Tafida Raqeeb (by her Litigation Friend XX) v Barts Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 03 December 2019 |
| Neutral Citation | [2019] EWHC 3320 (Admin) |
| Date | 03 December 2019 |
| Docket Number | Case No: CO/2767/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3320 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
AND FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice MacDonald
(sitting In Public)
Case No: CO/2767/2019
Case No: FD19P00378
and
and
and
Miss Katie Gollop QC and Mr Eliot Gold (instructed by Kennedys LLP) for the Applicant in FD19P00378 and Defendant in CO/2767/2019
Mr David Lock QC and Mr Bruno Quintavalle (instructed by Sinclairs Law) for the First and Second Respondents in FD19P00378 and Interested Parties in CO/2767/2019
Mr Vikram Sachdeva QC, Ms Nicola Kohn and Mr Alan Bates (instructed by Irwin Mitchell LLP) for the Claimant in CO/2767/209 and the Interested Party in FD19P00378
Mr Michael Gration (instructed by CAFCASS Legal) for the Third Respondent in FD19P00378
Hearing Dates: 9 to 13 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
I am concerned with an application for costs arising out of linked matters in the Administrative Court and the Family Division concerning Tafida Raqeeb, born on 10 June 2014 and now aged five years old. The applications with which the court has been seised are an application by Tafida for judicial review of the decision by the Barts Health NHS Trust (hereafter ‘the Trust’) to refuse to permit Tafida to travel to Italy for continued life-sustaining treatment and an application by the Trust under the Children Act 1989 for declarations that it is in Tafida's best interests for her current life-sustaining treatment to be withdrawn, a course of action that would have lead inevitably to her death. An application for costs is made by Tafida in the judicial review proceedings and by the parents within the proceedings under the Children Act 1989.
Tafida is represented in the application for judicial review by Mr Vikram Sachdeva, Queen's Counsel, and Ms Nicola Kohn through her litigation friend, XX, a relative. The Trust is the defendant to the application for judicial review and is represented by Miss Katie Gollop, Queen's Counsel and Mr Eliot Gold of counsel. Tafida's parents, Shelina Begum and Muhammed Abdul Raqeeb are interested parties in the application for judicial review, represented by Mr David Lock, Queen's Counsel and Mr Bruno Quintavalle. In the proceedings under the Children Act 1989 the Trust is the applicant and the parents and XX are respondents to those applications, each party with the same legal representation as set out above. Tafida is a party to the application under the Children Act 1989 and is represented by Mr Michael Gration of counsel through her Children's Guardian, Kay Demery.
It is not necessary once again to set out the background to this matter. That background is set out in Raqeeb v Barts Health NHS Trust [2019] EWHC 2531 (Admin) and [2019] EWHC 2530 (Fam)). At the conclusion of the final hearing in this matter I made the following decisions:
i) In the proceedings for judicial review, I found that the decision of the Trust was unlawful but declined to grant relief to Tafida on her application for judicial review.
ii) In the proceedings under the Children Act 1989 I dismissed the application of the applicant NHS Trust for an order under s 8 of the Children Act 1989.
Within this context, Tafida, as claimant in the judicial review proceedings contends that she succeeded in her claim for judicial review and that costs should follow the event. Tafida also appears to contend that she should recover the costs of the proceedings under the Children Act 1989, although the submissions of Mr Sachdeva QC and Ms Kohn on her behalf concentrate on the position in the judicial review proceedings. The parents do not seek to recover their costs in the judicial review proceedings but do seek an order for costs in the proceedings under the Children Act 1989. The Trust opposes the applications for costs in each set of proceedings and submits that in each set of proceedings the parties should bear their own costs.
At the conclusion of the substantive hearing I directed that the question of costs would be dealt with on paper. Within this context, I have received helpful written submissions on costs from each party, the last of those written submissions being received by the court on 29 October 2019.
