3.22R (Smith) v North Eastern Derbyshire PCT [2006] EWCA Civ 1291, (2006) 9 CCLR 663
Where consultation has been unlawful, relief may be withheld if it is proven that the result would inevitably have been the same
Facts: the Primary Care Trust (PCT) undertook a tender process which resulted in it deciding to negotiate with an American-based healthcare provider, as a preferred bidder for the provision of GP services. However, the PCT had failed to undertake public consultation, in breach of section 11 of the Health and Social Care Act 2001. At first instance, Collins J had refused to grant relief, on the basis that the claimants had an alternative remedy through the Patients’ Forum and that any representations made during consultation would probably not have made any difference.
Judgment: the Court of Appeal (May and Keene LJJ) allowed the appeal, holding that the Patients’ Forum was not an alternative remedy because it had no power to require the PCT to reconsider its decision and that the correct test was not whether representations were likely to have made a difference, but whether the result would inevitably have been the same:
10. I have already noted that neither Mr Pittaway nor Mr Post contended that the judge’s second reason, that is that the decision would probably have been the same anyway, was alone sufficient to sustain his conclusion. That is a proper concession. Probability is not enough. The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision. Authority for this synthesis may be found in R v Chief Constable of Thames Valley Police ex p Cotton [1990] IRLR 344 at 352; Simplex GE (Holdings) Ltd and another v Secretary of State for the Environment (1989) 57 P&CR 306 at 327; R v Secretary of State for Environment ex p Brent London Borough Council [1982] 1 QB 593 at 646, and see also Fordham, Judicial Review Handbook (4th ed) at paragraph 4.5 and Clive Lewis, Judicial Remedies in Public Law (3rd ed) at para 11-027. In the light of this, I think that Collins J applied a wrong principle in paragraph 27 of his judgment.
Comment: section 11 of the Health and Social Care Act 2001 has been repealed; now, see section 242 of the National Health Service Act 2006 (and see above, ‘Health care strategy and policy materials’ at para
2.13).
The Senior Courts Act 1981 now provides, at section 31(2A), that the High Court must refuse to grant relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’, unless there is an ‘exceptional public interest’ in granting relief. It remains to be seen how the court will approach this restriction on its traditional function.