CO/806/2006 
Neutral Citation Number: [2006] EWHC 2706 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 8th September 2006
 
B E F O R E:

MR JUSTICE SILBER 

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THE QUEEN ON THE APPLICATION OF COOKE
(CLAIMANT)

-v- 

BRISTOL NORTH NHS PRIMARY CARE TRUST
(DEFENDANT) 
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JESSICA SIMOR appeared on behalf of the CLAIMANT
MATTHEW BARNES appeared on behalf of the DEFENDANT

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J U D G M E N T
Friday, 8th September 2006
1.	MR JUSTICE SILBER:  The claimant has worked as a nurse in the National Health Service for 22 years.  She was diagnosed with breast cancer in March 2005.  She underwent an operation to remove the tumour in April 2005 which she paid privately.  She completed the chemotherapy and radiotherapy in November 2005.  By a letter dated 14th November 2005 her consultant oncologist applied for exceptional funding for 12 months of Herceptin.  The defendant refused to fund that treatment on the basis that she had not demonstrated any exceptional circumstances justifying funding as compared with another patient fulfilling the same criteria.  An interim order was made on 1st February by me, providing Herceptin to the claimant.  
2.	On 15th February Bean J rejected a challenge to a similar policy in R (Rogers) v Swindon National Health Primary Care Trust [2006] EWHC 171.  On 12th April 2006 the Court of Appeal overturned this finding and held that insofar as it was based on clinical exceptionality, it was irrational where there was in reality no possible exceptional circumstances (see R (Rogers) v Swindon National Health Primary Care Trust [2006] EWCA Civ 392 at paragraph 62 and 63).  
3.	After the Court of Appeal gave its judgment in Rogers there were attempts to settle the present case with the defendant, but they were unsuccessful.  On 23rd August 2006, the National Institute for Clinical Excellence issued guidance that Herceptin should be offered as an option for women with early stage HER2 positive breast cancer after they had had surgery and chemotherapy and sometimes radiotherapy.  The claimant falls into that category.  Last Friday, on      1st September 2006, the defendant informed the claimant of its decision to provide her with Herceptin in accordance with the guidance of the National Institute.  
4.	The only issue that therefore now remains outstanding is the question of costs.  Both counsel have agreed that I should not give a full judgment and so I will give my reasons briefly.  It is common ground between both counsel that the appropriate approach for me to adopt is that set out by Scott Baker J, as he then was, in R (Boxall) v Mayor and Burgeress of Waltham Forest London Borough Council CO/3236/1990.  The important principles set out in paragraph 22 there were that the court should try and do justice between the parties without incurring unnecessary court time and subsequent costs:
"(iv) At each end of the spectrum there will be the cases where it is obvious which side would have won had the substantial issues been fought to a conclusion.  In between the position will in different degrees, be less clear.  How far the court would be prepared to look into previously unresolved substantive issues, will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties;
(v) In the absence of good reason to make any such order, the fallback is to make no order as to costs." 

5.	Mr Matthew Barnes, for the defendant, says that this is a case where it is not obvious who would have won and therefore no order for costs should have been made.  Miss Jessica Simor, for the claimant, says that this is a case where the claimant would indeed have been successful in the light of the exceptionality policy which was considered irrational by the Court of Appeal in Rogers.  She also points out that the claimant sought to have her case joined with Rogers, but this was resisted by the defendant and that in this case there was a long delay, as I have explained, between the Court of Appeal decision and the change of policy by the defendant. This delay probably occurred while the defendants were waiting for the National Institute to give its guidance. 
6.	In admirable submissions by both counsel I have been taken to what was said by the Court of Appeal in the Rogers case.  My approach is that the policy and decision that were adopted in the present case were irrational for the reasons put forward by Miss Simur.  It has also been said that the claimant here was seeking further relief than what she has got, but I am quite satisfied that if the defendant had offered to quash their decision and to reconsider it in accordance with Rogers, the claimant would have abandoned her claim.  
7.	There has been a substantial discussion about the costs that would be involved in the new policy and it seems that Herceptin costs £25,000 a year and about 14 people would be applying to the defendant.  I am told by Mr Barnes that the general policy related to every conceivable drug, but I have no idea, nor has he, how much money in total is involved.  
8.	In essence, I accept Miss Simor's submissions and so I have come to the conclusion that this is a proper case in which to order costs.  I repeat that both counsel have said they did not want a more detailed judgment and that is why this judgment is shorter than it would otherwise have been so I have not explained why I accept Miss Simor's submissions and my other reasons for making the order for costs in favour of the claimant. 
9.	Can I thank both counsel very much.