R (Bullmore) v West Hertfordshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES |
| Judgment Date | 15 May 2007 |
| Neutral Citation | [2007] EWHC 1350 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/946/2007 |
| Date | 15 May 2007 |
[2007] EWHC 1350 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Lloyd Jones
CO/946/2007
MR DAVID WOLFE (instructed by Leigh Day & Co of London) appeared on behalf of the CLAIMANT
MR JEREMY HYAM (instructed by Capsticks of London) appeared on behalf of the DEFENDANT
This is a renewed application by the claimant, Mrs Zena Bullmore, who brings these proceedings on behalf of the Dacorum Hospital Action Group ("the Group"), for a protective costs order ("PCO"). Her application was considered on the papers by Mr Justice Wilkie and was refused on 4 April 2007. I have had the benefit of full argument at an oral hearing this morning. I am grateful to Mr Wolfe and Mr Hyam for their helpful submissions.
The defendant Trust is a National Health Service ("NHS") body responsible for hospital services in West Hertfordshire. Its catchment area includes Hemel Hempstead and Watford.
The Dacorum Hospital Action Group is a long established body, a pressure group seeking to exert influence in relation to decisions taken by the NHS in the Dacorum area. By these proceedings, for which permission was granted by Mr Kenneth Parker QC, sitting as a Deputy High Court Judge on 20 March 2007, the Group seeks to challenge the legality of the Trust's decision, inter alia, to stop providing acute hospital services at Hemel Hempstead Hospital. The Dacorum Hospital Action Group has been active in the area for over 30 years. It is an unincorporated association. Its current membership is over 40 residents and patients. Its aim is to ensure that the Dacorum Hospital is maintained as a local hospital and that it should continue to provide services. One of the members is Mr Gittings. I refer to him in particular because it is suggested that he may have a personal interest in this matter. He is 88 years old and, unfortunately, is in poor health. He depends from time to time on services at Hemel Hempstead Hospital and he believes that there will be serious risk to his health if he had to travel to Watford General Hospital in an emergency.
The decision by the Trust in these proceedings was arrived at following extensive public consultation. I do not need to refer to the details of the consultation process. Suffice it to say that criticisms are made by the Group of the manner in which the consultation process was undertaken and the manner in which the results of that consultation process were presented to the decision-making body. It is said that as a result the Board has failed properly to take into account the views of the consultees. It is said that had that been done the Board would have appreciated that there was an overwhelming rejection of its proposals by local people.
I approach this application on the basis that the Group has already shown that they had a reasonably arguable case so far as its grounds of application are concerned.
So far as the funding of these proceedings is concerned, Mrs Bullmore has explained in her witness statements that the Group hopes to be able to raise the sum of £20,500 to support this challenge. Mr Gittings is a pensioner whose income is such that he is just above the financial level for legal aid. He is certainly not in a position to finance litigation of this sort. If he were a person who qualified for legal aid it may be that the difficulties faced by the Group would vanish. However that is not the case, and they are faced with having to fund these proceedings.
The Group funds these proceedings by means of conditional fee agreements with its legal advisers. Its concern, however, is as to its potential liability for the defendant's costs. It seeks a form of protection which is not the most extreme form of protection. It seeks an order which would limit its liability for the defendant's costs in the event that it fails in its application for judicial review. It asks that those costs be limited to the level they can afford by fund raising, that is the sum of £20,500. They point to the fact that the defendants have already indicated their costs to date are in the region of £50,000. One can understand that this poses something of a dilemma for the claimants.
The correct approach in law to such an application is to be found in the decision of the Court of Appeal in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. There, the Court of Appeal adapted the guidelines which had been given by Mr Justice Dyson (as he then was) in R v Lord Chancellor ex p CPAG [1999] 1 WLR 347. However, in doing so the Court of Appeal clearly adopted the view expressed by Mr Justice Dyson that the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances.
The Court of Appeal said they agreed with that statement, but observed that, of itself, it did not assist in identifying those circumstances (page 72 of the judgment of the Court of Appeal). They then proceeded to restate the governing principles in these terms:
"1 A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
i) The issues raised are of general public importance;
ii) The public interest requires that those issues should be resolved;
iii) The applicant has no private interest in the outcome of the case;
iv) Having regard to the financial resources of the applicant and the respondents(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing;
2 If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3 It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."
I should say that in coming to my decision I do not attach any significance to the fact that the litigation in this case is being funded by a conditional fee arrangement as opposed to legal advisers acting on behalf of a claimant on a pro bono basis.
I turn then to consider whether the various criteria identified in Corner House are satisfied. I say at the outset that I am not persuaded that this is an exceptional case where the court would be justified in making a protective costs order.
So far as the first consideration is concerned, are the issues raised of general public importance? It can of course be said that every application for judicial review which clears the hurdle of obtaining permission raises matters of public importance in that there is a public interest that public bodies should act lawfully. However it is clear that in this context the test is intended to impose a higher standard.
In Corner House the Court of Appeal referred at paragraph 69 to R v Home Secretary ex p Salem [1999] 1 AC 450, where —
"Lord Slynn acknowledged ….. that the House possessed discretion to hear an appeal concerned with an issue involving a public authority as to a question of public law even when the parties to the appeal had ended the 'lis' between them. He said that there must be a good reason in the public interest for doing so, and cited, as an example, a case:
'where a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists or are anticipated so that the issue will most likely...
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