Obtaining a Protective Cost Order for Richard III’s Relatives

Starting a legal case in the full knowledge that you will not be liable for the other side’s legal costs whether you win or lose is certainly an attractive idea for claimants. Sadly though protective cost orders (PCOs) are not available to ordinary litigants but are preserved for judicial review cases where there is a public interest at stake.

The issue of protective cost orders came to prominence most recently when distant relatives of King Richard III challenged the decision to bury his remains in Leicester. The Plantagenet Alliance has sought to have the remains buried in York instead and brought a judicial review claim against the Ministry of Justice.

In an early hearing Mr Justice Haddon-Cave ruled that the Plantagenet Alliance should be granted a protective cost order.

What Are Protective Cost Orders?

Protective cost orders are court orders that prevent claimants, known as applicants in judicial review cases, from being subject to the ordinary Civil Procedure Rules (CPR) regarding costs. Under CPR 44.2(2), if the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.

Due to the potentially huge costs of bringing claims for judicial review against public bodies and the wider public interest in cases of this type, PCOs were introduced to ensure their decision making could still be subjected to judicial scrutiny. The leading case underpinning the use of PCOs is R (Corner House Research) v Secretary of State for Trade and Industry [2005] and is based on a decision in the Court of Appeal.

How is a Protective Cost Order Obtained?

The judgement in the Corner House case set out various criteria that must be met before a PCO would be granted which included:

1. The issues raised are of general public importance

2. There is a public interest requiring that those issues are resolved

3. The Applicant does not have a private interest in the outcome of the case

4. It is just and fair to make the order having regard to the financial resources of the Applicant and Respondent

5. If a PCO is not made the Applicant is likely to discontinue proceedings and to do so reasonably

In the Richard III judicial review case the Ministry of Justice claimed unsuccessfully that it was unfair to make taxpayers pay for the proceedings and that it was an ‘wholly inappropriate’ case for a PCO.

Comment

For more information about bringing claims for judicial review please contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.