Malcolm Morgan Jones (on behalf of the estate of Evan Jones) v Powys Local Health Board and Neath Talbot Local Health Board (2008) EWHC 2562 (Admin)

This application, by the Health Boards, was to strike out a private law writ issued by Mr Jones’ (J) for negligence or restitution of nursing home fees paid by J’s father for the six years prior to his death.  After his father’s death J had made an application for a retrospective review of his father’s health and nursing needs, the authority had determined that he did not qualify for continuing healthcare [CHC] save for the 8 week period prior to his death, they did not accept that J’s father should have received CHC for the entire length of his residence in the care home. J did not judicially review this decision, but instead issued this writ arguing that the authority had a duty to conduct a multi disciplinary assessment of his father’s needs when he first moved into the nursing home, had they done so they would have determined he qualified for CHC and funded the placement in full. As this had not happened he felt the authority had been negligent and therefore should now fully reimburse the estate the cost of these fees.

In determining this application the Judge recognised that it involved the examination of a public law issue but made clear that he first had to ascertain whether the basis of J’s case was to protect a private law right or whether it was to challenge a public law decision. In this instance the fundamental conflict was over the decisions made by the review panel in determining that J’s father qualified for CHC for only a limited period. To succeed in his case J would have to prove that the panel had reached their decision incorrectly or unlawfully. The kind of judicial scrutiny of a public body’s decision making that was the remit of judicial review rather than public law. J’s decision to issue a private law writ rather than judicial review had denied the authority the protections written into part 54 CRP namely the strict time limit and the need to obtain permission before proceeding to a full hearing. Whilst the authority did not seek to rely on the fact that J had not served the particulars of claim within the require three months, they were concerned that a civil action in the High Court would incur significant costs to defend, thereby limiting their resources for clinical purposes.  The review panel, made up of experts in assessing CHC in respect of a person’s clinical needs, were best placed to make such determinations and, where an application for judicial review was made against any such determination, could then review and correct any mistake it may have made.  The role of the Court within Judicial review proceedings would be to ascertain whether the panel had made a lawful and reasonable determination, it could do so only by weighing up any conflicting evidence from such experts. The Judge expressed concern that, faced with private law applications in the High Court, authorities were likely to agree to settle on the basis of costs rather than merit.   Applying O’Reilly v Mackman (1983) the Judge found that the application by writ rather than by way of Judicial Review was inconsistent with the just conduct of the proceedings and stuck these out as an abuse of process.

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