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England and Wales High Court (King's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> CCC v Sheffield Teaching Hospitals & Anor [2023] EWHC 1905 (KB) (13 July 2023) URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/1905.html Cite as: [2024] WLR 1307, [2023] EWHC 1905 (KB), [2023] WLR(D) 327, [2024] 1 WLR 1307 |
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[New search] [Printable PDF version] [View ICLR summary: [2023] WLR(D) 327] [Buy ICLR report: [2024] 1 WLR 1307] [Help]
KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| CCC | ||
| (Suing by her mother and litigation friend MMM) | Claimant | |
| - and – | ||
| SHEFFIELD TEACHING HOSPITALS | ||
| NHS FOUNDATION TRUST | Defendant |
____________________
Sarah Pritchard KC (instructed by DAC Beachcroft solicitors) for the Defendant
Hearing date: 12th July 2023
____________________
Crown Copyright ©
Mr Justice Ritchie:
The Parties
Background
Issues
The Part 36 issue
Part 36
"Costs consequences following judgment
36.17
(1) Subject to rule 36.21, this rule applies where upon judgment being entered—
(a) …
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
..
(2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, "more advantageous" means better in money terms by any amount, however small, and "at least as advantageous" shall be construed accordingly.
(3) Subject to paragraphs (7) and (8), where paragraph (1)(a) applies, the court must, unless it considers it unjust to do so, order that the defendant is entitled to—
(a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and
(b) interest on those costs.
(4) Subject to paragraph (7), where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to—
(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
(c) interest on those costs at a rate not exceeding 10% above base rate; and
(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—
(i) the sum awarded to the claimant by the court; or
(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—
Amount awarded by the court
Prescribed percentage
Up to £500,000
10% of the amount awarded
Above £500,000
10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure.
(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made;
(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
(e) whether the offer was a genuine attempt to settle the proceedings.
(6) Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest must not exceed 10% above base rate.
(7) Paragraphs (3) and (4) do not apply to a Part 36 offer—
(a) which has been withdrawn;
(b) which has been changed so that its terms are less advantageous to the offeree where the offeree has beaten the less advantageous offer;
(c) made less than 21 days before trial, unless the court has abridged the relevant period.
(8) …
Rule 36.18
(1) This rule applies to a claim for damages for personal injury which is or includes a claim for future pecuniary loss.
(2) An offer to settle such a claim will not have the consequences set out in this Section unless it is made by way of a Part 36 offer under this rule.
(3) A Part 36 offer to which this rule applies may contain an offer to pay, or an offer to accept—
(a) the whole or part of the damages for future pecuniary loss in the form of—
(i) a lump sum;
(ii) periodical payments; or
(iii) both a lump sum and periodical payments;
(b) the whole or part of any other damages in the form of a lump sum.
(4) A Part 36 offer to which this rule applies—
(a) must state the amount of any offer to pay or to accept the whole or part of any damages in the form of a lump sum;
(b) may state—
(i) what part of the lump sum, if any, relates to damages for future pecuniary loss; and
(ii) what part relates to other damages to be paid or accepted in the form of a lump sum;
(c) must state what part of the offer relates to damages for future pecuniary loss to be paid or accepted in the form of periodical payments and must specify—
(i) the amount and duration of the periodical payments;
(ii) the amount of any payments for substantial capital purchases and when they are to be made; and
(iii) that each amount is to vary by reference to the retail prices index (or to some other named index, or that it is not to vary by reference to any index); and
(d) must state either that any damages which take the form of periodical payments will be funded in a way which ensures that the continuity of payments is reasonably secure in accordance with section 2(4) of the Damages Act 19964 or how such damages are to be paid and how the continuity of their payment is to be secured.
(5) Rule 36.6 applies to the extent that a Part 36 offer by a defendant under this rule includes an offer to pay all or part of any damages in the form of a lump sum.
(6) Where the offeror makes a Part 36 offer to which this rule applies and which offers to pay or to accept damages in the form of both a lump sum and periodical payments, the offeree may only give notice of acceptance of the offer as a whole.
