England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		22 April 2008

1. MR JUSTICE HOLMAN: This is an application in judicial review proceedings for a Protective Costs Order (PCO). The leading authority on the power to make a PCO and the principles to be applied is R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 (Corner House). In paragraph 79 of their judgment in Corner House the Court of Appeal said that if a judge refuses to grant a PCO on paper and the decision is reconsidered at an oral hearing, "the hearing should be limited to an hour", which I assume should ordinarily include the giving of judgment. That, and the costs figures mentioned in paragraphs 78, 79 and 81, all indicate that the procedure and consideration should be swift and judgment concise. However in deference to the zeal, commitment and sustained argument of counsel and to the strong feelings which this case patently raises, I regret that this judgment is rather longer.

The facts and background

2. The claimant is Mrs Val Compton. She lives in Marlborough, Wiltshire. The defendant is the Wiltshire Primary Care Trust (the Trust). The Trust maintains Savernake Hospital, close to Marlborough. The hospital formerly included both a day hospital facility and a Minor Injuries Unit (MIU) within a brand new, purpose built wing. The Trust has recently closed them both. Mrs Compton commenced two sets of proceedings whose ultimate aim is to require, or force, the Trust to reopen the day hospital facility and the MIU respectively. This judgment specifically concerns proceedings number CO/8460/2007, which relate to the MIU, but some reference to the other proceedings is necessary.
3. In each set of proceedings Mrs Compton describes herself in the relevant formal claim form as: "Mrs Val Compton - on behalf of the campaign known as Community Action for Savernake Hospital (CASH)". In each set of proceedings, however, she is the sole claimant. In each set of proceedings she is represented by two barristers, Mr Guy Opperman and Mr Mathew Gullick, who act pro bono, instructed or authorised by the Bar Pro Bono Unit and the Free Representation Unit of the Western Circuit. That means that Mr Opperman and Mr Gullick are acting entirely free of charge, and I am immensely grateful to them for their selflessness and their services.
4. As Mr Opperman and Mr Gullick are performing free the roles not only of barristers but also of solicitors, there are no solicitors involved. The practical effect is that her own representation in each case has not cost, and will not cost, Mrs Compton a penny of her own money except, perhaps, payment of court fees and some other small disbursements. (I believe that in practice even these are being met by others.)
5. In the Day Hospital case, Simon J made an order on paper on 5 October 2007 which (i) granted Mrs Compton permission to apply for judicial review; and (ii) provided as a PCO that the Trust is not permitted to recover from Mrs Compton its costs of those proceedings. His brief reason for granting permission was that "This is a case which justifies a hearing of the issues." He did not express or record any reason for making the PCO, but implicitly he preferred the written argument of the claimant in support of the PCO application to the written response of the defendant.
6. The Trust then applied at an oral hearing before McCombe J for the PCO to be set aside. McCombe J clearly felt constrained by authority to hold that he could only set aside the PCO for some "compelling reason". (Footnote 2 to paragraph 16 of his judgment indicates his own reservation about that high test.) He did not consider that there was any "compelling reason" to set aside the PCO and so he refused the application.
7. Rix LJ in the Court of Appeal has given permission to appeal from that decision of McCombe J. It is clear from the written reasons of Rix LJ that his reason for doing so is to enable the "compelling reasons" test to be considered. His reasons continue:

"In the absence of these more general issues, I doubt that I would have given permission to appeal on the issue of whether Simon J's decision on the merits of a PCO itself gave rise to a compelling reason why an appeal should be heard. Nevertheless in the circumstances that issue may be argued as well."

