R (Compton) v Wiltshire Primary Care Trust

The Court of Appeal has handed down a significant decision on the use of Protective Cost Orders (PCO).

The case concerned challenges to local hospital closure.  The Judges considered again the principles and guidance given in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 (Corner House) the leading authority on the power to make PCOs and the procedure to be adopted.

The Judges ruled that:

• “Exceptionality” is not an additional criterion for making a PCO, and “general public importance” can properly include matters of only local interest such as hospital closures.
• An Applicant for a PCO must disclose their means and those of their supporters. The court is entitled to (and will) take into account the ability of the Claimant to raise funds and whether others can support the action.
• Compelling reasons are required for a Defendant to set aside a PCO made on the papers (affirming comments made in Corner House).
• The Court also gave important procedural guidance for the making of PCOs in the Court of Appeal. When dealing with an application for a PCO in the Court of Appeal “the normal order should be that there will be no order for costs save in exceptional circumstances”. This is a significant improvement (for Claimants) on the costs regime in Corner House.
• The relevant paragraphs in Corner House are not to be read as statutory provisions or in an over-restrictive way.
• A variety of different types of PCO are possible. PCOs are a flexible remedy that can take many forms. The order should be tailored to meet the circumstances. Where the public interest is lesser, some form of PCO may be appropriate, even if not providing full costs protection.
• Judges must give reasons for their PCO decisions.

Ben Jaffey and Naina Patel represented the Public Law Project as Intervener