Flasz & Ors v Havering Primary Care Trust

These two cases have been heard together because they raise common issues. The Claimants are all General Practitioners who have entered into Personal Medical Service Agreements (‘PMS Agreements’) with their Primary Care Trusts (‘PCTs’). In 2010 the PCTs unilaterally changed the contracts so as to include provision which would permit the contracts to be terminated on 6 months notice. The PCTs did so in response to regulations which were made by the Secretary of State for Health on 3^rd March 2010 and which came into force on 1^st April 2010. By these proceedings the Claimants seek to challenge the authority of the Secretary of State to make those Regulations, the Primary Medical Services (Miscellaneous Amendments) Regulations 2010 SI 2010 No 578 (‘the 2010 Regulations’). The Claimants say that the legislation on which the Secretary of State relied, the National Health Service Act 2006 (‘the 2006 Act’) s.94, did not permit him to make Regulations of this type. Furthermore, the Claimants argue that, before they entered into the PMS Agreements in 2004, as a result of things said by the then Secretary of State, they were led to believe that the contracts would be permanent. The 2010 Regulations and the consequent alterations to their contracts frustrated their legitimate expectations and, as a result, the Regulations and the changes to the contracts were unlawful. Dr Flasz and the other Claimants in the Havering case also allege that similar representations were made by their PCT and this is a further reason why their contracts could not be lawfully altered so as to permit the contracts to be terminated simply on the PCT giving 6 months notice.

Before 1997 GPs all provided their services to Primary Care Organisations subject to Regulations and in return for fees and allowances which were nationally negotiated by the British Medical Association on behalf of the doctors. Apart from a statutory retiring age, the contracts could only be brought to an end in specified circumstances. The National Health Service (Primary Care) Act 1997 introduced as a pilot scheme a new form of contractual arrangement for the delivery of primary medical services. These pilot PMS Agreements were negotiated locally between the provider and the NHS commissioner. They were, however, subject to an overarching framework which was set by the Secretary of State by means of directions. From the beginning, the legislation prohibited the Secretary of State from approving any PMS Agreement that did not include a provision allowing a scheme participant (other than the commissioner) to withdraw from the scheme if he wished to do so – see s.5 of the 1997 Act. In due course, the Secretary of State made a direction that pilot scheme PMS Agreements must allow both the provider and the commissioning body to withdraw on giving 6 months notice.

The Health and Social Care (Community Health and Standards) Act 2003 introduced a number of new forms of contract by which PCTs could commission care. Relevant to the present cases are the Personal Medical Services Contracts and the General Medical Services Contracts (‘GMS Contracts’). GMS Contracts continued the system under the pre-1997 model whereby fees and allowances were nationally negotiated. Even after 1997 the majority of GPs had continued under this scheme. They were governed by a separate set of regulations – the National Health Service (General Medical Services) Regulations 2004 SI 2004 No. 291.

Personal Medical Services Contracts (or Agreements) were intended to be a continuation of the pilot schemes, but as a permanent feature of the NHS landscape. It will be necessary for me to examine in a little more detail later, what the Secretary of State had to say about the PMS Agreements in 2003.

As with the PMS Pilot Schemes PMS Agreements were locally negotiated. However, again as before, a national framework was established. Instead of this being done by directions, the framework was contained in Regulations – the National Health Service (Personal Medical Services Agreements) Regulations 2004 SI 2004 No 627 (‘the 2004 Regulations’). Those Regulations were made (amongst other powers) pursuant to s.28E of the National Health Service Act 1977. By regulation 18, all PMS Agreements had to contain the terms set out in Schedule 5 to the Regulations. There were exceptions but these are immaterial for present purposes. Paragraph 98 of Schedule 5 provided for variation of Agreements. They could be achieved consensually, but, if it was necessary to vary the Agreement to comply with statute or regulation, the variation could be made by the relevant authority giving a unilateral notice to the contractor. Paragraphs 100-111 deal with termination. There is a dispute between the parties as to whether these termination provisions (i.e. those in the 2004 Regulations as originally made) would have allowed the PCTs to terminate the Agreement simply by giving notice, but it is not necessary for me to resolve that issue.

