England and Wales
The closure of part of a hospital was of general public importance to award a Protective Costs Order (PCO).
Mrs Compton had applied to judicially review two decisions of the primary care trust: to close a day hospital and to close a minor injuries unit. The substantive hearing had been listed. In connection with the day hospital the High Court made a PCO capping costs recoverable by Mrs Compton and disallowing the trust from recovering costs. In connection with the minor injuries unit the High Court made a PCO disallowing Mrs Compton from recovering costs and capping costs recoverable by the trust. The trust was appealing the first PCO.
The Court of Appeal confirmed the High Court’s PCO.
Waller LJ noted that it was difficult to separate the two tests of “general public importance” and “whether it was in the public interest to resolve a matter”. He concluded that when an action concerned the closure of parts of a hospital which affected a wide community, it was open to a judge to conclude that it was in the public interest to resolve the matter. “General” did not necessarily require the issue to be of national importance. It was a question of degree. R (on the application of Cornerhouse Research) –v- the Secretary of State for Trade and Industry  EWCA Civ 192 not to be read in an overly restrictive way anddid not attempt to define or limit issues of “general public importance”. Exceptionality was not to be seen as an additional requirement. That said, PCOs were not to be routinely made.
In a dissenting opinion, Buxton LJ found that the High Court had been wrong to conclude that the criteria set out in were met, as (a) the matter was not of “general public importance” (it affected a catchment area of 30,000 – 50,000); and (b) it was not exceptional or unusual for complaints to be made about hospital closures.
Points of note
This case provides interesting discussion as to what constitutes “general public importance.” The fact that the Court was divided on the issue only serves to highlight the difficulties in determining this question.