(7) If the offeree accepts a Part 36 offer which includes payment of any part of the damages in the form of periodical payments, the claimant must, within 7 days of the date of acceptance, apply to the court for an order for an award of damages in the form of periodical payments under rule 41.8.
(Practice Direction 41B contains information about periodical payments under the Damages Act 1996.)"
Analysis
Single offers
Combined offers
"Money terms value" [MTV]
Conclusions
The Leapfrog Appeal application
"172. Future lost savings in the lost years The Claimant claimed her lost income in her lost years at half of £34,262 npa until normal retirement age and, in addition, one half of £17,500 npa for loss of pension during her retirement. No submissions were made on this head of loss. Both parties agreed I am bound the decision of the Court of Appeal in Croke v Wiseman [1981] 3 All ER 852. I was asked to assess the damages in case the Claimant appeals to the Supreme Court by leapfrog. I decline to do so in the light of the agreement that I have no power to make the award. The conflicting case law and principles on assessment are not a matter for off the cuff judgments."
"Leapfrog Appeals
1.2.17 Appeals in civil matters may exceptionally be permitted to be made direct to the Supreme Court under sections 12 to 16 of the Administration of Justice Act 1969 ... These appeals are generally called leapfrog appeals.
1.2.18 Such appeals are permitted only if the relevant statutory conditions are satisfied and the Supreme Court grants permission.
1.2.19 The relevant statutory conditions are set out in section 12(3) and (3A) of the Administration of Justice Act 1969, …"
"12 Grant of certificate by trial judge.
(1) Where on the application of any of the parties to any proceedings to which this section applies the judge is satisfied—
(a) that the relevant conditions are fulfilled in relation to his decision in those proceedings [F1or that the conditions in subsection (3A) ("the alternative conditions") are satisfied in relation to those proceedings], and
(b) that a sufficient case for an appeal to the [F2Supreme Court] under this Part of this Act has been made out to justify an application for leave to bring such an appeal, F3...
the judge, subject to the following provisions of this Part of this Act, may grant a certificate to that effect.
(2) This section applies to any civil proceedings in the High Court which are either—
(a) proceedings before a single judge of the High Court [F4(including a person acting as such a judge under section 3 of the M1Judicature Act 1925)], or
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5
(c) …
(3) Subject to any Order in Council made under the following provisions of this section, for the purposes of this section the relevant conditions, in relation to a decision of the judge in any proceedings, are that a point of law of general public importance is involved in that decision and that that point of law either—
(a) … or
(b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [F2Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [F2Supreme Court] (as the case may be) in those previous proceedings."
Two stage test
"Where by virtue of any enactment apart from the provisions of this Part of this Act, no appeal would lie to the Court of Appeal from the decision of the judge except with the leave of the judge or of the Court of Appeal, no certificate shall be granted under section 12 of this Act in respect of that decision unless it appears to the judge that apart from the provisions of this Part of this Act it would be a proper case for granting such leave."
Relevant conditions
Is there a point of law of general public importance and is there are binding Court of appeal decision?
Adult lost years claims
"As to principle, the passage which best summarises the underlying reasons for the decision in Oliver v. Ashman [1962] 2 Q.B. 210 is the following per Willmer L.J. at p. 240:
"... what has been lost by the person assumed to be dead is the opportunity to enjoy what he would have earned, whether by spending it or saving it. Earnings themselves strike me as being of no significance without reference to the way in which they are used. To inquire what would have been the value to a person in the position of this plaintiff of any earnings which he might have made after the date when ex hypothesi he will be dead strikes me as a hopeless task."
Or as Holroyd Pearce L.J. put it, at p. 230: "... what is lost is an expectation, not the thing itself." My Lords, I think that these are instinctual sentences, not logical propositions or syllogisms - none the worse for that because we are not in the field of pure logic. It may not be unfair to paraphrase them as saying: "Nothing is of value except to a man who is there to spend or save it. The plaintiff will not be there when these earnings hypothetically accrue: so they have no value to him." Perhaps there are additional strands, one which indeed Willmer L.J. had earlier made explicit, that the whole process of assessment is too speculative for the courts to undertake: another that the only loss is a subjective one - an emotion of distress: but if so I would disagree with them. Assumptions, chances, hypotheses enter into most assessments, and juries had, we must suppose, no difficulties with them: the judicial approach, however less robust, can manage too. and to say that what calls for compensation is injured feelings does not provide an answer to the vital question which is whether, in addition to this subjective element, there is something objective which has been lost. But is the main line of reasoning acceptable?"
