Prior to this case it was always understood that only matters of truly national importance (for example the invasion of Iraq) justified a court order protecting claimants from paying the cost of defendants if they lost. Compton has established that claimants can obtain a PCO where the issue of general public importance, within the governing principles laid down in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, only affects a section of the population (in our case 60,000 people) rather than all the people. 

The consequence is that large numbers of other local interest groups are applying for PCOs to challenge public bodies on a multitude of public interest issues – putting it bluntly public bodies are now much more accountable.

Context: the facts

In 2005 the taxpayer paid £9 million for an amazing rebuild of Savernake Hospital in Marlborough, Wiltshire. The new Minor Injuries Unit (“MIU”) at the hospital was state of the art.

On 4 July 2005 the then Chief Executive, Carol Clark said: “I am delighted that, after 15 years of dedication and commitment to this scheme by the community, the local NHS is now able to provide a significant health care resource for the people of Marlborough and district.” Unfortunately the Wiltshire Primary Care Trust (“PCT”) decided to close parts of the rebuilt hospital, including the MIU, even before it had been formally opened.

As part of a euphemistically entitled “Pathways for Change” consultation, the views of “stakeholders” were taken. Local people wanted to keep the MIU open, but the PCT decided it had to be shut. The reasons given were part clinical, part financial.
But the strange thing about healthcare is that things are not shut – they are simply “reconfigured”. Thus it was with the day hospital at Savernake. It  was physically closed for most of the week, yet still the PCT argued, in the ensuing judicial review proceedings, that it was open because it could be used – even though there were no staff there and the place was locked up.

The legal proceedings

Local opposition to these decisions to close the MIU and day hospital in January 2007, which local people had helped with financial contributions to the rebuild, was so strong that they decided to challenge the decisions by way of judicial review in the Administrative Court. Or rather one person did: Mrs Val Compton, who had worked as a physio in the day hospital, began proceedings on behalf of Community Action for Savernake Hospital (“CASH”).

Mrs Compton’s claim was for apparent bias, a failure to consult on the day hospital, and a purported justification for closure of the MIU that she said did not equate to the real reason for closure. The case comprised of the two judicial review claims themselves and multiple hearings up to the Court of Appeal as to whether such a local public interest case merited a PCO. This was key – as without a PCO we could not bring the claim.

At the time I ran the Western Circuit Free Representation Unit. I was also born in the hospital, so it seemed churlish to refuse to help when asked to by Mrs Compton in summer 2007. The cause was just, and like the troops in the First World War who signed up in the summer of 1914, I expected it all to be over by Christmas. So did the first judge, Mr Justice Simon, who granted us permission for judicial review of the day hospital closure and ordered a hearing before Christmas 2007.  However, in reality the two judicial review claims – for legal reasons we had to bring the closures of the MIU and day hospital as different claims – were contested all the way and took two years to resolve.

The pro bono team

This action required great courage, as Mrs Compton, who is retired, would have had to sell her home if she had lost and had to pay the PCT’s costs. The PCT’s costs eventually soared well above £100,000, so the pro bono team needed that PCO.  Cheerfully I applied for one, despite never having heard of a PCO before I looked it up.

The team started out as Mrs Compton and me. We couldn’t persuade a solicitor to get involved. One firm, allegedly renowned for their pro bono work, refused on the grounds that it “would be too much work”. In hindsight they were right. It became rapidly clear that whilst a number of murder cases had made me a good advocate, I needed some intellectual “White Book” rigour. Fortunately we had Mathew Gullick, and the help of every pupil in chambers, to assist.

Indeed the nature of pro bono is that the lawyers work longer hours and are more ready to go the extra mile. The case taught us that even if you have a lesser case than your opponent – if you really commit to it you can still win. When things got truly feisty, we persuaded Neil Garnham QC to lead us. His performance in the Court of Appeal when defending the PCO was outstanding. As was Smith LJ, who very gently but firmly rejected Buxton LJ’s robust dismissal of our case for the PCO and, together with Waller LJ, gave us our 2-1 majority.

Ultimately the judicial reviews themselves failed – the trial judge finding that although the PCT had made an “error of judgment” and that their approach had been “especially galling” for local people, the PCT’s actions were not capable of being overturned in law. He found that the PCT had not technically closed the day hospital and that there was some clinical justification for the closure of the MIU; as to the purported apparent bias he found that it was too far removed from the decision-maker or adviser to be enough to vitiate the decision.

Why pro bono matters

It was a moral victory on the claim and a significant development of the law on PCOs; meanwhile the fight for the mothballed hospital goes on.   Throughout the two years of free work, none of us wavered despite the siren calls of our clerks, paying solicitors and strident bank managers. You learn a lot in a long case about your fellow team members, to whom I am eternally grateful for their commitment. Most of all I pay tribute to Mrs Compton. It takes great courage to risk your home, your wealth and your health for a public cause. You sometimes get a lot more out of pro bono than a paying case will ever give you as a barrister. It was a pleasure to represent her and the people of Wiltshire.

Pro bono heroes”

The team – Neil Garnham QC, Mathew Gullick, Guy Opperman, Caroline Stone and Jamie Williams – received a special mention in the 2009 Sydney Elland Goldsmith Pro Bono Award. They were also named “Pro Bono Heroes” by the Attorney-General’s Pro Bono Committee.

PCOs: governing principles

The leading authority, Corner House, states that the court may make a PCO at any stage of the proceedings and on such conditions as the court sees fit, provided that (i) the issues raised are of general public importance; (ii) the public interest requires that the issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the parties and to the amount of costs likely to be involved it was fair and just to make the order; and (v) if the PCO is not made, the applicant will probably discontinue proceedings and will be acting reasonably in so doing. It was for the court, in its discretion, to decide whether it was fair and just to make an order in the light of those considerations.

In Compton the court held that issues of public importance could include those affecting only a section of the population; that there was no principle that PCOs should be granted in exceptional cases, exceptionality not being one of the five criteria (see further Sir Anthony Clarke MR in R (Buglife – The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corpn (2008) Times, 18 November).

Guy Opperman, barrister, Three Paper Buildings, London and Park Lane Plowden, Newcastle