McVey & Ors, R (on the application of) v Secretary of State for Health

One of the most disturbing and distressing events of the 1990s was the discovery that many young people were suffering from variant CJD (“vCJD”), which is a disease for which there is no known cure. The consequences for the victims’ families and friends have also been truly tragic with many of them now still suffering from mental illnesses and other adverse effects. The first victim of vCJD died in 1995 and since then there have been 176 further victims of this fatal illness, of whom four are still alive. The current rate of new diagnosis of this disease is low with only three cases having been notified to the Secretary of State for Health (“the Secretary of State” who I will assume was at all material times male) in 2009, while one case and two cases were notified in 2007 and 2008 respectively.

Following the publication of the report into BSE by Lord Phillips in 2000, the Government gave an undertaking that it would, without making any admission of liability, put in place financial arrangements to compensate the victims of vCJD and their families without any need for them to prove fault.

The Government implemented this undertaking by setting up a trust after discussions and negotiations had taken place between legal representatives of the Secretary of State and of the victims and their families on the scope, structure and terms of the financial package. Two interim trusts were created in April and December 2001 in order to make interim payments before the main Trust Deed (“the Trust Deed”) setting up the Trust was signed on 15 March 2002. The Secretary of State settled the sum of £67.5 million and the Trust was intended to cover the first 250 cases. Sir Robert Owen, the distinguished High Court Judge was appointed Chairman of the Trustees, a post which he still holds.

Problems arose in connection with the way in which the Trust Deed operated principally because it gave the Trustees a very wide discretion. In June 2006, Sir Robert Owen produced a paper, which first sets out the difficulties encountered in operating the existing scheme and which second proposed a “radical revision to the scheme”, which removed the discretion on many matters from the Trustees. The Secretary of State took advice on these proposals which I will refer to as “the radical proposals” from Mr. Justin Fenwick QC, who in a written opinion dated 27 November 2007 stated first that “it seems unnecessary to substitute a new scheme” and second that on balance there was in his opinion “real dangers in pursing the modifications proposed”. Ministers at the Department of Health decided to reject the radical proposals but there is a dispute as to whether this decision was made in March 2008 or in June 2009, which is a matter to which I will return to consider in Section IV below.

On 28 August 2008, the present six claimants, who are the relatives of the deceased victims of vCJD or who are connected with them, instituted the present proceedings. After a meeting held on 2 June 2009 with Ms Dawn Primarolo M.P., who was then a Minister at the Department of Health, Sir Robert was told that although it was accepted that there a need to implement some changes to the Trust Deed, the radical proposals had not been accepted. Another Minister at the Department, Ms Gillian Merron M.P, wrote to Sir Robert Owen on 9 June 2009 and she asked that he “develop your less radical proposals as the basis for the way forward”. Moderate proposals were duly put forward and were accepted by the Secretary of State on 2 December 2009. They are due to come into force in March 2010 but, as its description indicates, they do not incorporate all the changes contained in the radical proposals, which the claimants contend that the Secretary of State should have accepted and indeed which he should now accept or at least he should now reconsider the decision to reject the radical proposals.

The present claims

The claimants’ case has varied greatly since it was first formulated but the relief which they are now seeking relates to the Secretary of State’s treatment of the Trustees’ radical proposals for amending the Trust Deed. The claimants seek orders first quashing the decision of the Secretary of State rejecting the radical proposals of the Trustees and second requiring the Secretary of State to make a lawful reasoned decision as to whether to accept the Trustees’ radical proposals.

The claimants contend that they are entitled to this relief because first the Secretary of State’s delay in considering the radical proposals was unreasonable and unlawful; second the Secretary of State’s failure to articulate reasons for rejecting the Trustees’ radical proposals was unlawful; third that the rejection of the radical proposals was irrational and unlawful because he should have deferred to the views of the Trustees or of Sir Robert; and fourth that the rejection of the radical proposals was irrational and unlawful because the Secretary of State had failed to exercise his discretion in accordance with the objects and the purposes of the Scheme set up by the Trust Deed.

Although permission was granted by Plender J to pursue the claims, the present claims are rather different. At the outset of the proceedings, I gave permission to the claimant to pursue such parts of this claim, which were not subject to the permission granted by Plender J. I should record that by the time of the hearing the claimants had abandoned many of their previous claims such as that there were failures on the part of the Secretary of State first to consult and second not to pay full compensation.

The Secretary of State not only disputes each of the claims of the claimant but he also contends that there are other reasons why the claimants are not entitled to any relief.

The issues that have to be considered on this application are whether:-

The Interested Parties

On 8 December 2009, Irwin Mitchell was granted permission to intervene on behalf of two interested parties, Jonathan Simms and Holly Mills (“the Interested Parties”), who are victims of vCJD but who are still alive being treated with Pentosan Polysulphate (“PPS”). Some written evidence was adduced on behalf of those parties.

They were not present or represented at the hearing but at my request, enquiries were made of their solicitors Irwin Mitchell as to the relief which they were seeking. In response, they stated that they were claiming:-

This relief is very different from that which is being claimed by the claimants. The Secretary of State had no prior notice that this relief would be sought. In those circumstances, it was agreed that the Interested Parties should be asked to state first how and why this Court had jurisdiction to deal with this claim which was so different from that claimed by the claimants and second the bases of their claims. When this information is obtained and the other parties have had an opportunity to comment on it, consideration will be given as to how, if at all, the claim of the Interested Parties can and should be pursued. In those circumstances, it would be premature to say anything more about these claims in this judgment.

