Ongoing protection?
Date: 09 October 2009
Authors: Charles Brasted & Julia Marlow
Issue: Vol 159, Issue 7388
Categories: Features, Costs, Procedure & practice
The perennial issue of the cost of litigation and its impact on access to justice is under the spotlight again in Lord Justice Jackson’s ongoing Civil Litigation Costs Review (the Jackson Review).
Nowhere is the issue of more acute importance than in the area of judicial review, where litigation is not simply a matter of determining the private rights of parties but an essential constitutional element of ensuring fair and lawful governance.
The availability of protective costs orders (PCOs) in judicial review proceedings has, since first considered in R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR (CPAG), become an important part of the judiciary’s response to such concerns. As PCOs have become more prevalent, so has the caselaw become more extensive and the governing principles more developed.
The recent case of Morgan & Ors v Hinton Organics (Wessex) Ltd [2009] EWCA 107 Civ provides a useful summary of the current position, although a number of questions remain unanswered and further movement may well follow the outcome of the Jackson Review.
The guidelines for PCOs were initially set out in Dyson J’s judgment in CPAG but were restated and endorsed by the Court of Appeal in R (Corner House Research) v The Secretary of State for Trade and Industry [2005] EWCA Civ 192 (see box on p 1396).
How prescriptive are the Corner House principles?
Although the Corner House principles were expressed in unqualified terms, subsequent caselaw, particularly in the field of environmental law, has called into question how prescriptively they should be applied. The nascent move towards a more flexible approach is encouraged in the Jackson Review, which has found that the circumstances in which a PCO should be made are defined too restrictively.
The focus of these concerns has been on the “no private interest” requirement, which was incorporated into the guidelines by Corner House (Dyson J having only gone so far in CPAG as to note that the guidelines related to public interest challenges).
In Goodson v HM Coroner for Bedfordshire and Luton [2005] EWCA 1172, in which the claimant sought judicial review of a coroner’s decision not to conduct a full inquiry into the circumstances of her father’s death in hospital, it was held that the applicant’s personal interest (albeit not a financial one) was sufficient to rule out a PCO.
The court rejected the argument that it should be sufficient for a PCO to be granted in cases where the “public interest in having the case decided transcends…or wholly outweighs the interest of the particular litigant”.
However, other cases have questioned the workability of the “no private interest” criterion (see, for example, R (England) v Tower Hamlets LBC [2006] EWCA Civ 1742), while others have suggested that a private interest should not be a disqualifying factor, and should instead be treated flexibly (see, for example, Wilkinson v Kitzinger [2006] EWHC 835 (Fam); and R (Bullmore) v West Hertfordshire NHS Trust [2007] EWHC 1350 (Admin).
Earlier this year, in Hinton Organics, Lord Justice Carnwath noted obiter that “certain aspects of [the Corner House] principles have proved controversial, particularly the requirement that the claimant should have no private interest in the outcome of the case”, as well as suggesting that, although on a strict view Goodson remains binding authority, it is impossible to ignore the criticisms in subsequent cases of its narrow approach.
Noting that “there is no reason why the fact that the applicant has a private interest in the outcome should be fatal, provided that the public interest test is satisfied”, Jackson LJ’s initial report identifies the apparent contradiction between the “no private interest” test and the requirement in claims involving human rights arguments for the claimant to have been “personally or directly affected” by the violation.
A similar contradiction arises as a result of the requirement under the Supreme Court Act 1981, s 31(1) that in order to bring a judicial review, a party must have “sufficient interest in the matter to which the application relates”. That raises the question as to how it may be adapted.
It seems, therefore, likely that the days of the “no private interest” requirement, at least as a strict condition, may be numbered.
Environmental judicial review
Calls for greater flexibility in the application of the Corner House principles have been particularly loud in the context of environmental judicial review. In May 2008, for example, a report entitled “Ensuring Access to Environmental Justice in England and Wales”, which was produced by an informal working group under Sullivan J, criticised the strict private interest requirement, as applied to environmental cases.
The idea that environmental claims warrant different treatment arises principally from the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the “Aarhus Convention”), which was ratified by the UK in 2005 and which includes the provision that “each Party shall ensure that... members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”
Although the Aarhus Convention has the status of an international treaty, and so cannot be said to apply directly in English law, some of its principles have been incorporated into EU Directives, and thus given direct effect in domestic law, and the European Community has ratified it giving the European Commission the power to ensure that member states comply with its obligations.
However, case law increasingly suggests that environmental cases should not be treated any differently from other applications for PCOs: in both Compton and Buglife, the court found that there should be no difference in principle between the approach to PCOs in cases that raise environmental issues and the approach in cases that raise other serious issues and vice versa.
While Jackson LJ’s initial findings note that “at this stage of the report I am concerned with judicial review claims generally, rather than any sub-category of such claims”, the report also notes the “strong case for saying that non-environmental judicial review claims should be treated in the same way as environmental judicial review claims”
Reciprocity
A final practical issue of considerable importance is whether PCOs should be reciprocal. It is clear that the Court may grant a PCO in any terms it considers appropriate. In Corner House, the court rephrased guidance that had initially been set out in King v Telegraph Group Ltd [2004] EWCA Civ 613, and found that “the purpose of a PCO will be to limit or extinguish the liability of the applicant if it loses, and as a balancing factor the liability of the defendant for the applicant’s costs if the defendant loses will thus be restricted to a reasonably modest amount”.
In Buglife, the court considered that, while it may be appropriate to make an order capping the liability of the defendant to pay the claimant’s costs if the claimant wins, “there should be no assumption, whether explicit or implicit, that it is appropriate, where the claimant’s liability for costs is capped, that the defendant’s liability for costs should be capped in the same amount.... The amount of any cap on the defendant’s liability for the claimant’s costs will depend upon all the circumstances of the case”.
The Jackson Review calls into question the future likelihood of such reciprocal orders, suggesting in the initial report that “if the existing CFA regime survives, then capping the costs recoverable by the claimant at the same level as the costs recoverable by the defendant creates substantial difficulties.”
Flexible approach
The increasingly flexible judicial approach to the Corner House principles has been highlighted by both the Jackson Review and Hinton Organics, and it seems likely that the final report of the Jackson Review will further encourage such an approach.
Although there remains (perhaps inevitably) considerable uncertainty as to the application of the principles in any particular case, there is no doubt that there is a growing willingness to grant PCOs to claimants with limited means challenging decisions of public bodies.
Public bodies will therefore need to expect an increase in the number of challenges to their decisions, with the associated costs implications. As Dyson J noted in CPAG, “where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of public funds diverted from the funds available to fulfil its primary functions”.
Although Jackson LJ’s initial findings recognise this problem, and suggest that it would be necessary to introduce some mechanism for discouraging weak or frivolous claims, it is not at all clear at this stage how such a mechanism could operate and what it would add to the existing permission test.
Charles Brasted is a senior associate & Julia Marlow an associate, in the public law & policy team at Lovells LLP
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