R (JOHN SMEATON on behalf of SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN) v THE SECRETARY OF STATE FOR HEALTH [2002] EWHC 886 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 886 (Admin)Case No Case No: CO/928/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
R (JOHN SMEATON on behalf of SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN)ClaimantTHE SECRETARY OF STATE FOR HEALTHDefendant(1) SCHERING HEALTH CARE LIMITED (2) FAMILY PLANNING ASSOCIATIONInterestedParties
Before
Mr Justice MunbyMr Richard Gordon QC, Mr James Bogle and Mr Martin Chamberlain (instructed by Coningsbys) for the ClaimantMr Kenneth Parker QC, Mr James Eadie and Mr Simon Hattan (instructed by the Office of the Solicitor to the Department) for the Secretary of StateMr David Anderson QC and Miss Jemima Stratford (instructed by Arnold & Porter) for Schering Health Care LimitedMs Nathalie Lieven (instructed by Leigh Day & Co) for Family Planning AssociationDate 10 May 2002
[1]Mr Justice Munby: Three matters remain for decision following the handing down of my judgment on 18 April 2002: the form of the order, costs and permission to appeal. I shall deal with these in turn. Form of the order[2]None of the defendants seeks any form of declaratory relief. They are content that I should simply make an order dismissing SPUC’s claim. I shall do so. Costs[3]Both the Secretary of State and Schering seek an order for payment of their costs by SPUC. (There is no application by fpa.) SPUC submits that there should be no order for costs, alternatively that only the Secretary of State should have his costs. Alternatively and in any event SPUC submits that any order for costs should be modest in amount or proportion. Costs – the Secretary of State[4]The starting point, of course, is CPR 44.3(2) which provides that:
“If the court decides to make an order about costs - (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.”
[5]CPR 44.3(4) provides that:
“In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including - (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention (whether or not made in accordance with Part 36).”
[6]CPR 44.3(5) provides that:
“The conduct of the parties includes - (a) conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.”
[7]CPR 44.3(6)(a) expressly authorises the court to order a party to pay “a proportion of another party’s costs”.[8]As Mr Parker points out, referring to the observations of Ralph Gibson LJ in R v Intervention Board for Agricultural Produce ex p Fish Producers’ Organisation Ltd [1993] 1 CMLR 707 at p 710 and of Dyson J in R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 at p 355F (see paragraph [414] below), the starting point is the same in judicial review proceedings as in other types of cases.[9]So, says Mr Parker, SPUC has wholly failed in its claim and the usual consequences should follow.[10]Mr Gordon submits that, given what he says is the unusual public interest nature of this case, SPUC should not be ordered to pay any part of the Secretary of State’s costs. He submits, in terms of what he calls general principle, that where a claimant brings judicial review proceedings, not out of any motive of personal gain but rather in the public interest, there are circumstances in which the court will not make an adverse order for costs even in the event that the claimant is unsuccessful. In support of this proposition he refers to New Zealand Maori Council v Attorney-General of New Zealand [1994] 1 AC 466, R v Secretary of State for the Environment ex p Shelter [1997] COD 49 and R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 . Referring to Liversidge v Anderson [1942] AC 206 at p 283, he suggests that the principle is not a new one.[11]So far as concerns the present case Mr Gordon submits that: i) SPUC is not bringing the proceedings out of any motive of personal gain. ii) This is a paradigm public interest case. iii) The financial effect on SPUC of an adverse award of costs – what Mr Gordon on instructions described as “very damaging” effects on SPUC’s activities – provides a further public interest consideration in favour of there being no order as to costs. In this connection Mr Gordon produced SPUC’s accounts for the years ended 29 February 2000 and 28 February 2001 (I was not shown the accounts for the year ended 28 February 2002). These show that SPUC had an operating surplus of £13,056 in 1999, a deficit of £47,939 in 2000 and a surplus of £205,123 in 2001 (the last figure reflecting an increase in legacy income to £280,942 in 2001 from £60,039 in 2000 and £64,923 in 1999). The balance sheet shows net assets on 28 February 2001 of £48,027, compared with net liabilities of £158,166 in 2000 and net liabilities of £110,320 in 1999.[12]I do not doubt that there are judicial review cases where public interest or analogous considerations will make it inappropriate in all the circumstances to require even a wholly unsuccessful claimant to pay the defendant’s costs. But in my judgment this is simply not such a case.[13]In New Zealand Maori Council v Attorney-General of New Zealand [1994] 1 AC 466 at p 485F Lord Woolf said this:
“There remains the question of costs. Although the appeal is to be dismissed, the applicants were not bringing the proceedings out of any motive of personal gain. They were pursuing the proceedings in the interest of taonga which is an important part of the heritage of New Zealand. Because of the different views expressed by the members of the Court of Appeal on the issues raised on this appeal, an undesirable lack of clarity inevitably existed in an important area of the law which it was important that their Lordships examine and in the circumstances their Lordships regard it as just that there should be no order as to the costs on this appeal.”
