Case No: CO/5690/2002
Neutral Citation Number: [2003] EWHC 2401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 21 October 2003
Before :

THE HONOURABLE MR JUSTICE MUNBY

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Between :

	R (on the application of YVONNE WATTS) 	Claimant	
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	(1) BEDFORD PRIMARY CARE TRUST
(2) SECRETARY OF STATE FOR HEALTH	
Defendants	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Mr Richard Gordon QC (instructed by Leigh Day & Co) for the claimant
Mr Steven Kovats (instructed by Park Woodfine) for the Trust
Mr David Lloyd Jones QC (instructed by the Office of the Solicitor) for the Secretary of State

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Munby : 

POSTSCRIPT
201.	I handed down my written judgment in this case on 1 October 2003: R (ota Watts) v Bedford Primary Care Trust and anor [2003] EWHC 2228 (Admin). On 14 October 2003 I heard argument on the question of what precise relief I should grant. The argument was directed to a number of discrete issues that I propose to deal with in turn.
Permission to apply for judicial review
202.	As I have said (see paragraph [34] above) the claimant’s application for permission to apply for judicial review was adjourned by Wilson J to be heard together with the substantive application. Plainly, and Mr Lloyd Jones and Mr Kovats do not oppose this, I should grant permission in relation to all the issues of Community law. I refuse permission insofar as it was sought in relation to issues arising under either domestic law or human rights law. Mr Gordon, as I have said (see paragraph [38] above), accepts that the claimant has no remedy under domestic law and, as I have held (see paragraphs [48] and [50] above), any claim under the Convention is precluded by the decision of the Court of Appeal in R v North West Lancashire Health Authority ex p A [2000] 1 WLR 977.
Declaratory relief
203.	All counsel are agreed that this is a case in which it is appropriate for me to grant declaratory relief. I agree. It is convenient that the essence of a long and somewhat dense judgment should be extracted and set out in declaratory form in the court’s order. And, after all, unless that is done there will be nothing against which the Secretary of State can appeal.
204.	At the end of the day counsel were able to reach agreement on the form the declaratory relief should take and I have incorporated their draft in the order which is set out below. A question was properly raised by Mr Lloyd Jones as to whether the observations I had made in paragraphs [196]–[200] above were intended to amount to a ruling that the materials published by the Secretary of State fall short of Community law requirements: if yes, then declaration (11) should be made; if not, then declaration (11) should be omitted. I should not want there to be any ambiguity or misunderstanding about this important matter. Declaration (11) will be included in my order.
Other substantive relief
205.	The only other substantive relief which I need grant – and on this point counsel were all agreed – is an order that, save to the extent that I have granted declaratory relief, the claimant’s applications against both defendants be dismissed.
Costs
206.	Mr Gordon seeks an order that the Secretary of State pay the whole of the claimant’s costs, on the basis that on the issue at the heart of the case she won and he lost. Alternatively, he says, the Secretary of State should be ordered to pay a percentage – he suggests 85% – of her costs to reflect the fact that, if not totally successful, the claimant was substantially successful. Mr Lloyd Jones submits that this is a case in which it is appropriate to make issue–based orders for costs. Alternatively, he says, it may be appropriate to make no order for costs, thereby leaving each party to bear its own costs. Mr Kovats does not seek any order for costs against anyone, nor does anyone seek any order for costs against the PCT.
207.	Taking a broad view of the outcome as between the claimant and the Secretary of State:
i)	The claimant has won on all the legal arguments in relation to Article 49.
ii)	The Secretary of State has won on all the legal arguments in relation to the Convention and Article 22: he has also won on the facts in relation to both Article 49 and Article 22.
208.	In assessing the amount of time taken up in preparing for and arguing the various issues, I propose to proceed on the following basis, which, adopting the fairly rough and ready approach which alone is possible in such circumstances, seems to me to reflect the broad realities of this litigation:
i)	Comparatively little time was taken up either with the human rights issues or with the questions relating to reimbursement.
ii)	A certain amount of time was taken up with the facts, in particular in analysing the crucial correspondence.
iii)	A significant amount of time was taken up with the legal arguments in relation to Article 22.
iv)	Much – indeed much the greater part – of the time was taken up with the legal arguments in relation to Article 49.
