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

A protective costs order is an exceptional form of relief, and every applicable criterion must be satisfied. The criteria include whether the issues have sufficient general public importance to require resolution in the public interest through such an order. Pressure groups may qualify in an appropriate case, but their status does not itself establish entitlement. The decision is substantially one for the interlocutory judge’s discretion. On an application for permission to appeal, the applicant must show a misstatement of the test, a misdirection, or a conclusion outside the permissible range. A judge’s reference to exceptionality is not an overarching preliminary filter where the judgment goes on to apply the established criteria.

The claimants were members of a local hospital action group challenging the lawfulness of a hospital trust’s consultation and decision concerning hospital services. They sought a protective costs order limiting their potential liability for the trust’s costs to £20,500.

Wilkie J refused the application on paper. Lloyd-Jones J refused the renewed application after an oral hearing. The claimants sought permission to appeal, alleging misdirection concerning exceptionality, the legal importance of the issues, their status as a pressure group, and the relevance of their ability to contribute to funding. The central issue was whether any arguable legal error or conclusion outside the proper discretionary range had been shown.

Application refused.

1. Protective costs order applications, although interlocutory, are important and may determine the litigation. They must nevertheless be considered summarily and at strictly limited expense. The decision is substantially one for the discretion of the judge hearing the application, applying R (on the application of Corner House Research) v The Secretary of State for Trade and Industry [2005] EWCA Civil 192 [9].
2. An appellate challenge requires an arguable misstatement of the test, a misdirection, or a conclusion outside the range available to the judge. The judge had directed himself in accordance with Corner House. His initial reference to an exceptional case was a statement of conclusion, not an overarching preliminary filter, because he then addressed the criteria listed at paragraph 74 of that decision [9]–[11].
3. The criteria in paragraph 74 of Corner House must all be satisfied. The critical issue was the combination of criteria 1 and 2: whether the issues were of sufficient general public importance to require resolution and funding through a protective costs order [16].
4. Pressure groups may bring judicial review claims and may qualify for protective costs orders in appropriate cases. The judge was entitled, however, to assess the breadth of the public interest engaged. He was entitled to conclude that the consultation issues were narrow and substantially factual, and did not have sufficient general public importance [15]–[16].
5. The judge’s view that group members could reasonably be expected to contribute some funding arguably went to the amount of any order rather than whether an order should be made. That point could not support permission on its own because the finding on public importance was decisive [17].

The application for permission to appeal was refused. Order: application refused [18].

• Court of Appeal (Civil Division): refused permission to appeal the refusal of a protective costs order.
• High Court, Administrative Court: Lloyd-Jones J refused the renewed application after an oral hearing.
• High Court, Administrative Court: Wilkie J refused the initial application on paper.