[14]That case, as Mr Parker observed, is far removed from the present case, not the least because the award of costs in a final appellate court resolving a point of law on which the court below was divided raises issues rather different from those faced by a judge at first instance. I derive from Lord Woolf’s words two points of significance for present purposes: first, that in considering what order for costs to make it is important to have regard to the fact, if fact it be, that the proceedings were not brought out of any motive of personal gain and, secondly, that it is in the same way important to have regard to any wider public interest which may be involved. I have not the slightest difficulty with either of these propositions. But beyond that the case does not particularly assist me. Nor do either Liversidge v Anderson or ex p Shelter .[15]More helpful, as it seems to me, is the decision of Dyson J (as he then was) in R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 . In that case Dyson J had to consider the circumstances in which it is appropriate to make a pre-emptive costs order in judicial review proceedings. That, of course, is not an issue with which I am directly concerned – though Mr Anderson seeks to rely upon the fact that in the present case SPUC made no such application. But in the course of considering that issue Dyson J had also to consider the more general question with which I am concerned. At p 353G he said this: “I should start by explaining what I understand to be meant by a public interest challenge. The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interest of his or her own. The central submission advanced on behalf of the applicants is that, because of those essential characteristics, the court should be more willing to make no order as to costs against an unsuccessful applicant in public interest challenge cases than in other cases. It is submitted that public interest challenges are not “ordinary litigation” between adverse parties”.[16]At p 355F he continued:
“The starting point must be the basic rule … that costs follow the event. It is true that the role of the court in all public law cases is to ensure that public bodies do not exceed or abuse their powers, but the parties to such proceedings are nevertheless adverse as is the litigation. … I accept the submission of Mr Sales that what lies behind the general rule that costs follow the event is the principle that it is an important function of rules as to costs to encourage parties in a sensible approach to increasingly expensive litigation. Where any claim is brought in court, costs have to be incurred on either side against a background of greater or lesser degrees of risk as to the ultimate result. If it transpires that the respondent has acted unlawfully, it is generally right that it should pay the claimant’s costs of establishing that. If it transpires that the claimant’s claim is ill-founded, it is generally right that it should pay the respondent’s costs of having to respond. This general rule promotes discipline within the litigation system, compelling parties to assess carefully for themselves the strength of any claim. The basic rule that costs follow the event ensures that the assets of the successful party are not depleted by reason of having to go to court to meet a claim by an unsuccessful party. This is as desirable in public law cases as it is in private law cases. As Mr Sales points out, where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of public funds diverted from the funds available to fulfil its primary public functions. I did not understand Mr Drabble to take serious issue with any of the foregoing. It is plainly right that in the normal run of the mill public law case, the unsuccessful party should pay the other side’s costs. To this Mr Drabble would respond by saying that typical judicial review proceedings involve adversarial litigation, in which the applicant is seeking to promote or protect his or her own private interest: it does not raise a public interest challenge as defined. Nevertheless, in considering whether, and in what circumstances, there should be a departure from the basic rule that costs follow the event in public interest challenge cases, in my view it is important to have in mind the rationale for that basic rule, and that it is for the applicants to show why, exceptionally, there should be a departure from it. As I said earlier, Mr Drabble relies on those cases where, at the end of proceedings, the court made no order for costs against the unsuccessful applicant, on the ground that the issues raised were ones of general public importance. Mr Sales and Mr Havers submit that the court was able to take that exceptional course in those cases because it was seised of all the arguments, and could decide whether, in all the circumstances, it was truly in the public interest that the claim should have been brought. It cannot be right, they argue, that every claim for judicial review, however bad it proves to be, should attract the same favourable treatment. The critical point about such cases is that the court feels able, after full argument, to decide that public money should be spent (by denial of recoupment from the unsuccessful party) on the clarification of the point of law.”