8. The appeal has been fixed for 21 or 22 May 2008. My understanding is that both sides anticipate that the Court of Appeal will hear argument on, and rule on, not only the correctness of the "compelling reasons" test, but also whether the PCO in that case should, or should not, be set aside.
9. After some earlier orders made by Bean J on paper consideration, to which I need not further refer, the applications for permission and for a PCO in the MIU case were listed for oral hearing before myself on Monday, 14 April 2008. On that day I granted permission for reasons which I gave in an ex tempore judgment (not yet transcribed). Unfortunately, there was insufficient time to consider the consequential application for a PCO and in the event that was heard by me last Friday, 18 April.
10. To Mrs Compton, and in the mind of the public, these cases are all about "cuts" and "closures". To the Trust, in their jargon, and that of their counsel, Ms Fenella Morris, they are all about "reconfiguration." At the risk of oversimplification, the Trust say that the day hospital facilities can now be provided in the home or at local GP surgeries (or in some instances still in the Savernake Hospital); and the MIU services can be provided either by GPs, or, when necessary, at the much larger general hospital in Swindon, about 12 miles from the Savernake Hospital itself. (The actual distance that an individual might have to travel to Swindon Hospital depends of course on where they actually are in the catchment area. It might be more than, or less than, 12 miles.)
11. Although there are obvious points of overlap and in common, there are also many points of difference between the two cases. The financial and clinical arguments and issues in relation to the day hospital facility and the MIU may be similar, but they are not the same. Further, the thrust of the judicial review challenges varies. I understand that in the Day Hospital case there is a greater challenge to the adequacy of the consultation process than in the MIU case.
12. The reasons why I granted permission in the MIU case are, in summary, as follows. As a preliminary, I was satisfied that there is an arguable case that there was a second decision after further consideration, or reconsideration, during August 2007, so that the application for judicial review was (arguably) not out of time. As to the merits, I was satisfied, first and principally, that it is arguable that the Trust's financial case for closure of the MIU is wrong, such that their decision is irrational. In short, although they claim that they will save money by closing the MIU, in reality they will not.
13. Second, although this carried less weight with me, I accepted that there is an arguable case that the decision was tainted by apparent bias in part of the consultation process. The apparent bias results, or may result, because the supposed independent consultant, who analysed the public responses, is in fact the settled partner and cohabitant of a senior director of the Strategic Health Authority which supports and manages the performance of the Trust.
14. Third, again carrying less weight with me, I accepted that the Trust had arguably attached no weight, or less weight than they should have done, to the report "Emergency Access - Clinical case for change" by Sir George Alberti and published by the Department of Health in December 2006. (The report does not, however, state or represent government policy.)
15. As shorthand, I will later refer to these grounds for granting permission "the financial argument", "the apparent bias point", and "the Alberti point".

Protective costs orders and Corner House

16. The PCO jurisdiction appears to be entirely judge-made and to have no express basis in legislation or rules. However, the ability and willingness of the court to make a PCO in appropriate cases is now extremely important to the rule of law and to effective judicial review in some cases. I have been shown, and read with great interest, the Report of the working group on Facilitating Public Interest Litigation (July 2006) chaired by Maurice Kay LJ. He comments in his foreword that:

"... there is still a significant amount of potential public interest litigation which is deterred by the operation of our traditional approach to litigation costs."

17. At paragraph 26 the report highlights, by reference to some parliamentary material, the risk of "a serious denial of access to justice" to those whose means are modest, but who, being homeowners, nevertheless fall out of the ambit of legal aid (which is the situation of this claimant). I bear those general considerations very firmly in mind.
18. The governing principles are clearly currently those set out by the Court of Appeal in Corner House in paragraph 74. In paragraph 3 of her written outline submissions, dated 17 April, Ms Morris submitted as a first "criterion" that:

"A PCO should only be granted in the most exceptional of circumstances."

She based this on paragraph 72 of Corner House. I specifically reject that submission and argument. In my view the Court of Appeal in Corner House most emphatically did not include a test or criterion of exceptionality. They said:

"Dyson J said that the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances. We agree with this statement, but of itself it does not assist in identifying those circumstances."