The Claimants

In order to understand the nature of the complaints, it is necessary to give some details about some of the claimants and the nature of their claims, which I have gratefully adopted from the claimants’ skeleton argument. James McVey is the elder brother of Claire Louise Anne McVey who was born on 29 May 1984 and who sadly died from vCJD on 15 January 2000. She began displaying the symptoms of vCJD in 1999. She became violent and abusive, while losing weight and requiring a wheelchair to move around. Ultimately, she required constant supervision including with toileting. As a result of his sister’s illness, James had to drop out of college and he was subsequently unable to work for long periods. He became convinced that he too would contact vCJD and has been diagnosed as having suffered a major depressive episode. James continues to have panic attacks and he remains at risk of further depression.

Kirsty Hewitt is a partner of James McVey and she played an integral part in the life of James’ sister as she was with the McVey family. Kirsty helped provide intimate and personal care to Claire during her illness. After Claire’s death, Kirsty was unable to continue her nursing studies and she became convinced that she too would die from vCJD. She has repeatedly attempted to take her own life following Claire’s death. Kirsty’s panic attacks and anxiety have led her to harm herself and she has been diagnosed as suffering from Post Traumatic Stress Disorder. She meets the criteria for Borderline-Personality Disorder.

PP is the father of EP, who was born on 30 May 1984 and who sadly died from vCJD on 21 October 2009. EP had been formally diagnosed with vCJD on 4 June 2003, and he required help with the most basic tasks and constant supervision both during the day and at night. He last spoke effectively in June 2005 and was doubly incontinent while being fed through a PEG tube. As a result of the care that EP required, his father was unable to work even part time giving up his previous electrical business. PP was prescribed anti-depressants as a result of his psychological reaction to EP’s illness. In consequence, the family have become socially isolated and they exist on benefits and are heavily indebted.

BP is the son of PP and the brother of EP. After EP was diagnosed with vCJD, BP lost his job and he found it extremely difficult to cope. BP was diagnosed with depression and attempted suicide. He separated from his girlfriend and he has only been able to work for brief periods.

Other claimants have suffered similarly. In one case, the half brother of a vCJD victim has been diagnosed with depression while in another case, the mother of a victim now suffers from depression and cannot work. I am not being disrespectful to the other claimants if I do not set out details of the ways in which they have suffered in similar deeply disturbing ways.

The Role of the Secretary of State.

The role and duties of the Secretary of State in dealing with the radical proposals derives from the Trust Deed which provides that:-

“34.1

The Trustees shall no less frequently than once in every calendar year consider whether the trust powers and provisions conferred upon the Trustees by this trust instrument are adequate to enable the Trustees to act for the best interests of the beneficiaries and if in the opinion of the Trustees such trust powers and provisions are not adequate the Trustees may by deed with the written consent of the Secretary of State amend vary or alter such trust powers and provisions. Provided that such amendment variation or alteration may not remove any benefit to which any such beneficiary is or has become entitled prior to the date of any such deed.”

So it is common ground correctly in my view that the Secretary of State had a power or discretion to decide whether to amend the powers in the Trust Deed if the Trustees make an appropriate request. Significantly, he did not have a duty to agree with a request from the Trustees to amend the Deed and I will return in Sections VI and VII below to consider the operation of the discretion or power in this case but I should explain that the Trustees are not party to the attempts of the claimants to challenge the decision of the Secretary of State to reject the radical proposals.

The Trust was to be and has been administered by seven independent Trustees chaired, as I have explained, since its inception by Sir Robert Owen. The independent Trustees now comprise of two parents of vCJD victims, a solicitor and a Q.C. both of whom are experienced in personal injury work, a consultant neurologist and Haemophilia Nurse Specialist. The quality and expertise of the Trustees is very clearly apparent and they have the well-known solicitors’ firm of Charles Russell acting for them.

Introduction.

It is appropriate at this stage to deal with a factual dispute as to precisely when the decision to reject the radical proposals was made by the Secretary of State because the claimants attach great importance to their contention that this occurred in June 2009 while the case for the Secretary of State is that that the proposals were rejected by him in March 2008. As I will explain, even if the claimants are correct, they will still be unsuccessful.

Mr Jonathan Stopes-Roe, who is the Head of Strategy & Legislation at the Health Protection Division at the Department of Health, stated in his first witness statement of 14 May 2009 that:-

“78.

In March 2008, Ministers considered all of the issues surrounding a revision of the scheme and made a decision to reject the Trustee’s proposal for a major revision of the existing scheme, instead inviting the Trustees to consider certain possible alternative and less radical ways of resolving such difficulties as they had encountered in the administration of the Scheme by way of a further revision of the Trust Deed…”.

It is said by Mr Ian Wise on behalf of the claimants that this statement did not represent the correct position as it was not until June of 2009 at about the time of the meeting between Sir Robert Owen and Ms Primarolo that the decision to reject the radical proposals was made. The issue is how to resolve this dispute as Mr. Stopes-Roe has not been cross-examined and no application was made by the claimants’ legal advisers to cross-examine him.

The correct legal principles

An appropriate starting point is the statement of Lane LJ (as he then was) when sitting in the Divisional Court in the case of R v Board of Visitors of Hull Prison ex p St Germain (No 2) [1979] 1 WLR 1401 at 1410 when he explained that:-

“Since we have had to decide this matter on affidavit evidence without the benefit of cross-examination, we are obliged to take the facts where they are in issue as they are deposed to on behalf of the Board”.

McCullough J adopted a similar approach in R (Cran & Others) v Camden London Borough Council [1995] RTR 346 when he stated in relation to a factual dispute on a judicial review application in which there had been no application to cross-examine any opponent:-

“the court must, in those circumstances, fall back on the principle that where a relevant dispute cannot be resolved on the written material alone the facts must be assumed to be those which favour the respondent”.

Not surprisingly, the Secretary of State relies on this comment but Mr Wise correctly states that it has to be placed in perspective because later in his judgment McCullough J repeated the principle that disputed matters must be resolved in favour of the defendants but he then added a proviso which was “unless documents enable the court to say otherwise” (page 400).