209.	The fact that the claimant was only partially successful, and in particular the fact that in the final event her claim to be compensated or reimbursed was dismissed, have in my judgment to be reflected in any order as to costs. The claimant is not entitled to recover her costs in full and in that sense the order I make must, as it seems to me, reflect the various issues and the identity of the winning party in relation to each issue. But that does not mean that an issue–based order for costs would be appropriate. I should not want to see the parties condemned to a detailed assessment of their costs, issue by issue, nor condemned to the uncertainty of an apportionment as between the various issues of those items – brief fees, for example – which cannot very easily or fairly be allocated as between the various issues to which they relate even by the trial judge, let alone by a taxing judge. In my judgment, common sense, justice and fairness here require that any order I make be expressed in terms of the appropriate proportion (if any) of the claimant’s costs that are to be paid by the Secretary of State: cf CPR 44.3(6) and (7).
210.	Balancing out the various factors identified by Mr Gordon and Mr Lloyd Jones and reflected in their competing submissions that I should direct the Secretary of State to pay either 85% or 0% of the claimant’s costs, neither will, I imagine, be much surprised if I find that the fair, just and reasonable apportionment of the costs lies somewhere between those two extremes. Mr Gordon’s figure, in my judgment, does not adequately reflect either the time that was taken up in preparing for and arguing those issues on which the claimant failed or the fact that, when all is said and done, her claim for financial relief failed altogether. She may see herself as having won a mighty battle with the Secretary of State on a matter of great public importance, but the brute fact is that the claimant will not herself enjoy the fruits of victory. Her exertions will enure for the benefit of those who come after her. On the other hand, Mr Lloyd Jones’s figure does not adequately reflect either the time that was taken up in preparing for and arguing the issue on which the claimant won – an issue that was, at it seems to me, both the single most important issue and the issue that took up far and away more time than any other, indeed than all the others put together – or the fundamental significance of the very real victory that the claimant has undoubtedly won. 
211.	In a case such as this there is no very precise process of mathematical calculation that can be utilised to produce the answer. Any order is, in the nature of things, no more than a necessarily imperfect and imprecise attempt to arrive at the conclusion which, reflecting all the circumstances of the case, best accords with the trial judge’s evaluation of what is fair, just and reasonable. Taking all the circumstances into account, and seeking to balance on the one hand those issues in relation to which it might be thought fair to require the Secretary of State to pay the claimant’s costs against on the other hand those issues in relation to which it might be thought fair to require the claimant to pay the Secretary of State’s costs, but at the same time adjusting that balance to the extent appropriate to reflect the inherent importance of the various issues and, most importantly, in such a way as properly reflects the eventual outcome of litigation where the principle at stake was in many ways more important than the claimant’s comparatively modest financial claim, I have concluded that justice requires that the Secretary of State pay 35% of the claimant’s costs. That is the order I shall accordingly make.        
Permission to appeal
212.	The claimant does not seek permission to appeal unless one or other of the defendants does. Irrespective of any appeal that may be brought by either of the other parties the PCT does not seek permission to appeal. The Secretary of State seeks permission to appeal. Having succeeded on all other points, that appeal would be on the issues of Community law arising under or relating to Article 49.
213.	CPR 52.3(6) provides that permission to appeal will only be given where the court considers that the appeal would have “a real prospect of success” or that there is “some other compelling reason” why the appeal should be heard. Recognising, of course, that I may be wrong I confess nonetheless to some scepticism as to whether, particularly in the light of the decisions of the ECJ in Geraets–Smits and Muller–Fauré, there is any real prospect of an appeal by the Secretary of State succeeding. Be that as it may, however, this is in my judgment quite plainly a case where there are other “compelling” reasons why the Secretary of State should be permitted to appeal. The case raises important issues of Community law which, however extensively analysed in the jurisprudence of the ECJ, have not previously been considered either by our domestic courts or by the ECJ in any case relating directly to the NHS. And, as I have already observed (see paragraph [1] above), the implications of my judgment for the NHS and its patients may be profound.
214.	Mr Lloyd Jones told me that the Secretary of State has not yet come to a final decision as to whether or not to appeal. Nonetheless I am satisfied that I should give him permission to do so if he wishes.
215.	If the Secretary of State is to be given permission to appeal then it seems to me only fair and proper that the claimant should also be given permission. It would not be right to seek to define or delimit at this stage the issues that either might wish to ventilate in the Court of Appeal. I shall accordingly give both the Secretary of State and the claimant general permission to appeal. Time for filing any notice of appeal will be within 21 days of the date of this judgment, being the date on which the order will be made.   
Order
216.	I shall accordingly make an order (which will be dated today) in the following terms:
“IT IS ORDERED THAT
1. 	The Claimant has permission to apply for judicial review on the European Community law issues only.
2. 	Declarations be granted in the following terms:-