Pilot PMS Agreements which were in existence when the new arrangements came into force on 1^st April 2004 were continued but made subject to the 2004 Regulations - see the General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004 SI 2004 No 865.

In 2006 the National Health Service Act 1977 was repealed and replaced by the National Health Service Act 2006. PMS Agreements since then are arrangements under s.92 of the 2006 Act and the 2004 Regulations are treated as if made under s.94 of the 2006 Act – see the National Health Service (Consequential Provisions) Act 2006 s.4 and Schedule 2 paragraph 1. Thus the PMS Agreements which the Claimants have with the Defendants are examples of s.92 arrangements.

The 2004 Regulations, including Schedule 5, have been amended from time to time, but the amendments with which these cases are concerned are those which were made in 2010. Regulation 10(9) of the 2010 Regulations amended paragraph 100 of Schedule 5 of the 2004 Regulations. In summary the new version of paragraph 100 allowed either the contractor or the relevant body to terminate the Agreement at any time on giving not less than 6 months notice. This was without prejudice to any other right to terminate which either the contractor or commissioner might have under the Agreement.

Dr Flasz is a GP in Hornchurch, Essex. His practice was established in 1986. He entered into a pilot PMS Contract with his local PCT, Havering, in 2003 for a 3 year term. He chose to remain with a PMS Contract after 1^st April 2004. His understanding was that the Contract would continue on a permanent basis subject to the termination provisions in the 2004 Regulations. I will return to say more about the statements on which he relies as giving rise to a legitimate expectation.

In March 2010 Havering sent Dr Flasz a notice of variation to his PMS Agreement to give effect to the changes which were to be brought about by the 2010 Regulations. In June, Havering’s solicitors withdrew that notice. However a further notice of variation was sent to Dr Flasz by Havering’s solicitors on 1^st November 2010. Again, its purpose was to effect the changes to Dr Flasz’s PMS Agreement which Havering considered to be necessary as a result of the 2010 Regulations. It is this notice of variation which Dr Flasz seeks to challenge by his proceedings for judicial review. He is joined by 18 other doctors with a similar history. Their claim form was issued in Manchester on 18^th January 2011. Havering PCT was named as the only Defendant, but a few days later the Claimants’ solicitors sent a copy of the claim form to the Secretary of State for Health who applied to be joined as an interested party.

Havering has not so far sought to terminate the Contracts on notice to either Dr Flasz or any of the other doctors in that action although, subject to consultation, it is considering whether to do so.

Dr Karim Jan-Mohamed is a GP in Greenwich. His practice was established in 2000. He entered into a Pilot PMS Contract in 2000 with Greenwich PCT. (unlike Dr Flasz’s contract with Havering, this was not for a specific term but ran indefinitely). He, too, continued with the PMS arrangements in a Contract which was dated 1^st April 2004 (though signed by him a few months later). In May 2010 Greenwich sought to negotiate a variation to the Contract to bring it into line with the amendments in the 2010 Regulations. Dr Jan-Mohamed was not willing to agree. On 29^th November 2010 Greenwich gave notice to him that it considered it necessary to vary the contract unilaterally in order to accord with the 2010 Regulations. On 13^th December 2010 (when the variation took effect) Greenwich also served notice terminating Dr Jan-Mohamed’s PMS contract. His claim form was issued on 25^th February 2011. The Secretary of State was named as an interested party.

Meanwhile on 18^th February 2011 HHJ Andrew Gilbart QC, sitting as a Deputy High Court Judge, considered the Claim Form in the Havering matter. He ordered that there should be a rolled up hearing. He acceded to the Secretary of State’s request to be joined as an Interested Party. He directed that the claim should be transferred to London.

On 7^th April 2011 HHJ Waksman QC, sitting as a Deputy Judge of the High Court, ordered that the Havering and Greenwich cases should be heard together.

Consequently, the hearing which I conducted was concerned with whether any of the Claimants should be granted permission to apply for judicial review and, if permission was given, whether any of them was entitled to substantive relief.

The legitimate expectation argument had not featured in either of the Claim Forms. The Claimants had indicated in correspondence that they intended to seek permission to add this as a ground of challenge and set out their case in their skeleton argument. I indicated to the parties that I would hear argument on this matter and, in the course of my judgment, give my decision as to whether the Claimants should be given permission to amend their grounds so as to be able to rely on this additional challenge.