Subsequently, Mr Wise points out that in the case of S v Airedale NHS Trust [2002] All ER (D) 79, Stanley Burnton J (as he then was) said that:-

“18.

It is a convention of our litigation that at a trial in general the evidence of a witness is accepted unless he is cross-examined and thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness’s testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.

19.. I think I should adhere to the general rule except where the contemporaneous documents dictate that a witness statement must be incorrect”.

It is also said by Mr Wise that Lord Scott explained in the case of Doherty v Birmingham City Council [2008] 3 WLR 636 that “judicial review procedure should be adjusted to enable issues of facts to be resolved”. Lord Mance said in the same case that:-

“138.. I agree with the observations.. of.. Lord Scott about the possibility of adjusting judicial review procedure in appropriate circumstances to cover any necessary factual investigations and determinations”.

Indeed the courts will make orders for the cross-examination of witnesses where necessary in judicial review claims (see, for example, R (Al-Sweady and others) v Secretary of State for the Defence [2009] EWHC 2387 Admin [15]-[21]). No such application was made in this case for the cross-examination of any of the Secretary of State’s witnesses.

Reliance is also placed by the claimants on the significance of the quality of the evidence because in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, Lord Bingham said that:-

“4.

Where a public authority relies on a document as significant to its decision, it is ordinary good practice to exhibit it as primary evidence. Any summary, however conscientiously and skilfully made may distort”.

Lord Carswell stated that:-

“33… a party whose affidavits contain a reference to documents should therefore exhibit them in the absence of a sufficient reason (which may include the length or volume of the documents, confidentiality or public interest immunity)”.

In this case, there has not been any affidavit referring to any such material or to any other documents.

Mr Wise says a similar point was made by Sedley LJ in R (on the application of National Association of Health Stores and Another) v Secretary of State for Health and Another [2005] EWCA Civ 154 in respect of government policy not to make voluntary disclosure of ministerial briefings:-

“47… it seems to me entirely inconsistent to tender and rely on secondary evidence instead. The courts would not allow a private litigant to do this, and in a legal system in which the state stands before the courts on an equal footing with the citizens there is no good reason to allow government to do it”.

I should add in this case that there is no evidence of any further documents that could be produced and, as I have explained, no application has been made to cross-examine Mr Stopes-Roe. So I do not consider that the comments of Lord Bingham, Lord Carswell and Sedley LJ have any relevance to this issue or indeed to this case.

In my view, the proper approach to disputed evidence is that:-

Discussion

In the absence of an application in the present case to cross-examine Mr. Stopes-Roe, Mr Wise attaches great importance to the documentary evidence in this case which he contends shows that no decision to reject the radical proposals was made in March 2008. He first relies on the letter from Charles Russell of 25 June 2008 to Mr Stopes-Roe in which it is recorded that at a meeting on 8 April 2008:-

“you indicated to me that the Secretary of State was unlikely to accept a radical revision of the scheme for reasons which you indicated to me”.

Sir Robert Owen had written to the Department of Health on 2 May 2008 in which he recalled that there had been a meeting between Mr Stopes-Roe and Mr Vallance of Charles Russell on 8 April 2008 but nothing is said in that letter to indicate that the Trustees had been told a decision had been made that the radical proposals had been rejected. That of course does not show that such a decision had not been made. There was then, as I have explained, a modified version of the proposals to amend the Trust Deed put forward with assistance coming from officials at the Department of Health.

On 29 August 2008, Mr Brian Bradley of the Department of Health wrote to Charles Russell stating that :-

“You may recall that when we met in April, you advised that Ministers were not inclined towards a radical revision of the Trust Deed. The view of [Department of Health] Ministers is that the original proposal is too radical…”.

On 5 November 2008, Charles Russell wrote to Mr Bradley stating that:-

“The Trustees repeat their request that the Secretary of State adopt their primary proposal for a radical revision of the scheme. They submit their more limited proposal, as set out in the documents enclosed, for consideration only in the event that the radical revision is rejected”.

On 18 November 2008, the defendant filed and served Summary Grounds on the claimants and in paragraph 67, it was stated that:-

“in March 2008, Ministers considered all proposals surrounding a revision of the Scheme and made a decision to reject the Trustees’ proposals for a major revision of the existing Scheme, instead inviting the Trustees to consider certain alternative ways in resolving such difficulties as they have encountered in the administration of the Scheme by way of more minor revisions of the Trust Deed.”

There were discussions between Charles Russell and Department of Health officials about a letter that would or should be sent to Sir Robert rejecting the radical proposals. As I have explained in paragraph 5 above, there was a meeting in June 2009, which took place between Sir Robert and Ms Primarolo at which the decision to reject the radical scheme was mentioned.

In determining whether or not I should accept the averment of Mr Stopes-Roe that Ministers decided to reject the proposals in March 2008, it is necessary to remember that the critical issue is not when the rejection decision was notified to Sir Robert and the Trustees (which was in 2009) but rather the different issue of when the decision to reject was made by the Secretary of State. There is repeated reference and correspondence to terminology such as “the Secretary of State was unlikely to accept a radical revision of the scheme” such as in the letter of 25 June 2008.

Conclusion.

At the end of the day, I have reached the conclusion that there is not sufficient evidence or material to enable me not to accept what Mr Stopes-Roe said in his witness statement that the decision to reject was made in March 2008. This is not a case where applying the words of Stanley Burnton J in the Airedale Trust case to which I referred in paragraph 28 above, “the contemporaneous documents dictate that a witness statement must be incorrect” or “the witness testimony is manifestly wrong”. The underlined words show the high standard required before a witness statement is not accepted as correct in the absence of cross-examination of the maker of the witness statement.

