Cooke, R (on the application of) v Bristol North NHS Primary Care Trust

When substantive judicial review proceedings become unnecessary because the defendant changes its policy or decision, the court may decide costs by assessing, as far as necessary, which party would probably have succeeded. The court should do justice without incurring unnecessary time and cost. Where the outcome is clear, costs should ordinarily reflect the likely result. Where it is uncertain, the court may limit its inquiry according to the costs at stake and the parties’ conduct. In the absence of good reason, the fallback is no order as to costs.

The claimant, a nurse receiving treatment for breast cancer, challenged the defendant’s refusal to fund Herceptin. An interim order required treatment to be provided. Following the Court of Appeal’s decision in R (Rogers) v Swindon National Health Primary Care Trust, and later guidance from the National Institute for Clinical Excellence, the defendant agreed to provide Herceptin. The substantive dispute therefore ended, leaving only the question of costs.

1. The court adopted the approach in R (Boxall) v Mayor and Burgeress of Waltham Forest London Borough Council: it should do justice between the parties while avoiding unnecessary court time and further costs.
2. Where it is obvious which party would have won had the substantive issues been determined, the court may make the costs order that reflects that likely outcome. Where the position is less clear, the extent of any examination of the unresolved issues depends on the circumstances, including the amount of costs at stake and the parties’ conduct. Without good reason, the fallback is no order as to costs.
3. The policy and decision challenged in the present case were irrational for the reasons identified by the Court of Appeal in R (Rogers) v Swindon National Health Primary Care Trust [2006] EWCA Civ 392. If the defendant had offered to quash its decision and reconsider it in accordance with that judgment, the claimant would have abandoned her claim.
4. The defendant’s later decision to provide Herceptin did not prevent the court from determining costs. The claimant was awarded her costs.