Compton, R (on the application of) v Wiltshire Primary Care Trust

A protective costs order made on the papers may be varied or set aside only where a compelling reason is shown. The power to vary or revoke an order is not a disguised appeal based on the same material. Where the parties anticipated determination without a hearing, the order falls under rule 23.8(b), rather than the court’s own-initiative jurisdiction. A disagreement with the original judge’s assessment is insufficient where that judge considered the whole case and full written submissions.

The claimant sought judicial review of a decision by the defendant primary care trust concerning the day hospital facility at Savernake Hospital. Mr Justice Simon granted permission on the papers and made a protective costs order limiting the claimant’s liability and capping her recoverable costs.

The defendant applied to set aside that order. The issues were the procedural basis of the order and whether the defendant had shown a sufficiently compelling reason to reopen it.

1. Application refused. The defendant had not demonstrated a compelling reason to set aside the protective costs order.
2. The application fell within rule 23.8(b) of the Civil Procedure Rules 1998. Both parties had proceeded on the basis that the protective costs order would be considered with the permission application, which was likely to be determined on the papers. Rule 3.3(4) and (5), concerning orders made on the court’s own initiative, therefore did not apply.
3. The restrictive limits of rule 3.1(7) applied. That power is not a simple means of appealing an order with which a party is dissatisfied. A material change of circumstances, material misleading of the original judge or a comparable fundamental error is required. Re-argument on the same material belongs in an appeal.
4. The court applied the approach in R (Corner House Research) v Secretary for Trade and Industry: a protective costs order should not be set aside unless there is a compelling reason. Such an order generally regulates the parties’ costs rights for the proceedings and is not ordinarily revisited.
5. The defendant merely invited a reassessment of whether the case was most exceptional and involved issues of general public importance. Mr Justice Simon had considered the whole case, substantial material and full written submissions. A different view on the limited material before the present court could not amount to a compelling reason.

The application was refused.

First-instance decision. The judgment records no prior appellate decision in this dispute.