I therefore accept that the decision to reject the radical proposal was taken in March 2008. As I will explain, during the course of this judgment I will also consider the case on the basis that that is incorrect and that the rejection decision was made in June 2009 as the claimants contend. Even on that basis, as I will explain, the claimants will not succeed.

Introduction

It is common ground that Sir Robert Owen first made his proposals for the “radical revision scheme” in June 2006 and it appears his proposals were sent to the Department of Health on 29 June 2006. A meeting then took place between the Secretary of State and Sir Robert Owen on 19 July 2006 in which Sir Robert explained the radical scheme under which a standard lump sum would be payable in all cases and that it would be based on the average of the equivalent payments made to date. The justification for the revised scheme is that the application of discretion would be largely eliminated with the result that there would be a simpler, quicker and more economical scheme introduced into the Trust Deed, which would apply to new applications made after a set date.

On 24 November 2006, the Trustees approved the revision document for the radical changes, which was then sent to the Department of Health by Charles Russell on 5 December 2006. Suggestions to improve this scheme were made by Mr Jonathan Stopes-Roe.

Following those suggestions, the Trustees amended the scheme to take account of his suggestions and a revised version was then sent by Charles Russell to Mr Stopes-Roe on 6 March 2007. This version was duly accepted by Mr Stopes-Roe as the Trustees’ proposal for a change to the scheme and he explained that the Secretary of State wished to take the advice of Mr. Justin Fenwick QC. As I have explained, he recommended the rejection of these radical proposals in his written Opinion of 22 November 2007.

On 5 February 2008, Mr Bradley of the Department of Health wrote to Charles Russell explaining that the Department of Health officials “are in the process of preparing our advice to Ministers on the basis of the Trustees’ proposals and the opinion of our Counsel, but it would be incorrect to advise the Trustees that their proposals had been rejected by the Secretary of State, since that decision has yet to be made. Our view has not changed since December, but it will be for Ministers to decide”. It has been said that Ministers decided to reject the radical proposal in March 2008 although there has been no contemporaneous document produced relating to the decision being made at this time or indeed being made in 2009 or at any time.

As I have explained, according to a letter of 25 June 2008 from Charles Russell to Mr Stopes-Roe, a meeting took place between Charles Russell and Mr Jonathan Stopes-Roe on 8 April 2008 at which Mr Stopes-Roe advised that “the Secretary of State was unlikely to accept a radical revision of the Scheme”.

On 2 May 2008, Sir Robert Owen wrote a letter to Mr Stopes-Roe giving his personal views on the problems with the radical proposals which Mr Fenwick had sought to identify. Sir Robert concluded by saying that although Mr Fenwick had played an important role in drafting the terms of the original Trust Deed, “he had little or no practical experience in the actual administration of the Scheme since its inception in March 2002. It is perhaps for this reason that his suggestions occasionally failed to grasp the problems that the Trustees had faced over the years during the administration of the Scheme”. A meeting of the Trustees took place on 6 June 2008 in which there was unanimous agreement with the contents of Sir Robert’s letter.

On 25 June 2008, Charles Russell wrote to Mr Stopes-Roe recording that the statement at the meeting of 8 April 2008 of Mr Stopes-Roe in which he had indicated that the Secretary of State was unlikely to accept a radical revision of the Scheme had inevitably caused the Trustees considerable concern because if a radical revision was not to be accepted, the present scheme would continue by default in its form and this was an outcome, which for the Trustees would be “highly undesirable for obvious reasons”. It was therefore suggested that an alternative proposal should be put forward “in the event that their proposal for radical revision is rejected”. That proposal was then explained.

The present proceedings were issued on 28 August 2008. On 29 August 2008, Mr Bradley at the Department of Health wrote to Charles Russell in a letter from which I have already quoted stating that:-

“you may recall that when we met in April you were advised that Ministers were not inclined towards a radical revision of the Trust Deed. The view of the [Department of Health] Ministers is that the original proposal was too radical and they would prefer to see an alternative set of revisions that will improve the working of the Trust Deed, while avoiding most of the drawbacks. To that end, we would like to see the more modest revisions presented in the terms of variations to the Trust Deed as suggested in your email”(which was I believe the email of 25 June 2008 to which I referred in paragraph 51 above).

On 5 November 2008, Charles Russell sent the amended Trust Deed containing more limited revisions than in the radical proposals to the Department of Health as these revisions had only been agreed by the Trustees at their meeting on 10 October 2008.

On 2 June 2009, Sir Robert Owen met with Ms Dawn Primarolo MP a Minister at the Department of Health and in a letter from another Minister Ms Gillian Merron MP dated 9 June 2009 it was recorded in relation to Ms Primarolo that:-

“She accepted, at that meeting the need to implement some changes to the Trust Deed on the basis of the experience gained so far, but she was not persuaded by the arguments for radical change as embodied in your original proposal. She proposed, and I endorse her request, that you develop your less radical proposals as a basis for the way forward”.

The case for the claimants is that the delay on the part of the Secretary of State in dealing with the radical proposals for the scheme was so great as to be unreasonable because the Trustees had submitted proposals on 7 March 2007 but yet it was not until 9 June 2009 that they were rejected by the Secretary of State. The case for the claimants in the words of the skeleton argument is that:-

“The delay here was unconscionable and unreasonable is especially so given the “distress and anger” that Sir Robert Owen recognised was being caused to families of the victims by the operation of the existing scheme and the “prolonged suffering” that the processing of the claims was causing the families”.

In response, the case for the Secretary of State is that the decision to reject the radical proposals was made in March 2008 and that such delay was not undue in the context of the number of new cases emerging at the time of the decision with only one claim being made in 2007. It is also said that in any event the claim of undue delay, which is denied, does not assist the claimants’ case because if the grounds for rejecting the proposal cannot be regarded as irrational, the claimants do not have a claim in public law for the delay.

