Goodson v HM Coroner for Bedfordshire and Luton (Protective Costs)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Chadwick,Lord Justice Ward |
| Judgment Date | 12 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1172 |
| Docket Number | Case No: C1/2005/0073 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2005 |
[2005] EWCA Civ 1172
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON. MR JUSTICE RICHARDS
CO/1367/04
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Ward
The Right Honourable Lord Justice Chadwick and
The Right Honourable Lord Justice Moore-Bick
Case No: C1/2005/0073
Mr. Michael Powers Q.C. and Mr. Gerard Boyle (instructed by Osborne Morris & Morgan) for the Appellant
Mr. Philip Havers Q.C. and Mrs. Leslie Millin (instructed by Capsticks) for the second respondent
(The first respondent did not appear and was not represented)
Lord Justice Moore-Bick
This is an application by the appellant, Mrs. Rita Goodson, for a protective costs order in relation to an appeal that was due to be heard on 10 th October. The application was considered by Maurice Kay L.J. on 14 th September and adjourned to a court composed of three Lords Justices because he considered that it raised a question, not previously considered, concerning the approach to be adopted when an application of this kind is made for the first time at the appeal stage. Having heard argument we dismissed the application and now give our reasons for that decision.
Mrs. Goodson is the daughter of the late Mr. Harry Coleman who died on 26 th February 2003 following surgery at Luton & Dunstable Hospital for the removal of gall stones. It is common ground that Mr. Coleman's death was not the result of natural causes but was a consequence of an injury sustained during surgery. The Coroner for Bedfordshire and Luton, the first respondent to the appeal, therefore held an inquest into the death. Mrs. Goodson thought that her father's death might have been caused by negligence on the part of one or more of the doctors who treated him and at the adjourned hearing of the inquest on 1 st July 2003 an application was therefore made on her behalf that the Coroner should conduct an enquiry in accordance with the requirements of Article 2 of the European Convention on Human Rights ("ECHR") and that he should appoint an independent medical expert to assess the treatment her father had received. The Coroner rejected those applications. He heard evidence from the surgeon who carried out the operation and from the doctor who had been responsible for Mr. Coleman's post-operative care and reached a verdict of death by misadventure. He gave full reasons for his decision in writing which were communicated to Mrs. Goodson in December 2003.
Mrs. Goodson was dissatisfied with the verdict and on 30 th March 2004 she began proceedings in the Administrative Court seeking permission to apply for judicial review of the Coroner's orders rejecting her applications. By those proceedings she sought to obtain an order quashing the verdict and an order directing the Coroner to hold a fresh inquest. The second respondent to the appeal, the Luton and Dunstable Hospital NHS Trust ("the Hospital"), was joined as an interested party. Richards J. heard the application for permission and the substantive application for judicial review together. The Coroner appeared at the hearing by counsel to give such assistance as the court might require, but otherwise did not take an active role in the proceedings. The real opposition to Mrs. Goodson's application came from the Hospital.
On 17 th December 2004 the judge delivered a detailed judgment in which he identified the following three questions as being the essential issues in the case: (1) whether the procedural obligation under article 2 to investigate a death is engaged in the circumstances of this case, (2) if so, whether the inquest as held complied with that obligation, and (3) if article 2 did not apply, whether it was nevertheless unlawful for the coroner to proceed as he did. The judge held that the procedural obligation under article 2 was not engaged. He did not consider that there was any question of an actual or possible breach of the state's positive obligations under article 2; there was at most a possibility of simple negligence which, even if established, would not amount to a breach of article 2. He also held that even if article 2 was engaged, there had been no failure to comply with its requirements. In the light of those conclusions it is not surprising that he held that the Coroner's decision to proceed as he did was lawful. His judgment is now reported at [2005] 2 All E. R. 791.
In the light of his judgment the judge made an order for costs against Mrs. Goodson in favour of the Hospital. She was represented by solicitors and counsel under a conditional fee agreement and had obtained insurance against the risk of being ordered to pay the costs of the Coroner as defendant to the application if she lost, but she had not been able to obtain cover against her potential liability for the costs of interested parties such as the Hospital. Although a submission was made on her behalf that the Hospital should bear its own costs of the proceedings, the judge declined to make such an order. He made no order in respect of the Coroner's costs.
The judge thought that the first of the three questions he had identified was one on which this court might take a different view and gave Mrs. Goodson permission to appeal. When doing so he indicated that he regarded the question as one of general importance. On 6 th July Mrs. Goodson applied for a an order from this court that there should be no order in relation to the costs of the appeal, whatever the outcome, on the grounds that it raised issues of general public importance which she could not afford to pursue at the risk of rendering herself liable for the Hospital's costs if she was ultimately unsuccessful. (The Coroner had already indicated that he did not propose to take an active role in the appeal and would not seek an order for costs against her.)
There is no doubt that the court has jurisdiction under section 51 of the Supreme Court Act 1981 as substituted by section 4 of the Courts and Legal Services Act 1990 to make an order of the kind sought by Mrs. Goodson. The real question is whether that jurisdiction should be exercised in this case.
The principles which should guide the court when considering an application of this kind were recently considered by this court in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 W.L.R. 2600. In the course of reaching its decision the court considered a number of decisions both in this country and abroad in which there had been discussion of the circumstances that may justify making orders of this kind in the public interest. In view of the way in which the argument was developed in this case it is necessary to refer briefly to three of those decisions.
The first is R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] A.C. 617 in which the House of Lords recognised that the rules which determine whether a person has sufficient standing to apply for judicial review should be relaxed to enable proceedings to be brought by persons or organisations which have no direct interest in the outcome and which are motivated solely by a desire to ensure that public bodies conduct themselves in accordance with the law. One consequence of this liberalisation has been that in recent years there has been an increasing number of applications for judicial review by bodies representing the interests of particular sections of the community but which are not themselves directly affected by the outcome of the proceedings. In such cases it is not difficult to categorise the proceedings as being pursued in the public, rather than any private, interest.
The second case is R v Lord Chancellor Ex p. Child Poverty Action Group [1999] 1 W.L.R. 347 in which Dyson J. sought to identify the principles which should guide the courts in the exercise of their jurisdiction to make protective costs orders in public interest cases. In particular, at page 353G-H he defined what he understood to be a public interest challenge as follows:
"The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interest of his or her own."
The third case is British Columbia (Minister of Forests) v Okanagan Indian Band (2003) 114 CRR 2d 108 which concerned an application by an impecunious appellant for an order that the respondents should pay its costs of the appeal at intervals as the proceedings progressed. When considering the circumstances in which an unusual order for costs might justifiably be made in the public interest a majority of the court held that one of the criteria that would normally have to be present was that the issues to which the proceedings gave rise should "transcend the individual interests of the particular litigant" (paragraph 40).
I have not sought to discuss these decisions in any detail since they were all considered at length in the Corner House case. I have thought it worthwhile to draw attention to them, however, because they provide an important part of the material which the court took into account when...
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