19. The effect of that second sentence is, in my view, to make clear that exceptionality is not itself part of the test. Rather, paragraph 72 is merely a forecast or prediction that the effect of applying the principles and test in paragraph 74 will be that it will only be in rare (the word "rare" is used in the first sentence of paragraph 76), and hence exceptional, cases that it is appropriate to make a PCO. There is no test, principle or criterion of exceptionality within paragraph 74 itself.
20. Paragraph 74 of Corner House reads as follows: -

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

(I) 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 doing so.

(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."

21. As I understand it, paragraph 74(1) includes certain matters or provisos of which the court must first be satisfied before a PCO may properly be made. The list in subparagraph (1) is not, however, exhaustive and does not preclude consideration of matters not specifically listed. The over-arching discretion and test appears in subparagraph (3). The decision is discretionary and the question and test is "whether it is fair and just to make the order in the light of the considerations" previously set out. It need hardly be said, but must not be overlooked, that the court must be fair and just to both parties to the litigation, as well as (in the context) to the wider public interest.
22. The test and discretion is illuminated by what the Court of Appeal went on to say at paragraph 76(iii):

"The overriding purpose of exercising this jurisdiction is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance to all, where the court considers that it is in the public interest that an order should be made."

23. In the present case it is convenient (and I hope permissible) to consider the Corner House principles in a different order from that in paragraph 74.

Private interest

24. I am quite satisfied that Mrs Compton has no private interest in the relevant sense in the outcome of the case. She lives within the catchment area of the former MIU and if she were unfortunately to suffer a minor injury she might personally benefit if it had been reopened and she could be treated there. But in that regard she is no different from the other 30,000 to 50,000 people living within the catchment area, depending on how that area is delineated. She has no personal or private interest of the kind contemplated by proviso (iii).

Discontinuance

25. I am also satisfied for the purpose of proviso (v) that if the assets of Mrs Compton personally remain at risk of an order for costs, then she will probably discontinue the proceedings and would be acting reasonably in so doing. As I will later briefly explain, her own means are very limited. The costs of the Trust could be as high as about £30,000. She says in paragraph 3 of a financial statement dated 9 August 2007 (made in relation to the Day Hospital case but equally applicable to this case) that:

. "There is no way that I could afford to bring litigation myself. Aside from the personal financial risk and fears, it would impact on my family."

26. .. Mr Opperman has said to me in court (in the presence of Mrs Compton) that if a PCO is not made, she will not carry on. In her personal and financial circumstances a decision to discontinue would be eminently reasonable.

Counsel acting pro bono

27. As I have said, Mr Opperman and Mr Gullick are acting entirely pro bono. Paragraph 74(2) of Corner House states that:

"…this will be likely to enhance the merits of the application for a PCO."

As an abstract factor, I personally find this a difficult principle to apply and I note that paragraph 96 of the Maurice Kay Report expresses some uneasiness about it too. It is not immediately self-evident why the fact that Mrs Compton has been able, or lucky enough, to find two skilled lawyers who are willing to act pro bono, should restrict the normal expectation of the other side that they may recover their costs if they successfully defend the claim. I do not consider that the fact that counsel have agreed to act pro bono is, of itself, any indicator of the objective merits of the case. Public-spirited counsel may agree to act pro bono in a case which lacks objective merit, but which they feel is worthy of judicial consideration. On one view, the very fact that Mrs Compton will not, in any event, have to fund her own representation means that the overall impact of costs upon her will be correspondingly less, even if she loses the case.