Discussion

In my view, there are two reasons for rejecting the claimants’ case on the delay issue.

First, Ms Mulcahy is correct in contending that in the light of the fact that decision to reject the radical proposals has been taken, the complaint of undue delay even if proved does not assist the claimants’ case because if the decision to reject cannot be challenged on grounds of irrationality or absence of reasons, the contention that there has been undue delay does not assist as against the Secretary of State. I appreciate that it is settled law that undue delay on the part of a public authority can lead to a remedy in public law but that is only when no decision has actually been taken. Once, as in this case, a decision had been taken by the Secretary of State to reject the radical proposals, the focus of any claim had to move away from the delay and instead be directed towards the impugnability of the actual decision. After all, the remedy for delay is an order requiring the decision to be taken and that is unnecessary in this case.

In reaching that conclusion, I have not overlooked the fact that Mr. Wise points out that Scarman LJ explained in R v Secretary of State for the Home Department ex parte Phansopkar [1976] 1 QB 606, 626 that “justice delayed is justice denied”. He also points out that the Council of Europe’s Committee Administers (Recommendation R (80)) sets out basic principles one of which was that “in administrative authority where exercising a discretionary power... 5 takes its decision within a time which is reasonable having regard to the matter at stake”. Mr. Wise also relies on provisions in the Charter of Fundamental Rights in the European Union (2000-C364/01), which provides in article 41 (1) “Everyone has the right to have his affairs handled..within a reasonable time by the institutions and bodies of the union”. I was told that only one of these provisions has been ratified by the United Kingdom.

In my view, even if both these provisions had been ratified, they only confer important rights in cases where a decision has not been taken and where a party requires an entity to make a decision. There are many cases in administrative law in which applicants have relied on the right to have a speedy decision to obtain an order from the courts that a body should make a decision or that a declaration should be granted such as R v Secretary of State for Home Department ex parte Mersin [2000] INLR 511. In the present case, a decision has been taken to reject the radical proposals and no cogent reason has been put forward as to why the delay can in those circumstances in itself confer any rights upon the claimants especially as the Secretary of State accepted and implemented the moderate proposals.

A second reason why I would reject this complaint of excessive delay is that I do not consider that there was excessive delay. The final radical proposals were only submitted in March 2007 as I explained in paragraph 47 above, and then the Secretary of State sought Mr. Fenwick’s advice, which was only delivered in November 2007 while the decision to reject the proposals was taken in March 2008. I do not regard this to be excessive delay prior to that date especially as there is no evidence that the Trustees were applying pressure on the Secretary of State to give a speedy response or making any demands for a speedier decision on the radical proposals. Above all, there was no evidence that the Secretary of State was in the words of the claimants’ skeleton arguments aware of ““distress and anger” ..caused to families of the victims by the operation of the existing scheme and the “prolonged suffering” that the processing of the claims was causing the families”. This reasoning applies irrespective of whether the radical scheme was rejected in March 2008 (as I believe to be the correct date) or in June 2009 as the claimants contend is the correct date.

Thus for both or either of these reasons, this complaint has to be rejected.

Introduction.

The case for the claimants is that the decision of the Secretary of State of 9 June 2009 was irrational and unlawful because the Secretary of State did not articulate any reasons for his decision because that letter (from which I have already quoted in paragraph 5 above) merely states that the Minister was “not persuaded by his argument for radical changes”. Mr Wise points out that there was a forceful and carefully reasoned criticism made by Sir Robert Owen in his letter of 2 May 2008 in which he answers the points made by Mr Fenwick in his opinion. In those circumstances, he submits that it was therefore incumbent upon the Secretary of State to say why he disagreed with the reasons of Sir Robert.

Mr Wise contends that for the Secretary of State to disregard Sir Robert’s view without giving any reason for so doing demonstrates arbitrary behaviour on his part, and this constitutes a breach of his public law obligations.

The case for the Secretary of State is that adequate reasons were given and it was therefore necessary to ascertain when the decision to reject the radical proposals was taken because the case for the claimants was that it was only taken in June 2009 while the Secretary of State’ case is that the decision was made in March 2008. As I have explained, I regard the Secretary of State’s case as being correct.

In that case, the relevant reasons are to be found in the witness statement of Mr Stopes-Roe of 14 May 2009 as to why the radical proposal was rejected and those reasons are that:-

“There were complex issues of law and policy involved in any major revision to the Scheme. Whilst there were attractions in terms of speed and lower costs to a more standardised scheme, one of the relevant factors is that the number of new cases emerging is currently very low (only 1 new case was diagnosed during 2007, 2 during 2008 and 1 during 2009 to date) [the figure for 2009 was ultimately 3 as updated in §10 Mr. Stopes-Roe #3] and accordingly, most of the difficulties encountered in the administration of the Scheme are now largely historic and, in the Defendant’s view, did not justify changing a Scheme in a way which (despite the strong and clear view of the Trustees that it should only be prospective) may either lead families already in receipt of compensation (such as the Claimants in this case) to contend that their claims (and potentially all claims already decided) should be re-opened and determined in accordance with any new Scheme or alternative future beneficiaries who perceive that the old regime was ‘better’ to complain. It was also considered undesirable to make a system set up to meet individual needs far less sensitive to variation in need and circumstances. Further, there was concern over transferring the difficult discretionary decisions made by the independent and more detached Trustees to families with the potential distress and costs (e.g. of appointing professional Trustees) that this might involve. It was considered that alternative revisions could improve the working of the Trust Deed whilst avoiding most of the drawbacks of a radical revision of the Scheme. The Trust were informed that Ministers were unlikely to accept the proposals for a radical revision of the Scheme on 8 April 2008 and confirmed on 29 August 2008 that Ministers were not inclined towards a radical revision of the Trust Deed but would prefer to see an alternative set of revisions put forward to improve the working of the Trust Deed avoiding most of the drawbacks.”

