England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2007

The Hon. Mr. Justice McCombe:

(A)Introduction

1. This is an application by the Defendant, Wiltshire Primary Care Trust ("WPCT") for an order setting aside an order dated 5 October 2007 of Mr. Justice Simon granting to the Claimant, Mrs Val Compton ("Mrs Compton") a protective costs order ("PCO") in respect of the costs of these proceedings. Mrs Compton's claim is for judicial review of a decision of WPCT, said to have been communicated in May 2007, to close the "day hospital facility" at Savernake Hospital ("the Hospital") near Marlborough in Wiltshire. By the same order of 5 October Mr Justice Simon granted permission to apply for judicial review. The PCO is in the following terms:

"(1) Upon consideration of the Claimant's Application for a protective Costs Order and Defendant's response,

(a) The Defendant is not permitted to recover its costs of the judicial review proceedings; and

(b) the Claimant's entitlement to recover her costs is limited to £25,000, with liberty to apply."

WPCT submits that the PCO should be set aside "having regard to the governing principles in relation to the making of such orders as set out by the Court of Appeal in the Corner House case", i.e. R (Corner House Research) v Secretary for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2006 ("Corner House").

2. In outline, Mrs Compton, who is a recently retired health worker at the Hospital, is the promoter of a campaign called "Community Action for Savernake Hospital" or "CASH" for short. The campaign is said to have widespread public support. She complains that the decision to "close" the day hospital facility at the Hospital was taken in breach of a legitimate expectation on the part of interested parties that the facility would remain open and in breach of a duty to conduct proper consultation. She contends further that the decision was in any event irrational. For its part, WPCT contends that there has been no closure of the facility at all, merely a decision to re-organise relevant health services by the provision of "neighbourhood teams" treating patients at their homes or at the day facility as needs dictate. They say the claim is out of time, the decision having been taken in January 2007. Further WPCT says that the decision was made following lawful consultation addressing the provision of day hospital services; there was no promise or representation as to the future provision of day services and no legitimate expectation could arise that the day hospital facilities would remain unchanged. Many of the underlying facts are hotly contested and allegations of serious bad faith are made against WPCT by Mrs Compton and her witnesses.

(B) The Application for a PCO

3. In the light of a procedural point taken on behalf of Mrs Compton it is necessary to note the steps which led to the making of Mr Justice Simon's order and the present application. The application for a PCO was intimated in Section 7 of the Judicial Review Claim Form ("Other applications") and referred to a written argument in support of it. The written argument annexed a draft order broadly in terms of paragraph 1(a), but not (b) of Mr Justice Simon's order. In Section D of the Acknowledgment of Service Form (dealing with directions sought by the defendant) WPCT stated that the making of a PCO was opposed but asked that the application for such an order be dealt with at the same time as the permission application "because the decision about the PCO may influence any decision the Claimant may make about seeking an oral rehearing for permission if it is not granted on the papers". A full written argument, resisting the application for a PCO, was lodged with the Acknowledgment.
4. The papers were submitted to Mr Justice Simon and on 5 October 2007 he granted permission to apply for judicial review and made the PCO in the terms already mentioned. The present application was issued on 12 October.

(C) The procedural issue

5. The written argument of Mr. Opperman and Mr. Gullick for Mrs Compton referred me to paragraph 79 of the judgments in Corner House where the Lord Phillips of Worth Matravers MR (as he then was), giving the judgment of the Court, said this:

"Although CPR 54.13 does not in terms apply to the making of a PCO, the defendant will have had the opportunity of providing reasoned written argument before the order is made, and by analogy with CPR 52.9(2) the court should not set a PCO aside unless there is a compelling reason for doing so. The PCO made by the judge on paper will provide its beneficiary with costs protection if any such application is made. An unmeritorious application to set aside a PCO should be met with an order for indemnity costs, to which any cap imposed by the PCO should not apply. Once the judge has made an order which includes the cap on costs to which we have referred, this will be an order to which anyone subsequently concerned with the assessment of costs will be bound to give effect (see CPR 44.5(2)."

