Vinayagamoorthy, R (on the application of) v NHS North London Enfield Primary Care Trust [2014] EWCA Civ 757

Case No C1/2013/2931[2014] EWCA Civ 757
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 9 April 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE McCOMBE
Between
THE QUEEN ON THE APPLICATION OF VINAYAGAMOORTHYApplicantv
Between
NHS NORTH LONDON ENFIELD PRIMARY CARE TRUSTRespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Dr P Vinayagamoorthy appeared in person for in person for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE McCOMBE:

[1]This is a renewed application for permission to appeal from an order of 21 December 2012 made by Mr Michael Kent QC, sitting as a Deputy Judge of the High Court, whereby the learned Deputy Judge ordered the applicant, Dr Pushpam Vinayagamoorthy, to pay to the respondent a sum of £3,000 in respect of costs of responding to the applicant's application for judicial review and for interim relief in those proceedings. The sum of £3,000 was an assessed sum of costs, initially in the acknowledgment of service, served in circumstances to which I shall return, and repeated in a letter from the respondent's solicitors of 20 March 2012 with an accompanying costs schedule whereby payment of a total sum of £4,832.63 was asked for.[2]The judge's costs order was made in a second set of judicial review proceedings issued by the applicant in respect of the decision by the Enfield Primary Care Trust to terminate the contract between it, on the one side, and the claimant and her husband on the other side for the provision of primary health care services. A notice of termination was served on or about 28 September 2010.[3]The Trust's decision to terminate the contract arose out of the husband's plea of guilty in the United States to certain offences arising out of his connections with persons or organisations associated with the LTTE or Tamil Tigers in Sri Lanka. The circumstances of all that are now "water under the bridge".[4]Following the notice of termination, the applicant appealed unsuccessfully to the National Health Service Litigation Authority, the internal domestic appeal forum. On 4 May 2011 the applicant issued the first set of judicial review proceedings, challenging the lawfulness of the termination decision. Leave to apply for judicial review was refused on the papers by Collins J and, after an oral hearing, by Cranston J on or about 13 or 14 December 2011. Thereafter, those proceedings were brought to this court and on 12 July 2012 Longmore LJ adjourned the application for permission to appeal to the Full Court. On 19 February 2013 the Full Court (Jackson LJ, Lewison LJ and Beatson LJ) refused permission to appeal.[5]A second set of judicial review proceedings, the relevant ones for present purposes, were begun on 13 February 2012. The applicant challenged the lawfulness of what was described by her in the claim form as "termination of contract on 14/12/2011 at midnight" and sought urgent interim relief preventing the implementation of that termination.[6]Prior to acknowledgment of service, by an order of 24 February 2012, made no doubt because of the claimed urgency of the situation, Mr Kent QC, as Deputy Judge, refused the claim for interim relief and refused permission to apply for judicial review. He also gave permission to the respondent to apply for its costs of responding to the application. His reasons for dismissing the judicial review proceedings or refusing permission were these:
"The claim and the application for interim relief are misconceived. The claimant had previously and so far unsuccessfully brought proceedings for judicial review (Admin CO/4078/2011) in which she seeks to challenge as unlawful decisions which underlie the notice of termination of contract made on 14 November 2011, which she seeks to challenge as unlawful in these proceedings. She has a pending application for permission to appeal to the Court of Appeal from Cranston J's refusal of permission to apply for judicial review in CO/4078/2011. Although the defendant in those proceedings is named as the NHS Litigation Authority, it is apparent that in substance the claim is the same and the PCT is named in section 6 of that Claim Form as a party against whom interim relief is sought. "
In her application to the Court of Appeal, the claimant asked that Court to "grant an interim injunction against the termination of the PMS contract". By the application for interim relief in her new JR Claim she seeks in effect to duplicate that application. "Both the new claim for judicial review and the application for interim relief are an abuse as well as being unnecessary. Neither are supported by arguable grounds. It is unnecessary to wait for the filing of an Acknowledgment of Service. "Nor is any justification for the urgency in relation to the interim relief demonstrated."[7]That order does not appear to have reached the respondents until 13 March 2012, although the applicant says that they reached her substantially before that. However, the Respondents filed an acknowledgment of service on 9 March 2012. That seems to me either very close to or within the time prescribed for acknowledgment of service after service of the claim form, the date of which is not clear. By letter of 20 March 2012 it was explained that they had received the order dismissing the proceedings, on the 13th and applied by that letter for the costs of the preparation of the acknowledgment of service and the resistance to interim relief. That letter was copied, as it says on its face (both by email and post) to the applicant and enclosed the costs schedule which was the basis of the application for costs.[8]I asked the applicant, during the course of argument this morning, where her response to that request for costs was and she told me that she did not in fact produce such an answer and, for reasons that I understand, she says that she was overwhelmed by the situation and she thought that:
"There had been no acknowledgment, there would not be much cost. What happened afterwards was a blackout for me. I thought the case was concluded."