28. But there is one concrete respect in which the fact that counsel are acting pro bono does, in my view, have a real impact on discretion and upon the overall assessment of what is fair and just in this case.
29. At paragraphs 75 and 76 of Corner House the Court of Appeal discussed some of the many different forms that a PCO can take and emphasised that "the choice of the form of the order is an important aspect of the discretion exercised by the judge." One form clearly involves, as a quid pro quo for any PCO indemnity, that the recoverable costs of the claimant himself, if he succeeds, are capped. At paragraph 76 the court said at (ii):

"... as a balancing factor the liability of the defendant for the applicant's costs if the defendant loses will thus be restricted to a reasonably modest amount." [my emphasis]

30. In the present case, precisely because her lawyers are acting entirely free of charge (including as solicitors), any costs of Mrs Compton herself are in fact zero or minimal. Mr Opperman has expressly offered and said that even if Mrs Compton comprehensively succeeds on her claim, she will not seek any order for costs against the Trust. That may be little skin off her own nose if she has no costs. But at all events it does accord to the Trust the very distinct advantage, or "balancing factor", in this case of knowing from the outset that it will not have to pay the costs of the claimant even if it loses. In effect, Mr Opperman is proposing that this case proceed under a regime of "no order as to costs" throughout (that is, a "Type 2 PCO" within the arrangements postulated in the Maurice Kay Report at paragraph 86(ii)).

General public importance

31. It is important to note that provisos (i) and (ii) in paragraph 74(1) are separate and distinct. The question whether the issues are of "general public importance" is separate and distinct from the question whether "the public interest requires that those issues should be resolved."
32. It is clear that issues do not have to be of importance to all citizens or the whole nation in order to be of "general public importance". I am satisfied that the ultimate issue in this case, namely continuing closure or the reopening of the MIU, is an important and not a trivial one; and that it is of importance to a sufficiently large section of the public, namely the 30,000 to 50,000 people in the affected catchment area, as to be an issue of general public importance. However, whilst I accept that the ultimate issue in the case (continuing closure or reopening of the MIU) is of general public importance, I do not accept the further submission of Mr Opperman that the case raises legal or other issues of importance not only to the public who live in the catchment area, but to the general public or nation as a whole.
33. He says that it is very difficult to challenge "hospital closures"; that this case is being closely followed, not only in the area of Savernake but in many parts of the country; and that "this is a test case for the closure of units such as this" (see paragraph 3 of his written submissions dated 17 April 2008; and much that he urged in oral argument). He drew my attention to certain articles in the national press and to a national BBC interview with the Secretary of State for Health, each addressing "hospital closures" generally and this closure specifically.
34. But in my view it is not a "test case". I have summarised the essential issues upon which I have given permission to apply. The "financial argument" is clearly fact specific to the figures and disputed calculations in relation to this unit, this hospital, and this Trust. The "apparent bias point" is totally fact specific. It may of course raise some questions of more general legal interest about independence and apparent bias in public consultation processes. But just because a case happens to contain some topic of general legal importance, upon which the public as a whole may gain from a ruling, does not make the case one of general public importance so as to engage the PCO jurisdiction. I accept that the relevance of, and weight to be attached to, the Alberti report may apply more generally to other "hospital closure" cases. But in my view it is not the central issue in this case, and the "Alberti point" does not give to this case the quality of a test case properly so-called.
35. What this case does not involve is, by way of example only, some issue of statutory construction which needs to be resolved and which is relevant to this and a number of other "hospital closure" situations. This case does not involve any "elucidation of public law by the higher courts" (cp paragraphs 69 and 70 of Corner House). Rather, it requires application of well-established principles of judicial review to the particular facts of the case.

The public interest

36. Proviso (ii) is a distinct and separate proviso. It does not necessarily follow, simply because an issue is raised which is of "general public importance", that "the public interest requires" that that issue should be resolved. Whilst I have agreed that the issues are of importance to a sufficiently large section of the public to be of general public importance, I consider it much more marginal whether "the public interest requires" that they should be resolved. I have already explained that this is not a test case. The issue has engaged the national media, and the public at large may watch with interest and concern the fate of the Savernake MIU. But the public at large is not affected by, and has no direct interest in, whether that particular, very local, MIU remains closed or is reopened.
37. What is striking about this case is that of all the 30,000 to 50,000 people said to be affected by the closures, and the several thousands who are said to have actively petitioned or campaigned against closure, only one has applied for judicial review: Mrs Compton. I find it impossible to say that the interest of any members of the general public other than those in the catchment area requires that the issues should be resolved. And I am sceptical whether the interest of those members of the general public who do live in the catchment area requires the issues to be resolved, when only one of them has taken any action. This ties in, in my view, with the next principle, proviso number (iv).

