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15 March 2013
R. (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts

Following the public inquiry report into child deaths at the Bristol Royal Infirmary, the National Specialised Commissioning Group's 2008 "Safe and Sustainable Review" (the "Review") recommended that the number of specialist centres providing paediatric cardiac surgery be reduced from eleven to seven. The Joint Committee of Primary Care Trusts (the "JCPCT") was set up to carry out the consultation process and make the final decision on the location of the seven specialist paediatric cardiac surgery centres. Of twelve options considered in the consultation process, the JCPCT decided that an option that excluded Leeds General Infirmary ("Leeds") would provide the best quality care (“the Decision”).

The claimant challenged the validity of the consultation process, alleging procedural unfairness, and the case was won on this point; however, what is perhaps more interesting from an administrative law point of view is the identity of the claimant.

The claimant company was set up specifically for the purpose of this litigation, funded by public contributions. The Children's Heart Surgery Fund ("CHSF") laid the groundwork to the challenge but was advised by the Charity Commissioners not to proceed as litigation might be incompatible with the charity's aims as set out in its governing document.

The JCPCT challenged the claimant's standing, saying it did not have a "sufficient interest" because it was a shell company that had been set up solely to bring the judicial review challenge and had no involvement in paediatric cardiac services; it would, therefore, be unaffected by the Decision.

The court took the view that the claimant "plainly" had a sufficient interest in the decision being quashed.  This was because many individuals who contributed to the campaign fund would have had a direct sufficient interest if they had brought the claim themselves. However, most private individuals do not have the resources to bring litigation of this kind. The court went further:

"Incorporation was and is the proper means of allowing the interests of a substantial number of persons who consider the defendant's decision to be unfair and unlawful to be jointly represented. There is no obvious better placed challenger, in fact there is no other challenger."

The court noted that the claimant represented many individuals affected by the closure of the unit in Leeds, as well as representing clinicians who work there. Moreover, as the CHSF could not bring the case, there was no other challenger.

In a press release dated 4 February 2013 , the NHS stated that that the liability of Save our Surgery Ltd ("SOSL") to meet the NHS' costs has been limited to £50,000 by court order. It points out that it has cost the NHS around £1.5million to defend similar claims in the past. It also points out that the CHSF had "deeper pockets". In the end, SOSL was successful in its challenge and so the question of their liability for costs did not arise. However, this decision might leave open a loophole by which deep-pocketed entities can effectively cap their liability for costs by circumventing the usual requirements for a Protective Costs Order ("PCO"), particularly if the specified aims of that entity are incompatible with litigation.

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