"The respondent, in an impressive argument, urged upon us that the real loss in such cases as the present was to the victim's dependants and that the right way in which to compensate them was to change the law (by statute, judicially it would be impossible) so as to enable the dependants to recover their loss independently of any action by the victim. There is much force in this, and no doubt the law could be changed in this way. But I think that the argument fails because it does not take account, as in an action for damages account must be taken, of the interest of the victim. Future earnings are of value to him in order that he may satisfy legitimate desires, but these may not correspond with the allocation which the law makes of money recovered by dependants on account of his loss. He may wish to benefit some dependants more than, or to the exclusion of, others - this (subject to family inheritance legislation) he is entitled to do. He may not have dependants, but he may have others, or causes, whom he would wish to benefit, for whom he might even regard himself as working. One cannot make a distinction, for the purposes of assessing damages, between men in different family situations."
"My Lords, in the case of the adult wage earner with or without dependants who sues for damages during his lifetime, I am convinced that a rule which enables the "lost years" to be taken account of comes closer to the ordinary man's expectations than one which limits his interest to his shortened span of life. The interest which such a man has in the earnings he might hope to make over a normal life, if not saleable in a market, has a value which can be assessed. A man who receives that assessed value would surely consider himself and be considered compensated—a man denied it would not. And I do not think that to act in this way creates insoluble problems of assessment in other cases."
"... I prefer not to complicate the problem by considering the impact upon dependants of an award to a living plaintiff whose life has been shortened, as to which see section 1 (1) of the Fatal Accidents Act 1976; Murray v. Shuter [1976] Q.B. 972 and McCann v. Sheppard [1973] 1 W.L.R. 540. For our present consideration relates solely to the personal entitlement of an injured party to recover damages for the "lost years," regardless both of whether he has dependants and of whether or not he would (if he has any) make provision for them out of any compensation awarded to him or his estate. With respect, it appears to me simply not right to say that, when a man's working life and his natural life are each shortened by the wrongful act of another, he must be regarded as having lost nothing by the deprivation of the prospect of future earnings for some period extending beyond the anticipated date of his premature death."
"I recognise that there is a comparatively small minority of cases in which a man whose life, and therefore his capacity to earn, is cut short, dies intestate with nothing or has made a will excluding dependants, leaving all his money to others or to charity. Subject to the family inheritance legislation, a man may do what he likes with his own. Certainly, the law can make no distinction between the plaintiff who looks after dependants and the plaintiff who does not, in assessing the damages recoverable to compensate the plaintiff for the money he would have earned during the "lost years" but for the defendant's negligence. On his death those damages will pass to whomsoever benefits under his will or upon an intestacy. I think that in assessing those damages, there should be deducted the plaintiff's own living expenses which he would have expended during the "lost years" because these clearly can never constitute any part of his estate. The assessment of these living expenses may, no doubt, sometimes present difficulties, but certainly no difficulties which would be insuperable for the courts to resolve—as they always have done in assessing dependency under the Fatal Accidents Acts."
Teenagers' lost years claims
"But in an action by the victim, brought and resulting in judgment during his lifetime, he can now, as a result of the decision in Pickett v. British Rail Engineering Ltd., obtain damages, not only including a sum for shortened expectation of life, but also including a sum referable to what he could have earned in the lost years: the years in which, by reference to his shortened expectation of life, it is to be assumed that he will not be able to earn anything. The first stage of the argument before us on this first issue is whether the decision of the House of Lords in Pickett's case expressly or by inference either decides, or by way of obiter dictum expresses the view, that a case such as the present falls to be decided in the same way as Pickett v. British Rail Engineering Ltd. [1980] AC 136: that is, that the plaintiff in his action under the Act of 1934 is entitled to recover damages referable to lost earnings in the lost years."
