Khan v Governor of HMP The Mount & Anor

The claimant, a prisoner with thalassaemia requiring chelation therapy, issued judicial review proceedings seeking an early re-categorisation and transfer to open conditions so that treatment via a PICC line could be provided. The judge considered competing applications arising after the claimant sought to vacate the hearing and then served a notice of discontinuance: (i) the claimant's application to depart from the normal rule that a discontinuing claimant pays the defendant's costs under CPR r.38.6(1); and (ii) the defendants' application to set aside the notice of discontinuance under CPR r.38.4(1) or, alternatively, for declaratory relief on Articles 2 and 3 ECHR and the Equality Act 2010.

The court held that the discontinuance was not an abuse of process and refused to set it aside, but also refused the claimant's application to displace the usual costs rule. Key reasons were that the medical evidence did not support a present need for a PICC line, the claim was unlikely to succeed on its merits, CPR r.38.7 would bar relitigation without permission, and the Covid-19 pandemic did not produce a change of circumstances that justified departing from the costs rule.

Background and parties

• The claimant (aged 39) is serving a determinate sentence and suffers from thalassaemia, requiring chelation therapy and sometimes blood transfusions. He alleged he needed a peripherally inserted central catheter (PICC line) and therefore an early re-categorisation and transfer to open conditions where that treatment could be given safely.
• Defendants were the Governor of HMP The Mount and the Secretary of State for Justice; Hertfordshire Community NHS Trust was an interested party.

Procedural posture and relief sought

The claim was a first-instance judicial review filed 24 January 2020 after pre-action correspondence. The relief sought was a mandatory order for early re-categorisation to category D and transfer to open prison conditions, or alternatively an order requiring the defendants to exercise their discretion in accordance with the court's judgment. Permission to apply for judicial review was granted on the papers on 17 February 2020.

Intervening events and issues framed

• The Covid-19 pandemic altered the practical availability of inter-prison transfers and opened the prospect of temporary release on licence (ROTL). The claimant sought to amend grounds to challenge decisions about ROTL. The claimant then applied to vacate the hearing listed for 30 April 2020; that application was refused.
• The claimant served notice of discontinuance on 27 April 2020. The issues decided were: (i) whether the court should depart from the normal costs rule in CPR r.38.6(1); and (ii) whether the defendants' application to set aside the notice of discontinuance under CPR r.38.4(1) should be granted (or alternatively whether declaratory relief should be given on Articles 2 and 3 ECHR and the Equality Act 2010).

Court's reasoning

1. The court examined the medical evidence and concluded that, at the date of discontinuance, the treating consultant's most recent advice was that the claimant's oral chelation regime was effective and a PICC line was not presently indicated. The claim's central factual premise — that the claimant needed a PICC line now and therefore transfer to open conditions — was not supported by the contemporaneous medical evidence.
2. The court considered the Divisional Court's decision in R (Davis) v Secretary of State for Justice and distinguished it on the facts. Unlike Davis, the present claim pre-dated the Covid-19 measures and permission had been granted on the basis of the existing PICC-line premise which the medical evidence did not sustain.
3. Applying principles from CPR r.38.4 and the authorities (including Stati, Brookes, Messih), the judge concluded that setting aside the notice of discontinuance was not justified: the discontinuance was made in good faith and was not a cynical device to avoid an adverse decision. The procedural protection for defendants if a claimant attempts to relitigate is CPR r.38.7 (permission required for a substantially similar claim).
4. On costs, the claimant bore the burden of showing cogent reasons to depart from the normal rule. The court found there was no material change of circumstances affecting the merits, no unreasonable conduct by the defendants, and that the claim was unlikely to succeed. Accordingly the claimant was ordered to pay defendants' costs incurred up to and including 27 April 2020, subject to assessment and usual Legal Aid Act protections.

Outcome

The claim was discontinued by the claimant. The court dismissed the claimant's application to avoid the costs consequence of discontinuance and dismissed the defendants' application to set aside the discontinuance; there is no order as to costs after the discontinuance date.

This was a first-instance determination. The court dismissed the claimant's application to depart from the normal costs rule under CPR r.38.6(1) and ordered the claimant to pay the defendants' costs incurred up to and including 27 April 2020 (assessment saved and enforcement subject to LASPO s.26(1)). The court also dismissed the defendants' application under CPR r.38.4(1) to set aside the notice of discontinuance, concluding the discontinuance was not an abuse of process; the court recorded that CPR r.38.7 affords protection against relitigation without permission and made observations to assist should the claimant seek to reissue proceedings in future. The rationale rested on the absence of medical evidence supporting a present need for a PICC line, the low prospect of success at trial, and the lack of a Covid-19-driven change of circumstances sufficient to displace the normal costs rule.