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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rogers, R (on the application of) v Swindon NHS Primary Care Trust & Anor  EWHC 171 (Admin) (15 February 2006)
Cite as:  EWHC 171 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of ANN MARIE ROGERS
|- and -
| SWINDON NHS PRIMARY CARE TRUST
|- and -
|THE SECRETARY OF STATE FOR HEALTH
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip Havers QC and Matthew Barnes (instructed by Bevan Brittan LLP, Bristol) for the Defendant
Eleanor Grey (instructed by the Office of the Solicitor for the Dept. of Health) for the Interested Party
Crown Copyright ©
Mr Justice Bean :
a) The Trust has unlawfully failed to act in accordance with what is said to be a Direction of the Secretary of State by providing Herceptin only in exceptional cases;
b) The formulation and application of the Trust's policy has been arbitrary and irrational, and
c) The decision of the Trust not to provide Ms Rogers with Herceptin is contrary to her rights under the Human Rights Act 1998 and the European Convention on Human Rights. All counsel made submissions first on domestic law without considering the Convention, then on the impact of the Convention, and I shall follow the same course.
"It is only now with the Herceptin that I feel that I have been given a small part of my life back and I have been able to start thinking about the future."
a) Have primary invasive breast cancer that is confirmed as HER2 positive …
b) Are eligible for and receive adjuvant chemotherapy.
c) Have normal left ventricular ejection fraction (LVEF) (though particular care was recommended in the case of patients aged over 50 with an LVEF of 55% or less)…
d) Have none of the [listed] …. cardiac contraindications …
e) Have an adequate baseline heptatic, renal and haematological function.
f) Have no evidence of metastistic spread."
I will refer to patients who satisfy all these criteria as "the eligible group".
"…it is clear that Herceptin can precipitate severe heart failure in some patients. The best that can be said about Herceptin's efficacy and safety for the treatment of early breast cancer is that the available evidence is insufficient to make reliable judgements. It is profoundly misleading to suggest, even rhetorically, that the published data may be indicative of a cure for breast cancer"
The editorial concluded by warning of the need for caution in the debate about the availability of Herceptin to women with early stage breast cancer. A letter from 19 signatories in the 14th January 2006 edition of the Lancet, while accepting the need for caution, criticised the overall tone of the editorial as "inappropriately negative", and urged that women in the eligible group, once fully informed, should have the right of access to treatment if they so choose.
The Defendant's policy and its decision-making process
"Where Swindon PCT does not have a policy in place for a healthcare intervention, and in circumstances where an individual patient has a special healthcare problem that presents an exceptional need for treatment, Swindon PCT will consider such cases on their own merits. These 'exceptional cases' are considered by Swindon PCT's Clinical Priorities Committee."
The views of the Secretary of State
"Herceptin has the potential to save many women's lives and I want to see it in widespread use on the NHS. Today I am asking Professor Mike Richards [the National Cancer Director] to ensure that the facilities are put in place to enable women who require it to be tested. I want the licence for Herceptin to be granted as quickly as possible, without compromising people's safety, and to be available within weeks of the licence being given. I share the huge frustration of many women about the delays in getting Herceptin licensed. I am determined to take action, and this represents a major step forward in our fight against cancer."
"Any patient diagnosed with cancer wants to know that they will have access to the best possible treatment and care and we are committed to making sure that they get it.
Since I became the Health Secretary I have shared the huge frustration of many women about the delays in accessing new cancer drugs, in particular, Herceptin.
We know that Herceptin has the potential to work for around 1 in 4 women who are diagnosed with early stage breast cancer; those who test HER2 positive. It is important that we and the media do not give the wrong impression that it is suitable for everyone.
Nevertheless, even among those 1 in 4, it has the potential to save as many as a thousand lives a year.
The manufacturers have not yet applied for a licence for prescribing Herceptin for early stage breast cancer and I urge them again to get their application in as quickly as possible.
This leaves us with a difficult dilemma. The drug is already licensed and approved for late stage breast cancer but not for early breast cancer. There are some concerns amongst clinicians that it can cause serious cardiac problems for a small number of women who take it. And yet the early evidence suggests that it can be extremely effective for some early stage cancers which is why it has been fast tracked to NICE. I know that patients and clinicians alike will have seen the evidence presented recently in the New England Journal and will be very keen as patients to discuss the potential benefits of the drug.
