A High Court judge has thrown out judicial reviews brought by two medical reporting organisations (MROs) against their suspension from the MedCo portal.
Mr Justice Lavender said there was “obviously something unsatisfactory” about the approach taken by Med Chambers and Prime Medicals, using the dispute resolution procedure set out in MedCo’s user agreement – called the ‘escalation’ procedure – and judicial review simultaneously.
He went on: “The decision in each case was that they should be suspended because they did not meet the qualifying criteria.
“The claimants have each sought to challenge two aspects of that decision by two different routes, using the escalation procedure to challenge the decision that they did not meet the qualifying criteria, and using these applications to challenge the suspension decision.
“In some cases it may be necessary and appropriate for a claimant to pursue two different proceedings simultaneously, but it is generally inconvenient and undesirable.”
Delivering judgment in R (on the application of Med Chambers and Prime Medicals) v MedCo Registration Solutions  EWHC 3258 (Admin), Lavender J said MedCo carried out detailed audits of the claimants in February 2017.
Having received the claimants’ responses to the draft audits, MedCo decided the claimants “did not meet the minimum qualifying criteria” and set out in decision letters sent in June last year a series of eight breaches of the qualifying criteria by each claimant.
Lavender J said that the decisions that the MROs did not meet the qualifying criteria were challenged by them under the escalation procedure set out in clause 10 of the user agreements and were not at issue in the judicial reviews.
Clause 10 provides first for representatives of MedCo and the MRO to try and resolve their differences. If this does not work, the matter is escalated to “senior” representatives on both sides. Failing that, 30 days later a party can refer the dispute to mediation overseen by CEDR.
A party cannot take legal action until 30 days after the ADR notice has been served.
The judge noted that the applications for judicial reviews were not filed until September 2017, “at the very limit of the time period specified by CPR 54.5(1)(b)”.
The MROs argued that clause 10 was not an “adequate remedy” because MedCo did not consider submissions which the claimants made within 14 days of the decision letters, in breach of its compliance procedure.
Lavender J replied that this submission “amounted to an argument” that MedCo would not take its obligations seriously to engage in the escalation procedure, but there was no evidence to support this.
The judge rebuffed the MROs’ second argument, that the escalation procedure was “far too slow” in taking up to 90 days.
“It took the claimants 92 days to commence these proceedings. In that context, it cannot be said that a process taking 90 days is too slow.”
Lavender J said the MROs’ third argument, that the MRO procedure did not “provide the claimants with the remedies of interim relief or damages”, was to “misunderstand the nature of the procedure”.
It was a negotiation and there was no reason why the parties could not agree to lift a suspension.
He responded to an additional argument, that a review by the decision-maker was not an adequate remedy, by saying this was what happened in homelessness cases.
“All in all, I do not consider that the arguments advanced by the claimants demonstrate that the escalation procedure was not a suitable alternative remedy in the present case. On that basis, I refuse permission to apply for judicial review.”
Lavender J added that even if he was wrong on the issue of alternative remedy, he would dismissed the applications for permission to apply for judicial review on the basis that they were not brought promptly.
His ruling also said that another MRO which failed to meet the criteria had brought a claim against MedCo but it had settled.
In that case, he said, the MRO had taken a positive approach to ensuring compliance, whereas the two claimants had taken a negative approach by disputing that any issues needed to be addressed.