R (Compton) v Wiltshire Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Buxton,Lady Justice Smith |
| Judgment Date | 01 July 2008 |
| Neutral Citation | [2008] EWCA Civ 749 |
| Docket Number | Case No: C1/2007/2850 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2008 |
[2008] EWCA Civ 749
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ADMINISTRATIVE COURT
Mr Justice McCombe
Mr Justice Holman
[20088] EWHC 880 (Admin)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Lord Justice Waller
Vice-president of The Court of Appeal, Civil Division
Lord Justice Buxton and
Lady Justice Smith
Case No: C1/2007/2850
C1/2008/1000 and C1/2008/1022
Neil Garnham QC, Guy Operman and Matthew Gullick (assigned by the Bar Pro Bono Unit)) for Mrs Compton
Philip Havers QC and Jeremy Hyam (instructed by Capsticks) for the Wiltshire PCT
Ben Jaffey and Naina Patel (instructed by The Public Law Project) for the Public Law Project as Intervener
Hearing date: 21 st May 2008
This judgment deals with three appeals relating to the granting of Protective Costs Orders (PCOs) in judicial review proceedings between Mrs Val Compton and the Wiltshire Primary Care Trust (the PCT). The first appeal is from a decision of McCombe J, given on 26 th November 2007, under which he refused to reconsider an order for a PCO made by Simon J on paper in judicial review proceedings relating to the day hospital at Savernake Hospital (the day hospital). The second and third appeals are from a decision of Holman J, given on 22 April 2008, granting a PCO in relation to judicial review proceedings relating to the Minor Injuries Unit (the MIU) at the same hospital. In all three appeals we are being asked to look again at the principles and guidance given in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600(Corner House) the leading authority on the power to make PCOs and the procedure to be adopted.
Mrs Val Compton brought her applications for judicial review on behalf of “a campaign known as Community Action for Savernake Hospital (CASH)”. It is alleged that decisions have been taken by the PCT to close the day hospital facility and the MIU (as it was put by Mr Garnham QC before us) “by stealth”. She has brought on behalf of CASH separate applications for judicial review in relation to the two units and has obtained permission to move in both cases. In relation to the grounds relied on in the two cases, Holman J conveniently summarised the position in this way:-
“11. Although there are obvious points of overlap and in common, there are also many points of difference between the two cases. The financial and clinical arguments and issues in relation to the day hospital facility and the MIU may be similar, but they are not the same. Further, the thrust of the judicial review challenges varies. I understand that in the Day Hospital case there is a greater challenge to the adequacy of the consultation process than in the MIU case.
12. The reasons why I granted permission in the MIU case are, in summary, as follows. As a preliminary, I was satisfied that there is an arguable case that there was a second decision after further consideration, or reconsideration, during August 2007, so that the application for judicial review was (arguably) not out of time. As to the merits, I was satisfied, first and principally, that it is arguable that the Trust's financial case for closure of the MIU is wrong, such that their decision is irrational. In short, although they claim that they will save money by closing the MIU, in reality they will not.
13. Second, although this carried less weight with me, I accepted that there is an arguable case that the decision was tainted by apparent bias in part of the consultation process. The apparent bias results, or may result, because the supposed independent consultant, who analysed the public responses, is in fact the settled partner and cohabitant of a senior director of the Strategic Health Authority which supports and manages the performance of the Trust.
14. Third, again carrying less weight with me, I accepted that the Trust had arguably attached no weight, or less weight than they should have done, to the report “Emergency Access —Clinical case for change” by Sir George Alberti and published by the Department of Health in December 2006. (The report does not, however, state or represent government policy.)”
The substantive hearings are listed for hearing over three days commencing 16 th July this year. Thus there is an urgency in finalising the question of what, if any, PCOs should be made.
