COSTS — Order for costs — Protective costs order — Claim for judicial review — Whether test of “exceptionality” to be applied before protective costs order made

R (Compton) v Wiltshire Primary Care Trust; [2008] WLR (D) 123

QBD: Holman J: 22 April 2008

There was no test of exceptionality to be applied before a protective costs order could be made.

Holman J so held in granting a protective costs order in relation to the substantive hearing of the claim for judicial review brought by the claimant, Val Compton, of the decision of the defendant, Wiltshire Primary Care Trust, to refuse to reconsider its decision of August 2007 to close the Minor Injuries Unit at Savernake Hospital in Wiltshire.

HOLMAN J said that the protective costs order jurisdiction was entirely judge-made and had no express basis in legislation or rules. The ability and willingness of the court to make a protective costs order was very important to the rule of law and to effective judicial review. The rationale of the guidance in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 was to allow claimants of limited means access to the court in public law cases raising issues of general public importance without the fear of substantial orders for costs being made against them. The court had to be satisfied the issues raised were of general public importance. Para 74 of Corner House did not include any test of “exceptionality”. The question was whether it was fair and just to both parties, as well as to the wider public interest, to make an order in the light of the considerations set out. The fact that claimant’s counsel were acting pro bono was not necessarily an indicator of the merits of the case, as was suggested in para 74(2) of Corner House. However, since the purpose of the PCO was to limit or extinguish the liability of the applicant if it lost, it constituted a balancing factor in that in this case the liability of the defendant for the claimant’s costs if the defendant lost would be limited not only to a reasonably modest amount as in para 76(ii) but to zero or minimal. The ultimate issue in the present case, the continued closure or reopening of the Minor Injuries Unit, was of sufficient importance to a sufficiently large section of the public as to satisfy the criterion of general public importance. Having regard to the financial resources of both parties and the amount of costs likely to be involved, it was fair and just to make a protective costs order for the substantive judicial review hearing whereby in any event the claimant was not permitted to recover any part of her costs from the defendant and the total costs which the defendant might recover from the claimant were capped at £20,000.

Appearances: Guy Opperman and Mathew Gullick (Bar Pro Bono Unit) for the claimant; Fenella Morris (Capsticks) for the defendant.

Reported by: Alison Crail, barrister