I appreciate that Mr Wise contends that those reasons preceded the decision to reject the radical proposals but I do not agree because, as I have explained, the decision to reject the radical proposal had been made in March 2008 which was more than a year before Mr. Stopes-Roe made his witness statement. Even if that is incorrect and the decision to reject the radical proposals was made in July 2009, that does not assist the claimants for four reasons. First, it does not mean that those reasons could not have been the factors which were being taken into account in reaching the decision, as it shows the reasoning and thinking of the Secretary of State.

A second reason why I have concluded that reasons were given for rejecting the radical proposals is that it is clear that reasons would have been given at the meeting on 2 June 2009 referred to in Mrs Merron’s letter of 9 June 2009 in which as I have explained in paragraph 8, it was pointed out that Ms Primarolo “was not persuaded by the arguments for radical change as embodied in your original proposal”. To my mind, that would constitute a rejection and it is difficult to envisage that reasons were not then given or had not previously been given to Sir Robert as he would either have asked for reasons at the time or at least commented on the lack of reasons in his letter of July 2009. It is also of importance that the allegation which is now being made of a failure to give reasons was not included in the original claim made by the claimants but was only clearly articulated in the skeleton argument served shortly before the present hearing.

Third, the letter of Sir Robert of July 2009 referring to the meeting of 2 June 2009 does not state that he did not know why the radical proposals had been rejected and he would have been bound to state that if that was the true position especially as he would have wanted to know the reasons in order to finalise the more modest proposals.

Fourth, the most cogent reason is that if the claimants had any evidence that no explanation had been given, then surely it would have been necessary to have obtained a witness statement to that effect from Sir Robert or from the Trustees.

In rejecting this head of challenge, I should add that I am quite satisfied that I should agree with Ms Mulcahy that the reasons for rejecting the proposal were that:

Introduction

The case for the claimants is that the Secretary of State’s decision was irrational and unlawful. It is said that the decision failed to give proper weight to the views of the Trustees in particular those of Sir Robert Owen especially as they and he in particular had special knowledge and experience.

I have already explained the reasons that were given by the Secretary of State in paragraphs 66 and 71 above. It is necessary to stress first that my role on this application is limited as it is a judicial review application and second that this is not an appeal on a question of fact.

Indeed as was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips MR. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that on a judicial review application:-

"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ..

43.

The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests”.

The Duty of the Secretary of State to take account of the Expertise of the Trustees

Mr Wise contends first that the Trustees and in particular Sir Robert had special expertise and so a high level of deference had to be given to their views by the Secretary of State but second that he disregarded this duty when rejecting the radical proposals of the Trustees. In support of this contention that such deference was required, Mr. Wise relies on the decision of Henry J in R v Avon County Council ex parte M (1993) 26 BMLR 142 which concerned the local authority’s duty to provide residential accommodation appropriate to the needs of the applicant, who in that case suffered from Down’s Syndrome. The local authority considered the applicant’s needs to be adequately met by accommodation other than that which the claimant wished.

The Complaints Review Panel, as the designated fact-finders, then considered the complaint of the claimant and it then concluded that the claimant’s wishes in that particular case should be complied with but the local authority rejected this conclusion. So the issue that arose on that judicial review application was whether the local authority’s decision was lawful and it was held first that there was a clear finding by a body set up for the purpose of fact-finding in the form of the review panel and second that the local authority could not overrule that decision without a substantial reason and without having given the decision the weight it deserved.

Mr Wise says particular significance should be attributed to the judge’s finding at page 155 that he had “no hesitation in finding that [the council] could not overrule that decision [of the review panel] without a substantial reason and without having giving that recommendation the weight it required. It was a decision taking by a body entrusted with the basic fact finding exercise under the complaints procedure”. Mr Wise contends that similar reasoning applies in this case with a result that the Secretary of State should have accepted the radical proposal of Sir Robert Owen.

I am unable to agree for four reasons. First, there was no designated fact-finding body in this case similar to the one in the Avon case. Second, even if I am wrong and the Trustees constituted a fact-finding body, the Secretary of State has explained clearly and carefully why he did not accept the radical proposal. Significantly, he showed that he gave weight to those proposals by obtaining the views of Mr Justin Fenwick QC, who also had considerable knowledge of the matter. After all, he had been involved in settling the terms of the Trust Deed and who, as his Opinion showed, had also carried out some form of investigation. Third, the view of the Secretary of State had the support of the reasoned judgment of an independent Silk, namely Mr Fenwick. Finally, as Richards J explained in the judgment set out in paragraph 74 above, my task “is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken”.

Mr Wise also relies on a statement by Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith [1996] QB 517 at 558 in which it was said of the relevant policy that “it was supported by both Houses of Parliament and by those to whom the Ministry properly looked for professional advice”. In this case, the Secretary of State did take professional advice from Mr Fenwick and so that authority does not assist Mr Wise as in the light of the previous experience of Mr. Fenwick in relation to the Trust, it was not only right but also totally appropriate for the Secretary of State to turn to him for advice. So if anything the Smith case supports the Secretary of State’s contentions.

Another way in which Mr Wise puts his case is to rely on the statement in In Re Preston [1985] 1 AC 835 at 864 in which Lord Templeman attached importance to the fact that the Inland Revenue Commissioners “possess unique knowledge of fiscal practices and policies”. In this case, there is no doubt that Sir Robert Owen and the Trustees had a great deal of knowledge of the problems working under the existing Trust Deed but the terms of clause 34.1 expressly acknowledged that the Secretary of State had to exercise independent judgement. That is what he did having read the careful and impressive submissions of Sir Robert Owen and the detailed opinion of Mr. Fenwick. So the Secretary of State was able to reach a decision and the Preston case does not in the circumstances further the claimants’ case.