The Defendants and the Secretary of State argued that the Claimants’ effective challenge was to the validity of the Regulations which had come into force on 1^st April 2010. Neither Claim Form had been issued until 9-10 months later. This was outside the time prescribed by CPR r.54.5 and permission should be refused for this reason (in addition to the grounds of opposition). The Claimants argued that time did not begin to run until they were served with effective notices of variation of their Contracts. Alternatively, they asked for an extension of time to lodge their claim forms. Without objection from the Defendants or the Secretary of State I said that I would give my decision on this matter as well in the course of my judgment.

Section 94 of the 2006 Act says,

“(1)

The Secretary of State may make regulations about the provision of services in accordance with section 92 arrangements.

(2)

The regulations must include provision for participants other than Strategic Health Authorities to withdraw from section 92 arrangements if they wish to do so.

(3)

The regulations may in particular –

….

(f)

make provision with respect to variation and termination of section 92 arrangements.”

As I have explained, the PMS Agreements which the Claimants have with their PCTs are examples of “section 92 arrangements”. The Secretary of State has directed that the functions of Strategic Health Authorities, insofar as they relate to primary medical services, are exercisable by Primary Care Trusts - see The Strategic Health Authorities (Personal Medical Services Functions) Directions 2004 of 15^th June 2004.

The Claimants argue that the effect of s.92(2) is to preclude the Secretary of State from making Regulations which permit Strategic Health Authorities or Primary Care Trusts to withdraw from section 92 arrangements simply because they wish to do so. It is only participants other than these bodies whom the Regulations can authorise to withdraw from the arrangements in this manner.

In my judgment, this argument has no merit. Section 94(1) authorises the Secretary of State in general terms to make regulations about the provision of services in accordance with s.92 arrangements. It is expressed broadly. Section 94(3) gives a non-exhaustive list of matters which the Regulations may cover. They include provisions with respect to the termination of section 92 arrangements. That was the subject matter of the part of the 2010 Regulations with which we are concerned. Section 94(2) has a different purpose. It requires the Secretary of State to include in his Regulations provision for participants other than the health authority bodies to withdraw from the arrangements if they wish to do so, on giving 6 months notice. The 2010 Regulations complied with this obligation. They did give contractors (such as the Claimants) the right to withdraw on 6 months notice. Section 94(2) did not oblige the Secretary of State to give a like right to withdraw to the PCTs or other health authority bodies. However, it did not prevent the Secretary of State from making such a provision in his Regulations. Put shortly, section 94(2) prescribes what must beincluded in the Regulations. It does not stipulate what may not be included in them.

At one stage Mr Butler advanced a separate challenge to the vires of the 2010 Regulations. He observed that the explanatory note to the Regulations described the amendments with which this case is concerned as “amendments clarifying the provisions for termination by notice…”. Mr Butler in his skeleton argument submitted that the provisions for notice in the 2004 Regulations had already been clarified by the Court of Appeal in Crouch v Secretary of State for Health [2008] EWCA Civ 1365; the 2010 amendments were inconsistent with the Court of Appeal’s decision; and that by the 2010 Regulations the Secretary of State had misconstrued the meaning of the 2004 Regulations.

Wisely, this was not an argument which Mr Butler pursued at the oral hearing. The purpose of Regulations is to regulate; it is not to construe earlier regulations. An Explanatory Note (to Regulations or primary legislation) may assist in showing the background against which the legislative change has been made and the mischief at which it was aimed, R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 at [4], but it cannot help in resolving the method chosen by the legislator to address those matters. In this context, the Explanatory Note tells us that the Secretary of State considered that the termination provisions required clarification. To decide what measure he proposed to address this, it is necessary to look at the Regulation itself. Whether the amendment accords with how the Court would have interpreted the 2004 Regulations is entirely beside the point. The Defendants and the Secretary of State did not agree that the 2004 Regulations before the 2010 amendment precluded the Secretary of State from introducing a right on the part of the PCTs to terminate PMS Agreements simply by giving notice. In my judgment, it is not necessary for me to decide this issue. A decision on this matter in the Claimants’ favour could not help them to show that the amendment was ultra vires.

