Roy v Kensington and Chelsea and Westminster Family Practitioner Committee

JurisdictionUK Non-devolved
JudgeLord Bridge of Harwich,Lord Emslie,Lord Griffiths,Lord Oliver of Aylmerton,Lord Lowry
Judgment Date06 February 1992
Judgment citation (vLex)[1992] UKHL J0206-1
Date06 February 1992
CourtHouse of Lords
Roy
(Respondent)
and
Kensington and Chelsea and Westminster Family Practitioner Committee
(Appellants)

[1992] UKHL J0206-1

Lord Bridge of Harwich

Lord Emslie

Lord Griffiths

Lord Oliver of Aylmerton

Lord Lowry

House of Lords

Lord Bridge of Harwich

My Lords,

1

The circumstances from which this appeal arises are fully set out in the speech of my learned and noble friend Lord Lowry, in which he has also undertaken a comprehensive review of the relevant authorities. Agreeing, as I do, with the conclusion he reaches, I shall state my own reasons briefly.

2

The decisions of this House in O'Reilly v. Mackman [1983] 2 A.C. 237 and Cocks v. Thanet District Council [1983] 2 A.C. 286, have been the subject of much academic criticism. Although I appreciate the cogency of some of the arguments advanced in support of that criticism, I have not been persuaded that the essential principle embodied in the decisions requires to be significantly modified, let alone overturned. But if it is important, as I believe, to maintain the principle, it is certainly no less important that its application should be confined within proper limits. It is appropriate that an issue which depends exclusively on the existence of a purely public law right should be determined in judicial review proceedings and not otherwise. But where a litigant asserts his entitlement to a subsisting right in private law, whether by way of claim or defence, the circumstance that the existence and extent of the private right asserted may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons, any more than it can prevent him from setting up his private law right in proceedings brought against him. I think this proposition necessarily follows from the decisions of this House in Davy v. Spelthorne Borough Council [1984] A.C. 262 and Wandsworth London Borough Council v. Winder [1985] A.C. 461. In the latter case Robert Goff L.J. in the Court of Appeal, commenting on a passage from the speech of Lord Fraser of Tullybelton in the former case, said at p. 480:

"I read this passage in Lord Fraser of Tullybelton's speech as expressing the opinion that the principle in O'Reilly v. Mackman should not be extended to require a litigant to proceed by way of judicial review in circumstances where his claim for damages for negligence might in consequence be adversely affected. I can for my part see no reason why the same consideration should not apply in respect of any private law right which a litigant seeks to invoke, whether by way of action or by way of defence.

For my part, I find it difficult to conceive of a case where a citizen's invocation of the ordinary procedure of the courts in order to enforce his private law rights, or his reliance on his private law rights by way of defence in an action brought against him, could, as such, amount to an abuse of the process of the court."

3

I entirely agree with this.

4

Here the respondent is a medical practitioner whose name is on the list of those providing general medical services in the area administered by the appellant Family Practitioner Committee in accordance with Part II of the National Health Service Act 1977, as amended. Accordingly, his entitlement to remuneration for the services he provides is established by the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974 ( S.I. 1974 No. 160), as amended, which provide by regulation 24 as follows:

"For each financial year the Committee shall cause payments to be made to doctors with whom arrangements for the provision of general medical services exist in its locality in accordance with such rates and subject to such conditions as the Secretary of State may determine after consultation with such organisations as he may recognise as representing doctors with whom arrangements for the provision of general medical services exist and publish in a Statement."

5

The regulation then sets out a list in paragraphs lettered from (a) to (k) of the various fees and allowances for which the published Statement is to make provision. Sub-regulation (2) provides:

"Where a doctor is on the medical list of more than one Committee any payment due to the doctor may, where the Statement so provides, be made on behalf of all Committees concerned." (My emphasis.)

