Kemp (a Patient), R (on the application of) v Denbighshire Local Health Board & Anor

Kemp (a Patient), R (on the application of) v Denbighshire Local Health Board & Anor

The court held that it had jurisdiction to award interest under section 35A of the Supreme Court Act 1981 on sums repaid in restitution, but the exercise of discretion depended on whether the claimant had received state benefits that would not be recouped. The claimant was not entitled to costs, as the case was not sufficiently clear to depart from the general rule against pre-permission costs, and alternative remedies had not been exhausted. The RPI-based interest policy was not unlawful, and the court would only consider awarding interest above RPI if the claimant could show no windfall from unrecovered benefits.

Parties
Claimant: William Kemp (by Derek Kemp, litigation friend); First Defendant: Denbighshire Local Health Board; Second Defendant: Powys Local Health Board
Jurisdiction
England and Wales
Judgment Date
17 February 2006
Procedural Posture
Judicial Review / Post Substantive Resolution; Determination of Interest and Costs
Outcome
No order as to costs; leave to amend claim form refused; interest issue reserved for further submissions.
Legal Topics
NHS Continuing Healthcare Funding, Judicial Review Procedure, Restitution for Mistake of Law, Interest on Restitutionary Claims, Costs in Judicial Review
Administrative Law Health Law Restitution NHS Continuing Healthcare Funding Judicial Review Procedure Restitution for Mistake of Law Interest on Restitutionary Claims Costs in Judicial Review

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Parties

William Kemp (by Derek Kemp, litigation friend)

Claimant

Denbighshire Local Health Board

First Defendant

Powys Local Health Board

Second Defendant

Procedural Posture

Judicial Review / Post Substantive Resolution; Determination of Interest and Costs

Legal Issues

  1. 1 Whether the claimant is entitled to interest on sums reimbursed for care home fees under section 35A of the Supreme Court Act 1981
  2. 2 Whether the claimant is entitled to costs of the judicial review proceedings, including pre-permission costs
  3. 3 Whether the judicial review proceedings were necessary given the availability of alternative remedies

Ratio Decidendi

The court held that it had jurisdiction to award interest under section 35A of the Supreme Court Act 1981 on sums repaid in restitution, but the exercise of discretion depended on whether the claimant had received state benefits that would not be recouped. The claimant was not entitled to costs, as the case was not sufficiently clear to depart from the general rule against pre-permission costs, and alternative remedies had not been exhausted. The RPI-based interest policy was not unlawful, and the court would only consider awarding interest above RPI if the claimant could show no windfall from unrecovered benefits.

Court Disposition

No order as to costs; leave to amend claim form refused; interest issue reserved for further submissions.

Orders

  • Refusal of leave to amend the claim form to challenge the RPI interest policy.
  • No order as to costs; claimant not awarded costs of the proceedings.