Fantastic news – the case is going ahead – costs capped
In an important judgment in the High Court this morning, Mrs Justice Cheema-Grubb found against the Secretary of State and NHS England who had fiercely resisted our renewed application for a cost capping order. She granted an order that in the event of us losing the JR, our liability for the Secretary of State's and NHS England's costs would be no more than £80,000 each; and she o...Read More >>
We’re winning our fight against Jeremy Hunt’s and NHS England’s plans to allow private companies to take control of our health and care services.
Last week, a national public consultation on implementing the ACO policy was conceded, and a judge ruled that arguments on the lawfulness of the ACO policy itself should be heard (see Round 2 updates). But we’ve got a serious problem.
What’s the basic problem?
We’ve raised £180,000 altogether. Amazing. We were confident that this would be enough. We were wrong.
The government and NHS England are resisting every inch of the way and have already run up over £90,000 that they have claimed from us.
On the basis of their estimated costs we have been advised that we face a potential liability of £350,000-£450,000 if we lose. Plus maybe VAT. If we can’t limit our potential liability, then the case is over. We would have to withdraw.
But we don’t want to withdraw. We want the case to continue. Can you help us show the government, NHS England and the court that thousands of others do too?
We explain more in detail below.
What’s the problem in detail?
The Secretary of State and NHS England are claiming nearly £100,000 for their costs so far. And NHS England say their costs after a hearing could be around £250,000. While we don’t think this is realistic, we must estimate that on this basis our liability for costs could be in the region of £350,000-£450,000 – and it’s not clear whether they’d claim VAT on top. Our own lawyers’ costs are on top of this.
We have good arguments as to why we should not have to pay anywhere near this amount, even if we don’t win in the end, but the risk of not persuading a judge when the amount is so high is too great.
When we asked the court for permission to bring the case we also asked for a cost capping order, and we told the court that we would withdraw from the case without one. Mr Justice Walker gave permission for a full hearing, but he decided not to cap costs on the grounds that there was good reason to believe we would raise the money from crowd funding.
We may appeal against this decision – which itself means more costs - but in the meantime our solicitors have now written to the lawyers for the Secretary of State and NHS England, pointing out the importance of this case and suggesting we agree that each side bear their own costs, whatever the outcome. This would act as a disincentive to running up unnecessary costs and mean the case could be heard. We hope they will agree, but if not we will ask the court again for a cost capping order. It would help our case and show our determination to continue if we ask the public now if they are willing to keep this case going and so we are launching a third round of fundraising.
Why a target of £100,000?
We can’t possibly know at this point how much more we need – so the target isn’t really a target, it’s just an amount that seems to us reasonable in all the circumstances.
What if in the end we don’t need the extra money?
Any money we raise but don’t need will go to other judicial reviews fighting to keep the NHS as a universal, comprehensive, publicly funded, publicly provided and publicly accountable service free at the point of need. The fight for these principles is far from over.
If there are no such cases - which we think is highly unlikely - any money left over will go to the Access to Justice Foundation which aims to work strategically and to help in the overall effort to provide practical ‘access to justice’ to those unable to afford help; it describes itself as “the result of collaboration between the Bar Council, the Chartered Institute of Legal Executives, the Law Society and the voluntary sector (represented by the Advice Services Alliance), supported by the Judiciary, the Ministry of Justice and the Attorney General's Office”.
Who are we?
Professor Stephen Hawking CH CBE FRS - the world-renowned cosmologist and a long-time proponent of the NHS.
Dr Colin Hutchinson - former Consultant Eye Surgeon in Halifax and Huddersfield and current Chair of Doctors for the NHS.
Professor Allyson Pollock - public health doctor, Professor of Public Health at Newcastle University, founding member of Keep Our NHS Public, former chair of the NHS Consultants’ Association, and co-author of the NHS Reinstatement Bill.
Professor Sue Richards - former senior civil servant in the Cabinet Office, a Director of the National School of Government and Professor of Public Management at Birmingham University, and co-chair of Keep Our NHS Public.
Dr Graham Winyard CBE - former Deputy Chief Medical Officer, Vice President of the Faculty of Public Health, and Medical Director of the NHS in England where he led the development of the National Institute for Clinical Excellence (NICE).
The claimants are advised by Jenni Richards QC and Peter Mant of 39 Essex Chambers, instructed by Kate Harrison of Harrison Grant Solicitors.
We have also appreciated the assistance of Peter Roderick, co-author of the NHS Reinstatement Bill, and Dr Ben White, Campaign Manager.
Fantastic news – the case is going ahead – costs capped
In an important judgment in the High Court this morning, Mrs Justice Cheema-Grubb found against the Secretary of State and NHS England who had fiercely resisted our renewed application for a cost capping order. She granted an order that in the event of us losing the JR, our liability for the Secretary of State's and NHS England's costs would be no more than £80,000 each; and she ordered them to pay our costs of the hearing.
She found that this was a case which met the statutory test of public interest, brought by responsible and public-spirited individuals, and that as the costs of the defendants were "very high" they should be capped so that the case could go ahead. She added that as the public was funding both sides, as tax-payers and through CrowdJustice, a capping order was “entirely appropriate”.
She also ordered that in the event of us winning the JR, the defendants' liability to pay our costs would be capped at £115,000. Before the hearing we had offered a cap of £100,000 for our costs.
This judgment is fantastic news and a great relief. We now know that the money our supporters have donated will be enough to pay the defendants' costs if we were to lose the JR, and that with a bit more fund-raising we have a good chance of being able to cover our own lawyers' 'reduced fee' costs.
We were represented in Court by Peter Mant of 39 Essex Chambers instructed by Kate Harrison of Harrison Grant Solicitors.
Two dates for the diary
We've now heard from the court that the oral hearing of our renewed application for a cost capping order has been listed for Thursday 22nd February (1 hour), and the full hearing of the case has been scheduled for 23rd and 24th May (2 days). The hearings will be at the Royal Courts of Justice in the Strand in London.
Renewal of cost capping application
The Secretary of State and NHS England have refused our suggestion that each side bear its own costs whatever the outcome of this important case. We have therefore asked the court to hear our application for cost capping at a short hearing and have revised the application to ask that the amount we would have to pay, should we lose, be capped at £160,000.
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