6

The Secretary of State has in fact issued a Statement under regulation 24 which, in the form in which it was in force at the material time, extends to more than 150 pages and which, as one would expect, contains the most elaborate and detailed provisions for determining and quantifying the remuneration due to general practitioners in the National Health Service in all circumstances. In many, if not most, cases the ascertainment of the precise amount of the payment which regulation 24 requires the Committee to "cause to be made" in respect of a doctor's services during any given period will depend simply on the application of the relevant provisions of the Statement to the facts of the case. But in certain instances the quantum of remuneration is made to depend on a determination by the Committee involving some element of subjective or discretionary judgment. Paragraph 12.1 of the Statement is such a provision. It is fully quoted in the speech of my noble and learned friend, Lord Lowry and I need not repeat it. It makes the doctor's entitlement to the full rate of basic practice allowance conditional on the opinion of the Family Practitioner Committee that he is devoting "a substantial amount of time" to his National Health Service practice. It was the decision of the Family Practitioner Committee in November 1984 in purported reliance on this provision to withhold 20 per cent. of the respondent's full rate of basic practice allowance as from 1 January 1985 which gave rise to this litigation.

7

I do not think the issue in the appeal turns on whether the doctor provides services pursuant to a contract with the Family Practitioner Committee. I doubt if he does and am content to assume that there is no contract. Nevertheless, the terms which govern the obligations of the doctor on the one hand, as to the services he is to provide, and of the Family Practitioner Committee on the other hand, as to the payments which it is required to make to the doctor, are all prescribed in the relevant legislation and it seems to me that the statutory terms are just as effective as they would be if they were contractual to confer upon the doctor an enforceable right in private law to receive the remuneration to which the terms entitle him. It must follow, in my view, that in any case of dispute the doctor is entitled to claim and recover in an action commenced by writ the amount of remuneration which he is able to prove as being due to him. Whatever remuneration he is entitled to under the Statement is remuneration he has duly earned by the services he has rendered. The circumstance that the quantum of that remuneration, in the case of a particular dispute, is affected by a discretionary decision made by the Committee cannot deny the doctor his private law right of recovery or subject him to the constraints which the necessity to seek judicial review would impose upon that right.

8

I deliberately refrain from entering upon any question as to the construction of paragraph 12.1( b) of the Statement or the basis on which the trial judge should approach the Committee's decision made in November 1984. Those matters will best be resolved in the light of all the evidence produced at the trial.

9

For these reasons and for those given in the speech of my noble and learned friend Lord Lowry I would dismiss the appeal.

Lord Emslie

My Lords,

10

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bridge of Harwich and Lord Lowry. For the reasons which they give I would dismiss the appeal.

Lord Griffiths

My Lords,

11

I have the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Bridge of Harwich and Lord Lowry and I agree with them, and for the reasons which they give, I would dismiss this appeal.

Lord Oliver of Aylmerton

My Lords,

12

I have the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Bridge of Harwich and Lord Lowry. I agree with them, and for the reasons which they give, I would dismiss this appeal.

Lord Lowry

My Lords,

13

Dr. Premananda Roy, the respondent, is a general medical practitioner who has since 1954 practised in the area for which the appellants, the Kensington and Chelsea and Westminster Family Practitioner Committee, were at all material times responsible. This committee is now known as the Family Health Services Authority, but I shall call it "the Committee".

14

Dr. Roy is on the list of doctors undertaking, for the purposes of the statutory arrangements under the National Health Service Act 1977, to provide general medical services in the area. Regulation 24 of the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974 ( SI 1974 No. 160) ("the General Regulations") required the Committee to cause payments to be made to Dr. Roy and other doctors in accordance with the Statement of Fees and Allowances ("the Statement") which was made and published under regulation 24 and which is required to provide for basic and supplementary practice allowances.

15

Paragraph 12.1 of the Statement reads:

"A practitioner will be eligible for the full rate of basic practice allowance shown in paragraph 1/Sch. 1 if:-

  • ( a) he provides general medical services and has 1,000 or more patients on his ordinary list or, if he is a member of a partnership, the average list is at least 1,000 patients per practitioner: and

  • ( b) he is in the opinion of the responsible...

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