Financial resources and likely amount of costs

38. Ms Morris said on instructions that the estimated costs of the Trust to the conclusion of the contested judicial review (excluding any subsequent appeals) is about £30,000. That includes provision for predictable preparatory work and disbursements, but (inevitably) excludes anything exceptional and unpredictable or unforeseen. As the Trust is exempt from paying VAT, the figure is exclusive of VAT and is VAT free. So the likely exposure of Mrs Compton, if there is no PCO and if she loses the case, is to £30,000.
39. Mrs Compton has described her own resources in the financial statement to which I have referred. There is no need to give details in a public judgment. She is a widow aged 60. She receives the state old-age pension and a small private widow's pension. She owns a very small, modest house in Marlborough. She still has financial commitments for one of her children. It is obvious that a bill for £30,000, or anything remotely like it, would ruin her.
40. The defendant is a Primary Care Trust, ultimately funded out of general national (not local) taxation as part of the NHS. I do not have more recent figures, but in the summer of 2006 its annual income or budget was said to be about £360 million. I stress that that relates to the whole of Wiltshire, not merely the relatively small area of Wiltshire which was served by the MIU to which this case relates. Last summer there was a financial crisis for the Trust, which was about £20.5 million in debit. In December 2007 the regional authority injected a one-off £20.5 million to the Trust to return it to a break-even position.
41. I have quoted the raw data, but it is not a mere question of placing the figures side by side. Mrs Compton effectively has nothing. The annual income of the Trust is £360 million (it may be more now). It has recently managed to obtain a further £20.5 million when required. Alongside these figures, £30,000 seems very small. But the demands upon the budget of the Trust are very great, namely the NHS healthcare of all, or most, of Wiltshire. The money is all money provided ultimately by the taxpayer for healthcare. I have been told that there is no budgeted provision for the costs of litigation. If the Trust successfully defends this claim, but cannot recover its costs, then it will have vindicated its position, but still have £30,000 less to spend on health provision and care. Mr Opperman submits that if he and Mrs Compton are right about the financial arithmetic, the MIU may be reopened and the Trust will actually save money. So it may. But on that scenario the Trust will have lost the case and there could be no question of Mrs Compton having to pay its costs.
42. The actual question within proviso (iv) is the same question that is repeated in the over-arching question and test within paragraph 74(3), namely, is it fair and just to make the order?
43. It is at this point that, in my view, a further consideration must come into play in this case. Although CASH has no legal personality or identity of its own, Mrs Compton describes herself as acting "on behalf of" CASH. In paragraph 7 of her financial statement Mrs Compton says:

"I should make it clear that I have the support of the local MP, the Marlborough Town Council, Hungerford Town Council and various parish councils, the local GPs and medical practitioners, East Kennett PBC Consortium, the local newspaper" and "huge numbers [my emphasis] of health staff and patients."