As with other unlicensed drugs, it is down to individual clinicians to decide whether or not to prescribe Herceptin for a woman who has tested positive for HER2. The clinician has to make this decision after discussions with the woman about the potential risks and taking into account her medical history. It is the patients and clinicians who are the best people to make that decision. But because it has not yet been licensed or evaluated for early stage breast cancer, PCTs must also be involved and will have to decide whether to support the clinicians' decisions and pay for Herceptin. I want to make it clear that PCTs should not refuse to fund Herceptin solely on the grounds of its cost.
I know that some PCTs are already under financial pressure and may have to make difficult trade-offs in priorities to fund this new treatment for women who want it and whose clinicians want it for them. Although that will not be easy, I believe it is the right thing to do, particularly as they will be managing it over two financial years.
As you know, some weeks ago I have asked Mike Richards, the National Cancer Director, to ensure that testing arrangements are put in place as soon as possible so that patients who may benefit from Herceptin are identified in good time. That is happening.
And I have asked the National Institute for Health and Clinical Excellence to start on a fast track appraisal of the use of Herceptin in parallel with the licensing process so that they can issue their guidelines to the NHS Herceptin within weeks of the licence being given.
I should stress that the steps I am taking today do not, in any way, replace either the licensing by the European Medicines Agency or the approval process by the National Institute for Health and Clinical Excellence. They are vital and will continue to play the crucial role in ensuring the safety and cost effectiveness of any drug used by the NHS."
Herceptin for early stage breast cancer
On 25 October 2005 the Secretary of State announced:
"It is down to individual clinicians to decide whether…….to prescribe Herceptin for a woman who has tested HER2 positive………after discussions with the woman about potential risks and taking into account her medical history. I want to make it clear that PCTs should not refuse to fund Herceptin solely on the grounds of its cost."
This applies to women prescribed Herceptin for early stage breast cancer ahead of a decision on licensing or NICE appraisal. PCTs should not rule out treatments on principle but consider individual circumstances. Further information: Lindsay Wilkinson, 020 7972 4819."
The Defendant's decisions on the Claimant's application
"It was agreed by the SHA's [Strategic Health Authorities] and the PCT's that the Network as a whole will manage the requests for Herceptin from now until NICE approval next July by the use of exceptional funding panels through each PCT when the clinicians put patients forward."
"From 5th October 2005, all newly diagnosed women with early breast cancer will be offered HER2 tests. Following this, the routine use of herceptin will be introduced if and when NICE guidance is published in 2006…Until this time, the local NHS will not support the routine use of herceptin in HER2+ve women with early breast cancer. However, a clinician may ask a PCT to approve the use of herceptin in exceptional personal circumstances. All PCT's have well established mechanisms to review such requests on a named patient basis."
Jane Leaman recommended that the PCT should review each patient's case where the managing clinician believed that Herceptin should be considered as part of the patient's treatment to see if there were any exceptional circumstances evident. This was in effect a decision not to treat Herceptin as an exception to the PCT's general policy on off-licence drugs.
"Contacted Dr Janson to follow up referral form and discuss if there are any extenuating circumstances that wish to be considered for this case. Dr Janson confirmed that he has spoken to patient about this and discussed possible circumstances such as being a carer but there are none."
i) The statement by Dr Cole that "Mrs Rogers is not an exceptional case", together with the fact that she was one of about 20 patients who would stand to benefit from Herceptin per year in North Wiltshire.
ii) The fact that a member of Ms Rogers' family had died from a similar disease.
iii) Dr Cole's view that the Claimant had a 43% chance of being alive after 10 years.
iv) Dr Cole's statement that "it is likely that she has a greater absolute benefit from Herceptin than somebody with a more favourable prognosis."
The Secretary of State's Bulletin
"1. It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed secure improvement:
(a) in the physical and mental health of the people of those countries, and
(b) in the prevention, diagnosis and treatment of illness
And for that purpose to provide or secure effective provision of services in accordance with this Act.
2. Without prejudice to the Secretary of State's powers apart from this section, he has power-
(a) to provide such services as he considers appropriate for the purposes of discharging any duty imposed on him by this Act; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.
