In 2019, we reported on the tragic case of Tafida Raqeeb. Raqeeb v Barts Health NHS Trust  EWHC 2531 (Admin) and  EWHC 2530 (Fam)). As a brief reminder, Tafida Raqeeb, now aged 5, experienced a catastrophic brain injury in February 2019. The treating hospital believed that it was in her best interests for treatment to be withdrawn. Tafida’s parents disagreed and wished for life-sustaining treatment to continue. They sought alternative options and wanted to take Tafida to Italy for treatment. The Hospital Trust applied to the family court for permission to withdraw treatment. Tafida’s parents also sought judicial review of the Trust’s decision, arguing that the refusal by the Trust to allow Tafida’s parents to transfer her to Italy was an infringement of her EU rights. Mr Justice MacDonald decided that the decision of the Trust was unlawful but declined to grant relief to Tafida. In the proceedings under the Children Act 1989, the application of the NHS Trust, for an order that treatment be withdrawn, was dismissed.
Blog posts from the 5-day hearing and the judgment can be found here.
In December the cost judgment was published. This concerned an application for costs arising relating to the Administrative Court case and the case heard in the Family Division. An application for costs was made by Tafida in the judicial review proceedings and by the parents within the proceedings under the Children Act 1989. The Trust opposed the applications for costs in each set of proceedings and submitted that the parties should bear their own costs in each instance.
Proceedings for Judicial Review
Mr Justice MacDonald referred to the observation of Lord Neuberger in R v Croydon London Borough Council, ‘that the issue of costs is highly fact sensitive and very much a matter for the first instance tribunal’. Within the context of the case at hand, he argued that Tafida was successful in her claim for judicial review. He stated, ‘I regard the Claimant as plainly falling within the category of a successful party to the proceedings for judicial review’. Whilst he accepted that Tafida did not obtain a remedy for the illegality she established (because although the Trust did not consider her EU rights, the existence of the best interests dispute would have meant that Tafida could not have been transferred), he suggested that this was not a proper reason for depriving Tafida of a costs order in her favour. He stated,
I am of the view establishing the public law ground contended for is a more reliable indicator of success in the context of the question of costs than is the nature and extent of any discretionary relief subsequently granted for that default. In addition, I have taken account of the fact that the application resulted in lessons of general application beyond this case for NHS Trusts regarding their treatment of the directly effective EU rights of children in the context with which this case was concerned.
However, he added that costs should not be recoverable for the part of her costs relating to the submissions concerning Art 5 of the ECHR, concerning deprivation of liberty, as these submissions were rejected in the main hearing.
Thus, Mr Justice MacDonald concluded that an order for costs should be made in favour of the Claimant that she should recover 80% of her costs of the application for judicial review from the Respondent Trust.
Proceedings under the Children Act 1989
In the Children Act 1989 proceedings, Mr Justice MacDonald stated that the question of costs should be determined on the principles that ordinarily apply to the making of costs in proceedings concerning the welfare of children under the 1989 Act, and in proceedings concerning the welfare of children that are brought by public bodies.
Mr Justice MacDonald identified that, in this case, the Trust had no choice but to make an application for a determination of Tafida’s best interests in circumstances where there was a disagreement between the parents and the treating clinicians as to those best interests. In light of this, he accepted that the consequences of making a costs order against the Trust here would risk a chilling effect as it would be tantamount to a Trust being penalised in costs for bringing a case which it is was its duty to bring before the court. Mr Justice MacDonald added that,
More generally, if NHS Trusts are at risk of a costs order on ‘losing’ an application under s 8 of the Children Act 1989 in a case of this nature, in what is already a complex, difficult and contentious area of law, I am satisfied that there is a risk that Trusts will be deterred from making such applications by the tension between their safeguarding obligations in relation children who are not deriving benefit from life sustaining treatment and the duty to fund the treatment needs of all patients.
Further, Mr Justice MacDonald also noted the risk in situations where parents have secured private funding for all treatment. He suggested that, with pressure on NHS resources, the risk of costs will tempt Trusts to depart from medical opinion and to prefer the fully funded position of the parents, in order to avoid the costs risk. He accepted the Trust’s submission that such an outcome would affect the children most in need of a judicial determination of their best interests.
Thus Mr Justice MacDonald concluded that there should be no order of costs.