6. It will be recalled that CPR r.54.13 provides that a person served with an order granting permission to apply for judicial review may not apply to have the permission order set aside. Thus, the decision by a judge on the papers to grant permission is not susceptible to further challenge. Mr. Opperman argued that it was for WPCT to demonstrate, as the Court of Appeal has said, a "compelling reason" for setting aside the PCO: it was not sufficient, he submitted, simply to argue that the decision was wrong. This submission led me to enquire as to the precise provision of the CPR under which the application was brought, an issue not addressed in the written arguments.
7. Mr. Opperman submitted that WPCT could only rely upon CPR r. 3.1(7) which provides as follows:

"A power of the court under these Rules to make an order includes a power to vary or revoke the order."

8. This apparently quite general power in the court to vary or revoke an order has been held not to be available as a simple tool for an aggrieved party to mount a disguised appeal against an order with which he is dissatisfied. As is noted in "Civil Procedure 2007" in Lloyd's Investment (Scandinavia) Ltd. v Ager-Hanssen [2003] EWHC 1740 Mr Justice Patten said that

"… in his opinion, for the court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done in the context of an appeal. Similarly it is not open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ." (See Civil Procedure 2007 Vol. 1 paragraph 3.1.9 p.92)

This is an approach which was endorsed in the Court of Appeal in Collier v Williams [2006] EWCA Civ 20, a case to which I shall have to return hereafter.

9. Mr. Opperman also relied upon the case law under CPR r.52.9, referred to as analogous to the present situation by the Court in Corner House. I was taken to the notes in "Civil Procedure" (2007) Vol. 1 paragraph 52.9.2 p.1545, demonstrating the onerous task facing a respondent to an appeal who endeavours to set aside the grant of permission to appeal. The cases show that, under that rule, the Court will only set aside permission to appeal if some decisive factor has emerged which was not before the Lord Justice granting permission, or if he has been misled, or if there has been some other fundamental error or irregularity of that type.
10. Mr. Hyam for WPCT relied upon CPR r. 3.3(4) and (5) which provide as follows:

"(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) –

(a) a party affected by the order may apply to have it set aside, varied or stayed; and

(b) the order must contain a statement of the right to make such an application"

It is then necessary to refer also to CPR r. 23.8 and to the Practice Direction to CPR Part 23, paragraphs 11.1 and 11.2. Rule 23.8 is in the following terms:

"The court may deal with an application without a hearing if –

(a) the parties agree as to the terms of the order sought;

(b) the parties agree that the court should dispose of the application without a hearing, or

(c) the court does not consider that a hearing would be appropriate. "

The Practice Direction then provides as follows:

"11.1 Where rule 23.8(b) applies the parties should so inform the court in writing and each should confirm that all evidence and other material on which he relies has been disclosed to the other parties to the application.

11.2 Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative. "

11. Mr. Hyam submitted that the PCO here was, for these purposes, made on the court's own initiative which brings into play r. 3.3(4) and (5). He also relied upon the notes in Civil Procedure at paragraph 3.3.1 p. 99.
12. It must be noted, however, that in this case WPCT asked expressly that the PCO question should be decided at the same time as the application for permission. As the Practice Direction to CPR Part 54 provides, and as is well known, the Court will generally, in the first instance, consider the question of permission without a hearing (see paragraph 8.4 of that Practice Direction). The court in Corner House, however, seemed to envisage that grant or refusal of a PCO could lead to the matter being reconsidered at an oral hearing without mention of the precise Rules that would come into play: see again paragraph 79 of the judgment and Civil Procedure 2007 Vol. 1 paragraph 54.6.3, the latter dealing with renewal of an application for a PCO after refusal, without comment on the parallel question of an application to set aside a PCO once granted.
13. In Collier v Williams (supra) the Court of Appeal did consider the question of applications dealt with on the papers alone and the remedies available to a party dissatisfied with the result. This was not, however, a judicial review case. The context was a consideration of applications to extend time for service of claim forms in private civil litigation. In such cases, it appears, the court forms contain a box allowing the person making an application to tick so as to indicate his preference for having the application considered on the papers or at a hearing: see paragraph 23 of the judgments in Collier v Williams. In judicial review, however, the Claim Form makes no such provision because no doubt all are aware of the general rule that permission applications are initially dealt with on paper. This case was no exception and WPCT asked expressly that the PCO question be addressed at the same time as the permission application; both sides presented full written argument. The expectation must have been, therefore, that the judge would make his PCO decision on the papers alone, as Mr Justice Simon proceeded to do.
14. As a point of construction of the rules, the question in this case is whether CPR r.23.8 (b) or (c) applies. On the one hand, the claimant has applied for permission under a procedure where the general rule is that that question is decided without a hearing; she has also asked for a PCO without comment as to whether a hearing of that question is wanted or not. The defendant has asked expressly that the PCO matter be dealt with together with the permission hearing, also expressly mentioning the possibility of a renewal application by the claimant after a refusal of permission on the papers. Have the parties, therefore, agreed that the court should dispose with the PCO application without a hearing (r.23.8(b))? On the other hand, as the dealing with permission applications on the papers is a general rule only^[1] and there is no express CPR rule dealing with the manner of disposal of other applications, has the court simply decided in this case that a hearing would not be appropriate (r. 23.8(c))?
15. Although the matter is not entirely clear on the wording of the rules, I think this is a Rule 23.8(b) case. It must have been anticipated by both sides that the permission application was likely to be dealt with on the papers in accordance with the usual practice. Mrs Compton asked for her PCO in the course of that same process. WPCT then expressly asked for the PCO to be dealt with at the same time as permission; it clearly envisaged a paper process and did not ask for an oral hearing.
16. It follows, therefore, that rule 3.3(4) and (5) do not apply. One is thrown back on the apparently general, but in fact restrictive, rule 3.1(7) and the cases dealing with the limits of that rule. Those limits, and the analogy with CPR rule 52.9 made in Corner House, inform the court that some "compelling reason" is required for a PCO to be set aside.^[2]

