| COSTS — Order for costs — Protective costs order — Claim for judicial review by individual acting in public interest — Claimant seeking interlocutory order that no order for costs be made against her in any event — Principles upon which jurisdiction to make protective costs order to be exercised — Procedure appropriate for Court of Appeal
R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749; [2008] WLR (D) 221
CA: Waller, Buxton and Smith LJJ: 1 July 2008
The Court of Appeal set down the appropriate procedure to deal with protective costs orders in the Court of Appeal.
The Court of Appeal gave the guidance when dismissing (Buxton LJ dissenting) the appeals of Wiltshire Primary Care Trust against decisions in the Administrative Court of (1) McCombe J on 26 November 2007 [2007] EWHC 1750 (Admin) refusing to reconsider a protective costs order (“PCO”) made on paper by Simon J in judicial review proceedings brought by Mrs Val Compton relating to closure of a day hospital at Savernake Hospital and (2) two decisions of Holman J on 22 April 2008 [2008] EWHC 880 (Admin) granting her permission to apply for judicial review regarding the multiple injuries unit as the same hospital and granting a PCO.
WALLER LJ said that the appeals required the court to look again at the principles and guidelines on PCOs given in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600, paras 74, 78–79. When considering whether a PCO should be granted, the two-stage tests of general public importance and the public interest in the issue being resolved were difficult to separate. Where someone in the position of Mrs Compton was bringing an action to obtain resolution of issues as to the closure of parts of a hospital which affected a wide community, and where that community had a real interest in those issues being resolved, it was certainly open to a judge to hold that there was a public interest in resolution of the issues and that the issues were ones of general public importance. The paragraphs in the Corner House judgment were not to be read as statutory provisions, nor to be read in an over-restrictive way. Furthermore, his Lordship would agree with the judge that "exceptionality" was not seen in para 72 of the Corner House judgment as some additional criterion to the principles set out in para 74 but a prediction as to the effect of applying those principles. Finally his Lordship did not read the word "general" as meaning that it must be of interest to all the public nationally. It was a question of degree. Thus, his Lordship would uphold Holman J’s decision that the case was one in which he could grant a PCO. If a party sought to represent others, the court was entitled to take into account whether those others had the means to support the action. The jurisdiction to grant a PCO was concerned with enabling actions to be brought and with holding the balance so far as possible between the parties. It might often be right to expose a claimant and those the claimant represented to some risk as to costs capped so that all could see what the risk was. But Holman J was right to order that the PCO should not apply to any proceedings in the Court of Appeal, and to leave the matter to the Court of Appeal to work out a procedure. Since the Court of Appeal had already laid down guidelines for a procedure in para 79 of the Corner House judgment, another Court of Appeal should be very reluctant to rewrite them, or attempt to rewrite them unless the compulsion to do so was clear. It was unfortunate that the rules committee had still not codified the procedure but this was not a case where the court should reconsider the guidance previously given. Any procedure in the Court of Appeal should follow that guidance as far as possible. In cases where PCOs had been granted and the proceedings had been fought out, the governing principles identified in para 74 of the Corner House judgment could be taken to have been established so far as the case at first instance was concerned. If the person benefiting from a PCO was the would-be appellant, they might however have to be re-examined at the appellate stage. It might have become clear that no issue of general public importance arose or it might be clear that there was no public interest in bringing the case to the Court of Appeal. If the beneficiary of a PCO had succeeded in the court at first instance, it was difficult to think that some protection would not be appropriate in the Court of Appeal.
So far as procedure was concerned, if the recipient of the PCO in the court below was wishing to appeal, an application for a PCO should be lodged with the application for permission. The respondent should have an opportunity of providing written reasons why a PCO was now inappropriate. The decision would be taken on paper by the single Lord Justice. If a PCO was refused, the applicant could apply orally. If it was granted, then a respondent would need compelling reasons to set it aside. What about PCOs on appeals from a refusal to grant a PCO or from the granting of a PCO? Again the matter should be dealt with by a single Lord Justice on paper and the normal order should be that there would be no order for costs save in exceptional circumstances, for example where the application was an abuse of process.
SMITH LJ agreed.
BUXTON LJ gave a dissenting judgment.
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