3. (1) It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements –
(c) medical, dental, nursing and ambulance services, …………….
(f) such other services as are required for diagnosis and treatment of illness"
"If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it into account in the discharge of their functions. They would be susceptible to challenge only on Wednesbury principles if they failed to consider the circular, or if they misconstrued or misapplied it whether deliberately or negligently: see EC Gransden & Co Ltd v Secretary of State (1987) 54 P&CR 86 at 93-4. If the circular gave directions, then the health authorities would have an absolute duty to comply. I agree that it is important that the court should be slow to construe a document as a direction in the absence of clear words that that is what it is intended to be. The language of the circular is very far from clearly demonstrating an intention to give directions. It is, of course, important to examine substance rather than form. The substance here is to be found in the language of the circular."
Is the Defendant's policy on Herceptin arbitrary?
"I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided of doctors were willing to give it, no matter how much the cost, particularly when a life is potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. …. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court."
"……my personal view on exceptionality when considering applications to use herceptin [is] that all HER2 positive women who fit the criteria for the HERA trial are in exceptional circumstances compared to other women in the population and indeed to other women with breast cancer. Of course I recognise that this is my personal view and does not constitute DH policy or guidance, and that the PCT was under no obligation to accept or act on this view."
"As illustrated in the Cambridge Health Authority case  1 W.L.R. 898 and Coughlan's case  2 WLR 622, it is an unhappy but unavoidable feature of state funded health care that regional health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose - indeed, it might well be irrational not to have one - and it makes sense too that, in settling on such a policy, an authority would normally place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure. Authorities might reasonably differ as to precisely where in the scale transsexualism should be placed and as to the criteria for determining the appropriateness and need for treatment of it in individual cases. It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in "exceptional circumstances" and to leave those circumstances undefined: see In re Findlay  A.C. 318, 335-336, per Lord Scarman. In my view, a policy to place transsexualism low in an order of priorities of illnesses for treatment and to deny it treatment save in exceptional circumstances such as overriding clinical need is not in principle irrational, provided that the policy genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its individual merits."
"……discretion means, when it is said that something is to be done within the discretion of the authorities, that that discretion is to be done according to the rules of reason and justice, not according to private opinion:….according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself."
Is the Trust's policy, or its application in the Claimant's case, irrational?
Have Ms Rogers' Convention rights been infringed?
""an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual's life at risk through the denial of healthcare which they have undertaken to make available to the population generally…"
The same wording was used in Pentiacova v Moldova (4 January 2005, Application No 14462/03).
i) Ms Rogers has not shown that Swindon PCT's refusal to fund her treatment with Herceptin is contrary to a direction or guidance from the Secretary of State for Health;
ii) Many Primary Care Trusts have a policy of funding Herceptin treatment for early stage breast cancer sufferers who are HER2-positive, but Swindon's is not to provide such funding unless the individual case is exceptional. The court's task is not to say which policy is better, but to decide whether Swindon's policy is arbitrary or irrational and thus unlawful;
iii) For the reasons given in this judgment I find that Swindon's policy is not unlawful, whether in English domestic law or under the jurisprudence of the European Court of Human Rights;
iv) Accordingly, despite my sympathy with Ms Rogers' plight, I must dismiss the claim for judicial review.
MR JUSTICE BEAN: I am handing down a written judgment in this case this morning. Copies have been made available to the parties and will be made available to the press and others in court. To summarise, Ms Rogers has not shown that Swindon PCT's refusal to fund her treatment with Herceptin is contrary to a direction or guidance from the Secretary of State for health. Many Primary Care Trusts have a policy of funding Herceptin treatment for early stage breast cancer sufferers who are HER2 positive. But Swindon's policy is not to provide such funding unless the individual case is exceptional. The court's task is not to say which policy is better, but to decide whether Swindon's policy is arbitrary or irrational, and thus unlawful.
For the reasons given in the judgment, I find that Swindon's policy is not unlawful, whether in English domestic law or under the jurisprudence of the European Court of Human Rights. Accordingly, despite my sympathy with Ms Rogers' plight, I must dismiss the claim for judicial review.
