A woman diagnosed with an aggressive form of breast cancer has been told she can mount a legal challenge to her NHS trust’s refusal to give her the drug Herceptin.

Swindon Primary Care Trust (PCT) had refused to give Ann Marie Rogers the as yet unlicensed drug, which has been found in trials to halve the chances of the aggressive HER-2 form of breast cancer.

The costly drug is available in Scotland and Northern Ireland, but some health trusts in England and Wales are still refusing to prescribe it.

Mrs Rogers, a former restaurant manager and mother of two, has borrowed £5,000 for three treatments so far but says she cannot afford to fund further courses. She applied to the High Court for permission to have the trust's refusal to treat her with Herceptin judicially reviewed.

Today Mr Justice Charles ruled that she had an arguable case which merited a full hearing. He said that the issues raised applied to a number of people up and down the country and were of general and public importance.

He ordered that the PCT should continue her treatment with the drug pending the hearing, which may not take place until February 22, although he categorised it as very urgent.

"I appreciate that any decision made on an interim basis may be treated as a precedent for other cases but, in my view, I have to deal with this case as it stands before me," the judge said.

Earlier this year, nurse Barbara Clarke, 49, from Bridgwater in Somerset, and Elaine Barber, 41, threatened to take Somerset Coast PCT and North Stoke PCT respectively to court but both trusts backed down beforehand and agreed to supply the drug.

Mrs Rogers, of Haydon Wick, Swindon, was not at the High Court in London to hear the ruling. Her solicitor Yogi Amin, of law firm Irwin Mitchell, spoke to her by mobile telephone to break the news.

He said: "Ann Marie said it was fantastic news. She was quite emotional when she found out about the news and her own words were that it has made her Christmas.

"Now she doesn’t have to worry over Christmas about whether or not she is going to receive the next treatment. She just hopes that at the full hearing the court grants the order to provide Herceptin."

David Standard, a spokesman for Irwin Mitchell, said outside court: "We are delighted the judge has seen fit to voice the general and public importance of this issue and that he has drawn specific attention to the postcode lottery point.

"Overall, what we are delighted about is that in the interim, between now and a full hearing, our client will be provided with Herceptin."

Mrs Rogers’s lawyers had argued that Swindon’s decision was in direct conflict with the guidance given by Patricia Hewitt, Secretary of State for Health, who said in a recent speech that PCTs should not refuse to fund Herceptin solely on the grounds of its cost.

Ms Hewitt has instructed the National Institute of Clinical Excellence (NICE), the watchdog which rules on new medical treatments, to fast-track treatment guidelines.

Mrs Rogers’s counsel, Ian Wise, told the judge that an internet search had revealed that well over 100 PCTs were currently prescribing and funding Herceptin. There was a need for consistency to avoid a post-code lottery situation and Mrs Rogers’s clinician had recommended a course of Herceptin in her case.

Swindon PCT, which reviewed its decision again at a meeting this morning, had maintained that it was following directions from the Strategic Health Authority and cancer networks not to routinely fund the drug until its safety was confirmed through licensing and NICE.

Philip Havers QC, for Swindon PCT, said that the question was not whether the drug should be funded, but whether it should be provided as an exception to the policy of the Secretary of State, which was that unlicensed drugs should not routinely be provided. He said that in Mrs Rogers’s case, neither of the two clinicians were able to suggest there were any exceptional personal or clinical circumstances.

Granting permission, the judge said that one of the reasons that the case was arguable was that Swindon PCT was not the only trust considering what to do in such cases.

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