The next authority relied on by the claimants is the statement of Lord Slynn of Hadleigh in Secretary of State for the Home Department v Rehman [2003] 1 AC 153, 184 in which he explained that the Special Immigration Appeals Commission “must give due weight to the assessment and conclusions of the Secretary of State in the light at any particular time of his responsibilities, or of government policy and the means at his disposal of being informed of and understanding the problems involved”. It is said by parity of reasoning that the Secretary of State in this case should have given due weight to the assessments and the conclusions of Sir Robert and the Trustees but that is precisely what he did in his considered decision rejecting their proposals. As I have indicated not only did the Secretary of State give reasons, which Mr Stopes-Roe has recited, but also he had the benefit of Mr Fenwick’s opinion, which I have summarised in paragraph 4 above.

Conclusion

I stress that I am unable to accept any contention that the Secretary of State was obliged to accept any proposal of the Trustees. There is nothing in the Trust Deed, which required him to do so. He had to consider the matter and to reach a conclusion, which showed suitable deference to the views of the Trustees. Applying the approach of Richards J and in the light of the other matters to which I have referred, there is no ground for the courts to intervene and so I am unable to accept Mr. Wise’s criticisms.

Introduction

Mr Wise contended that the Secretary of State was obliged to exercise his discretion in deciding whether to accept the Trustee’s radical proposal in accordance with the purposes of the Trust Deed but that he has failed to do so. The starting point for this contention is that in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, Lord Reid explained at page 1030 that:-

“Parliament must have conferred the discretion with the intentions that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter for the court”.

Mr. Wise’s submissions proceed upon the basis that the reasonableness of the exercise of the Secretary of State’s discretion arising under clause 34.1 of the Trust Deed to reject the radical proposals in this non-statutory compensation scheme has to be considered and judged by reference to the scheme’s declared purposes. He contends that the court should approach the exercise of a non-statutory discretion in accordance with the same principles which apply to statutory jurisdiction because as Lord Scarman stated in Council of Civil Services Unions v Minister for the Civil Service [1985] 1AC 374,407:-

“if the subject matter in respect of which a prerogative power is exercised is justiciable, that is to say it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power”.

In response, Ms Mulcahy raises as a preliminary point the submission that the claimants have not identified the purpose or objective of clause 34.1 of the Trust Deed or indeed of the Scheme. She contends that the claimants could only succeed if they could show, among other things, a clear declared purpose which was being impeded by the Secretary of State’s decision not to accept the radical proposals.

Mr. Wise answers this point by asserting that the purpose for which the Secretary of State’s powers have been conferred and are to be exercised is in order to ensure in the words of clause 34.1 of the Trust Deed that :-

“the Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries”.

Before considering if the principle in Padfield set out in paragraph 83 above is applicable to the present case, it is necessary to consider two important preliminary issues. The first one is whether the Secretary of State was obliged to consider the Trustees’ request made pursuant to clause 34.1 of the Trust Deed against the criterion as specified in that clause that “the Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries” or whether other factors could be taken into account by him. The second issue only arises if the Secretary of State had to consider the Trustees’ radical proposals against this criterion and that issue is whetherthe reasons given for the rejection of the revised proposals by the Secretary of State were in conflict with this criterion to such an extent as to make his decision impugnable on public law grounds. The first issue entails looking at the matter from a theoretical point of view while the second issue requires an analysis of the Secretary of State’s reasons.

Was the Secretary of State obliged to consider the Trustees’ radical proposals made pursuant to clause 34.1 of the Trust Deed against the criterion as specified in that clause “the Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries” or could other factors be taken into account?

The claimants contend that the Secretary of State was obliged to consider the Trustees’ radical proposals against the criterion set out in the words of clause 34.1 of the Trust Deed which are that: -

“The Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries”.

I am unable to agree because although the Trustees were obliged to consider if their powers were in the words of clause 34.1 of the Trust Deed “adequate to enable the trustees to act for the best interests of the beneficiaries”, the discretion and power of the Secretary of State was not so limited. Three reasons individually and cumulatively lead me to that conclusion.

First, clause 34.1 does not state that the power of the Secretary of State to deal with a request from the Trustees was so limited or limited in any way while in contrast the power of the Trustees to seek the written consent of the Secretary of State to vary the Trust Deed may only be exercised “if the trust powers and provisions are not adequate” so as “to enable the trustees to act for the best interests of the beneficiaries”. Second, if the draftsman of clause 34.1 had intended to give the Secretary of State a wide and unfettered discretion as to how to deal with requests from the Trustees, he would have used the words that he did. Third, the reason why he was given discretion was that while the Trustees had the obligation to act for the best interests of the beneficiaries, the Secretary of State had much wider obligations such as his obligation to ensure that taxpayer money was well spent or that the proposal of the Trustees might lead to unfairness to some class of beneficiaries or a reasonably held perception of such unfairness by some group of beneficiaries.

So I must reject this complaint of the claimants but in case I am wrong, I will now consider whether the Secretary of State’s reasons for rejecting the radical proposals and instead advocating the modest proposals were in conflict with the criterion in clause 34.1 of the Trust Deed namely whether “the Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries”.

If Secretary of State had to exercise his powers to ensure that “the Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries”, were the reasons given for the rejection of the radical proposals by the Secretary of State in conflict with this criterion so as to be impugnable on public law grounds?