[17]I respectfully agree with everything said by Dyson J. But I do not read him as indicating that there is some bright-line distinction between those judicial review cases which do and those which do not involve a public interest challenge, let alone as saying that the determining factor in the award of costs is the presence or absence of some “private interest”. A more flexible and nuanced approach is, surely, indicated by the statutory duty to have regard to all the circumstances. There will in the nature of things be differing degrees of public interest involved in different types of case. And cases which do involve – as I entirely accept the present case does – some degree of public interest will range across a very wide spectrum of public interest and public importance, mixed up with what may be a greater or lesser amount of private interest.[18]After all, and as its own website proclaims, SPUC is a privately funded voluntary campaigning organisation which is not registered as a charity precisely so that it can remain free to pursue its legislative objectives unimpeded by the constraints of charity law: cf National Anti-Vivisection Society v IRC [1948] AC 31 . To the black-letter lawyer in Lincoln’s Inn SPUC would accordingly be seen as operating within the area of private law rather than public law, the law of private rather than public trusts. In that sense it could well be said, as I commented during the course of argument, that SPUC’s bringing of these proceedings did indeed involve the pursuit of its purely private interests. But this would be to miss the point.[19]Irrespective of the views they seek to promote, campaigning organisations such as SPUC play a vital role in that vigorous free trade in the competitive market in ideas which is the lifeblood of the democracy on which our society has wagered its future. Many, I do not doubt, find SPUC’s views disturbing, even distasteful. But that is quite beside the point: The Prolife Alliance v British Broadcasting Corporation [2002] EWCA Civ 297 .[20]The issues on which both SPUC and fpa are rightly so insistent to press their starkly opposing views are amongst the most difficult of the many moral, ethical and social issues which our society faces. It is very much in the public interest that organisations such as SPUC and fpa should continue to engage in vigorous debate on matters such as that which I have had to consider. As Douglas J said in his dissenting judgment in Dennis v United States (1950) 341 US 494 at p 584:
“The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.”
[21]But that does not mean that if an organisation such as SPUC seeks to move the market into a courtroom it can necessarily avoid the usual consequences of forensic defeat merely by pointing to the public importance of the debate. Article 10 does not, after all, require the public subsidy of campaigning free speech, nor does it require that those who are forced to participate against their wishes in debate in a forum which is not of their choosing should be compelled to pay for the privilege.[22]Now I recognise of course, as well-established learning on the principles of locus standi in public law cases demonstrates, that the nature of the disputes which can properly and appropriately be ventilated in the Administrative Court in judicial review proceedings is much less confined than those disputes which properly form the subject of private law proceedings elsewhere. But making every allowance for this, the fact remains that the courts – including the Administrative Court – exist to resolve real problems and not disputes of merely academic significance. Judges do not sit as umpires on controversies in the Academy, however intellectually interesting or jurisprudentially important the problem and however fierce the debate which may be raging in the ivory towers or amongst the dreaming spires.[23]I do not say this in any pejorative sense but the fact is that this was a manufactured dispute – and a dispute manufactured by SPUC. True it is that the topic was, on one level, the subject of continuing public debate, true that there was, as I have held, no settled or long-held legal interpretation of the word “miscarriage” in this context, and true that there was, to an extent, continuing academic controversy. Granted all that, but the fact remains that in the humdrum world of everyday life, so far as I can see, this was simply not a matter of genuine public concern at all (to adopt the phrase apparently used by Carnwath J in ex p Shelter at p 50) – at least not until SPUC commenced these proceedings.[24]As I have already remarked, the essential issue underlying these proceedings was identified as long ago as 1962. The morning-after pill has been available to the public since 1984. One cannot help thinking that if there was a real point it could – and would – have been taken a long time ago, indeed at any time since 1984. Mr Gordon was not able to point – and SPUC might be expected to know of such things – to a single prosecution or threat of prosecution or other litigation since 1962 questioning the legality of either the distribution or the use of the pill, the mini-pill or the morning-after pill or, since Dhingra in 1991, of IUDs. There has been rumbling academic controversy, though even in the Academy the preponderant view has for some time now been entirely contrary to that espoused by SPUC. In the realm of practical politics the matter has really been settled since the statement by Sir Michael Havers in 1983.