Bullmore, R (on the application of) v West Hertfordshire Hospitals NHS Trust

In a judicial review claim the claimants, who have permission to proceed, sought a protective costs order. Wilkie J refused it on paper. Lloyd-Jones J refused the renewed application after an oral hearing. The claimants now seek permission to appeal that latter decision to the Court of Appeal. The claimants are members of a local hospital action or pressure group. Their concern is to preserve hospital services to the greatest extent achievable at a hospital in Hemel Hempstead. The defendant hospital trust, as part of a succession of changes proposed over a period of years to hospital provision in the area, consulted in the latter part of 2006 on two options. Both those options assumed a cessation of acute provision at Hemel Hempstead on the basis that acute services would be provided in the future at Watford. On that basis the two options which went out to consultation related to how the non-acute work was to be divided between the remaining hospitals in the area which were at Hemel Hempstead and St Albans. Option 1 was for planned but not emergency surgery at St Albans and outpatient work at Hemel Hempstead, and option 2 was vice versa. The eventual decision of the defendants was for option 1. That, of course, is the least favourable from the point of view of those who support the hospital at Hemel Hempstead.

The claimants’ case in the judicial view proceedings is that the decision of the hospital’s trust was unlawful because the consultation process was flawed. There are a number of complaints made. It is common ground that they can be summarised in this way:

As against that, the defendant’s case, in very abbreviated summary, is, taking those five complaints in the same order:

Lastly by way of rejoinder on point 5 the claimants say that keeping acute work at Hemel Hempstead was not or should not have been out of the question despite the Strategic Health Authority’s overall plan, because that plan had all been predicated on an assumption that there would be a new hospital in Hatfield and it seemed that that was not going to happen.

That, then, is a very brief summary of the issues in the substantive application for judicial review. As to the application for a protective costs order, the claimants say first that these are proceedings in the general public interest, not in their own personal interest. They are a group of approximately 40, they have been in existence for something over thirty years, and the lady chairwoman has a proven track record of public service work which has been recognised by the award of the MBE and of the status of Freeman of the Borough.

Secondly, they say that they cannot afford to continue without a protective costs order. They are in a position to get their own costs covered by a conditional fee agreement. As to the risks of the defendant’s costs, however, if they lose, they have raised or can raise £20,500 but contend that they cannot be expected to raise more. Accordingly, what they sought was not an order that there would be no liability to the defendants in the event that they lose, but an order that their liability for the defendant’s costs be limited to that sum.

Thirdly, they contend that it is in the wider public interest not only that the particular issue in relation to hospital planning in the area be litigated, but also that the challenge which they have to the relatively new system of consultation involving citizens juries and citizens panel should be ventilated in the Administrative Court.

Lastly, says Mr Wolfe here today, the protective costs order jurisdiction is an evolving one and it is a topic on which it is appropriate that this court should have the opportunity to consider its current stage of development.

I proceed on the basis that protective costs order applications, though interlocutory, are important. They go well beyond mere case management. Particularly that is so because they may be determinative of the litigation. They have, nevertheless, to be considered in comparatively summary fashion and indeed at strictly limited expense. That emerges from the principal authority on the topic which is R (on the application of Corner House Research) v The Secretary of State for Trade and Industry  [2005] EWCA Civil 192, which I of course have read in full but do not propose to repeat, and which it is clear was the foundation of the decision of the judge. It follows that the decision is substantially one for the discretion of the judge entertaining the application at the interlocutory stage. A challenge in this court accordingly involves demonstrating that he has either mis-stated the test, misdirected himself, or arrived at the conclusion which was outside the bracket available to him. In the present case, in Mr Wolfe’s submission, is that in certain respects the judge has erred in principle.

In a short but thorough judgment (delivered extempore) the judge explicitly directed himself in accordance with Corner House. He adverted in addition to the development of the criterion relating to personal interest as recounted in Corner House, which is to be found in the decision of Sir Mark Potter, president in Wilkinson v Kitzinger [2006] EWHC 835 (Fam). Mr Wolfe’s first contention is that the judge wrongly treated as an overarching preliminary test the requirement that a case be an exceptional one before a protective costs order could be made. It is correct to say that in paragraph 11 of his judgment the judge said this:

“I say at the outset that I am not persuaded that this is an exceptional case where the court would be justified in making a protective costs order.”