44. Mr Opperman says that no less than 2000 local residents have petitioned or written to the Prime Minister himself about this issue. Again and again in his arguments, Mr Opperman stresses, with zeal, the very great volume of strong opposition to the closure, and strong support for Mrs Compton and for her legal proceedings. So I ask rhetorically: why is the claim being brought by her and by her alone? And is it appropriate in this case to focus narrowly on the financial resources of this particular person who has cast herself in the role of claimant?
45. It does not exceed permissible judicial notice to comment that this case concerns the catchment area of Marlborough, Savernake Forest and surrounding small towns and villages. Although, no doubt, many poor and disadvantaged people live within it, it is in general terms an area of prosperity (although low population density). It is not an area of widespread poverty and social deprivation.
46. I have no idea, and do not speculate, why the sole claimant is Mrs Compton who is ineligible for legal aid, but whose means are nevertheless so modest. If (I stress, if) she has emerged, or been identified, as a suitable claimant precisely because her means justify a strong case for a PCO, then the comparison of her personal means with those of the defendant becomes illusory. If, alternatively, she, and she alone, among all the protestors and campaigners, has had a willingness to come forward as the claimant and to put her finances at risk at all, then I very seriously question whether the interest of all who live in the catchment area really does "require" that the issues in this case should be resolved.
47. Mrs Compton could have personal protection by (i) a cap on any costs liability at, say, £30,000; and (ii) the raising of a fund (or indemnities) to meet that liability if it eventuates. To generate £30,000 would require only 100 people each to contribute £300; or 1,000 people each to contribute £30; or 2000 people (the number said to have petitioned the Prime Minister) each to contribute £15; or 30,000 people (the minimum number in the catchment area, although of course that includes children and babies) each to contribute £1.
48. Mr Opperman says that it has proved impossible to raise any money at all and that it would be impossible now to do so in the period between now and the substantive hearing in mid July. I do not accept that. His case is that this case is of no private interest to Mrs Compton at all, but is, rather, of very great concern to the whole (or a large part) of the local community. If that is so, I can see no reason why that community (not being a poor and deprived one) cannot, in the vernacular, "put its money where its mouth is", as many action groups do over many local issues.

The paradox of legal aid

49. Mr Opperman has pointed out that if her means had been a little more modest Mrs Compton would be financially eligible for legal aid. If the Public Interest Panel of the Legal Services Commission decided to grant her public funding, then she would gain the statutory protection of section 11 of the Access to Justice Act 1999. In my view, however, the argument is speculative. The fact is that she is not financially eligible, she has no sought public funding, and the reaction of the Public Interest Panel is not known. They might have decided to refuse funding precisely on the grounds that there could be alternative, suitable but non-financially eligible claimants, or the raising of a public fund, if there is genuinely sufficient public interest in the case.

Is it fair and just to make a PCO; and if so, in what form?

