R (Compton) v Wiltshire Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 22 April 2008 |
| Neutral Citation | [2007] EWHC 2769 (Admin),[2008] EWHC 880 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8460/2007,Case No: CO/6996/2007 |
| Date | 22 April 2008 |
[2007] EWHC 2769 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr. Justice Mccombe
Case No: CO/6996/2007
Mr. Guy Opperman and Mr. Mathew Gullick (instructed by the Bar Pro Bono Unit) for the Claimant
Mr. Jeremy Hyam (instructed by Capsticks Solicitors) for the Defendant
Hearing date: 1 November 2007
Judgement
The Hon. Mr. Justice McCombe:
(A)Introduction
This is an application by the Defendant, Wiltshire Primary Care Trust ("WPCT") for an order setting aside an order dated 5 October 2007 of Mr. Justice Simon granting to the Claimant, Mrs Val Compton ("Mrs Compton") a protective costs order ("PCO") in respect of the costs of these proceedings. Mrs Compton's claim is for judicial review of a decision of WPCT, said to have been communicated in May 2007, to close the "day hospital facility" at Savernake Hospital ("the Hospital") near Marlborough in Wiltshire. By the same order of 5 October Mr Justice Simon granted permission to apply for judicial review. The PCO is in the following terms:
"(1) Upon consideration of the Claimant's Application for a protective Costs Order and Defendant's response,
(a) The Defendant is not permitted to recover its costs of the judicial review proceedings; and
(b) the Claimant's entitlement to recover her costs is limited to £25,000, with liberty to apply."
WPCT submits that the PCO should be set aside "having regard to the governing principles in relation to the making of such orders as set out by the Court of Appeal in the Corner House case", i.e. R (Corner House Research) v Secretary for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2006 (" Corner House").
In outline, Mrs Compton, who is a recently retired health worker at the Hospital, is the promoter of a campaign called "Community Action for Savernake Hospital" or "CASH" for short. The campaign is said to have widespread public support. She complains that the decision to "close" the day hospital facility at the Hospital was taken in breach of a legitimate expectation on the part of interested parties that the facility would remain open and in breach of a duty to conduct proper consultation. She contends further that the decision was in any event irrational. For its part, WPCT contends that there has been no closure of the facility at all, merely a decision to re-organise relevant health services by the provision of "neighbourhood teams" treating patients at their homes or at the day facility as needs dictate. They say the claim is out of time, the decision having been taken in January 2007. Further WPCT says that the decision was made following lawful consultation addressing the provision of day hospital services; there was no promise or representation as to the future provision of day services and no legitimate expectation could arise that the day hospital facilities would remain unchanged. Many of the underlying facts are hotly contested and allegations of serious bad faith are made against WPCT by Mrs Compton and her witnesses.
(B) The Application for a PCO
In the light of a procedural point taken on behalf of Mrs Compton it is necessary to note the steps which led to the making of Mr Justice Simon's order and the present application. The application for a PCO was intimated in Section 7 of the Judicial Review Claim Form ("Other applications") and referred to a written argument in support of it. The written argument annexed a draft order broadly in terms of paragraph 1(a), but not (b) of Mr Justice Simon's order. In Section D of the Acknowledgment of Service Form (dealing with directions sought by the defendant) WPCT stated that the making of a PCO was opposed but asked that the application for such an order be dealt with at the same time as the permission application "because the decision about the PCO may influence any decision the Claimant may make about seeking an oral rehearing for permission if it is not granted on the papers". A full written argument, resisting the application for a PCO, was lodged with the Acknowledgment.
The papers were submitted to Mr Justice Simon and on 5 October 2007 he granted permission to apply for judicial review and made the PCO in the terms already mentioned. The present application was issued on 12 October.
(C) The procedural issue
The written argument of Mr. Opperman and Mr. Gullick for Mrs Compton referred me to paragraph 79 of the judgments in Corner House where the Lord Phillips of Worth Matravers MR (as he then was), giving the judgment of the Court, said this:
"Although CPR 54.13 does not in terms apply to the making of a PCO, the defendant will have had the opportunity of providing reasoned written argument before the order is made, and by analogy with CPR 52.9(2) the court should not set a PCO aside unless there is a compelling reason for doing so. The PCO made by the judge on paper will provide its beneficiary with costs protection if any such application is made. An unmeritorious application to set aside a PCO should be met with an order for indemnity costs, to which any cap imposed by the PCO should not apply. Once the judge has made an order which includes the cap on costs to which we have referred, this will be an order to which anyone subsequently concerned with the assessment of costs will be bound to give effect (see CPR 44.5(2)."
It will be recalled that CPR r.54.13 provides that a person served with an order granting permission to apply for judicial review may not apply to have the permission order set aside. Thus, the decision by a judge on the papers to grant permission is not susceptible to further challenge. Mr. Opperman argued that it was for WPCT to demonstrate, as the Court of Appeal has said, a "compelling reason" for setting aside the PCO: it was not sufficient, he submitted, simply to argue that the decision was wrong. This submission led me to enquire as to the precise provision of the CPR under which the application was brought, an issue not addressed in the written arguments.
Mr. Opperman submitted that WPCT could only rely upon CPR r. 3.1(7) which provides as follows:
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
This apparently quite general power in the court to vary or revoke an order has been held not to be available as a simple tool for an aggrieved party to mount a disguised appeal against an order with which he is dissatisfied. As is noted in "Civil Procedure 2007" in Lloyd's Investment (Scandinavia) Ltd. v Ager-Hanssen [2003] EWHC 1740 Mr Justice Patten said that
"… in his opinion, for the court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done in the context of an appeal. Similarly it is not open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ." (See Civil Procedure 2007 Vol. 1 paragraph 3.1.9 p.92)
This is an approach which was endorsed in the Court of Appeal in Collier v Williams [2006] EWCA Civ 20, a case to which I shall have to return hereafter.
Mr. Opperman also relied upon the case law under CPR r.52.9, referred to as analogous to the present situation by the Court in Corner House. I was taken to the notes in "Civil Procedure" (2007) Vol. 1 paragraph 52.9.2 p.1545, demonstrating the onerous task facing a respondent to an appeal who endeavours to set aside the grant of permission to appeal. The cases show that, under that rule, the Court will only set aside permission to appeal if some decisive factor has emerged which was not before the Lord Justice granting permission, or if he has been misled, or if there has been some other fundamental error or irregularity of that type.
Mr. Hyam for WPCT relied upon CPR r. 3.3(4) and (5) which provide as follows:
"(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application"
It is then necessary to refer also to CPR r. 23.8 and to the Practice Direction to CPR Part 23, paragraphs 11.1 and 11.2. Rule 23.8 is in the following terms:
"The court may deal with an application without a hearing if –
(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate. "
The Practice Direction then provides as follows:
"11.1 Where rule 23.8(b) applies the parties should so inform the court in writing and each should confirm that all evidence and other material on which he relies has been disclosed to the...
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