England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON. MR JUSTICE RICHARDS
CO/1367/04

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/10/2005

Lord Justice Moore-Bick:

1. This is an application by the appellant, Mrs. Rita Goodson, for a protective costs order in relation to an appeal that was due to be heard on 10^th October. The application was considered by Maurice Kay L.J. on 14^th September and adjourned to a court composed of three Lords Justices because he considered that it raised a question, not previously considered, concerning the approach to be adopted when an application of this kind is made for the first time at the appeal stage. Having heard argument we dismissed the application and now give our reasons for that decision.
2. Mrs. Goodson is the daughter of the late Mr. Harry Coleman who died on 26^th February 2003 following surgery at Luton & Dunstable Hospital for the removal of gall stones. It is common ground that Mr. Coleman's death was not the result of natural causes but was a consequence of an injury sustained during surgery. The Coroner for Bedfordshire and Luton, the first respondent to the appeal, therefore held an inquest into the death. Mrs. Goodson thought that her father's death might have been caused by negligence on the part of one or more of the doctors who treated him and at the adjourned hearing of the inquest on 1^st July 2003 an application was therefore made on her behalf that the Coroner should conduct an enquiry in accordance with the requirements of Article 2 of the European Convention on Human Rights ("ECHR") and that he should appoint an independent medical expert to assess the treatment her father had received. The Coroner rejected those applications. He heard evidence from the surgeon who carried out the operation and from the doctor who had been responsible for Mr. Coleman's post-operative care and reached a verdict of death by misadventure. He gave full reasons for his decision in writing which were communicated to Mrs. Goodson in December 2003.
3. Mrs. Goodson was dissatisfied with the verdict and on 30^th March 2004 she began proceedings in the Administrative Court seeking permission to apply for judicial review of the Coroner's orders rejecting her applications. By those proceedings she sought to obtain an order quashing the verdict and an order directing the Coroner to hold a fresh inquest. The second respondent to the appeal, the Luton and Dunstable Hospital NHS Trust ("the Hospital"), was joined as an interested party. Richards J. heard the application for permission and the substantive application for judicial review together. The Coroner appeared at the hearing by counsel to give such assistance as the court might require, but otherwise did not take an active role in the proceedings. The real opposition to Mrs. Goodson's application came from the Hospital.
4. On 17^th December 2004 the judge delivered a detailed judgment in which he identified the following three questions as being the essential issues in the case: (1) whether the procedural obligation under article 2 to investigate a death is engaged in the circumstances of this case, (2) if so, whether the inquest as held complied with that obligation, and (3) if article 2 did not apply, whether it was nevertheless unlawful for the coroner to proceed as he did. The judge held that the procedural obligation under article 2 was not engaged. He did not consider that there was any question of an actual or possible breach of the state's positive obligations under article 2; there was at most a possibility of simple negligence which, even if established, would not amount to a breach of article 2. He also held that even if article 2 was engaged, there had been no failure to comply with its requirements. In the light of those conclusions it is not surprising that he held that the Coroner's decision to proceed as he did was lawful. His judgment is now reported at [2005] 2 All ER 791.
5. In the light of his judgment the judge made an order for costs against Mrs. Goodson in favour of the Hospital. She was represented by solicitors and counsel under a conditional fee agreement and had obtained insurance against the risk of being ordered to pay the costs of the Coroner as defendant to the application if she lost, but she had not been able to obtain cover against her potential liability for the costs of interested parties such as the Hospital. Although a submission was made on her behalf that the Hospital should bear its own costs of the proceedings, the judge declined to make such an order. He made no order in respect of the Coroner's costs.
6. The judge thought that the first of the three questions he had identified was one on which this court might take a different view and gave Mrs. Goodson permission to appeal. When doing so he indicated that he regarded the question as one of general importance. On 6^th July Mrs. Goodson applied for a an order from this court that there should be no order in relation to the costs of the appeal, whatever the outcome, on the grounds that it raised issues of general public importance which she could not afford to pursue at the risk of rendering herself liable for the Hospital's costs if she was ultimately unsuccessful. (The Coroner had already indicated that he did not propose to take an active role in the appeal and would not seek an order for costs against her.)
7. There is no doubt that the court has jurisdiction under section 51 of the Supreme Court Act 1981 as substituted by section 4 of the Courts and Legal Services Act 1990 to make an order of the kind sought by Mrs. Goodson. The real question is whether that jurisdiction should be exercised in this case.
8. The principles which should guide the court when considering an application of this kind were recently considered by this court in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600. In the course of reaching its decision the court considered a number of decisions both in this country and abroad in which there had been discussion of the circumstances that may justify making orders of this kind in the public interest. In view of the way in which the argument was developed in this case it is necessary to refer briefly to three of those decisions.
9. The first is R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 in which the House of Lords recognised that the rules which determine whether a person has sufficient standing to apply for judicial review should be relaxed to enable proceedings to be brought by persons or organisations which have no direct interest in the outcome and which are motivated solely by a desire to ensure that public bodies conduct themselves in accordance with the law. One consequence of this liberalisation has been that in recent years there has been an increasing number of applications for judicial review by bodies representing the interests of particular sections of the community but which are not themselves directly affected by the outcome of the proceedings. In such cases it is not difficult to categorise the proceedings as being pursued in the public, rather than any private, interest.
10. The second case is R v Lord Chancellor Ex p. Child Poverty Action Group [1999] 1 WLR 347 in which Dyson J. sought to identify the principles which should guide the courts in the exercise of their jurisdiction to make protective costs orders in public interest cases. In particular, at page 353G-H he defined what he understood to be a public interest challenge as follows:

