Compton, R (on the application of) v Wiltshire Primary Care Trust

Factual and Procedural Background

This judgment concerns three appeals related to the granting of Protective Costs Orders (PCOs) in judicial review proceedings initiated by the Plaintiff against Company A, the Primary Care Trust (PCT), regarding closures at a hospital facility (the day hospital) and its Minor Injuries Unit (MIU).

The Plaintiff brought separate judicial review applications on behalf of a campaign group challenging the alleged stealth closure decisions made by the PCT concerning these two units. Permission to proceed was granted in both cases.

The first appeal arose from McCombe J’s refusal to reconsider a PCO order made by Simon J on paper regarding the day hospital. The second and third appeals concerned Holman J’s decision to grant a PCO related to the MIU judicial review proceedings.

The substantive hearings for the judicial review applications were scheduled for a three-day hearing commencing 16th July, creating urgency in resolving the question of PCOs.

Simon J initially granted a PCO for the day hospital case, capping the Plaintiff’s recoverable costs and prohibiting the PCT from recovering costs against the Plaintiff. The PCT sought to set aside this order, leading to McCombe J’s involvement.

In the MIU case, after initial refusal and reconsideration, Holman J granted permission for judicial review and subsequently granted a PCO with specific cost caps, excluding the Court of Appeal proceedings from the order. Both parties sought permission to appeal Holman J’s order, which was granted and consolidated with the appeal from McCombe J.

Legal Issues Presented

1. Whether the Court of Appeal should reconsider the guidance from R (Corner House Research) v Secretary of State for Trade and Industry that a defendant must show "compelling reasons" to set aside a PCO granted on paper.
2. If reconsidered, what the appropriate guidance should be and whether Simon J’s order should be set aside or varied accordingly.
3. Whether, assuming the "compelling reasons" test remains appropriate, McCombe J was correct in finding no compelling reasons to set aside the PCO.
4. Whether it was correct to grant a PCO in the MIU case at all, considering the principles set out in Corner House.
5. If a PCO was appropriate in the MIU case, whether the cap on costs set by Holman J was too low or whether no order as to costs should have been made.

Arguments of the Parties

Appellant's (PCT) Arguments

• The PCT argued that the analogy drawn in Corner House with CPR 52.9(2) was inappropriate and that the requirement for "compelling reasons" to set aside a PCO was not consistent with the Civil Procedure Rules (CPR).
• They contended that the PCO procedure devised in Corner House overlooked certain CPR rules, particularly CPR 23.8 and CPR 3.1(7), which allow applications to set aside or vary orders without the "compelling reasons" hurdle.
• The PCT submitted that the case was not exceptional and did not raise issues of general public importance nor public interest sufficient to justify a PCO.
• The PCT challenged the level of the cost cap, arguing that the sum fixed by Holman J was too low.

Appellee's (Plaintiff) Arguments

• The Plaintiff relied on the guidance in Corner House that a PCO once granted on paper should only be set aside on the application of a defendant if "compelling reasons" are shown, arguing that no such reasons existed.
• The Plaintiff emphasized that the judicial review proceedings raised issues of general public importance and that the public interest required resolution of the matters, supporting Holman J’s decision to grant a PCO.
• It was argued that the discretion exercised by Holman J in fixing the cost cap was appropriate and should not be disturbed absent misdirection or unreasonable decision-making.
• The Plaintiff contended that the PCO procedure and its protections were necessary to enable access to justice in public law cases of this nature.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the principles governing PCOs as set out in Corner House, emphasizing the five cumulative criteria that must be satisfied before a PCO can be granted: (i) issues of general public importance; (ii) public interest in resolution; (iii) absence of private interest by the applicant; (iv) fairness and justice considering financial resources and likely costs; and (v) likelihood that without a PCO the applicant would discontinue proceedings reasonably.

The court considered the procedural rules under the CPR relevant to applications made on paper, concluding that while the PCT had the right to apply to set aside or vary a PCO, compelling reasons were required to do so where the defendant had had an opportunity to present written arguments prior to the order. This aligned with the procedural guidance in Corner House and prevented protracted satellite litigation.

Regarding the criterion of general public importance, the court acknowledged it was a demanding test intended to limit PCOs to cases of genuine public significance beyond merely local or private interests. The court recognized that the affected population of 30,000 to 50,000 was insufficient in itself to satisfy the general public importance requirement, particularly where the case involved fact-specific challenges and no point of law of wider significance.

The court distinguished between the concepts of general public importance and public interest, treating them as separate but related. It noted that while the issues were important to a local community, the public interest in resolving them was marginal given the limited engagement by the wider public.

The court also addressed the notion of exceptionality, concluding that it is not an additional separate requirement but rather a consequence of the stringent five criteria. Thus, PCOs will only be granted in rare and exceptional cases that satisfy the established principles.

Holman J’s decision to grant a PCO was upheld by the majority, who found his exercise of discretion was within a reasonable ambit despite the borderline nature of general public importance and public interest in this case. The cost cap imposed was deemed a proportionate and tailored response to the circumstances.

McCombe J’s refusal to reconsider Simon J’s PCO order was also upheld, with the court finding no compelling reasons to set aside the order. The court emphasized the importance of procedural finality and the need to avoid re-litigation of issues already considered, absent new material or clear errors.

The court recognized the procedural difficulties in handling PCOs in appellate courts and proposed that future applications for PCOs on appeal should follow similar procedural stages as at first instance, including paper consideration, rights of written response, and oral hearings only if required.

A dissenting opinion expressed concerns about the jurisdictional limits of PCOs and the necessity of strict adherence to the exceptionality and general public importance criteria, arguing that the present cases did not meet those thresholds and that Simon J’s failure to provide reasons was a compelling reason to set aside the order.

Holding and Implications

The Court of Appeal DISMISSED all three appeals, thereby:

• Confirming the validity of the procedural guidance in Corner House regarding the granting and setting aside of PCOs, including the requirement for compelling reasons to vary or revoke a PCO granted on paper.
• Upholding Holman J’s grant of a PCO in the MIU case, finding the issues met the threshold of general public importance and public interest, and that the cost cap imposed was a proper exercise of discretion.
• Confirming McCombe J’s refusal to set aside Simon J’s PCO order in the day hospital case, finding no compelling reason to do so despite the absence of detailed reasons from Simon J.

The decision clarifies the scope and limits of the court’s jurisdiction to grant PCOs, emphasizing the importance of the five cumulative criteria from Corner House and the procedural safeguards to avoid unnecessary litigation over PCOs. Although the judgment broadens slightly the range of cases in which PCOs may be granted, it maintains a cautious approach to protect public funds and procedural fairness.

No new precedent was created beyond the reaffirmation and application of existing principles, but the court suggested the need for procedural rules to be developed concerning PCOs in appellate courts.