The question is whether it is arguable that the judge has in that way misdirected himself by applying the test of exceptionality as some kind of overarching preliminary filter which has to be passed before one gets to the well-known criteria for a protective costs order, which are listed in paragraph 74 of Corner House. I am quite satisfied that it is not arguable that the judge has done any such thing. What he has done is to state his conclusion first and then give his reasons for it. If he had applied this as a determinative test it would not have been necessary to go to the paragraph 74 criteria, which is what the judge immediately thereafter does in his careful judgment.

Secondly, Mr Wolfe contends that in paragraph 14 the judge has misdirected himself as to the contention which was being advanced on behalf of the claimants. He says:

“It is not suggested [that] there is a general point of legal [my emphasis] importance in the sense of these proceedings being necessary in order to decide a point of law which will have implications beyond this particular case.”

And he goes on, it should be recorded, explicitly to say that that would in any event be only one of the routes to the making of a protective costs order, and in that the judge is plainly right.

But I address Mr Wolfe’s submission that the sentence quoted contains a misdirection as to the submissions which were being made to him. Says Mr Wolfe: we were contending that there was a general point of legal importance. It was the handling by way of consultation of the comparatively novel devices of citizens’ jury and citizens’ panels.

I am satisfied, however, that it is unarguable that the judge has failed to understand that. In paragraph 16 he has explicitly addressed precisely that submission, which he records Mr Wolfe as making to him as he has made it to me today.

Thirdly, says Mr Wolfe, the judge has wrongly held against the claimants the fact that they are a pressure group. Says Mr Wolfe: a great many claimants for judicial review are pressure groups or action groups of one kind or another. There is no reason why they should not be able to obtain a protective costs order in an appropriate case and it is likely that a number of cases which are right for a protective costs order will be cases which are mounted by pressure groups of one kind or another. I agree, for my part, with Mr Wolfe’s proposition that pressure groups of one kind and another are likely both to mount claims for judicial review and, in appropriate cases, qualify for protective costs order. But the judge is plainly entitled to address the breadth of public interest which is engaged in the case before him. In the present case the judge rested his conclusion substantially upon the decision that the case did not raise sufficient issues of general public importance as to require, in the public interest, that they should be litigated at the expense, in this case partially rather than wholly, of the defendants, whether they succeeded or not. The question is whether he was entitled to come to that conclusion or not. I am quite satisfied that it is not arguable that he could not come to the conclusion that he did.

The issues raised in this claim for judicial review certainly do involve the handling of citizens’ juries and independent citizens’ consultation panels, but they do so in the context of quite narrow and substantially factual issues as to what was reported to the board. I do not overlook the general proposition that all cases of principle will also involve particular issues of fact, but it seems to me unarguable the judge can be said to be wrong in having decided that this case fell outside the exceptional group of cases, which according to Corner House are ones which a case must be before it will satisfy this criterion and others, and result in an order that the case is litigated wholly, or in this case partially, at the expense of the defendants, win or lose. That substantially determines this application, because the criteria in paragraph 74 of Corner House have all to be satisfied before a protective costs order is made. The critical issue in this case was a combination of criteria 1 and 2: whether the issues raised are of sufficient general public importance to require that they should be resolved and funded by means of a protective costs order.

I ought to avert to an additional complaint which Mr Wolfe makes. It is directed to the judge’s consideration of the fourth Corner House criteria. The judge concluded that it would not be unreasonable in the circumstances of this case to expect the members of the group to provide some, at least, of the funding for the litigation themselves; he hazarded a figure of something like £500 to £1,000 per member. For my part, if that were the only issue in the case, I think permission ought to be granted. I accept Mr Wolfe’s proposition that it is arguable that that proposition of the judge’s ought properly to go not to whether a protective costs order is made or not, but as to its quantum if it is. But, having regard to the judge’s very plain finding on the public interest and public importance question, I am quite satisfied that an appeal could not succeed on the point just mentioned alone.

In those circumstances, despite Mr Wolfe’s persuasive submissions, this is an application which must be refused.