"The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interest of his or her own."

11. The third case is British Columbia (Minister of Forests) v Okanagan Indian Band (2003) 114 CRR 2d 108 which concerned an application by an impecunious appellant for an order that the respondents should pay its costs of the appeal at intervals as the proceedings progressed. When considering the circumstances in which an unusual order for costs might justifiably be made in the public interest a majority of the court held that one of the criteria that would normally have to be present was that the issues to which the proceedings gave rise should "transcend the individual interests of the particular litigant" (paragraph 40).
12. I have not sought to discuss these decisions in any detail since they were all considered at length in the Corner House case. I have thought it worthwhile to draw attention to them, however, because they provide an important part of the material which the court took into account when formulating its own guidelines in that case. In so doing the court largely approved the guidelines suggested by Dyson J. in R v Lord Chancellor Ex p. Child Poverty Action Group, but preferred to revise and re-state them in its own words.
13. In paragraph 74 the court expressed itself in the following terms:

"We would therefore restate the governing principles in these terms.

(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."

14. As the court itself recognised, it was seeking to do no more than establish guidelines for the exercise of the very wide discretion given to the court in relation to costs under section 51 of the Supreme Court Act 1981. It is important, therefore, not to treat the judgment as laying down hard and fast rules. Having said that, however, it is necessary to recognise that in formulating the guidelines the court had the benefit of considering a wide range of sources, not all of which pointed to the same conclusions.
15. One question which has arisen on this application is whether different considerations apply when an application of this kind is made for the first time in this court. This is a question which I think it more convenient to consider in the context of individual criteria, but in general I can find nothing in the court's judgment in the Corner House case to suggest that the guidelines were not intended to apply generally. Indeed, it is interesting to note that in an earlier part of its judgment the court had reviewed a number of cases in which protective costs orders had been considered both at first instance and in this court without suggesting that different considerations were likely to, or should, apply. In my view they do not, although as I have indicated, the fact that the issue arises at the appellate stage may affect the court's view of one or more of the criteria and the desirability of exercising its discretion in favour of the applicant.
16. I turn then to consider the position by reference to each of the matters identified in paragraph 74 of the judgment in the Corner House case. Some can be disposed of quite briefly. It was not really in issue, for example, that the first of the issues identified by the judge raises a question of general importance, as he himself observed when giving Mrs. Goodson permission to appeal. Similarly, it became clear during the course of argument that there was little dispute that if the order were not made, Mrs. Goodson would probably discontinue the appeal and that, having regard to the resources available to her, she would be acting reasonably in so doing. It is also the case that those representing Mrs. Goodson are doing so pro bono. As a result, the real argument revolved almost entirely around the second and third of the criteria set out in paragraph 74(1).
17. In his admirable submissions on behalf of Mrs. Goodson Mr. Powers Q.C. submitted that the second criterion, namely, that the public interest requires that the issue of the applicability of article 2 be resolved, was amply satisfied in this case. Before considering his argument, however, I think it right to point out that it does not necessarily follow from the fact that the issue is one of general importance or from the fact that the judge, quite rightly in my view, expressed the view that it was appropriate for the case to be heard by this court, that the public interest requires it to be resolved. We were not concerned with whether the case raises an issue that is fit for appeal, but whether a protective costs order should be made in favour of Mrs. Goodson. At the end of the day, therefore, the court had to decide whether, having regard to