SUBMISSIONS
Proceedings for Judicial Review
Within the foregoing context, Tafida as the claimant in the proceedings for judicial review contends through her litigation friend, that she was successful in her claim for judicial review and that, pursuant to the general rule in CPR 44.2(2) she is entitled, as the successful party, to her costs from the unsuccessful party, namely the Trust. Within this context of the matters the court is required to take into account when deciding the question of costs, Mr Sachdeva and Ms Kohn identify the key questions in this case as:
i) Who is the successful party?
ii) Should the normal rule that costs follow the event be followed or should an exception be made in the circumstances of this case?
Mr Sachdeva and Ms Kohn submit that Tafida is clearly the successful party in circumstances where:
i) The real issue in the case was whether or not it was lawful for the Trust to deny Tafida's directly effective Art 56 right to receive services in an EU Member State;
ii) The court clearly concluded that the decision of the Trust was amenable to judicial review;
iii) The court concluded that the decision of the Trust was unlawful and not only substantially impeded but made impossible the exercise by Tafida of her Art 56 rights;
iv) The claimant succeeded in establishing that Art 56 has “real significance” in cases where a protected party is seeking to be sent to an EU Member State for medical treatment.
In these circumstances, relying on the decision of the Supreme Court in R (Hunt) v North Somerset Council [2015] 1 WLR 3575, Mr Sachdeva and Ms Kohn submit that where a party who has been given leave to bring a claim for judicial review succeeds in establishing that the defendant acted unlawfully, some good reason will have to be shown why the claimant should not recover her reasonable costs. They submit that the Trust has advanced no good reason why it should not pay the costs in circumstances where the court has determined that its decision was unlawful.
Within this context, Mr Sachdeva and Ms Kohn submit that neither the fact that the court refused to quash the decision of the Trust having regard to the terms of s 31(2A) of the Senior Courts Act 1981 nor that the court limited its remedy to the judgment itself, amounts to a good reason for Tafida not to recover her reasonable costs, Mr Sachdeva and Ms Kohn submitting that s 31(2A) contains no suggestion that the costs of the claim should be refused in those cases where s 31(2A) applies.
In addition, Mr Sachdeva and Ms Kohn rely in certain respects on what they contend was the inappropriate conduct by the Trust of the litigation. In particular, Mr Sachdeva and Ms Kohn submit that:
i) Whilst the Trust refused on 7 July 2019 to agree the transfer of Tafida to Italy, it only issued proceedings to determine the question of Tafida's best interests once it was aware that a claim for judicial review was being made;
ii) The Trust ran arguments that were unreasonable, namely (a) that it had not taken any decision and (b) that any decision it had made was not justiciable;
iii) The Trust failed to file a proper pre-action response to the claim for judicial review providing an explanation for the decision made and including any relevant documents.
Within this context, Mr Sachdeva and Ms Kohn submit that an order should be made in favour of Tafida that the Trust pay her costs of both the judicial review proceedings and the proceedings under the Children Act 1989 and the inherent jurisdiction of the High Court on the standard basis. With respect to the claim for costs in the proceedings under the Children Act 1989 Mr Sachdeva and Ms Kohn do not address their submissions to the principles that ordinarily apply to the question of costs in such proceedings.
By their written submissions, Mr Lock QC and Mr Quintavalle make clear that the parents do not seek their costs in the claim for judicial review.
In response to the costs submissions made on behalf of Tafida in the proceedings for judicial review, the Trust seeks to resuscitate its assertion, which assertion formed a persistent theme at the final hearing, that Tafida (and those acting on her behalf) brought the claim for judicial review, and sought an anterior procedural ruling in those proceedings, in a calculated attempt to obviate the need for any decision by the Family Division as to her wider best interests or to defer such a decision until Tafida was a patient in the Gaslini Hospital, and in addition to obtain a mandatory order compelling her discharge to the Gaslini. The Trust submits that proving the unlawfulness of the Trust's decision was merely a step towards this ultimate, carefully calculated goal of avoiding a best interests decision for Tafida in the domestic courts.
Within this context, the Trust submits that it cannot be said that Tafida was successful in her claim for judicial review. First, the Trust contends that Tafida did not succeed in obviating the need for any decision by the Family Division as to her wider best interests or in...
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