50. Ms Morris only faintly bridled at my proposition that I should, in any event, cap or limit any costs liability to £30,000 (in light of her own estimated figure), so that at least Mrs Compton and/or contributors to any prospective fund would know where they stand and would know the maximum exposure, and could take decisions in light of it. If nothing else, I will make a PCO capping liability in that way and in that amount (a "Type 3 PCO" in paragraph 86(iii) of the Maurice Kay Report). At the other end of the spectrum in this particular case, Mr Opperman has proposed, as I have already indicated, that there should, in effect, be an advance decision for "no order as to costs in any event" (a "Type 2 PCO").
51. Between these two extremes in this particular case there is obviously the possibility of an order capping liability at some lesser amount than £30,000 - whether at £5,000, £10,000, £15,000, £20,000 or £25,000. Understandably, Mr Opperman urged that if I am not prepared to accede to his primary submission, then, at any rate, I should fix the cap or limit "as low as possible".
52. I do propose, therefore, to make a PCO in this case and not to leave the impact of costs unpredictably at large. The essential question and decision for me is whether it is fair and just to make an advance order for "no order as to costs", or to cap or limit the costs at £30,000, or some lesser sum.
53. In reaching my decision, I take no account of the decision and order of Simon J in the Day Hospital case, for two reasons. First, as I have said, the two cases are not on all fours with each other. Second, his was a decision reached on paper. He did not benefit from the oral argument, which I have heard, and I do not know the reasons for his decision.
54. After very careful consideration I am not prepared to make an advance order for no order as to costs, or capping the liability at nil. If Mrs Compton and those who support her are right in their claim and cause, there will be no order against her. But if they are wrong, the Trust will have vindicated its position. Though its funds are very large, so are the demands upon them. They are all taxpayers' money intended for patient care. Further, the area of responsibility of the Trust is not co-terminous with the catchment area of this MIU. The burden of any unrecovered costs would not eat merely into the funds available for patient care in the Savernake catchment area, but into funds for the whole county, much of which is not directly affected by this issue at all.
55. I do not consider that there is sufficient general public interest in this case being heard that I should readily contemplate the loss to the Trust of £30,000, lose or win. It is not a test case. It does not even directly affect the whole of Wiltshire. My decision should not be dominated by the personal financial position of Mrs Compton. The local community must decide whether they really support her to the extent of contributing their own money (by indemnities or small contributions), or not.
56. On its facts, this case is very far removed from Corner House itself. That case ultimately concerned whether public (taxpayers') money was being used for bribery and corruption abroad and there was no obvious alternative claimant or challenger than Corner House.
57. However, in deciding whether to place the cap at £30,000, or some lesser amount, I bear very firmly in mind Mr Opperman's concession that, in any event, Mrs Compton will not be seeking costs (if only because she will not have incurred any) against the Trust, even if she wins and they lose.
58. It is a real benefit to the Trust to know, as it goes into this litigation, that even if it loses its costs will be limited to its own legal fees and expenses. It can exert some control over its own costs; and in its assessment, at any stage, whether to compromise or carry on, it knows that its ultimate costs liability on a worst case scenario is significantly less than it might otherwise have been. Fairness requires that there is a "balancing factor" (Corner House at paragraph 76 (ii)).
59. Further, I do accept that if there is any costs exposure at all to her personally, Mrs Compton will feel constrained to discontinue. So in light of my decision not to cap costs at nil (or "no order"), the case can only proceed if others raise or contribute to a fund, or give indemnities.
60. I have already stated that I do not accept that a suitable fund or indemnities could not, even now, be raised; and I have illustrated the sort of figures that might have to be individually contributed so as to raise even £30,000. However, I do bear in mind that time is now short and that, for whatever reason, no fund at all has yet been assembled.
61. I must try to be fair and just to both parties, to the overall public interest and indeed to the interests of taxpayers who ultimately fund the Trust. I propose to fix a cap at £20,000. In my view that discount (from £30,000) appropriately reflects, or "balances", the advantage to the Trust that there will be no order for costs against it if it loses; and the sum is a relatively modest and reasonably attainable sum for this community to raise if it really wishes to challenge the decisions of the Trust and believes it has a good case for doing so.

Order

62. I accordingly order, by way of a PCO, as follows: -

1. The court directs that in any event the claimant is not permitted to recover from the defendant any part of her costs of the judicial review proceedings number CO/8460/2007.

2. The court directs that in any event the total costs which the defendant may recover from the claimant in the said judicial review proceedings is capped at £20,000 and shall not exceed that sum.

3. The said orders do not apply to any proceedings in the Court of Appeal, the costs which are (automatically) entirely in the discretion of that court.

The costs of this hearing

63. I announced at the conclusion of the argument last Friday that I would, in any event, make no order as to the costs of and incidental to the hearing of this issue that day, notwithstanding the last sentence of paragraph 78 in Corner House. It would be unfair in this case to characterise Mrs Compton or Mr Opperman as "those who believe that they can apply for a PCO as a matter of course" (see paragraph 78, penultimate sentence). The issues of permission and a PCO were ultimately listed by Bean J for oral hearing with a time estimate of one hour. A single occasion in court was clearly contemplated. In the event, the arguments have been complex and sustained. Whether the fault (if fault there be) is mine, or that of counsel, or of all of us, it is most certainly not the fault or responsibility of Mrs Compton that two hearings were required. In my view it was right that she should have the opportunity at least to apply for a PCO without risk of costs.
64. I now add the reason that in the event neither side has been wholly successful in their submissions, which further justifies leaving costs of this issue where they fall.