Megaw LJ made his ruling at p 39 thus:
"In my opinion, that view of the meaning and intention of section 1 (2) (c) of the Act of 1934 receives confirmation from the concluding words of the paragraph: "... except that a sum in respect of funeral expenses may be included." If the victim, before his death, brought his action and obtained judgment, I see no reason why, if he saw fit to claim it, he should not be entitled to recover damages for anticipated funeral expenses, if only on the basis of acceleration: just as he would be entitled to recover damages for the earnings of the lost years, as Pickett v. British Rail Engineering Ltd. has decided."
The House of Lords upheld the decision, Lord Diplock ruling thus at p 62:
"Where the deceased is as young as in these two cases (15 and 22 years respectively) the law requires the judge to indulge in what can be no better than the merest speculation about what might have happened to the deceased during a normal working life-span if he had not been prematurely killed."
Further at p 65 Lord Diplock poignantly stated this:
"My Lords, if the only victims of fatal accidents were middle-aged married men in steady employment living their lives according to a well settled pattern that would have been unlikely to change if they had lived on uninjured, the assessment of damages for loss of earnings during the lost years may not involve what can only be matters of purest speculation. But as the instant appeals demonstrate and so do other unreported cases which have been drawn to the attention of this House, in cases where there is no such settled pattern - and this must be so in a high proportion of cases of fatal injuries - the judge is faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process. Guesses by different judges are likely to differ widely - yet no-one can say that one is right and another wrong."
Thus, teenagers are entitled to claim damages for their lost years.
Childrens' lost years claims
"His brain does not function at all. He is blind. He is paralysed in all four limbs. He cannot stand. He cannot talk. He can only lie on his mother's lap or on the floor. Just like a baby of less than a year old. He has to wear nappies all the time for he is doubly incontinent. There is no hope of any improvement. He does know his mother's voice and shows he loves her, just as a baby does. He is totally dependent on her for everything— for feeding, washing, changing and dressing—just like a little baby."
"I do not read those passages in the speeches of their Lordships in Pickett's case and Gammell v. Wilson [1981] 2 W.L.R. 248 in which they stress the difficulty of assessing an award of damages for the lost years in the case of a child as having general application to the claims of all children whose earning capacity has been diminished. In attempting to assess the value of a claim for the lost years, the court is faced with a peculiar difficulty. Not only does it have to assess what sum the plaintiff might have been earning, but it also has to make an assessment of the sum that would not have been spent upon the plaintiff's own living expenses and would have, therefore, been available to spend upon his dependants. In the case of a living plaintiff of mature years whose life expectation has been shortened and who has dependants, there are compelling social reasons for awarding a sum of money that he knows will be available for the support of his dependants after his death. It was this consideration that led to the result in Pickett's case. As a consequence of the decision in Pickett's case, the House of Lords in Gammell's case felt compelled to apply the same principle to a claim brought on behalf of the estate of the deceased person. If it could be shown that part of the deceased's income was available to be spent on his dependants, then a claim for that part of the income was available to cover the lost years of working life. In the case of a child, however, there are no dependants, and if a child is dead there can never be any dependants and, if the injuries are catastrophic, equally there will never be any dependants. It is that child that will be dependent. In such circumstances, it seems to me entirely right that the court should refuse to speculate as to whether in the future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist. It was this consideration that led me in Kandalla v. British European Airways Corporation [1981] Q.B. 158 to refuse to assess a sum for the lost years in respect of two unmarried doctors by speculating as to whether or not in the future they would have married and set aside some part of their income for husbands or children. I refused to enter into the realm of speculation about an impossible and hypothetical situation."
"25 In summary, in my opinion, the effect of Pickett is to hold that claims for loss of earnings in the lost years are permissible and that such claims are not restricted to adult wage earners with dependants. A claim by the estate of an adult or adolescent wage earner without dependants can clearly be made. I also have no doubt that Pickett does not as a matter of principle rule out claims made by the estate of deceased young children. The decision does however point to the difficulties of proof and assessment of such claims but those difficulties do not alter the underlying principle. These conclusions are in my judgment reinforced by the observations of Lord Scarman in Gammell v Wilson 1982 AC 27 ."