[25]The outcome of these proceedings, matter of vital importance though it was, was important only because SPUC itself had chosen – and, I might add, chosen for its own purposes – to ventilate the issue. This litigation, unlike the proceedings in ex p Shelter , has not saved costs. On the contrary it has caused the Secretary of State (and, for that matter, both Schering and fpa) to incur substantial costs that neither he nor anyone else would ever have had to incur had SPUC not commenced these proceedings.[26]SPUC chose to bring this dispute to court, a dispute which in substance and reality arose only because SPUC chose to commence proceedings. Mr Gordon submits that SPUC’s motive was to clarify the law. That, I have to say, is more than a little disingenuous. SPUC came to court not with any impartial or disinterested desire to discover the true state of the law; it began these proceedings hoping to establish, with judicial assistance, what it sees as a fundamental proposition which is central to its whole campaign. Scott Baker J held that it was entitled to do so. It does not follow that it can avoid the usual consequences of forensic defeat.[27]SPUC went into this litigation with its eyes open. Collins J refused SPUC permission to bring the proceedings. Nothing that Scott Baker J said can have caused SPUC significantly to revise its assessment of its prospects of success.[28]The Chief Executive of fpa is reported as having said after I delivered judgment that the proceedings were “vexatious” and a “dreadful waste of public and private time and money”. Mr Parker did not go that far. Neither would I. Nonetheless the simple fact is, in my judgment, that these were proceedings, almost doomed to failure, which were commenced by SPUC essentially in its own interests. They were certainly not begun because there was any public controversy calling out for judicial resolution.[29]Mr Parker submits that there is in this case, however one looks at it, no good reason why the general rule of costs following the event should not be applied. I agree.[30]Before leaving this part of the case there is just one thing I should add. The point does not in fact arise, because Mr Gordon did not go so far as to suggest that an adverse order for costs would bankrupt SPUC or force it to terminate its activities. His instructions permitted him only to say that such an order would have “very damaging” effects. But had insolvency or closure been the likely effect of the orders sought by Mr Parker and Mr Anderson I should have wished to hear further argument as to whether that fact could or should have led to my making a different order.[31]Article 10 plainly cannot automatically immunise an organisation such as SPUC from the usual consequences of forensic failure. But I think there may nonetheless be grounds for suggesting that article 10 is implicated if the effect of some forensic failure – even some forensic folly – is likely to be the permanent silencing of a voice as central as SPUC’s voice is to a debate as important as that which lies at the heart of this litigation. And in this connection it might be important to analyse more closely the implications of what Roch J said in the passage in R v Legal Aid Committee No 10 (East Midlands) ex p McKenna [1990] COD 358 at p 360 to which Mr Gordon helpfully drew my attention. Costs – Schering[32]Mr Gordon submits that SPUC should not be ordered to pay any part of Schering’s costs. I do not agree.[33]Mr Gordon submits – correctly – that the normal rule, even in what he calls ordinary cases (that is, cases which do not involve a public interest challenge), is that two sets of respondents’ costs are not awarded against an unsuccessful claimant for judicial review. Mr Anderson agrees but says that a second set of costs may be awarded if justified in the special circumstances of the particular case.[34]Mr Gordon and Mr Anderson are agreed that the relevant principles are to be found in the speech of Lord Lloyd of Berwick in Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 . In that case the House of Lords had to consider the proper approach to the award of costs where there is multiple representation of ultimately successful parties in statutory planning appeals but the same principles apply to judicial review cases.[35]At p 1178E Lord Lloyd said:
“What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported. (1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. In so far as the Court of Appeal in the Wychavon District Council case may have encouraged or sanctioned such a course, I would respectfully disagree. (2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case. (3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified. (4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate interests. On the facts of the present case the Secretary of State is clearly entitled to the whole of his costs. The only question is whether the Manchester Ship Canal Co” – the developer – “should also receive their costs. In my opinion they should. I accept that the issues were all capable of being covered by counsel for the Secretary of State. But the case has a number of special features.”