Permission to appeal

65. At the end of the argument late on Friday afternoon each side indicated that they might wish to apply for permission to appeal. Exceptionally, I propose to deal with that issue as part of this judgment and without considering further written or oral argument. I do so because if there is to be any appeal, it must manifestly be heard concurrently with, or immediately consecutive to, the existing appeal in the Day Hospital case on 20 or 21 May. So time is very short and there is no room for the delay of an interposed application to me for permission (particularly as I am away on circuit next week).
66. I refuse both parties permission to appeal. My reasons are:

(i) the primary issue in the existing appeal is the "compelling reasons" test (see the reasons of Rix LJ quoted above);

(ii) the issues in the two claims for judicial review differ, so there is no axiom in this case that the decision as to a PCO in the case already under appeal should automatically govern the decision in this case;

(iii) it is unlikely that either Mr Opperman or Ms Morris will persuade me that in this judgment I have made any error of law;

(iv) I have given a very detailed and reasoned discretionary decision after full oral argument. Whatever may be the correct test on reconsideration by a judge at first instance after a decision on paper, the Court of Appeal does not readily interfere with (or even entertain appeals from) a reasoned discretionary decision by a judge after full argument.

67. Either party has a right to apply to the Court of Appeal for permission to appeal if they wish.

Expedited transcript

68. I appreciate that a transcript of this judgment may be urgently required, either in support of a renewed application to the Court of Appeal for permission to appeal; or for use in the Day Hospital appeal, even if there is no appeal from my decision; or for a range of other purposes (for example, to help justify contributions to a fund). I accordingly direct that a transcript of this judgment be made as a matter of urgency at the expense of public funds.
69. MR JUSTICE HOLMAN: Mr Gullick and Mr Rodgers, I believe that I have dealt comprehensively with all matters and that the order I have already handed down is comprehensive. If either of you can think of some point with which I have failed to deal with, or which I should order, you may of course raise it.
70. MR GULLICK: Will your Lordship hear me further on permission to appeal?
71. MR JUSTICE HOLMAN: No, I had no idea whether or not anybody would be coming and, if so, their status. I was told that there might, for instance, be a pupil. I have made up my mind and I have given my reasons.
72. MR GULLICK: My trial was vacated at 4.10pm on Friday afternoon.
73. MR JUSTICE HOLMAN: I was not aware of that fact. No, I have made up my mind and given my reasons and the answer is "no". You have a refusal of permission that entitles you, if you wish, once you have a transcript of the judgment, to go to the Court of Appeal.
74. MR RODGERS: My Lord, I have no further matters.
75. MR JUSTICE HOLMAN: You are not renewing an application to me, Mr Rodgers, maybe because you do not feel suitably briefed to do so?
76. MR RODGERS: My instructions were to reserve our position on appeal.
77. MR JUSTICE HOLMAN: I will do one in relation to each: the claimant's application for leave refused; reasons for decision: see reasons given at the end of the substantive judgment (NB I was told at the end of the hearing that pupils only might attend today, so oral consideration of permission today would not have been appropriate. Unexpectedly Mr Gullick did attend on behalf of the claimant, but as I have dealt with permission in the judgment, I did not permit him further to argue the point.)
78. Do you want one of these as well, Mr Rodgers? As far as you are concerned, are you going to accept my decision, or might you wish to try to appeal it?
79. MR RODGERS: My instructions are that we wish to appeal it.
80. MR JUSTICE HOLMAN: Can you hand it back and I will put up the same wording. I do not think I need add all that additional stuff for you. I have just said, "reasons given: see reasons at the end of the substantive judgment". You are nothing really to do with the case. You have just come along for the day. Mr Gullick is counsel in the case.
81. MR GULLICK: Sorry for not informing my Lord about my trial being vacated.
82. MR JUSTICE HOLMAN: I do not know when you were told. It is very pleasant to see you here. It was very unexpected, as far as I am concerned, but I am not going to go back over that point. Is there anything else? Thank you very much indeed.