(1) 	The decision communicated by the PCT by letter dated 21st November 2002 and endorsed by the Secretary of State was erroneous in law in that it failed to address the relevant questions required to be considered under Article 49 EC.
(2) 	The decision communicated by the PCT by letter dated 4th February 2003 and endorsed by the Secretary of State was erroneous in law in that it failed to address the relevant questions required to be considered under Article 49 EC.
(3) 	The provision of hospital treatment by the NHS constitutes the provision of services within Article 49 EC.
(4) 	Hospital treatment which is in fact provided to and paid for by an NHS patient in another Member State does not fall outside the scope of Article 49 EC merely because the patient comes from the United Kingdom and seeks reimbursement from the NHS authorities.
(5) 	A national system which, as in the case of the United Kingdom, makes reimbursement of the cost of obtaining hospital treatment in another Member State subject to prior authorisation and other restrictions thereby creates a barrier to and restricts freedom to provide services, in a manner which requires to be justified if there is not to be a breach of Article 49 EC.
(6) 	By virtue of Article 49 EC, prior authorisation for treatment of an NHS patient in another Member State at the expense of the NHS can be refused on the ground of lack of medical necessity only if the same or equally effective treatment can be obtained without undue delay at an NHS establishment.
(7) 	A refusal of prior authorisation for treatment in another Member State can be justified if and insofar as it can be shown that such a refusal is necessary to provide an adequate, balanced and permanent supply of high quality medical and hospital services accessible to all through the NHS or in order to avoid the risk of seriously undermining the financial balance of the NHS. It can be justified if the refusal is based on a fear of logistical or financial wastage resulting from hospital overcapacity caused by the outflow from the NHS of large numbers of NHS patients who decide to be treated abroad, but not if the restrictions on the ability to provide services go beyond what is necessary to avoid such wastage.
(8) 	The fact that the NHS’s financial costs may be increased is a consideration of a purely economic nature which cannot justify a restriction on the fundamental freedom to provide services.
(9) 	When assessing whether or not a patient is faced with “undue delay”:
(a) 	the national authorities are required to have regard to “all the circumstances of each specific case” including the patient’s medical condition and, where appropriate, the degree of pain and the nature and extent of the patient’s disability; and 
(b) 	although the national waiting time applicable in any particular case is a relevant matter to be considered, it cannot be considered determinative and in many – probably most – cases it is unlikely to be even a significant matter.
(10) 	In the circumstances of the present case, the period of delay of NHS treatment which is tolerable before it reaches the level of what is ‘undue delay’, so as to result in a breach of Article 49 EC, is:
(a) 	a period very much less than the year with which the Claimant was faced by the decision communicated by the PCT (and endorsed by the Secretary of State) by letter dated November 21 2002; but
(b) 	a period significantly (though probably not substantially) greater than the period of 3–4 months with which the Claimant was faced by the decision communicated by the PCT by letter dated 4 February 2003.
(11) 	The materials currently published by the Secretary of State as to the procedures that an applicant should adopt to obtain reimbursement under the NHS for medical treatment abroad fall short of the requirement under Article 49 EC to have a “procedural system which is easily accessible”. 
(12) 	Under Article 22 of Regulation 1408/71 Member States are bound to grant authorisation only where the treatment cannot be provided within such time as to ensure its effectiveness. Waiting lists and waiting times are of central significance in the context of Article 22 which, although it requires one to take account of the patient's current state of health and the probable course of the disease, primarily directs attention to “the time normally necessary for obtaining the treatment in question in the Member State of residence.”
(13)	Reimbursement under Article 49 EC is calculated by reference to the legislation in force in the member state of the patient’s residence. Since hospital treatment is free at the point of delivery in the United Kingdom, reimbursement by the United Kingdom authorities under Article 49 EC would be at the full cost of the treatment abroad.
3. 	Save as aforesaid, the application is dismissed.
4. 	The Secretary of State do pay 35% of the claimant’s costs, such costs if not agreed to be the subject of a detailed assessment on the standard basis.
5. 	There be permission to the Claimant and the Secretary of State for Health to appeal to the Court of Appeal (such permission not to include the PCT which has not applied for permission).
6. 	Notices of appeal are to be filed with the Court of Appeal within 21 days after the date on which this order is made by the judge.
7.	There be a detailed assessment of the Claimant’s publicly funded costs.”
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MR JUSTICE MUNBY:  I now hand down in open court the supplemental judgment in the case of R (on the application of Watts) v Bedford Primary Care Trust setting out my decision in relation to costs, and also setting out in paragraph 216 the form of order which I propose to make.