In an application relating to the day hospital, at the same time as granting permission to move for judicial review, Simon J, having before him both the application for a PCO and the PCT's written grounds for resisting the same, made a PCO under which he ordered that the PCT should not be entitled to recover any costs against Mrs Compton, and put a cap on the costs that Mrs Compton could recover from the PCT at £25,000. The PCT applied to set aside that order relying again on the grounds placed before Simon J. That application came before McCombe J. Those acting for Mrs Compton in reliance on the guidance given in Corner House to the effect that by analogy with CPR 52.9(2) (setting aside permission to appeal) a PCO once granted on paper should only be set aside on the application of a defendant if the defendant showed “compelling reasons”, argued that there were no compelling reasons. Those acting for the PCT sought to argue that in Corner House certain rules in the CPR had been overlooked, that the analogy with CPR 52.9(2) was not an appropriate one and that it should not be a requirement to show “compelling reasons”. A defendant should be entitled to have a decision made in his absence reconsidered in the same way as Corner House envisaged that if a PCO was refused an applicant would be entitled to have the matter reconsidered at an oral hearing.
McCombe J held that he was bound by the guidance in Corner House (although by a footnote he queried whether the analogy with CPR 52.9(2) was appropriate). He held that the PCT having shown no compelling reasons he should not reconsider the order made by Simon J. Rix LJ gave permission to appeal saying this:-
“There is a serious argument with reasonable prospects of success that the Corner House analogy with CPR 52.9(2) does not here apply. Issues are raised about the correct interpretation of and application of the Rules. The judge (McCombe J) has himself at footnote 2 raised a query about the CPR 52.9 analogy. In the absence of these more general issues, I doubt that I would have given permission to appeal on the issue of whether Simon J's decision on the merits of a PCO itself gave rise to a compelling reason why an appeal should be heard. Nevertheless, in the circumstances, that issue may be argued as well.”
The issues on the appeal from McCombe J are thus (1) should the Court of Appeal reconsider the guidance in Corner House that a defendant against whom a PCO has been made on paper must, before a court will consider setting the same aside, show compelling reasons; (2) if so what the appropriate guidance should be and whether with that guidance Simon J's order should be set aside or varied; and (3) if “compelling reasons” remains appropriate whether McCombe J should have found there were compelling reasons.
In the application relating to the MIU again at the same time as applying for permission to move for judicial review Mrs Compton applied for a PCO. The matter came before Bean J on paper, and he initially refused permission to move. He then had drawn to his attention material which should have been before him, but for reasons with which we need not concern ourselves was not, and he reconsidered the matter. He set aside his refusal and directed an oral hearing. Holman J heard the application for permission to move for judicial review and granted permission, delivering an ex tempore judgment on 14 th April 2008. He then heard argument on whether a PCO should be granted on 18 th April 2008 and delivered a reserved judgment on 22 nd April 2008. The order he made was (1) to direct (this aspect being conceded by counsel acting for Mrs Compton) that Mrs Compton should not be permitted to recover any part of her costs of the judicial review proceedings from the PCT; (2) to direct that in any event the total costs which the PCT may recover from Mrs Compton in the judicial review proceedings should be capped at £20,000 and shall not exceed that sum; and (3) to direct that the order should not apply to any proceedings in the Court of Appeal, the costs of which he stated were entirely in the discretion of that court.
Holman J refused permission to appeal his order and both Mrs Compton and the PCT sought permission to appeal from that order from the Court of Appeal. Since the appeal from McCombe J was already listed for hearing on 21 st May 2008, I directed that both applications should be adjourned to that hearing and that if permission was granted appeals would follow. At the hearing, rather than have time taken up arguing about arguability, we granted permission to appeal to both Mrs Compton and the PCT. The issues on these appeals, in short, are (1) whether as the PCT asserts it was wrong on the principles set out in Corner House, to grant a PCO at all; (2) if it was appropriate, (a) whether (as the PCT contends) the cap of £20,000 was too low or (b) whether (as Mrs Compton contends), it was wrong to allow for the recovery of any costs by the PCT, the right order being no order as to costs either way.
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