R (Compton) v Wiltshire Primary Care Trust – when is an issue of “general public importance”?

[2008] EWCA Civ 749

The Court of Appeal reviewed the guidelines it gave on the exercise of the exceptional jurisdiction to make a protective costs order (PCO) in R (Corner House Research) v Secretary of State for Trade & Industry. A PCO protects pressure groups bringing public interest challenges by limiting the costs they will have to pay if their case is unsuccessful.

A PCO may be made where: 

  • the issues raised are of general public importance 
  • the public interest requires the issues to be resolved 
  • the claimant has no private interest in the outcome of the case 
  • it is fair and just to make the order 
  • if the order is not made, the claimant will probably discontinue the proceedings.

A PCO is more likely to be made where those acting for the claimant are doing so pro bono. Where the claimant’s lawyers are not acting pro bono, a cost capping order for the claimant’s costs is likely to be required.

The court refined the Corner House principles by finding that the action does not have to be of interest to all the public nationally to be of “general public importance”. Nor is there any specific requirement to prove “exceptionality”. The reference to the jurisdiction to make a PCO being exercised only in exceptional cases in Corner House did not add another principle to the five listed above but was a prediction as to the effect of applying the principles. The court also reviewed the procedure for making an order, lamenting the failure of the Rules Committee to codify the Corner House guidance, and considered the procedure for reconsidering a PCO made for first instance proceedings where the beneficiary of the PCO wishes to appeal.

Comment: the claimant’s applications for judicial review were brought on behalf of Community Action for Savernake Hospital (CASH) which alleged that decisions to close the day hospital facility and the Minor Injuries Unit had been taken by the Primary Care Trust (PCT) by stealth. The PCOs made below were upheld by a majority of the Court of Appeal, with a strong dissenting judgment from Buxton LJ. In his view, the proceedings were not of general public importance. If they were, then so would most decisions on hospital provision, school reorganisation or any aspect of local government services. Had the court in Corner House intended that any decision of this type would potentially fall within the jurisdiction to make a PCO, it would have expressed itself quite differently. Moreover, he concluded that exceptionality was an additional requirement for the making of a PCO and the present judicial reviews were certainly not exceptional, raising no point of law of general importance and being almost entirely concerned with disputes of fact.

Whilst the public may applaud the court’s support for applications of this type, those on the receiving end of judicial review claims will share Buxton LJ’s concern that the effect of the decision in this case is very greatly to extend the types of cases in which a PCO can be made. The effect of a PCO is to shift part of the financial burden or risk of litigation from the claimant onto public funds, in this case those of the PCT. This decision is really about politics and the controversial limits on funding for public law litigation, dangerous territory for the courts to venture into. As Buxton LJ said “the court should … be very cautious in taking steps that extend support from public funds beyond that chosen by Parliament, especially when the funds used for that purpose are not those dedicated by Parliament to legal purposes”.