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

Protective costs orders are governed by the principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. Exceptionality is not a separate criterion, although the principles will usually produce an order only in rare cases. The court must assess whether an order is fair and just to both parties and the wider public interest. General public importance is distinct from the public interest requiring resolution. A local issue may satisfy the former without satisfying the latter. The court may tailor the order, including by capping the applicant’s liability and restricting recovery of the applicant’s own costs.

The claimant sought judicial review of the defendant Primary Care Trust’s decision to close the Minor Injuries Unit at Savernake Hospital. Permission to apply for judicial review had been granted. The claimant then sought a protective costs order, contending that the proceedings raised issues of general public importance, that she had no private interest in the outcome, and that she would reasonably discontinue if exposed to the Trust’s estimated costs of about £30,000.

The Trust opposed an order for costs protection at nil or on a very low cap. The central issue was whether it was fair and just to make a protective costs order and, if so, in what form.

1. Protective costs order granted. The court ordered that the claimant could not recover any of her own costs from the Trust and capped the Trust’s recoverable costs at £20,000. The order did not extend to proceedings in the Court of Appeal. Each party was ordered to bear its own costs of the protective-costs-order hearing.
2. The governing principles were those stated in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. The matters listed there are matters of which the court should be satisfied, but the list is not exhaustive. The overarching question is whether the order is fair and just, having regard to both parties and the wider public interest.
3. Exceptionality was not a separate test or criterion. The reference in Corner House to orders being made only in exceptional or rare cases described the likely effect of applying the governing principles; it did not add an independent requirement.
4. The claimant had no relevant private interest. The closure affected a substantial local catchment area, so the issue was of general public importance. That question was distinct from whether the public interest required the issue to be resolved. The case was fact-specific, was not a test case, and did not involve an issue of statutory construction or an elucidation of public law by a higher court. The public-interest requirement was therefore marginal.
5. The fact that counsel acted pro bono did not indicate that the claim had objective merit. It did, however, affect the fair balance because the claimant would seek no costs even if successful, giving the Trust a significant protection against an adverse costs order.
6. The claimant’s limited means could not by themselves determine the result. The court took account of the Trust’s resources, its public funding and competing healthcare obligations, and the possibility that local supporters could provide indemnities or raise a fund. A cap of £20,000 appropriately balanced the competing interests.

The judgment records that permission to apply for judicial review had been granted by Mr Justice Holman on 14 April 2008. The application for a protective costs order was heard on 18 April 2008. Permission to appeal was refused, subject to either party’s right to apply to the Court of Appeal.