At paragraph 35:
"35. In my judgment, Gammell makes quite clear, what might be said to be less clear from Pickett, that the age of a victim is not as a matter of principle relevant to the issue of whether or not a claim can be made for the lost years. Further, the lack of dependants cannot be a factor which defeats a claim for damages for loss of earnings in the lost years. When it comes to the assessment of damages for the lost years the issues are evidential and not matters of principle. In my view Gammell assists, by way of further explanation, the speeches of the House on this topic in Pickett."
And at paragraph 45:
"45 …In my judgment, on any fair reading of the whole of the passage which I have cited above, Griffiths LJ was holding that claims for the lost years by a young child are not permissible. It seems to me that this is a statement of principle. The reason given for doing so is that the injuries are so catastrophic that there can never be any dependants. In my view, it is clear that Griffiths LJ regarded the absence of the prospective existence of dependants in the case of a young child as fatal to a claim for damages for loss of earnings in the lost years. Accordingly, it seems to me that this must be interpreted as a holding of principle and not a matter of evidence to be considered when assessing such damages."
Finally ruling at para. 46 thus:
"46. Having reached the above conclusion, and after paying all due deference to the decision of such a distinguished constitution of this court, in my opinion the decision in Croke v Wiseman is not consistent with the decisions of the House of Lords in Pickett and Gammell. I would add that I find it difficult to accept that if it is possible to assess prospective future loss of earnings for the lifetime of a young child, even allowing for the difficulty of assessing the surplus, it is not possible to assess damages for the lost years."
In relation to whether the Court of Appeal should or could overturn the decision in Croke and the normal rule that it cannot do so, Gage LJ ruled as follows:
"64. However broad or narrow the test may be I am quite satisfied that in this case the court ought not to depart from the normal rule. Croke v Wiseman was decided after the court had been referred to both Pickett and Gammell. It is obvious from the judgments that the members of the court had heard full argument on those decisions. Although I have concluded that the decision is inconsistent with both Pickett and Gammell, I am not prepared to hold that the circumstances in this case are so rare and exceptional that this court is entitled not to follow it. Nor, even if permitted to do so, would I hold that the decision in Croke v Wiseman was manifestly wrong. I accept that this claimant may be reluctant to invest in the cost of an appeal to the House of Lords but in my judgment that is not a sufficiently strong reason to depart from the normal rule. In my view, the error, if error it be, must be corrected by the House of Lords."
"45. In Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190 the Court of Appeal held that the first instance judge in that case had been bound, and that it was bound, by Croke, but that Croke (and, in particular the reasoning I have just referred to) was inconsistent with two decisions of the House of Lords, Pickett v BREL [1980] AC 136 and Gammell v Wilson [1982] AC 227 . The Court of Appeal granted permission to appeal to the House of Lords but the appeal was then settled.
46. I must follow Croke. In the light of the views of the Court of Appeal in Iqbal, I make two points only. First, I consider that the decision in Croke is inconsistent with the principle of full compensation which I have already mentioned. Second, I respectfully agree with Rimer LJ in Iqbal that the policy justifications referred to in Croke (see above) are inconsistent with Pickett and Gammell.
…
48. "Other things being equal, this is a point which should be resolved by the Supreme Court. It would save the parties time and costs if Eva were able to appeal directly to the Supreme Court, rather than having to appeal first to the Court of Appeal, which would again be bound to dismiss the appeal, as it did in Iqbal . No such appeal is possible in this case as the Trust will not consent to it. If those advising Eva wish to pursue it, they will have to appeal to the Court of Appeal first."
Submissions
""Croke v Wiseman [1982] 1 WLR 71 remains good law and is binding upon this Court. It is acknowledged that there has been some judicial "disquiet" in other authorities as to the effect of Croke in entirely depriving an infant C of any lost years claims. The inconsistency of Croke with the cases of Gammell and Pickett (per C's schedule) was noted and considered by the Court of Appeal in Iqbal v Whipps Cross University NHS Trust [2017] EWHCA Civ 1190. The Court of Appeal considered that it was obliged to follow Croke and disallowed the claim. Unless and until a decision of the Supreme Court intervenes (or there is some statutory reform), this Court is bound by the decision in Croke and no award under this head is permissible."