[9]The grounds of appeal formally lodged in this court on the present matter largely rehearse matters relating to the merits of the lawfulness or otherwise of the respondent's decision to terminate the primary care contract. It also applies for an extension of time for the filing of the appellant's notice in these terms:
"I have suffered from a protracted and prolonged illness which prevented me from appealing within the time scales."
[10]The grounds themselves that were lodged at that stage did not explore in any detail the underlying complaints about the costs order made by the judge on 21 December 2012. However, in later skeleton arguments produced by the applicant, the true grounds of application to appeal to this court are more fully described. First, in a short skeleton argument produced yesterday, the applicant raises a procedural point that the Learned Judge's order providing for permission to the respondent to apply for costs did not follow precisely the form of order suggested by this court in the case of Ewing v the Office of the Deputy Prime Minister [2005] EWCA Civ 1583. The order the judge made was that the respondent had permission to apply for costs with the applicant to file any objection thereafter and the matter would then be considered by the judge on the papers.[11]As the applicant recognises, the form of order proposed as in the case of Ewing is only "a suggestion". It is not a rigid requirement that its precise words be followed in every case. The procedure that the Deputy Judge imposed had in fact the same substantive effect as the order in Ewing's case and there is nothing in that particular point.[12]The judge gave permission to the respondent to apply for its costs within seven days. The order was made on 24 February 2012, before the filing of the acknowledgement of service. The application for costs was contained in that acknowledgement of service, but without the respondent knowing that an order dismissing the proceedings had been made.[13]The costs claimed obviously included some costs incurred in the period after the judge had dismissed the proceedings. The applicant claims that she was properly notified of the court's decision and cannot understand why the respondent was not. She submits in her written grounds that it is unfair, therefore, that she should bear the burden of costs in preparation of the acknowledgment of service served after the judge's order. It has to be noted, however, that she did not respond to the costs schedule that was served. She clearly had opportunity to do so and did not take it.[14]Two points, now, arise. The application by the applicant for an extension of time and, second, the substance of her proposed grounds of appeal. The two are interrelated. The court will often grant some indulgence in cases of obvious merit even if there has been delay.[15]In relation to the delay in submitting the appellant's notice, it has to be remembered that the period with which we are concerned is the making of the judge's costs order in December 2012 and the service of the notice of appeal on 14 October 2013; a period of about 10 months. She has amplified her initial short grounds of appeal for an extension of time in the following terms in the later skeleton argument:
"I have had difficulty in concentrating and dealing with the affairs due to a protracted depressive illness during April 2013 and August 2013. I submit a medical certificate from my usual GP. The illness has rendered me unfit to address my affairs due to lack of attention and concentration. I apologise for this."
[16]Those are the material matters and she submits two medical certificates covering the period 7 May 2013 to 8 November 2013. Naturally I have sympathy with those submissions. The question for me is are they sufficient to warrant an extension of time and the grant of permission to appeal.[17]It is to be noted that the medical evidence supporting the applicant's claim as to her depressive illness relates only to the period from April to November 2013. The judge's costs order was made in December 2012, five months before the apparent onset of the applicant's illness, which she herself places as spanning April to August 2013. It is also to be noted that the illness does not, on the evidence, cover the period between the application by the respondents for their costs and the making of the judge's order. That is March to December 2012. That does not seem to me, on its face, an adequate basis for granting an extension of time.[18]On the substance of the matter which must be considered in the same breath, it has to be observed that the applicant did not respond to the application for costs made by the respondent. There was clear opportunity to do so, which was not taken up. It is difficult, it seems to me, in those circumstances, to criticise the Learned Judge's decision.[19]The fact remains that the applicant launched a wholly unmeritorious second set of judicial proceedings, raising precisely the same points as those that were raised in the first. The consequences of so doing must have been obvious. Costs were likely be incurred in meeting that claim. The fact that there appears to have been a prompt dealing with the matter in the court below but with some increased costs because of delay in the court's decision reaching the respondent does not undermine the reality that the real cause of the expense was the unmeritorious claim mounted by the applicant.[20]In such circumstances, in my judgment, it is impossible to say there would be a real prospect on appeal of showing that the judge erred in principle in making the order he did. He certainly reduced the costs from those claimed by the respondents. The proposed grounds of appeal coupled with the explanation for the delay in issuing the appellant's notice does not, in my judgment, justify granting the extension of time sought. Accordingly, that is refused, as is the renewed application for permission to appeal.