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

A protective costs order may be made where litigation affects a sufficiently substantial section of the public. General public importance does not require national importance or a point of law affecting the whole population. The criteria in [2005] EWCA Civ 192 should receive a broad, purposive and fact-sensitive application.

Exceptionality is not an additional jurisdictional requirement. It describes the rarity of cases satisfying the governing criteria. The order is flexible and should reflect the degree of public importance, the parties’ resources and the support reasonably available to a representative claimant.

A defendant seeking reconsideration of an order granted on paper must show compelling reasons. It is a compelling reason that the order plainly should not have been made.

Mrs Compton brought two judicial review claims on behalf of Community Action for Savernake Hospital. They challenged decisions of the Wiltshire Primary Care Trust concerning the day hospital and Minor Injuries Unit at Savernake Hospital.

Simon J granted a protective costs order in the day hospital proceedings. McCombe J subsequently refused to reconsider it, holding that the Trust had shown no compelling reason under the guidance in Corner House. His decision was reported as [2007] EWHC 2769 (Admin).

In the separate Minor Injuries Unit proceedings, Holman J granted a more limited protective costs order, reported in the supplied judgment as [20088] EWHC 880 (Admin). Both parties challenged its terms. The appeals required the Court of Appeal to determine the scope of the protective costs order jurisdiction, the significance of local public importance and exceptionality, and the procedure for reconsidering orders made on paper.

1. All three appeals were dismissed by a majority. Waller LJ and Smith LJ held that Holman J was entitled to find that the proposed judicial review raised issues of general public importance which the public interest required to be resolved. An issue need not affect the whole nation. A local issue affecting a sufficiently substantial community may qualify, although the size and nature of the affected group remain matters of degree.

2. The governing principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 should not be construed as statutory language or applied over-restrictively. Judges must evaluate the importance and breadth of the public interest in the circumstances of each case. Holman J was entitled to conclude that the closure of a unit serving between 30,000 and 50,000 people crossed the threshold, even though the case was fact-specific and not a test case.

3. Exceptionality is not an additional criterion beyond the five Corner House requirements and the court’s overall assessment of whether an order is fair and just. It reflects the expectation that cases satisfying all the requirements will be rare. Buxton LJ dissented, considering both general public importance and exceptionality to be unsatisfied.

4. A protective costs order is flexible. Its terms may be tailored to the degree to which the governing criteria are satisfied. The court may consider the resources of persons represented by or supporting the claimant. Holman J’s order, capping the claimant’s adverse liability at £20,000 while preventing her from recovering costs if successful, was a proportionate exercise of discretion.

5. An application decided on paper after both parties have supplied written material falls under Rule 23.8(c) of the Civil Procedure Rules 1998, rather than Rule 23.8(b), unless there is a clear and binding agreement to dispose of it without a hearing. Although an affected party may seek variation or discharge, a defendant seeking to disturb a protective costs order must show compelling reasons. It is a compelling reason that the order plainly should not have been made. That standard was not met here.

6. For an appeal on the merits, an applicant seeking continuing protection should apply with the application for permission to appeal. The matter should initially be decided on paper. Appeals concerning the grant or refusal of a protective costs order should ordinarily attract no order for costs, absent exceptional circumstances such as abuse of process.

1. Court of Appeal: By a majority, dismissed the Trust’s appeal from McCombe J and both parties’ appeals from Holman J. The protective costs orders made in the two judicial review proceedings remained in force.
2. Administrative Court — Holman J: Granted a protective costs order in the Minor Injuries Unit proceedings, capping the Trust’s recoverable costs at £20,000 and preventing the claimant from recovering her costs. The decision was reported in the supplied judgment as [20088] EWHC 880 (Admin).
3. Administrative Court — McCombe J: Refused to reconsider the protective costs order made by Simon J in the day hospital proceedings because no compelling reason had been shown: [2007] EWHC 2769 (Admin).
4. Administrative Court — Simon J: On paper, granted a protective costs order preventing the Trust from recovering costs and capping the claimant’s recoverable costs at £25,000.