[36]Mr Gordon says that Schering did not have any interest requiring separate representation. The issues argued on behalf of the Secretary of State and Schering were, he says, identical and there are no special features justifying a departure from the normal rule.[37]Pointing to Lord Lloyd’s analysis Mr Anderson submits that an award in favour of an additional party may in particular be justified(i) if there was likely to be a separate issue on which he was entitled to be heard,(ii) if he has an interest which requires separate representation,(iii) in proceedings at first instance and(iv) in a case raising “difficult questions of principle” in which the importance of the outcome for the intervening party is “of exceptional size and weight” ( Bolton pp 1178G-H, 1179B-C).[38]Mr Anderson points in particular to four matters as together justifying the order for costs which he seeks: i) In the first place, he says, Schering’s interests were directly affected. He submits, correctly, that the claim threatened with the taint of criminality all pharmacy and prescription sales of products which are administered to hundreds of thousands of women every year and which constitute a significant part of Schering’s product portfolio. Schering’s position was thus, he says, quite distinct from that of the typical intervener in judicial review proceedings. Schering found itself accused in effect of a criminal offence and threatened with considerable damage to its economic interests. It had no choice but to intervene and its participation in the proceedings must have been anticipated by SPUC as surely as if it had been joined by SPUC as a party. I entirely agree. ii) Secondly, he submits that Schering required separate representation. Schering and the Secretary of State are, he correctly says, on opposite sides both of the regulatory process and of the commercial relationship that govern the sale of prescription and pharmacy medicines such as Levonelle. He put the point rather tellingly when he commented that it would have been as unthinkable for Schering to have been represented by the Solicitor to the Department of Health as it would have been for the Secretary of State to have been represented by the albeit very distinguished firm, CMS Cameron McKenna, which in the event acted for Schering. iii) Next he submits that Schering’s evidence was distinctive and useful to the court. I entirely agree. Quite apart from the evidence of Dr Longthorne, Schering was the source of many of the modern medical dictionaries and of the evidence from Professor Drife, which had no equivalent from the Secretary of State and which was central to the eventual resolution of the case. iv) Finally he submits that Schering’s evidence and submissions were not duplicative. He says, correctly, that Schering did not seek to duplicate the evidence of Ms Walsh on nineteenth-century medical and contraceptive matters, nor to duplicate the oral submissions on behalf of the Secretary of State. He points out – and the fact deserves to be placed on record – that the transcript of the important decision of Wright J in Dhingra , a document apparently not previously available to the many commentators on the case, was placed before the court by Schering and only because of the persistent and ultimately successful researches of Schering’s junior counsel, Miss Stratford.[39]These are powerful arguments. But there is, as it seems to me, another and wider point. As I commented in paragraph [70], the 2000 Order was merely a convenient peg upon which SPUC sought to hang a claim which could have been brought at any time after the first introduction of the morning-after pill – as long ago as 1984 – and which in truth has absolutely nothing to do with whether Levonelle is available without prescription or only on prescription. In these circumstances the Secretary of State may have been a convenient defendant, but the real defendant surely was Schering. After all, on SPUC’s own case it was Schering as the person who “supplies” the morning-after pill, and not the Secretary of State who merely permits it to be sold, who was committing the criminal offences under section 59 of the 1861 Act which lie at the heart of SPUC’s case. Indeed, if the declarations sought by SPUC were to be binding in any way on Schering then surely Schering had to be a party to the proceedings: St George’s Healthcare NHS Trust v S [1999] Fam 26 at pp 58G-60E.[40]The simple reality is that this case without the active participation of Schering would have been a ‘Hamlet without the Prince’.[41]The reality, as it seems to me, is that once these proceedings had been begun Schering had no practical option but to seek to intervene – that is, to intervene in proceedings raised by a party which was not obliged to come to court at all, which is not a charitable organisation, which chose to make very serious allegations of criminality against a well-known pharmaceutical company, and which must have been well aware of the possible costs consequences of an unsuccessful application for judicial review. I repeat what I have already said in paragraphs [420]-[426]. In my judgment, and quite consistently with the principles referred to in Bolton , Mr Anderson has convincingly established grounds for departing from the usual rule. In principle, it seems to me, Schering should have its costs.[42]Standing back, and looking at the whole case in the round, I ask myself: is it fair, just and appropriate, having regard in particular to such public interest aspects as there may be, to order SPUC to pay the costs of both the Secretary of State and Schering? In my judgment it is. Indeed, not to do so would, as it seems to me, be unfair and unjust both to Schering and (were I to accede Mr Gordon’s suggestion, somewhat faintly made, that I should direct them to share one set of costs) also to the Secretary of State. Costs – amount[43]Finally, Mr Gordon submits that, if and to the extent that any order for costs is made against SPUC, only a modest stated amount or proportion of the costs should be awarded. Indeed, Mr Gordon goes so far as to suggest that in all the circumstances of the case (including the specific criteria referred to in the CPR) the court should make, at most, the “most modest” of awards. I do not accept this submission.