Protective costs on appeal

R (Goodson) v (1) Coroner for Bedfordshire and Luton (2) Luton and Dunstable Hospital NHS Trust CA TLR 1 November

The claimant appealed against the refusal of the judge to quash the verdict of the coroner on the death of her father in hospital, Luton and Dunstable Hospital NHS Trust, the second respondent. The judge had given her permission to appeal on the ground that an issue of general importance had been raised. The claimant applied to the Court of Appeal to exercise its jurisdiction under s51 of the Supreme Court Act 1981 (as substituted by s4 of the Courts and Legal Services Act 1990) to make a protective costs order in her favour. Apparently, the question of making a protective costs order for the first time at the appeal stage had not previously been considered, but no special considerations were appropriate for granting such an order where an application was made for the first time in the Court of Appeal, and established guidelines, although not inflexible, were applicable. Before the court could order that one party should pay its own costs irrespective of the outcome of the proceedings, it had to apply the principles identified in R (Corner House Research) v The Secretary of State for Trade and Industry [2005] 1WLR 2600 as follows: (i) the issues raised had to be of general public importance; (ii) the public interest required them to be resolved; (iii) the applicant had no private interest in the outcome; (iv) having regard to the applicant’s and the respondent’s financial resources and to the amount of costs involved, it would be fair and just to make the orders; and (v) if the order was not made, the applicant would probably discontinue the proceedings. It was not appropriate to make an order in this case. Leaving aside the applicant’s undoubted private interest in the proceedings, the public interest in having the issues decided was not so great as to require a decision from the Court of Appeal at the inevitable expense to the hospital as to its own costs.