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The Court of Appeal has answered the above question in the affirmative, allowing the appeal in R (Shashikanth) v NHS Litigation Authority and NHS Commissioning Board (NHS England) [2024] EWCA Civ 1477, judgment in which was handed down today.
The appeal in Shashikanth concerned the question of whether adjudication of disputes between GPs and NHS commissioning entities is amenable to judicial review. The background is that Government commissions the provision of primary health care services by GPs through a number of standard form contracts, one of which is the General Medical Services Contract (GMS). The terms of GMS contracts are stipulated in regulations. The Claimant is a GP who held two GMS contracts. Following a dispute in which NHS England considered that the Claimant was in breach of his legal obligations under his contracts, NHS England terminated, or purported to terminate, the Claimant’s GMS contracts by serving termination notices.
The parties then referred the dispute regarding the Claimant’s contracts to the NHS Litigation Authority (NHSLA) which provides a service adjudicating such disputes under powers conferred by the National Health Service Act 2006 and regulations made thereunder. The Secretary of State is empowered to carry out the adjudicatory function under the NHS Act 2006, but has directed that NHSLA carry it out on his/her behalf.
Once a dispute was referred, the parties could not litigate it in the courts and were bound by the outcome. An adjudicator of the NHSLA dismissed the Claimant’s argument and upheld the termination of his GMS contracts. The Claimant issued judicial review proceedings challenging both the termination notices and the adjudicator’s decision on the basis that they were based on an error of law. The error of law was said to be that NHS England had sought to terminate the GMS contracts on the basis of an alleged breach of a legal obligation that did not actually apply to the Claimant.
The NHSLA did not take an active part in the proceedings. Before the Administrative Court at first instance, NHS England was constrained to accept that both it and the adjudicator had indeed made such an error of law as alleged by the Claimant. However, NHS England argued that the claim should be dismissed in any event because the decision of NHSLA in adjudicating the dispute (on behalf of the Secretary of State) was not amenable to judicial review. That argument was accepted by Bourne J at first instance, who also found that, otherwise, the Claimant’s challenge would have been made out.
On appeal, the Court of Appeal reversed the decision of Bourne J and allowed the appeal. Giving the only judgment, Lord Justice Lewis held that the determination of the adjudicator was amenable to judicial review, in the process clarifying confusion that had previously been caused by two conflicting authorities of the High Court on the point.
The decision is of some significance as the widely-understood consequence of the judgment of Bourne J was that, in relation to the majority of GMS contracts, decisions by the Secretary of State adjudicating disputes in relation to those contracts would not be challengeable by way of judicial review, even in cases of obvious unlawfulness. The Court of Appeal’s decision confirms the orthodox position.
The judgment is available here.
Admas Habteslasie acted for the successful appellant.
