NHS judicial review to go ahead after High Court grants campaigners costs-capping order

Hawking: One of five claimants

A judicial review of the government’s plan to introduce accountable care organisations (ACOs) – which campaigners claim will lead to the stealth privatisation of the NHS – is set to go ahead after the High Court granted the crowd-funded claimants a costs-capping order.

Mrs Justice Cheema-Grubb agreed with the claimants to cap at £160,000 the amount that they would have to pay the government and NHS England in the event they lost the case.

She also ordered that the defendants’ liability to pay the claimants’ costs would be capped at £115,000. Before the hearing, the claimants had offered a cap of £100,000.

The defendants – who had strongly resisted the application – were ordered to pay the costs of the hearing.

The five claimants are three leading doctors, a former civil servant who co-chairs Keep Our NHS Public, and Professor Stephen Hawking. They said the high level of the defendants’ estimated costs was such that they would have to drop the case without a costs-capping order.

According to an update posted by #JR4NHS on its page on the CrowdJustice website, Cheema-Grubb J found that this was a case which met the statutory test of public interest, brought by responsible and public-spirited individuals, and that as the costs of the defendants were “very high” they should be capped so that the case could go ahead.

She added that as the public was funding both sides, as tax-payers and through CrowdJustice, a capping order was “entirely appropriate”.

“This judgment is fantastic news and a great relief. We now know that the money our supporters have donated will be enough to pay the defendants’ costs if we were to lose the JR, and that with a bit more fund-raising we have a good chance of being able to cover our own lawyers’ ‘reduced fee’ costs.”

Peter Mant of 39 Essex Chambers, instructed by Kate Harrison of Harrison Grant Solicitors, act for the claimants. Their estimated costs were £115,000-140,000.

The campaigners complain about a lack of both transparency and primary legislation in the Department of Health’s planned introduction of ACOs.

Comprised of the NHS, local authorities, private and third sectors companies, ACOs will be given large chunks of area budgets to handle health and social care services.

However, critics fear they will provide the means for stealth privatisation of the health service, as they will hand over greater control of services to commercial entities.

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