Law Report: 11 February 1998 - Pre-emptive costs orders should be exceptional

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The court should exercise its discretion to make pre-emptive costs orders in cases involving public interest challenges only in the most exceptional circumstances.

Regina v Lord Chancellor, ex parte Child Poverty Action Group; Regina v Director of Public Prosecutions, ex parte Bull (for and on behalf of Amnesty International UK) and another; Queen's Bench Division Crown Office List (Mr Justice Dyson) 6 February 1998

The court refused interlocutory applications in judicial review proceedings for orders that no orders as to costs should be made against the applicants, whatever the outcome of the proceedings.

The Child Poverty Action Group (CPAG) sought judicial review of the Lord Chancellor's decision not to extend legal aid to some cases before Social Security Tribunals and Commissioners. Amnesty International UK and the Redress Trust both sought judicial review of the decision of the Director of Public Prosecutions (DPP) not to prosecute two men for possession of an electro-shock baton without a licence, contrary to section 5(1)(b) of the Firearms Act 1968.

In both sets of proceedings the respondents had refused to agree in advance not to seek an order for costs against the applicants if their applications for judicial review were dismissed, and the applicants had accordingly applied for pre-emptive costs orders.

Richard Drabble QC and Rabinder Singh (David Thomas, CPAG) for CPAG; Philip Sales (Treasury Solicitor) for the Lord Chancellor; Ben Emmerson and Phillippa Kaufmann (Public Law Project) for Amnesty; Murray Hunt (Public Law Project) for the Redress Trust; Philip Havers (Crown Prosecution Service) for the DPP.

Mr Justice Dyson said that both respondents conceded that there was jurisdiction under section 51 of the Supreme Court Act 1981 to make pre-emptive costs orders, but there was no agreement as to the principles which should guide the court in deciding whether to make such orders in judicial review cases which concerned "public interest challenges". In private litigation, the general rule was that costs followed the event.

The essential characteristics of a public law challenge were that it raised public law issues which were of general importance, where the applicant had no private interest in the outcome of the case.

The applicants submitted that it was now recognised by the courts that the true nature of the court's role in public interest challenge cases was not to determine the rights of individual applicants, but to ensure that public bodies did not exceed or abuse their powers. If the courts did not make pre-emptive costs orders in such cases, genuine public interest challenges could effectively be stifled, unless the executive agreed in advance not to seek its costs whatever the outcome of the proceedings.

The discretion to make pre-emptive costs orders even in cases involving public interest challenges should, however, be exercised only in the most exceptional circumstances. The principle which lay behind the general rule that costs followed the event promoted discipline within the litigation system, compelling parties to assess carefully for themselves the strength of any claim.

The necessary conditions for the making of a pre-emptive costs order in a public interest challenge case were that the court was satisfied that the issues raised were truly ones of general public importance, and that it had a sufficient appreciation of the merits of the claim to be able to conclude that it was in the public interest to make the order.

The court must also have regard to the financial resources of the parties, and to the amount of costs likely to be in issue. It would be more likely to make an order where the respondent clearly had a superior ability to bear the costs of the proceedings than the applicant, and where it was satisfied that, unless the order were made, the applicant would probably discontinue the proceedings, and would be acting reasonably in so doing.

Those conditions were not satisfied in either of the cases before the court, and accordingly the applications would be refused.