield to wait until the Secretary of State’s decision before making an application for Judicial Review, because it was only then that it would know whether there was any matter on which the Court needed to be asked to adjudicate.

In my judgment the question whether it is or is not reasonable to postpone making a claim for judicial review until after an alternative route of challenge has been exhausted, will depend on the facts and circumstances of the particular case. In many cases where a statutory regime for challenge to a decision of a public body exists, even if that challenge is an appeal on the merits, it will be appropriate to go down that route before applying for judicial review, which is traditionally viewed as a remedy of last resort. However there are some situations in which the only way, or the most appropriate way, for the complainant to achieve the desired result is to issue a claim for judicial review, and in such cases the obligation to act promptly cannot be ignored. There are good policy reasons why Parliament has set a maximum time limit of three months for such applications. It is important to have certainty about decisions of the type taken in this case, and for everyone to know where they stand sooner rather than later. If the real nub of Enfield’s complaint was that the consultation process was unlawful, it seems to me to have been patently obvious that the appropriate route for challenge was not a reference to the Secretary of State.

Mr Garnham and Mr Sheldon submitted that the reference to the Secretary of State is, by its nature, not an alternative to judicial review. It is not a statutory remedy for a complaint of this nature: the Secretary of State does not make his decision by reference to public law criteria. He is concerned with the factual issue as to whether the outcome was in the best interests of local people and whether the consultation process was “adequate”. In my judgment, that is correct. There was no reason why the referral and the Judicial Review proceedings could not have been commenced simultaneously, and it may be that the Court would have decided that it was appropriate to determine the question of legality first so as to avoid the need for the Secretary of State to have considered what amounted to an appeal on the facts. In this particular case, given the nature of the complaint by Enfield, it was unlikely to have been criticized by the Court for bringing an application for Judicial Review in December 2007 or in March 2008 on the grounds that it was premature. Indeed even then Enfield ran the risk of criticism for leaving it too late.

However, even if I were to make the assumption in favour of Enfield that it was justified in staying its hand until the decision of the Secretary of State was made known, it still has to explain the delay until the last possible date within the 3 months allowed by the Rules of Court. Mr Arden submitted that no Local Authority would take the decision lightly to challenge the Secretary of State in Court. A decision of that nature could have repercussions unrelated to the merits of the specific case, by causing tensions in the Local Authority’s relationship with the Minister who is responsible for overseeing its budget.

Enfield did not take the decision to go to Court until November 2008 when the matter was placed before its Chief Executive for a risk assessment and then went to Enfield’s Cabinet on 26^th November. Mr Arden submitted that this was reasonable and that Enfield had acted as “promptly” as was practicable. Enfield could not have taken the decision in September 2008 because there was insufficient time to prepare a report for the Cabinet meeting. In any event a Local Authority may have more urgent matters than court challenges to consider. It did not take the decision in October because its officials were engaged in debating with a local political party called “Save Chase Farm” which of them should take the matter forward. “Save Chase Farm” had threatened to bring an action for judicial review of the Secretary of State’s decision.

Correspondence between Councillor Pearce, the Chair of Enfield’s Health Scrutiny Panel, and the Secretary of State, in September and October 2008, and a letter written by Councillor Rye, the Leader of the Council, to the Secretary of State in October 2008 suggested that, whilst bitterly disappointed with and critical of the decision, Enfield had decided it was going to live with it and ensure that it was properly implemented. Mr Arden submitted that the tenor of the correspondence was not reflective of any view taken by the Council as a body. That may be so, though Councillor Rye was quoted in the local press as late as 12^th November 2008 as saying that he felt that an application for judicial review was unlikely to be successful “and we don’t want to throw away council taxpayers’ money. I’m keen for the council to focus on getting primary care up to an appropriate level”. Those comments may have been an expression of a personal view and not binding on Enfield, but when read in conjunction with the earlier correspondence with the Secretary of State they do suggest that there may have been a last-minute change of mind. However, I do not place any weight on the correspondence or the newspaper interview. I am prepared to accept that the explanations put forward by Mr Arden for the delay are genuine, but that does not mean that they afford Enfield sufficient justification for the delay.