Accordingly, I reject the Claimants’ challenge to the vires of the 2010 Regulations. In my judgment, it was within the statutory power of the Secretary of State to make them.

The Claimants submit that, before they entered into their PMS Agreements, the then Secretary of State said on a number of occasions, that these Agreements would be permanent. That, they say, generated a legitimate expectation that the Agreements could not be terminated simply because the PCT chose to give 6 months notice. Because the representations came from the Secretary of State, he (or his successors) could not introduce regulations which required PCTs to alter their Contracts so as confer such a right of termination on the PCTs.

In 2003 the NHS was operating a pilot scheme whereby PMS Agreements were an alternative to GMS. 38% of GPs by April 2003 had entered into PMS Agreements. In a letter to GPs on 5^th June 2003, John Hutton, then Secretary of State for Health, said, “The Government is committed to PMS remaining a separate, permanent, voluntary local option.” There were to be changes to the GMS alternative that would be agreed nationally, but these would not result in the PMS existing financial arrangements being “unpicked.”

On 24^th September 2003 Mr Hutton gave a speech to the National Association of Primary Care (‘NAPC’) in which he again spoke of the Government’s plans to make PMS “a permanent alternative”. He added,

“For those of you who currently have a PMS contract…there is no need for the move from pilots to permanence to affect the contract in any way. It can simply continue if that is what you wish. My letter [a reference to his letter of 5^th June 2003] stated that there was no need for your contract to be unpicked as a result of the new GMS contract…I know many questions have been asked about ‘permanence’ for PMS. To all intents and purposes, PMS has been ‘permanent’ for some time. However, I will be ensuring that we benefit from the legal changes that are required to make PMS a mainstream contractual alternative.”

On 15^th October 2003, Mr Hutton wrote to PMS GPs. He said,

“Many of you will know that I spoke about the future of PMS at the NAPC Conference on 24 September. I used that opportunity to confirm that PMS will be a permanent, flexible local contract based on quality and patient needs.”

His letter then attached guidance which said,

“PMS will stay as a separate permanent local option. Local PMS will complement the new national GMS arrangements. From 1 April 2004, and subject to legislative change, PMS schemes will no longer technically be pilots and will be put on a ‘mainstream’ statutory basis.

To all intents and purposes, PMS has been ‘permanent’ for some time. Legal changes are required to make PMS a mainstream contractual alternative.”

Mr Ruck Keene on behalf of the Secretary of State did not dispute that, in theory at least, his client could in certain circumstances be precluded from making Regulations if this would frustrate a legitimate expectation. However, it was a serious matter to restrict a power which Parliament had given to the Secretary of State. There were a number of steps that had to be established before the Claimants could succeed. The first of these was that the Claimants had to prove a clear and unequivocal representation that the impugned Regulations negated. Mr Butler accepted that this was the first condition which he had to establish if his legitimate expectation argument was to prevail.

I agree with Mr Ruck Keene that the Claimants fail at this first hurdle. Mr Hutton used the term “permanent” in contrast to the pilot character of the PMS agreements which had existed prior to 1^st April 2004. Locally negotiated PMS Agreements were to become a permanent alternative to the nationally agreed GMS contracts. Mr Hutton was not representing that the individual PMS contracts would be permanent.

I shall turn in a moment to consider the Claimants’ legitimate expectation argument based on representations made by Havering PCT or its agents. But those representations (such as they were) cannot affect the Secretary of State. They were not made with the actual or ostensible authority of the Secretary of State, as would be necessary if the Secretary of State was to be fixed with responsibility for statements made by someone else – see R (Bloggs 61) v Secretary of State for the Home Department [2003] 1 WLR 2724 CA at [38]. The Claimants do not contend that they were.

Had it been necessary, Mr Ruck Keene would have developed other arguments as to why the Secretary of State was not precluded from making the 2010 Regulations as a result of the legitimate expectation argument. But it was not necessary. This part of the Claimants’ claim fails anyway.

Dr Flasz and the other Claimants in the Havering action argue that their PCT also made representations that the PMS Contracts would be permanent. Mr Butler on their behalf submits that for this reason Havering could not lawfully alter the Contracts even if the 2010 Regulations were intra vires. It is not suggested that any such representations were made by or on behalf of Greenwich and so this argument is not advanced on behalf of Dr Jan-Mohamed in his case.

