Newman
R (Newman) v Parliamentary and Health Service Commissioner [2017] EWHC 3336 (TCC)
Parties and outcome
- Claimant
- Peter William Newman, a general practitioner
- Defendant
- Parliamentary and Health Service Commissioner, acting as Health Service Commissioner for England
- Interested party
- Mrs Robin Krinzman-Jackson
- Outcome
- Newman won: the decision to entertain the complaint was quashed.
Citations in this work
Dyer
44. In R (Morris) v The Health Service Commissioner [2014] EWHC 4363 (Admin), Jay J said [paragraph 35]: “… the courts have consistently recognised that the defendant’s invest igatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on th e application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court, made it clear that the width of the discretion was, as he put it, made “strikingly clear” by the legislation. That is a reference to the provision which is now in section 3(5) (sic) that th e Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional grounds of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense….”
Mencap
44. In R (Morris) v The Health Service Commissioner [2014] EWHC 4363 (Admin), Jay J said [paragraph 35]: “… the courts have consistently recognised that the defendant’s invest igatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on th e application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court, made it clear that the width of the discretion was, as he put it, made “strikingly clear” by the legislation. That is a reference to the provision which is now in section 3(5) (sic) that th e Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional grounds of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense….”
Morris (2014)
44. In R (Morris) v The Health Service Commissioner [2014] EWHC 4363 (Admin), Jay J said [paragraph 35]: “… the courts have consistently recognised that the defendant’s invest igatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on th e application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court, made it clear that the width of the discretion was, as he put it, made “strikingly clear” by the legislation. That is a reference to the provision which is now in section 3(5) (sic) that th e Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional grounds of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense….”
Balchin (No 1)
45. Mr Maurici’s submission is plainly well made on authority relating to s.3( 2) - it does not mean that the test of Wednesbury unreasonableness is ousted but rather that the hurdle is set high. It is not set as high as manifest absurdity: as Sedley J put it in Parliamentary Commissioner for Administration ex p Balchin [1996] EWHC 152 (Admin) the decision does not have to be so bizarre that its author must be regarded as temporarily unhinged but must be “irrational” in the sense that it does not add up or, in other words, that there is “an error of reasoning which robs the decision of logic”.
Cited by
- Morris (2019)
36. In R (Newman) v The Parliamentary and Health Service Commissioner [2017] EWHC 3336 (TCC), Jefford J. accepted the submi ssion that the Commissioner had a broad discretion and that a challeng e to the exercise of this discretion on the grounds that it was Wednesbury unreasonable (as explained by Sedley J. in Balchin) faced a high hurdle.