I will now assume contrary to my earlier conclusions that Mr. Wise is right in concluding that the purpose for which Secretary of State had to exercise his powers was to ensure that “the Trust’s powers and provisions conferred on the trustees are adequate to enable the trustees to act for the best interests of the beneficiaries”.

It is necessary to recall that as I have explained in paragraphs 62 and 71 above, the Secretary of State had many reasons for rejecting the radical proposals and they included:-

I am unable to conclude that the decision to reject the radical proposals was irrational or unlawful for three overlapping reasons. First, the claimants have not shown that these reasons were irrational or unlawful in any way. There have neither been detailed submissions on this point from Mr. Wise explaining why the Secretary of State’s reasons were irrational or unlawful nor any evidence to that effect from the claimants or from the Trustees. There is simply no cogent material to support the contention of the claimants that the reasons of the Secretary of State were irrational or unlawful in any way. Second, and more important the decision of the Secretary of State to reject the radical proposal was accompanied by a wish on his part later implemented to accept and to implement modest proposals and there has been no evidence to show that these modest proposals would not adequately enable the trustees to act for the best interests of the beneficiaries.

Third, and this is perhaps the most important reason, the function on a court on a judicial review application in the words of Richards J in the Bradley case (supra):-

“is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth. 43. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment”.

I have considered with care the reasons given by the Secretary of State for refusing to accept the radical proposals and I have concluded that those reasons fall well within the discretionary area of his judgment. If which is not the case, I had any doubts about this, I would have had to consider the margin of deference due to the Secretary of State and this would in fact have provided additional support for this conclusion which defeats the complaint of Mr. Wise. In coming to the conclusion that this claim fails I am comforted by the fact that Dyson LJ when giving the judgment of the Court of Appeal in the case of R (Association of British Civilian Internees) v Secretary of State for Defence [2003] QB 1397 explained that “anyone who seeks to challenge as unlawful the content of non-statutory ex-gratia compensatory scheme faces an uphill struggle” [87].

In those circumstances, it is unnecessary to reach a conclusion on Mr. Wise’s submissions first that the Padfield principle applies to the Trustees exercise of their discretion under non-statutory trusts, second that the cases relating to non-statutory compensation schemes set up by the executive establishes that the reasonableness of the exercise of the Secretary of State’s discretion under such a scheme would be exercised by reference to the scheme’s declared purpose, third that there is no difference between statutory and non-statutory discretions. The claimants’ submissions on these issues were ingenious but my provisional view was that they were not convincing.

For the reasons that I have sought to explain, this application has to be refused but it is appropriate to mention two other matters, which were raised by Ms Mulcahy in her skeleton argument but which were not the subject of full argument.

First, it is contended that the claimants failed to exhaust their alternative remedies before pursuing the present application and so it should be refused. Those remedies are their claims at common law, which have survived the setting up of the Trust because Recital (B) in the Trust Deed states that:-

“(B)

The Secretary of State wishes to provide such funds in a manner which does not prohibit such persons or their families from taking legal proceedings against the Crown and/or related bodies if so advised but wishes to ensure so far as possible that in the event of such proceedings being brought the sums paid under this Deed and the vCJD First Interim Trust and the vCJD Second Interim Trust are taken into account in the computation of damages to be claimed in any such proceedings.”

A substantial part of the claimants’ complaint is that they are being denied compensation for heads of claim to which they would have been entitled at common law. In those circumstances, it is at least highly arguable that they failed to pursue a claim for damages at common law and so they have not exhausted their alternative remedies before seeking judicial review. As I have not heard full argument on this point from the claimants, I can only express my provisional view, which is that this would also constitute a bar to the claims of the claimants but I stress that this provisional view does not form any part of the basis of my decision.

Second, the Secretary of State also contends that the court should exercise its discretion and it should not give any relief to the claimants because of their delay in pursuing these claims. The basis of this contention is that the time limit for bringing a claim for judicial review is that it should be done “promptly” and in any event “no later than three months after the grounds to make the claim first arose” (CPR 54.5 (1)). It is also said that this delay could constitute a discretionary ground for refusing relief.

The claim in this case was brought on 28 August 2008 while the present complaints relied on by the claimants relate to that refusal or the delay up until that time. It is true that the present proceedings were not commenced until 28 August 2008. Nevertheless, it must be remembered that the decision to reject the radical proposals was only communicated to the claimants at a much later stage and after proceedings were commenced. I have not heard full arguments but my provisional view is that there is no force in the limitation point of the Secretary of State.

The more I have read these papers the more I have appreciated how tragic the consequences have been for the claimants’ families of having a member with vCJD. Although I am totally sympathetic to their present predicaments my duty is to apply legal principles. For the reasons that I have explained, those principles have driven me to the conclusion that this claim must be dismissed. At least the claimants will have the consolation of knowing that their counsel has pursued every point that could have been argued. As I have explained, counsel for the Secretary of State has answered them clearly and effectively.

I have explained my reasons for that decision at some length but it is worth stressing a few points of significance. First, the Secretary of State had a discretion as to whether to accept the radical proposals. Second, the Secretary of State had taken the view of Mr Justin Fenwick QC on the radical proposals and in a lengthy opinion he advised first that “it seems unnecessary to substitute a new scheme”; and second that on balance there was in his opinion “real dangers in pursuing the modifications proposed”. Third, the Secretary of State has given reasons as to why he had rejected the radical proposals and why he supports and has implemented the modest proposals. Fourth, this application is not an appeal on the facts against the Secretary of State’s decision but an exercise of ascertaining as to whether he has made procedurally incorrect decisions in the light of his public law obligation. Fifth, the mere fact that others, including the Trustees do not agree with the decision of the Secretary of State does not mean that it is impugnable. These and the other reasons as to which I have referred in this judgment lead me to the conclusion that the application must be dismissed.