the nature of the issue and the position of the parties, it was in the public interest that it should be determined in this case rather than any other, even though that could only be achieved at the expense of the Hospital, at least as regards its own costs. The satisfaction of this particular criterion will in my view often be affected by the fact that the application is made at the appellate stage. In the present case the question that Mrs. Goodson wished to raise has been considered by the court and has been dealt with in a long and carefully reasoned judgment which will continue to be available to provide guidance to Coroners. However important that question, therefore, it cannot be said that it is one on which the courts have yet to pronounce. The question for the court now, therefore, is whether it is in the public interest that the matter be decided at the appellate level.
18. In order to meet this objection Mr. Powers submitted that some differences of opinion are beginning to emerge among judges sitting at first instance which make it desirable for the matter to be considered by this court. In that connection he referred us to two recent decisions, R (Longfield Care Homes Ltd) v H.M. Coroner for Blackburn [2004] EWHC 2467 (Admin) (Mitting J., 14^th October 2004, unreported) and R (Takoushis) v Inner London North Coroner [2004] EWHC 2922 (Admin) (Elias J., 16^th December 2004, unreported). In Longfield Care Homes an elderly lady had died after falling from an open window at her care home. Although she suffered moderately severe injuries from the fall, they were not serious enough of themselves to cause her death which resulted from pre-existing pneumonia, but they did accelerate the process. The judge held that in the light of the decision in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 WLR 800 a simple verdict of "accidental death to which neglect contributed" was inadequate and that a narrative verdict explaining the circumstances of the death was required. There is nothing in that case that bears on the issue before us.
19. In Takoushis the claimant's husband who was suffering from a mental illness had been a voluntary patient at a mental hospital. Having obtained permission to leave the ward to visit another unit within the hospital grounds, he left the hospital altogether and was next found preparing to jump into the Thames from Tower Bridge. He was eventually persuaded by the police to go to hospital and was taken by ambulance to St Thomas' Hospital Accident and Emergency Department where he was triaged and assessed as requiring very prompt medical attention. However, there was a significant delay in his being seen by a doctor and when the doctor did arrive Mr. Takoushis had gone. A person answering his description was seen shortly afterwards to jump into the river at St Katherine's Dock and some weeks later his body was recovered from the river at Wapping.
20. Following the inquest into her husband's death Mrs. Takoushis applied for judicial review seeking to have the verdict quashed on two grounds, one of which was that the enquiry had been insufficient to satisfy the requirements of article 2 of the ECHR because the Coroner had refused to allow her to call expert evidence relating to the quality of care that her husband had received at the hospital prior to his death. As in this case the hospital took part in the proceedings as an interested party. The judge noted in paragraph 49 of his judgment that the hospital had accepted that article 2 was engaged. He said he could see force in the argument that article 2 is engaged where a death arises from potentially negligent treatment (or lack of treatment) by a hospital, but that in view of the concession he had not analysed the case law. For the purposes of the application before him he assumed that the concession was rightly made and left the matter there.
21. We were told that an appeal in Takoushis is due to be heard within the next few weeks and that the hospital in that case may seek to withdraw the concession that article 2 is engaged. If that is so, it is possible that the issue which arises in the present case will come before the court in any event in the near future. That may be little consolation to Mrs. Goodson who is seeking a fresh inquest into her father's death, but it is a factor which the court can and should take into account when considering whether it is in the public interest that the issue should be decided in the present case.
