Watts, R (On the Application Of v Bedford Primary Care Trust

Permission for judicial review may be granted only on issues that disclose an arguable public-law or Community-law claim. Where domestic-law remedies are accepted to be unavailable and a binding authority precludes the Convention claim, permission may properly be refused on those issues.

Where a claimant succeeds on an important legal issue but fails on the factual and financial consequences, a fair costs order may require the defendant to pay a proportion of the claimant’s costs rather than adopt a detailed issue-by-issue assessment.

The claimant challenged decisions concerning reimbursement for NHS hospital treatment obtained in another Member State. The substantive judgment, [2003] EWHC 2228 (Admin), held that the Community-law issues under Article 49 EC justified declaratory relief, while rejecting the domestic-law and human-rights aspects of the claim.

This supplemental judgment determined permission to apply for judicial review, the appropriate declaratory and substantive relief, costs, and permission to appeal.

1. Permission. Permission to apply for judicial review was granted on all the Community-law issues. Permission was refused on domestic-law issues because the claimant accepted that she had no domestic-law remedy, and on human-rights issues because the claim was precluded by R v North West Lancashire Health Authority ex p A [2000] 1 WLR 977.
2. Relief. Declaratory relief was appropriate. The declarations recorded that NHS hospital treatment constituted the provision of services under Article 49 EC; that restrictions and prior authorisation requirements required justification; and that refusal could be justified only on the stated healthcare-planning, logistical or financial grounds and only to the extent necessary. The declarations also addressed undue delay, procedural accessibility, Article 22 of Regulation 1408/71, and the basis of reimbursement.
3. The claimant’s decisions were erroneous in law because the relevant Article 49 questions had not been addressed. Apart from the declaratory relief, the applications against both defendants were dismissed.
4. Costs. The claimant won the principal Article 49 legal arguments but lost on the facts and on reimbursement, while the Secretary of State succeeded on the Convention and Article 22 issues. An issue-by-issue costs assessment was unsuitable. Applying a broad and proportionate assessment under CPR 44.3(6) and (7), the Secretary of State was ordered to pay 35 per cent of the claimant’s costs.
5. Appeal. Permission to appeal was granted to the claimant and the Secretary of State under CPR 52.3(6). Although the judge was sceptical that an appeal by the Secretary of State had a real prospect of success, the importance of the Community-law issues and their potential implications for the NHS supplied compelling reasons for an appeal.

The judgment followed the court’s substantive decision in [2003] EWHC 2228 (Admin). The court then determined the form of relief, costs and permission to appeal. Permission to appeal was granted to the claimant and the Secretary of State.