MR WISE: My Lord, we have clearly given the most careful consideration to your Lordship's judgment -- both lawyers and Ms Rogers, who sits behind me -- and having done so, we would submit that this is a case of considerable importance that is appropriate for consideration by the Court of Appeal. Accordingly, we would seek your Lordship's permission to appeal this matter to the Court of Appeal, and we would also seek an order requiring the defendant to continue to provide my client with Herceptin until the determination of that appeal or until further order of the court.
MR JUSTICE BEAN: Yes, I would like to hear from Mr Havers on both points.
MR HAVERS: My Lord, can I deal first with the question of permission to appeal. Your Lordship will be only to familiar with the two grounds on which permission to appeal may be given. If your Lordship would go, again, I am afraid, to 1457 of volume 1 of the White Book, and it is Rule 52.3 sub paragraph 6:
"Permission to appeal will only be given where -
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
My Lord, as to (a), we would venture to suggest that, in the light of your Lordship's judgment, your Lordship would be unlikely to say that (a) is satisfied, and so my learned friend must, we suggest, be founding his application for permission to appeal on sub-paragraph (b), that is, some other compelling reason why the appeal should be heard. My Lord, he has not articulated what that might be, but can I just make the following submissions on what I suspect he would say, namely that there is a broader public interest in these proceedings and thus in this challenge being considered by the Court of Appeal. My Lord, I would submit as follows. Firstly, both the challenge to the Trust's decision and your Lordship's judgment are very fact specific. Your Lordship will know that the challenge was to the policy of this Trust; it was to the application of that policy to the facts of this case; and, finally, was a challenge as to whether this decision was irrational on its facts. The only broader issue not dependent on the facts of this case was the issue which concerned the bulletin and whether that amounted to a direction or guidance. But I would respectfully submit that that point alone would not for one moment merit permission to appeal.
What your Lordship has done in this case is to apply well-established principles in public law, none of which have really been in dispute at all at any stage of these proceedings to the specific facts of this case. Now, other Trusts will have their own policies; other Trusts will apply those policies in their own way; and most critically of all, other Trusts will make decisions in relation to individual applications for this drug, which are necessarily fact specific -- dependent on the facts of the particular case and the particular circumstances of the patient applying for funding. Thus, any challenge to any other decision taken by any other Trust will necessarily be, at the end of the day, fact specific and not dependent upon what your Lordship may have decided in this case or what any other judge may have decided in any other case where a challenge has been brought.
So we submit that, on analysis, this is a fact specific decision at the end of the day which does not raise any broader issues of general public interest which require to be considered by the Court of Appeal.
My Lord, may I mention two further important factors, we suggest, in the context of the application for permission to appeal. The first is this, that it seems likely, to put it perhaps at its lowest, that this debate will, in any event, be overtaken by events at some stage later this year, that is to say, the grant of a licence and appraisal by NICE. So we are, at any view, looking at a very short-term state of affairs.
Secondly, an appeal will necessarily involve the Trust in further significant legal costs, which will be to all intents and purposes irrecoverable even if your Lordship were to make an order today that the Trust should have its costs, but not to be enforced without the leave of the court because the claimant is publicly funded.
MR JUSTICE BEAN: On appeal there is a different test, is there not?
MR HAVERS: My Lord, there is potentially a different test, but if the claimant is publicly funded on appeal, the same difficulties will arise in relation to the Trust obtaining any order for costs against her. The reality will be that her circumstances will be such that the Trust will not recover its costs of the appeal, and the upshot will be that the Trust, having incurred further legal costs which will be irrecoverable, but will have to be paid out of money that would otherwise go on patient care. So, my Lord, we respectfully submit that your Lordship should reject the application for permission. It is always open to my learned friend, if your Lordship were to do so, to apply to the Court of Appeal for permission and for that court to decide whether permission should be granted. But, for the reasons I set out, the Trust would invite your Lordship not to grant permission to appeal.
MR JUSTICE BEAN: What do you say about interim relief in either event?
MR HAVERS: My Lord, I am happy to deal with that now. I wonder whether your Lordship would prefer to decide the question of permission to appeal first before hearing me on that. I am entirely in your Lordship's hands as to which way you would like to do it.
