R (McVey) v Secretary of State for Health

JurisdictionEngland & Wales
JudgeMRS JUSTICE BLACK,Mr Justice Silber
Judgment Date27 May 2010
Neutral Citation[2010] EWHC 437 (Admin),[2010] EWHC 1225 (Admin),[2009] EWHC 3498 (Admin),[2009] EWHC 3084 (Admin)
Docket NumberCase No: CO/8751/2008,CO/8751/2008
CourtQueen's Bench Division (Administrative Court)
Date27 May 2010
The Queen on The Application of James McVey
Secretary of State for Health

[2009] EWHC 3084 (Admin)

Before: Mrs Justice Black DBE





Mr Ian Wise (instructed by Messrs Goodmans Law) appeared on behalf of the Claimant

Ms Leigh-Ann Mulcahy QC (instructed by the Office of the Solicitor to the Department of Health) appeared on behalf of the Defendant


: This is a judicial review claim issued on 28th August 2008 against the Secretary of State for Health by a number of claimants in relation to the variant CJD Compensation Scheme. That scheme is an ex gratia scheme set up for victims of variant CJD and their families in or about 2001. The Secretary of State provided £67.5 million pounds from which compensation would be provided to victims and families of the disease. That money was put into trust. The original trust deed has been varied a number of times. In the papers is a version incorporating amendments which is dated March 2002. There are seven trustees. They are quite independent of the Department of Health.


Essentially, the trust fund was to provide compensation for people who had contracted variant CJD and their families. It was not intended to prevent the victims and families from taking civil proceedings for damages but any sum which was paid from the Trust would be deducted from any damages recovered in civil proceedings.


From the judicial review claim form, one can see that the decision to be judicially reviewed is “Operation of the vCJD Compensation Scheme”. The date of the decision is given on the form as “ongoing”. In the section for details of the remedy being sought, four declarations are set out. Firstly, that the defendant has “unreasonably delayed in failing to revise the vCJD Compensation Scheme since he was informed of the need for a radical overhaul of the scheme by the Trustees in early 2006”. Secondly, the defendant's “refusal to apply a revised scheme to those Claimants who have outstanding claims is perverse given the acknowledged defects in the current arrangements”. Thirdly, a declaration is sought that it is “perverse for the Defendants to treat claims after it was recognised that the scheme was defective in 2006 in accordance with such a defective scheme” and, fourthly, a declaration that the “failure of the Defendant to promote a scheme which provides for less than full compensation for the victims of vCJD and their families when a full compensation scheme had been in place for farmers to cover losses for cattle slaughtered due to BSE is perverse. There are then various remedies of the type usually encountered in such judicial review claims.


Permission was given for judicial review by Plender J in December 2008. This was a general permission covering the whole claim. The judge observed:

“Permission to apply for judicial review is granted. In view of the public interest in this case it is desirable that there should be a full hearing of this application for judicial review.”


The hearing of the judicial review claim is now set down to commence on 19th October for four days. This application is an interlocutory application relating to disclosure of certain material which is in the possession of the Secretary of State, which the claimants say is relevant and necessary for the proper determination of the judicial review claim. It is said to be made under CPR Part 31.6 and seeks all communications between the defendant and the trustees of the vCJD Trust relating to the alleged unsuitability of the trust deed and proposed changes to the same from 1st January 2004 to date. The Secretary of State resists the disclosure.


Initially, it was thought that if disclosure were to be ordered it would necessitate an adjournment of the trial. Fortunately arrangements have sensibly been made on behalf of the Secretary of State for disclosure to take place within 24 hours, if it is ordered, and the nature of the material is said to be containable within approximately a lever arch file, basically of correspondence, I think. So it is no longer suggested that an adjournment of the hearing would be necessary.


I have been referred to Tweed v Parades Commission for Northern Ireland [2007 AC 650, a decision of the House of Lords. The factual circumstances of that decision were rather different from those in this case as the substantive issue for the court there was whether conditions imposed by a Parades Commission in Northern Ireland amounted to a disproportionate interference with the claimant's human rights and also because of the possibility that the disclosure sought would breach an assurance of confidentiality which had been given by the commission to its informant. Nevertheless, the general observations of the House of Lords in that case as to how the court should approach issues of disclosure in judicial review proceedings are applicable in these proceedings too. It was recognised in the Tweed case that characteristically judicial review applications raise issues of law rather than issues of fact and so disclosure of documents is often not necessary. However, where the precise facts are significant to the claim, as Lord Bingham puts it:

“The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”

Thus, as Lord Carswell says, the need for disclosure must be judged “in accordance with the requirements of the particular case, taking into account the facts and circumstances”, but it should be “carefully limited to the issues which require it in the interests of justice”.


In order, therefore, to determine whether the correspondence sought in this case is to be disclosed to the claimants, I have first to identify the issues in the case and examine whether the documentation is required for the trial in relation to any of those issues. This has been easier said than done in this particular case. It may suffice to exemplify this by recording that counsel for the Secretary of State's understanding of the nature of the claimant's claim was radically different from mine, which I think, by nothing more than chance perhaps, coincided more nearly with the understanding of Mr Wise, counsel for the claimants, who was responsible for drafting the claim.


The Secretary of State had understood, from the outset, that the claim was in two parts and directed, firstly, at the operation of the original vCJD scheme and, secondly, at the defendant's review of the existing trust deed in response to proposals for amendment put forward by the trustees. I had understood that the reference to the operation of the original scheme in the box on the judicial review form dealing with the decision to be judicially reviewed was qualified and defined by the remedies sought further on in the form. The first three declarations sought by way of remedy relate to the proposed amendments to the scheme. The fourth, relating to the comparative treatment of farmers, is drafted more widely, but I took it as support for the first three declarations and also directed at the question of variation.


As I understood it, Mr Wise confirmed in argument that this was what had been intended and that there was in fact no attempt to review the original scheme, which is possibly not surprising given that, as the Secretary of State points out in the detailed grounds for contesting the claim, any claims relating to the structure of the original scheme are hugely out of time. This uncertainty over the ambit of the claim might be important for the hearing but I only set it out today as an example of the difficulty in isolating the issues in the case so as to be able to determine the disclosure application properly, since, even if there do turn out ultimately to be two elements to the claim, Mr Wise's application for disclosure relates only to the variation element of it. I turn therefore to consider his application in the light of that.


I have set out already how the claim is expressed in the claim form. Having read that, I looked to the claimant's grounds in order to find an explanation of the basis for the claim against the Secretary of State as opposed, for instance, to a claim against the trustees of the Trust. What was it, I wanted to know, that justified a public law challenge to the Secretary of State in relation to the attempts that have been made to vary the Trust over recent years. I am afraid that I did not find any such explanation or justification spelled out in the claimant's documents and pleadings. There is an obvious role for the Secretary of State set out in the trust deed. Clause 34.1 says this:

“The Trustees shall no less frequently than once in every calender 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.”


Under this clause, however, it is the trustees who have the duty to review the scheme, at least annually, not the Secretary of State. If they consider the powers and provisions are not adequate, they may propose amendments for the...

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