In his first witness statement, Dr Flasz described how in 2002 he had a GMS contract, under which his security was assured provided that he maintained his usual standards of care. Before he entered into what was then a PMS Pilot Agreement he had discussions with an external consultant, Mr Maingott, who was a representative of Havering PCT. According to Dr Flasz,

“Mr Maingott explained to me that the PMS contract was just as secure as the GMS contract but under the new contract there would be extra funding available to improve the practice, including the employment of additional members of staff.”

In March 2004, Dr Flasz signed a variation to his PMS pilot contract. This included a paragraph which said,

“Permanence

From 1^st April 2004, the PMS pilot will become permanent.

Note that with the introduction of the GMS contract and permanent arrangements for PMS, the existing rights of individual PMS GPs to return to GMS will end. There is instead a new right, outlined in the national PMS guidance, for the whole PMS contract to transfer to a GMS contract.”

Dr Akwenuke is another GP whose practice had a pilot PMS contract with Havering PCT. Her witness statement says that the PCT stressed that the PMS contract was just as secure as the GMS Contract. She says that her understanding was that their Contract would only be terminated in accordance with the 2004 Regulations and the Contract which became permanent. In an email dated 28^th October 2009 Dr Flasz made a similar point. Others of the Havering doctors have made witness statements on the same lines.

In my judgment there is considerable force in the submission of Mr Maurici on behalf of Havering that these representations are not sufficiently clear and unequivocal to found the basis of a legitimate expectation argument. The variation agreement which Dr Flasz signed did use the word “permanent” but in its context, this was intended to contrast with the pilot nature of the agreement which it was varying or replacing. In addition, the pilot PMS Contract which Dr Flasz had with Havering ran only for 3 years (from 2003-2006). This variation might also be regarded as removing that time limit. The remarks that the PMS Contracts would be as secure as the GMS Contracts come a little closer to what the Claimants need to establish, but they still are imprecise as to exactly what was said or when. Dr Akwenuke’s and Dr Flasz’s understanding, that the Agreements could only be terminated in accordance with the 2004 Regulations, was correct. However, regard must be had to the Regulations as a whole. Paragraph 98 of Schedule 5 to those Regulations recognised that the legislative regime was not static. If it changed, the PCT could unilaterally vary the agreements it had made so as to bring them into accordance with the amended Regulations. That mechanism for change existed in 2004 and it is that mechanism which has been invoked by Havering. The doctors could legitimately expect their contracts with the PCT to contain the minimum terms as required by the 2004 Regulations as those Regulations stood from time to time. But that expectation has been respected, not frustrated, by the events that have happened.

However, even if the Havering Claimants could surmount this first obstacle, their legitimate expectation argument would have to contend with another difficulty. A public body is not excused from complying with a legal duty by a representation or promise that it will act otherwise. As the Court of Appeal said in R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 115 at p. 125 “any expectation must yield to the terms of the statute under which the Secretary of State is required to act.” Simon Brown LJ made the same point in R v Devon County Council ex parte Baker [1995] 1 All ER 73, 88-89 when he said (with my emphasis),

“These various authorities show that the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be bound in fairness by the representation unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it.” (This passage was quoted and adopted by the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] 1 QB 213 at [73]).

Mr Maurici observes that s.92(2) of the 2006 Act requires that a PMS Agreement “must be in accordance with regulations under s.94”. The 2010 Regulations were made under s.94. Likewise, Regulation 18 of the 2004 Regulations says that, with immaterial exceptions, a PMS Agreement must contain the terms specified in Schedule 5 of those Regulations. The effect of the 2010 Regulations was to amend paragraph 100 of Schedule 5 so as to give both the PCT and the contracting doctors a right to terminate on 6 months notice.

Thus Mr Maurici argues, even if Havering had made a clear and unequivocal representation that the PMS contracts would be permanent, it had no choice but to abide by the requirements of both primary and secondary legislation to amend the contracts to bring them into line with the 2010 Regulations.