MR JUSTICE BEAN: I think I would like to hear you on it anyway. What I would be disposed to do is grant interim relief for the remainder of this term or until the end of March so that the treatments, which I think are due in three weeks time and six weeks time, are covered, otherwise it would simply force Mr Wise into going to a Lord Justice later this week or next and incurring more costs and trouble for everyone.
MR HAVERS: My Lord, the Trust's position is that there would need to be an order of the court for the Trust to continue with the treatment: in other words, the Trust would not propose voluntarily to continue the treatment which it has provided hitherto. Your Lordship will recall that in December at the permission hearing, Charles J made an order that the Trust should fund treatment in the meantime, that is to say, pending this hearing and the outcome of this hearing. But the position now, I suggest, is very different to what it was in December at the permission stage because the claimant has now had an opportunity to ventilate the arguments before the court and those arguments have been rejected by your Lordship.
My Lord, there is also the question of costs, which it seems to me I can and do properly raise in this connection, although, of course, the Trust has not sought to rely upon costs in any way as part of the reasoning that underpinned the decision itself. My Lord, the position is as follows, that the Trust has borne the costs of treatment hitherto, which of course are irrecoverable costs. They come to some £3,000, and treatments hereafter would continue at the rate of, I think, £1,500 per treatment. So I have obviously heard what your Lordship said you were provisionally minded to do, and your Lordship would be able to do the mathematics to see how much more is thus involved. Although it may be said that these are modest sums given the budget of the Trust, at the end of the day it is all money which, according to the Trust's decision, which your Lordship has found to be lawful, is money which would otherwise go to pay for the care of other patients, together with obviously the costs that would be involved -- legal costs which would be involved.
May I just mention one final matter, which I do so with some hesitation, but I do so because the material is there in the papers. Both Dr Cole and Dr Janson, that is to say, the claimant's consultant oncologist and her GP, when they wrote to the Trust setting out their views as to her application for funding, made it clear that if the request for funding was refused, she would take out a mortgage on her property and would pay for the funding herself that way. Does your Lordship still have the two bundles? If I could ask you to go to bundle -- the defendant's bundle, and first to page 24. Your Lordship will see -- this being part of Dr Cole's application form -- it begins at page 22. At the foot of page 24:
"Implications for patients if not proposed [and I think the T needs to be deleted] if no proposed treatment is not funded [I think one can understand what is being said there], the patient will pay £39,000. This money will be raised through the re-mortgaging of her house."
Then two pages on in Dr Janson's letter to the Trust in relation to her application for funding, in the last paragraph:
"... she feels now that she should not be re-mortgaging her house to proceed with treatment. She has had to borrow money from her sister to get this far and would need to re-mortgage her house to continue the treatment."
My Lord, it certainly seems that there are means available to her to continue to fund her treatment if that is what she wants to do. Given that she has had the opportunity to ventilate the arguments before the court, and those arguments have been rejected by your Lordship, we would respectfully submit that it would not be appropriate to order the Trust to continue any longer to fund the treatment.
MR JUSTICE BEAN: Thank you, Mr Havers. Ms Grey, I take it you are neutral?
MS GREY: My Lord, we have no submissions to make.
MR JUSTICE BEAN: Yes, Mr Wise?
MR WISE: My Lord, in our submission it is fanciful for my learned friend to suggest that this case does not have a wider public importance; it plainly does. But before we come to the particular reasons for that, may I address your Lordship on both limbs of Part 52.3. Your Lordship will see that the first limb is whether there are real prospects of success. It is always difficult to persuade the judge who has given a judgment that there are real prospects of his judgment being overturned in the Court of Appeal, but nevertheless we do say that this is a case where there are real prospects of success, and, in particular, we point to at least three areas where that is so. Firstly, the exceptionality test, which, we say, is not sufficiently certain thereby giving rise to arbitrariness. Secondly, there is no rational reason for not providing Herceptin where costs are not in issue; and thirdly, where, as here, there is a grave risk to live, the treatment we know is effective, and there is no cost impedient to the provision of Herceptin, we would say to not provide the drug is a breach of Article 2 of the European Convention on Human Rights. So there are three strong arguments there, we would say, that are appropriate to put before the Court of Appeal. Each of those has a real prospect of success. Your Lordship will see that the two limbs of Part 52.3 are not conjunctive; they are disjunctive, so your Lordship merely needs to be satisfied on one or the other limb to grant permission to appeal.
