Raqeeb v Barts Health NHS Trust (Costs)

The claimant succeeded in the judicial review in establishing that the Trust's decision to refuse transfer for treatment to Italy was amenable to judicial review and unlawful because the Trust failed to consider the child’s directly effective rights under Article 56 TFEU. The court declined to grant mandatory relief (quashing or a mandatory order) because, applying the exercise of its discretion under the Senior Courts Act and established principles, the position would likely have been the same had the Trust taken the decision properly. The court awarded the claimant 80% of her costs of the judicial review on the standard basis, but disallowed costs attributable to the unsuccessfully advanced Article 5 argument.

In the linked proceedings under the Children Act 1989 the court dismissed the Trust’s application for declarations that withdrawal of life-sustaining treatment was in the child’s best interests and refused to make a costs order in favour of the parents. The court applied the Family Procedure Rules and policy reasons (including the rarity of costs orders in children cases and the risk of chilling public bodies) in holding that no order as to costs should be made in those proceedings.

Background and parties:

• The applications concerned Tafida Raqeeb: a judicial review by the child (through a litigation friend) challenging the Trust’s refusal to permit transfer to Italy for continued life-sustaining treatment; and a separate application by Barts Health NHS Trust under the Children Act 1989 seeking declarations that withdrawal of life-sustaining treatment would be in Tafida’s best interests.
• The Trust, the parents and the child (through a Children’s Guardian) were represented by senior counsel and solicitors; the judgment follows a final hearing in which the court earlier determined substantive best‑interests issues.

Relief sought:

• The child sought relief in judicial review for unlawfulness of the Trust’s decision and associated remedies. The parents sought costs in the Children Act proceedings. The child and parents also applied for costs orders against the Trust in the respective proceedings.

Issues framed:

1. In the judicial review: who was the successful party; whether the general rule that costs follow the event should apply or an exception be made; the effect of s 31(2A) Senior Courts Act 1981 on relief; and whether certain arguments (notably under Article 5 ECHR) were reasonable to advance.
2. In the Children Act proceedings: whether costs should be ordered in favour of the parents despite the conventional practice in children cases of making no order as to costs; and whether Art 6 equality of arms required public funding or a costs award against the Trust.

Reasoning and outcome on legal issues:

• Judicial review: the court found the Trust had taken a decision which was reviewable and unlawful because it failed adequately to consider Tafida’s directly effective Article 56 rights. Establishing that public law ground meant the claimant was a successful party for costs purposes (relying on the guidance in R (Hunt) v North Somerset Council). Although no quashing or mandatory relief was granted (the position would likely have been the same had the Trust properly considered Article 56 and public policy could justify a delay pending a family determination), that did not defeat a costs award. The court reduced recoverable costs to exclude the time spent on a doomed Article 5 argument and fixed recovery at 80% of the claimant’s JR costs on the standard basis.
• Children Act proceedings: applying FPR r 28 and the principles in Re T (Children) and related authorities, the court held that costs orders in children welfare proceedings are the exception. The parents’ Art 6/equality of arms submission failed on the facts because they had strong representation and had raised funds; moreover, ordering costs against an NHS Trust in such finely balanced medical welfare cases risks a chilling effect on public bodies required to bring necessary applications. For these reasons the court made no order as to costs in the Children Act proceedings.

First instance: The court found the Trust’s decision unlawful in judicial review for failure to consider the child’s Article 56 TFEU rights but declined to grant mandatory relief. The court ordered the Trust to pay 80% of the claimant’s judicial review costs on the standard basis. In the Children Act 1989 proceedings the Trust’s application was dismissed and the court made no order as to costs, applying the conventional principle that costs orders in children’s welfare proceedings are exceptional and should not be made here.