Protective costs orders

Protective costs orders (PCOs) are intended to promote access to justice. They are often sought in judicial review applications containing a public interest element where claimants with limited resources are pursuing a claim that may benefit others.

R (Corner House) v SoS for Trade and Industry [2005] 4 All ER 1 stated that PCOs should only be made in exceptional circumstances, where: 

• the issues raised are of public importance;
• the public interest requires that those issues should be resolved;
• the applicant has no private interest in the outcome of the case;
• having regard to the financial resources of the applicant, the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
• if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.

In R (Garner) v Elmbridge Borough Council [2010] EWCA