Goodson v HM Coroner for Bedfordshire & Luton & Anor

A protective costs order may be made at any stage, including on appeal, under the court’s broad discretion in relation to costs. The Corner House guidelines apply generally, but they are flexible guidelines rather than rigid rules.

The applicant must ordinarily show that the issues are of general public importance, that the public interest requires their resolution in the particular proceedings, that the applicant has no private interest in the substantive outcome, that an order would be fair and just having regard to the parties’ resources and likely costs, and that without an order the proceedings would probably be discontinued reasonably. A personal claimant with standing to pursue judicial review will normally have a private interest. The application was refused because the issue had already received a reasoned first-instance decision, could arise in another imminent appeal, and the applicant had a strong personal interest.

The appellant sought judicial review of a coroner’s refusal to conduct an investigation under article 2 of the European Convention on Human Rights and to appoint an independent medical expert concerning her father’s death following surgery. Richards J dismissed the claim, holding that the article 2 procedural obligation was not engaged and, alternatively, that the inquest complied with it. His decision was reported at [2005] 2 All. E. R. 791, and permission to appeal was granted.

Before the Court of Appeal, the appellant applied for a protective costs order under section 51 of the Supreme Court Act 1981, as substituted by section 4 of the Courts and Legal Services Act 1990. The central issue was whether the Corner House criteria should be applied differently where the application was first made at the appellate stage, and whether those criteria were satisfied.

1. Application dismissed. Moore-Bick LJ, with Chadwick LJ and Ward LJ agreeing, held that the court had jurisdiction under section 51 of the Supreme Court Act 1981, as substituted by section 4 of the Courts and Legal Services Act 1990, to make a protective costs order.
2. The guidelines stated in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 apply generally, including where the application is made for the first time in the Court of Appeal. The appellate stage may, however, affect the assessment of individual criteria and the exercise of the discretion. The guidelines are not hard and fast rules.
3. The relevant considerations were whether the issues were of general public importance; whether the public interest required their resolution in the particular proceedings; whether the applicant had no private interest in the substantive outcome; whether, having regard to the parties’ resources and likely costs, it was fair and just to make the order; and whether without an order the applicant would probably discontinue and would act reasonably in doing so. Pro bono representation strengthens the application but is not decisive.
4. The public-interest criterion was not established. The article 2 issue had already been addressed in a long and carefully reasoned judgment which remained available to guide coroners. Possible clarification in another imminent appeal was a relevant consideration. There was no evidence that uncertainty was frequently hampering coroners.
5. The requirement that the applicant have no private interest is expressed without qualification. The appellant’s relationship with the deceased gave her a personal interest in obtaining a fresh inquest, notwithstanding that she had no financial interest apart from costs. A person with standing to seek judicial review will normally have a private interest, although a public-spirited individual may exceptionally have standing without a direct personal interest, as illustrated by R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg [1994] Q.B. 552. The court left open whether a person could have standing in both a private and purely public capacity.
6. The disparity between the appellant’s modest means and the hospital’s greater resources supported the application, but the hospital’s resources were not unlimited and it had a legitimate interest in participating. Its voluntary intervention did not justify depriving it of any prospect of recovering costs.
7. Considering all the factors, the court refused to reinterpret the Corner House guidelines so that a substantial public interest could outweigh an applicant’s private interest. The appellant’s strong personal interest reinforced the conclusion that a protective costs order was inappropriate.

• Court of Appeal (Civil Division) — The application for a protective costs order made for the first time at the appellate stage was dismissed. The court considered the appeal from the Administrative Court decision reported at [2005] 2 All. E. R. 791.
• Administrative Court — Richards J dismissed the judicial review claim, holding that the article 2 procedural obligation was not engaged and, alternatively, that the inquest complied with it.