Vinayagamoorthy, R (on the application of) v NHS North London Enfield Primary Care Trust

In a renewed application for permission to appeal against a costs order made after duplicate judicial review proceedings, the Court of Appeal held that a form of order suggested in [2005] EWCA Civ 1583 was guidance, not a rigid requirement. Delay and merits were interrelated. Although the court may show indulgence where a proposed appeal has obvious merit, a ten-month delay, unsupported by medical evidence for the material periods, did not justify an extension. The applicant had failed to oppose the costs application and had incurred costs by bringing an unmeritorious and duplicative claim. There was no real prospect of showing that the costs judge had erred in principle. The extension of time and renewed application for permission were therefore refused.

The applicant sought permission to appeal a Deputy High Court Judge’s order requiring her to pay £3,000 to the respondent for costs incurred in responding to a second judicial review claim and an application for interim relief.

The second claim duplicated an earlier challenge to the termination of a primary healthcare contract. Permission in the first judicial review proceedings had been refused by Collins J and Cranston J, and the Full Court had later refused permission to appeal. In the second proceedings, the Deputy Judge refused interim relief and permission to apply for judicial review, then permitted the respondent to seek costs. The applicant did not respond to the costs request. The central issues were whether the delay in appealing should be extended and whether the proposed appeal disclosed an arguable error in the costs order.

1. Disposition. The application for an extension of time and the renewed application for permission to appeal were refused.
2. Delay and merits. The two applications were interrelated. The court may grant indulgence despite delay where the proposed appeal has obvious merit. Here, the notice of appeal was served about ten months after the costs order. The medical evidence covered only part of the later period and did not explain the earlier period during which the costs application was made and determined. That was not an adequate basis for extending time.
3. Procedural form of the costs order. The form of order suggested in Ewing v the Office of the Deputy Prime Minister [2005] EWCA Civ 1583 was only a suggestion. It was not necessary to reproduce its precise wording. The order made by the Deputy Judge had the same substantive effect, so this ground disclosed no arguable error.
4. Merits of the costs challenge. The applicant had a clear opportunity to respond to the respondent’s costs schedule but did not do so. She had brought a wholly unmeritorious second judicial review raising the same points as the first. The principal cause of the respondent’s expense was therefore the claim itself. The fact that the proceedings were dealt with promptly, or that the dismissal order reached the respondent after it had prepared its acknowledgment of service, did not undermine the costs order. The Deputy Judge had also reduced the amount claimed. There was no real prospect of establishing an error of principle on appeal.

• Court of Appeal (Civil Division): On 9 April 2014, McCombe LJ refused the extension of time and the renewed application for permission to appeal.
• Administrative Court, Queen’s Bench Division: Mr Michael Kent QC, sitting as a Deputy Judge of the High Court, refused interim relief and permission to apply for judicial review on 24 February 2012, and on 21 December 2012 ordered the applicant to pay £3,000 in costs.
• Earlier judicial review proceedings: Permission had been refused by Collins J and Cranston J. The Full Court later refused permission to appeal on 19 February 2013.