Mr Butler argued that the position was not so simple. The 2004 Regulations Schedule 5 paragraph 98 deals with variation of the PMS Agreements. Sub-paragraph (2) allows a PCT to make a unilateral variation of the Agreement as follows,

“(2)

In addition to the specific provision made in paragraph 109, the relevant body may vary the agreement without the contractor’s consent where it –

(a)

is reasonably satisfied that it is necessary to vary the agreement so as to comply with the Act, any regulations made pursuant to the Act, or any direction given by the Secretary of State pursuant to that Act; and

(b)

notifies the contractor in writing of the wording of the proposed variation and the date upon which that variation is to take effect.

and where it is reasonably practicable to do so, the date that the proposed variation is to take effect shall be not less than 14 days after the date on which the notice under paragraph (b) is served on the contractor.”

Mr Butler argued that if Havering had generated a legitimate expectation that the PMS Contracts would be permanent and could not be simply terminated by the PCT on giving notice, then in terms of paragraph 98(2)(a) it could not lawfully be reasonably satisfied that it was necessary to vary the Contract, or, alternatively, Havering would be acting unreasonably in exercising its discretion to vary it in this manner.

However, in my view this misunderstands the operation of paragraph 98. It is correct that the PCT does have to make a judgment. Since PMS Contracts are locally negotiated they will not be in common form, although they must, as a minimum, include the terms which Schedule 5 of the 2004 Regulations requires. It is (at least theoretically) possible that a change introduced by an amendment to the Regulations would not oblige a particular PCT to vary its contracts. That would be so if the contracts of that PCT already included an equivalent provision. But it is that type of judgment which paragraph 98(2) obliges the PCT to make. The Board Meeting of the Havering PCT on 19^th October 2010 was presented with a Report which posed the correct question, namely “whether it is satisfied that it is necessary to vary existing PMS Agreements so as to comply with Regulation 18 of the 2004 Regulations?” The PCT was not required (or entitled) to decide whether the change that the amendment to the Regulation mandated was good, desirable, or even in conflict with something which the PCT may have previously said. As I have shown, both primary legislation (s.92(2) of the 2006 Act) and secondary legislation (regulation 18 of the 2004 Regulations) obliged a PCT to bring their PMS Agreements into line with the minimum terms included in the Regulations. Thus, if the PCT’s existing Contracts did not presently incorporate the term added or varied by the amending regulations, the PCT would be required to exercise its power in paragraph 98 to make its Contracts harmonious with what the amending Regulations required.

In consequence, even if (which I do not accept) Havering had given a clear and unequivocal representation that the PMS Contracts would never be changed so as to introduce a term allowing the PCT to terminate them simply on giving notice, Havering would still have been obliged to issue its notices of variation in order to comply with its duties under s.92(2) of the 2006 Act and regulation 18 of the 2004 Regulations.

I note that the Claim Forms raised arguments which extended substantially beyond the matters I have considered. It has not been necessary for me to address them because Mr Butler made clear that he was not pursuing them. In particular, he did not seek to argue that either the Secretary of State or the Defendant PCTs had behaved in a manner which could be challenged as Wednesbury unreasonable. It is axiomatic that this Court reviews only the legality of the decisions of the Secretary of State and the PCTs. Provided they act within the bounds of the powers which they have been given by Parliament, the wisdom or desirability of those decisions cannot be subject to judicial review.

I have noted that Greenwich (but not Havering) has exercised the new power to terminate Dr Jan-Mohamed’s PMS Contract. Dr Jan-Mohamed has not argued that this decision can be impugned in any way that is distinct from the claims that I have already addressed. As I understand it, while this will bring his PMS Contract to an end, he will still have the option to switch to a GMS contract, if that is what he wishes. That alternative may not be as financially attractive as his current PMS Contract, but it may provide some assistance. When my judgment in draft was circulated to the parties, Ms Eleanor Grey QC, on behalf of Havering, raised a question as to whether the right of Dr Jan-Mohamed to revert to a GMS contract was dependent on him giving 3 months notice. She referred to Regulation 19. It is not necessary for me to resolve this matter for the purpose of the present proceedings and this judgment should not be taken as doing so.

The arguments which the Claimants raised have not succeeded. In my judgment the Claimants have not shown a reasonably arguable case. Accordingly, on an examination of their merits I would refuse all the Claimants permission to apply for judicial review.

In those circumstances, the other matters which I reserved become moot.