An interesting issue arose in a case before Mr Justice Butcher in the High Court on 29 August 2018, namely whether a Claimant in Judicial review proceedings who had failed to use the NHS Complaints Procedures to attempt to resolve his complaints about the inadequacies of a care package should be awarded costs despite having secured substantial improvements to the care package during the course of the litigation.
The Judge decided there should be “No order as to costs”, substantially because the Claimant had failed to seek to resolve the issues of the adequacy of the clinical package through the NHS Complaints Procedures.
The rule that Judicial Review is a remedy of last resort is well known. Hence a Claimant should use and exhaust alternative remedies, if available, before asking the court to rule on the lawfulness of the actions of the public body. This rule was explained in R (Cowl) v Plymouth City Council  EWCA Civ 1935, and was recently affirmed in R (Zahid) v The University Of Manchester  EWHC 188 (Admin). In Cowl Lord Woolf observed that:
“The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process”
Mr Justice Butcher used this approach to deny the Claimants any costs in the present case, even though they had “succeeded” in that, during the course of the proceedings, the CCG had agreed that the original care package should be substantially increased.
The message from this case is that Claimant solicitors should be wary of commencing Judicial Review proceedings to challenge NHS decision making where the NHS Complaints Procedure has not been used. It will usually only be appropriate to commence such proceedings where the NHS Complaints Procedure has failed to resolve any disputes and thus the unlawful decision remains in place. That rule is especially likely to apply if the underlying dispute is about the adequacy of a care package.
That raises the linked problem about “time” under CPR 54.5, because a Claimant who uses the NHS Complaints Procedures may have to ask the court to extend time from the original decision. However Zahid is authority that, in such a case, time should be extended so that a Claimant who attempts (unsuccessfully) to resolve matters using an alternative remedy or ADR process should not be penalised.
The issues which remain unresolved by this line of cases include problems arising from the management of an interim position (since interim relief is only available once proceedings are issued) and what a Claimant should do if the NHS body unduly delay the resolution of the NHS Complaints procedure. Both of those involve intensely fact sensitive issues but it is possible to envisage cases where Judicial Review proceedings may be defensible despite the fact that the NHS Complaints procedure has not come to a final decision.
This issue arose in the case of R (LD) v NHS Havering CCG. David Lock QC acted for the CCG, instructed by Sam Lindsay of Mills & Reeve. There is no transcript of the judgment.