(D) Discussion

17. Mr. Hyam submits that the compelling reason for setting aside the PCO is simply that Mr Justice Simon's decision was wrong on two important questions, first, whether the circumstances of the case are "most exceptional" (see Corner House paragraph 72) and, secondly, whether the issues raised are of "general public importance" (loc. cit. paragraph 74). Mr. Hyam argues that this case is just one of a number of health service "closure" cases that arise not infrequently and where strong local feelings are aroused. He says there is nothing exceptional about that and that there is nothing of "general" public importance about this case when compared with others. He referred me to the decision of Mr. Justice Lloyd-Jones in R (Bullmore) v W. Hertfordshire Hospitals NHS Trust [2007] EWHC 1350 Admin and to the decision of Lord Justice Hughes refusing permission to appeal in that case: [2007] EWCA Civ 609.
18. Mr. Opperman disputes all this. He referred me to paragraph 5 of his written argument of 20 September in reply to WPCT's written submissions (both of which were before Mr. Justice Simon). He argues that this is an exceptional case having regard to the circumstances of the decision under challenge. Those circumstances have given rise to allegations of abuse of consultation processes, bad faith on the part of the authority and an unusually large public protest at the decision. (I would add that the allegations of abuse and bad faith are hotly challenged by WPCT in the substantive proceedings, but I bear in mind the permission decision of Mr. Justice Simon to the effect that the case justified a hearing of the issues as a whole.)
19. In my judgment, it is not for me to re-assess the decision of Mr Justice Simon, having regard to the limited jurisdiction that I have to exercise in asking whether there is a "compelling reason" to set aside the order. I bear in mind that Mr Justice Simon had to consider the case as a whole in order to make his decision on the permission application. The material that he had to consider was voluminous and in the course of the present hearing I was only taken to a small fraction of it. His appraisal of the facts of the case would necessarily have been fuller than my own. He also had before him full written arguments from both sides on the PCO issue. None of the arguments differ in substance from those presented to me. He made his decision to grant the PCO on that very full material. In the circumstances, I do not consider that a compelling reason to set aside the order has been demonstrated. Even if I were to take a different view of the PCO question on the basis of the limited material that I saw, it would not give rise to a compelling reason to set aside a judge's decision made on a full review of the case for the purpose of deciding whether permission should be granted.

(E) Conclusion

20. For these reasons, this application is refused.

Note 1   It is to be noted that the Court not infrequently adjourns permission applications to an oral hearing.    [Back]

Note 2   I admit (with respect) to concern about the analogy with r. 52.9 which envisages an application to set aside permission to appeal. The grant of such permission does not result in the same finality as a PCO which, subject to later revision in a true change of circumstances, regulates the parties’ rights for the whole of the proceedings. If permission to appeal has been wrongly granted, the remedy is on the substantive appeal. There is usually no going back on a PCO.    [Back]