On the second limb -- compelling reasons -- what we say about that is, firstly, there is clearly a wider public importance in ensuring that a drug that has the potential to save 1,000 lives per annum is properly provided and is provided by lawful procedures. We take that 1,000 lives-a-year figure from the Secretary of State's speech of 25 October, my Lord. That is the first compelling reason. Secondly, there is the disparity of approaches taken by Primary Care Trusts throughout England and Wales, which we say is also a strong reason why the matter should go to the Court of Appeal, and thirdly, and perhaps most importantly and a point that we must not lose sight of, is the potential risk to the claimant's life that this decision poses. One troubles hard to find a more compelling reason why this matter should be given further anxious consideration. So for those reasons we would say that it is an appropriate case to go to the Court of Appeal. As to interim relief --
MR JUSTICE BEAN: The only question I need ask you on that, Mr Wise, is the timing of the treatments. The first two were on 5 and 26 January.
MR WISE: We have a schedule, my Lord, in anticipation. I apologise I do not have a copy for my learned friends.
MR JUSTICE BEAN: If you just read it out.
MR WISE: The next treatment is due tomorrow, 16 February. They are then every three weeks thereafter. In March there are treatments on 9 March and 30 March, and then we have 20 April. So if we were to be granted permission to appeal, one would anticipate that the appeal would be prosecuted expeditiously, particularly if your Lordship gave it a steer in that direction. So we were looking in reality at three or four treatments -- something under £6,000, my Lord, and for my learned friend to say that that is an undue burden on his clients is plainly wrong. When one does the balancing exercise that we are all familiar with, to balance that cost against the potential prejudice to my client, one can only arrive at one conclusion. So, in those circumstances, we would invite your Lordship to make the interim order that we seek. If there is anything else I can assist you with, my Lord --
MR JUSTICE BEAN: No, thank you, Mr Wise.
I grant permission to appeal. I consider that the case raises issues of public interest and importance which should be examined by the Court of Appeal. I order an expedited transcript. I certify that the case is suitable for an expedited hearing date in the Court of Appeal. I have no control over the Court of Appeal diary, but I express the hope that they will be able to hear and decide the case this term.
I direct that the order of Charles J requiring the defendant to fund and provide the claimant with Herceptin treatment or fund the provision of Herceptin treatment to her shall continue until 31 March 2006 or judgment in the Court of Appeal, whichever is the earlier, or until further order of the Court of Appeal in the meantime. The effect of that, Mr Wise, is that, if the case cannot be brought to a conclusion in the Court of Appeal this term, you will have to persuade them that further protection is justified.
MR WISE: I am obliged for that order, my Lord. On the question of costs, my learned friend seeks an order for costs not to be enforced without leave of the court. We would suggest that the appropriate order should be that there be no order for costs, save for the assessment of my client's public funding.
MR JUSTICE BEAN: Do you want to say anything further on costs?
MR HAVERS: Only this: there is no legitimate basis, in my submission, for there being no order as to costs. The claimant has brought these proceedings; she has lost. What the Trust seeks is an order for costs in their favour. They accept that, as things presently stand, they should not be enforced without leave of the court, and that, I submit, is the appropriate order. The claimant having challenged the decision and having failed in that challenge, it would be quite wrong and indeed unprincipled for there to be no order for costs.
MR WISE: My Lord, it is plainly a matter for your Lordship's discretion. But this is a case which, as we know, has considerable wider impact; it is not just confined to Ms Rogers' own circumstances. In those circumstances, we would say the appropriate order is no order, save for detailed assessment, my Lord.
MR JUSTICE BEAN: Since the Trust have asked for an order for costs not to be enforced without leave of the court, and no application was made for a protective costs order or anything of that sort, I will make an order in that form and also direct detailed assessment of the claimant's costs for community legal service funding purposes.
MS GREY: My Lord, can I for the sake of tidiness suggest to your Lordship that there be no order as to costs of the interested party?
MR JUSTICE BEAN: Thank you, Ms Grey, I intended to do that and you are quite right to point out that I should say so expressly. Anything else to be dealt with today?
MR WISE: No, my Lord.
MR JUSTICE BEAN: I am very grateful to all counsel for their assistance.