Even making every allowance for the practical exigencies of local government I do not accept that Enfield acted reasonably or promptly in waiting as long as it did. Enfield knew what the argument was. It had been complaining that a decision had been made to close the facilities at Chase Farm without proper public consultation for well over a year before the Secretary of State issued his decision. Enfield would also have been aware that once the Secretary of State’s decision had been made known then, if it was favourable to the PCTs, it was incumbent upon the PCTs to get on with implementing the approved option as soon as possible. That would mean spending a lot of money. In my judgment, Enfield could and should have been already prepared for a challenge before the Secretary of State’s decision and there was no justification for the delay. It did not need to spend a lot of time dwelling on the detail of the Secretary of State’s decision, let alone having unnecessary discussions with local pressure groups about whether they should bring the action instead. It was unreasonable for it to wait for as long as it did, and the additional delay undoubtedly caused prejudice to the PCTs which cannot be compensated.

According to the statement of Mr Conroy, the Chief Executive of Enfield PCT, irrecoverable costs have been incurred as a result of fees incurred on the implementation of the project since 3^rd September 2008. The PCTs have incurred approximately £100,000 programme implementation costs in the financial year 2008/2009, of which about £75,000 were incurred since March 2008. From March 2009 onwards, the costs of implementation will be around £30,000 per month if the PCTs wish to remain on target for service transfer.

Even more significantly, on 2^nd December 2008 – the date on which the claim form was issued - North Middlesex Hospital agreed to underwrite approximately £400,000 of costs involved in varying its private finance initiative (“PFI”) and on 15^th December 2008 it committed itself to the variation. This variation increased the PFI project by capital injection in the amount of £5.2 million, thereby facilitating the expansion of accident and emergency services at North Middlesex Hospital as part of the transfer of accident and emergency services from Chase Farm to North Middlesex. This PFI variation had to take place urgently because the building which houses accident and emergency services was and is in the process of construction, and further variations to its design could not be made after the beginning of March 2009. The cost of delaying full agreement on the PFI deal until March 2009 would have been a further £1 million and if it was not in place by the beginning of March 2009, the building would have had to be constructed in accordance with its current plans.

The PCT estimated that in such event the implementation of the project would have cost at least £15 million instead of £5.2 million. Now that North Middlesex is committed to incurring the PFI finance it has a cost of about £450,000 per year which it is currently anticipating it will be able to meet from additional revenue costs through income received through the increased provision of services – but only if Option 1 is implemented. If a judicial review challenge had been brought before March 2008 these costs and future liabilities would not, or may not, have been incurred.

Mr Arden submitted that it was highly likely that the PCTs would have had to confront the same choice of spending £400,000 to save £10 million come what may, and that decision would have been made even if Enfield had acted sooner, but I disagree. It seems clear from the evidence that North Middlesex waited as long as it possibly could before making that commitment. It waited until the last day of the three months for bringing an action for judicial review before it made the decision in principle and then followed the decision through by formally committing itself two weeks later. If Enfield’s application had been made in October 2008, the hearing could have been expedited and a decision would probably have been reached by the end of the year.

In my judgment the real target of complaint in this case is the decision taken by the PCTs not to consult on the closure of the A&E facilities and the changes to the maternity unit at Chase Farm Hospital which, on Enfield’s own case, had already been made by the time that the public consultation document was first issued in June 2007. Even if Enfield was justified in waiting until the result of the consultation process and deciding to challenge the decision made in consequence of the allegedly unlawful consultation, it did not act promptly or even within three months of that decision. Instead it chose to wait until after the Secretary of State made his decision. That delay was not justifiable but it did not cause any prejudice, since the PCTs could not implement their decision until the Secretary of State had upheld it. However it made it all the more important for Enfield to act with due expedition once it was notified of the Secretary of State’s decision. Instead of doing so, Enfield dragged its heels.

The claim for judicial review of the Secretary of State’s decision is unarguable – indeed, it is fundamentally misconceived. That would be sufficient reason for refusing permission even without the inexcusable delay until the last day of the three months, but the delay is a further good reason for refusing to allow that claim to proceed.

Even if Enfield was entitled to wait until after the Secretary of State’s decision to bring a claim for judicial review of the decision or decisions that are the real target of complaint, that claim has still been brought far too late and without a sufficient excuse for the delay. I agree with Mr Garnham that there really has been no proper explanation for the delay after September 2008 and such explanation as has been given is not sufficient to excuse it. Although the claim for judicial review of the PCTs’ decisions is arguable, it is not so compelling that it would cause an injustice to the Claimant for the court to refuse to hear it. The delay in bringing it has caused such a degree of prejudice to the PCTs that it would not be in the public interest to allow the claim to proceed further. This is a case that demands finality so that a line can be drawn and the public know what is going to happen to their healthcare services sooner rather than later.

I therefore exercise my discretion to set aside the Order of His Honour Judge Pearl, and refuse the application for permission to bring a claim for judicial review against any of the Defendants.