Conclusions on stage 1: the relevant conditions
Stage 2: has a sufficient case been made out?
"I would add this. I think that where the requirements of the section are satisfied, it is nevertheless within the judicial discretion of the judge whether or not to grant the certificate: for section 12 (1) provides that where the requirements are satisfied the judge "may" grant the certificate, and I can see no grounds for saying that this is one of the limited class of cases in which "may" in effect means "must." In the normal course of events, on an appeal the House of Lords has before it the judgments both at first instance and in the Court of Appeal; and I can well imagine cases where on an application for a certificate the judge might consider it desirable that the members of the House of Lords should, in addition to having his own judgment before them, have the benefit of the decision and judgments of the Court of Appeal. This is especially so in cases where there have been disputed questions of fact, for then the case will have been argued before the facts have been found. Each side must argue before the judge on the different bases of whatever facts the judge may by possibility find, and so they may not be prepared with the full range of authorities and arguments which are appropriate to the facts as ultimately found. In such cases, the judgments in the Court of Appeal, given after the case has been argued on ascertained facts, can be expected to be of especial assistance to the House. This consideration, however, is less apposite to revenue cases, where in the normal course the arguments and authorities put before the judge are based on the facts found by the commissioners. Nevertheless, there may be other circumstances in which, even in revenue cases, the judge may think it desirable that the case should not reach the House of Lords unless it has first gone to the Court of Appeal. One such instance, I think, is where the judge considers that although the case is within the letter of section 12, he does not consider that it falls within the spirit. In the present case, even if I am wrong in holding that the case fails to satisfy the second of the relevant conditions, I feel little doubt that it fails to fall within the spirit of that condition. Accordingly, I would in any event have refused to grant the certificate. The application accordingly fails."
"103. I do not accept the Claimant's submission that the test applied by the Supreme Court in relation to applications for permission to appeal to itself applies to applications for section 12 certificates. The sub-section requires the ascertainment of a "sufficient case" which, to my mind, entails a range of considerations, some merits-based, some discretionary.
104. I do not accept Mr Moon's submission that there would be some value in the Court of Appeal considering this issue. I have boldly stated that the Court of Appeal would be constrained to agree with me that it is bound by the majority in Gray.
105. Overall, I see some merit in the Claimant's core contention that it is disproportionate on the facts of her case to deny recovery on public policy grounds. However, I am not persuaded that she has made out a sufficient case that this is so. To my eyes, the key point is the manner in which the Supreme Court has looked at Gray in its subsequent jurisprudence, and in particular has failed to say anything about Lord Phillips' second reservation.
106. It follows that I must refuse to issue a certificate under section 12 of the Administration of Justice Act 1969. I also refuse permission to appeal to the Court of Appeal…"
"… the test for whether a sufficient case is made out involves a range of considerations, some merits-based and some discretionary.
The case law indicates that Courts have granted permission in circumstances:
Where there is a novel statutory interpretation issue, it is undesirable in terms of cost and time for an application to be made to the Court of Appeal and it would be better for the Supreme Court itself to decide if it would be assisted by a fully reasoned judgment from the Court of Appeal, see Hodkin v Registrar General of Births, Deaths and Marriages [2012] EWHC 3751 (Admin).
Where there is a novel statutory interpretation issue that draws into question compatibility of UK law with EU law, where the issue was previously to be considered by the Supreme Court but was not because of an intervening CJEU decision and where many potential claims are involved see Moreno v MIB No 2 [2015] EWHC 1142 (QB) at §10-12.
Where there are a large number of claims bound by a House of Lords decision and the ECHR has come to a different decision in the same case, see Al-Waheed v MOD [2014] EWHC 2714 (QB).
The Courts have not granted permission:
Where there are no conflicting decisions and it is highly unlikely prior case law would be overthrown, see A NHS Trust v X [2021] EWHC 65 (Fam).
On the basis of the manner in which the Supreme Court has looked at the contested authority in its subsequent jurisprudence, see Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB)."
Conclusion
Ritchie J
21 July 2023