22. The same point can be made, of course, in answer to Mr. Powers' other submission on this criterion, namely, that there is some confusion at present among Coroners concerning the circumstances in which article 2 is and is not engaged. That is said to arise partly from the differences of view illustrated by the concession made in Takoushis and the decision of Richards J. in this case and partly from the difficulty of distinguishing between cases in which there are grounds for thinking that the death may have been due to gross negligence (when it is accepted that article 2 is engaged) and cases in which there are grounds for thinking that the death may have been caused by simple negligence (when, as things presently stand, it is not).
23. Mr. Havers Q.C. for the Hospital submitted that it would not be right to place any weight on this argument in the absence of any evidence to support it and in my view he was right about that. The fact of the matter is that the position has now been clarified by the judgment in this case and although in some cases it may be difficult to draw a line between gross negligence and simple negligence, there is no evidence that the problem is one that arises with any frequency or that Coroners up and down the land are currently being hampered in discharging their duties by uncertainty over the legal position. In all the circumstances I am not persuaded that there is a strong public interest in having the issue determined by this court in this case.
24. That brings me to the question of Mrs. Goodson's interest in the proceedings. Mr. Havers submitted that she has a private interest in the outcome of the proceedings, both because she has an interest in quashing the verdict and obtaining an order for a new inquest and because she is seeking to overturn the existing order for costs against her.
25. The latter point can in my view be dealt with quite shortly. The order that Mrs. Goodson should pay the Hospital's costs below was simply a consequence of the fact that her claim failed before the judge. To that extent it is secondary to the issues between the parties, as it would be if the application for judicial review had been made by a pressure group with no direct personal interest in the outcome of the application. When the court in the Corner House case referred to a private interest in the outcome of the case I think it must have had in mind the outcome of the dispute relating to the substantive issue, not the consequential effect on an ancillary matter of that kind.
26. The former point is more difficult, however. Mr. Powers submitted that it is not necessary that the applicant should have no private interest of any kind in the outcome of the proceedings before a protective costs order can be justified. It is sufficient that the public interest in having the issue decided transcends (to adopt the expression used in the British Columbia case) or wholly outweighs the interest of the particular litigant. He submitted that there can be few applications for judicial review in which the litigant does not have an interest of some kind in the outcome of the proceedings and that if the applicant for a protective costs order must demonstrate that he or she has no private interest in the proceedings it will be all but impossible to obtain an order of that kind.
27. In my view there are a number of answers to this point. The first is that having considered several previous decisions of the courts both in this country and elsewhere (including the British Columbia case) the court in the Corner House case was well-placed to decide where to draw the line in terms of private interest. The requirement that the applicant must have no private interest in the outcome of the case is expressed in unqualified terms, although the court could easily have formulated this part of the guidelines in more qualified terms corresponding to Mr. Powers' submission if it had thought it appropriate to do so. The requirement that the applicant should have no private interest appears to reflect the passage in the judgment of Dyson J. in R v Lord Chancellor Ex parte Child Poverty Action Group at page 353G-H to which I referred earlier: see paragraph 72 of the judgment in the Corner House case. It is also consistent with the view expressed by Dyson J. in that case and by the court in the Corner House case that protective costs order should only be made in the most exceptional circumstances (see again paragraph 72). Moreover, it is apparent from the decided cases to which the court referred in paragraphs 44-52 of its judgment that an increasing number of challenges to decisions of public authorities has been mounted by bodies of one kind or another which have no interest in the outcome of the proceedings other than a general desire to ensure that the law is complied with. Against that background I do not find it particularly surprising that the court should have expressed itself in the terms one finds in paragraph 74.
