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R -v- Liverpool Health Authority (1) National Health Service Litigation Authority (2) Department of Health (3)

7 August 2002
The issues

Judicial review – structured settlements

The facts

The Applicant brought proceedings for judicial review. Application claimed against the Liverpool Hospital and that claim had been compromised. The Claimant sought settlement by means of a structured settlement. The Defendant refused to consider a structured settlement. The Claimant argued that that decision was susceptible to Judicial review and that it was wednesbury unreasonable and that it had fettered its discretion by using a blanket policy of refusing to consent to with-profit structured settlements such as the Claimant sought.

The decision

1. The Defendant was a public body exercising statutory power. This was not disputed.

2. The next question to decide was whether it was exercising those powers as a private or public function and whether it was performing a public duty to the Claimant.

3. The Defendant was a litigant defending a claim in clinical negligence. There was no Public Law Duty involved. The only duty on the Defendant was to meet the Judgment. There was no duty to consider giving consent to a structured settlement. The advice of the NHSLA and the Secretary of State was irrelevant. It did not remove the decision from the private to the public’s fear. The NHSLA had not fettered its discretion.

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