[44]I accept, of course, that I have a discretion to do what Mr Gordon wants me to do: CPR 44.3(6)(a). But if it once be accepted that both the Secretary of State and Schering should have their costs – and that is the premise on which this point arises – I have to say that I cannot see any reason for saying that either of them should have anything less than the whole of their costs. Mr Gordon was not able to point to any argument distinct from those he had already deployed in seeking to resist any order for costs at all. Of course, the fact that SPUC has to pay other parties’ costs does not without more ado mean that it has to pay all those costs. But in this particular case the reasons which have led me to conclude that SPUC should pay both the Secretary of State’s costs and Schering’s costs lead me equally to the conclusion that SPUC should pay the whole of those costs. Fairness and justice to SPUC do not justify a reduction; fairness and justice to the Secretary of State and Schering require, in my judgment, that there be no reduction. In coming to that conclusion I have of course had regard to everything in CPR 44.3.[45]I should add one final point. Mr Gordon suggested, though without very much enthusiasm, that Schering should be deprived of part of its costs, having failed on two arguments – doubtful penalisation and long-held interpretation – which, unlike the Secretary of State, it had chosen to run. Neither of these arguments took up very much time. Neither can have contributed much more than the widow’s mite to the overall cost of this litigation. I can see no basis for making any special order for costs in relation to these two peripheral issues, whether the matter is approached in accordance with the principles laid down in In re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at p 1214A-D or, as I believe appropriate, the principles as I sought to explain them in R (Bateman and Bateman) v Legal Services Commission (No 2) [2001] EWHC Admin 797 . Permission to appeal – the substantive issue[46]Permission to appeal is regulated by CPR 52.3(6) which provides that:
“Permission to appeal will only be given where - (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.”
[47]The great Jessel is reported to have said, “I may be wrong … but I never doubt”. Lesser mortals do well to recognise the need for judicial humility and to beware the perils of judicial hubris. But I have to say, flatly, that on this occasion at least I have not the slightest doubt as to the correctness of my decision and that I cannot conceive the slightest prospect of it being reversed by the Court of Appeal. Mr Gordon may yet prove me wrong but in my judgment SPUC has absolutely no prospect of success.[48]Mr Gordon submits that the up-dating construction issue on which the case was determined raises important issues of principle in relation to the interpretation of Parliamentary intent. With respect I entirely disagree. My decision turned in the final analysis – see paragraph [350] – on the straight-forward application of well-established principles drawn from the decisions of the House of Lords in Ireland , Fitzpatrick and Oakley . The resolution of the case was, in the end, “short and simple”: paragraph [352]. As Mr Anderson puts it – and I agree – to succeed in an appeal SPUC would have to establish both that the word “miscarriage” falls to be interpreted as a technical 1861 term (contrary to repeated House of Lords authority) and that in 1861 it bore the meaning claimed for it by SPUC. Neither of these, in my judgment, is a remotely realistic prospect.[49]In my judgment SPUC has no real prospect – indeed, in reality no prospect at all – of success in an appeal.[50]I can detect no other compelling reason why the Court of Appeal should be troubled with this case. Mr Gordon submits that the public interest nature of the case is a compelling reason for granting permission to appeal. I disagree. As Mr Anderson puts it, interesting and important though the issues are, there is no serious prospect of the Court of Appeal either dealing with the case in any more depth or taking a different view. A decision of the Court of Appeal on the point would, of course, be more authoritative than my own and would, no doubt, be more felicitously expressed. But none of that, in my judgment, is any reason – let alone a compelling reason – for giving permission to appeal.[51]This is, as it seems to me, a classic example of the kind of case in which if there is to be an appeal it is for the Court of Appeal and not the judge at first instance so to decide. For my part I should not wish to say anything that might be thought to give the slightest credence to the view that this is an appropriate case to be considered by the Court of Appeal. In my judgment it is not. I refuse permission to appeal. Permission to appeal – costs[52]So far as concerns my decision in relation to costs I have merely sought in the exercise of my discretion to apply established principles to the circumstances of the particular case, albeit a case somewhat out of the ordinary. That, however, is no reason why I should grant permission to appeal. I decline to do so. I refuse permission to appeal. Order[53]It was for these reasons that at the end of the hearing on 25 April 2002 I announced that I had decided(a) to order SPUC to pay the costs of both the Secretary of State and Schering and(b) not to grant SPUC permission to appeal.

Cited in 7 later judgments