28. The requirement that the applicant have no private interest in the outcome of the case may also be regarded as consistent with the rules relating to standing for the purposes of applying for judicial review. In the present case Mrs. Goodson has no financial interest in the appeal (leaving aside, as I think one must, the matter of costs), but she clearly does have a private interest in the outcome of the case in the form of her claim to obtain by this route a fresh enquiry into the circumstances of her father's death. It is her relationship to her father that gives her both the interest in seeking relief by way of judicial review and sufficient standing in law to pursue her claim. As Mr. Powers was constrained to accept, it is unlikely that she would have been entitled to take similar action to challenge the verdict resulting from an inquest on a stranger whose death occurred at the same hospital. All this suggests that a personal litigant who has sufficient standing to apply for judicial review will normally have a private interest in the outcome of the case, although in rare cases a public-spirited individual may be permitted to make such an application in relation to a matter in which he has no direct personal interest separate from that of the population as a whole: see for example, R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg [1994] QB 552. The possibility that a person might have sufficient standing to make an application in both a private and a purely public capacity was canvassed in argument, but I find it difficult to envisage circumstances in which that might arise. It does not arise in this case and in the circumstances I prefer not to express any opinion on it.
29. Finally there remains the question whether, having regard to the financial resources available to the Mrs. Goodson and the Hospital respectively and the amount of costs likely to be incurred, it would be just and fair to make the order sought.
30. At first sight this factor would appear to weigh in Mrs. Goodson's favour since her means are modest whereas the Hospital has substantial funds at its disposal. The Hospital's costs of the appeal have been estimated at a little over £30,000. That is not a large sum in the context of the resources available to it and if it were awarded its costs against Mrs. Goodson there would no doubt be a detailed assessment which might well result in its recovering less than the full amount of its bill. Even so, the resulting liability would represent a very significant burden for Mrs. Goodson, if not for the Hospital. Nonetheless, it is important to bear in mind that the Hospital's resources are not unlimited and that money spent on litigation is money that would otherwise be available for its ordinary operations. I think one should exercise a degree of caution, therefore, before coming to the conclusion that it is in the public interest for its funds be devoted to resolving a problem of this kind. In this context Mr. Powers pointed out, quite correctly, that the Hospital was not an original party to the claim and has chosen to take an active role in the proceedings. In so doing it has incurred costs when it need not have done so. However, the Hospital inevitably has an interest in the issue, both in relation to this particular case and others that may arise in the future. The fact that it chooses to intervene to protect its legitimate interests is not a sufficient ground for depriving it of any chance of recovering its costs if it is successful on the appeal.
31. Looking at all these factors together I have come to the clear conclusion that it would not be appropriate to make a protective costs order in this case. Although the guidelines set out in the Corner House case are not to be regarded as inflexible, I do not think that it would be right to reinterpret them in the manner suggested by Mr. Powers. Leaving aside Mrs. Goodson's undoubted private interest in the proceedings, I can see no reason for concluding that the public interest in having the issues which arise in this case decided by this court is so great that they should be decided in this appeal and at the inevitable expense of the Hospital as regards its own costs. When one adds to that the fact that Mrs. Goodson has a strong interest of her own in seeing the case through to a successful conclusion, the case for refusing an order becomes even stronger.

Lord Justice Chadwick:

32. I agree

Lord Justice Ward:

33. I also agree