Protective Costs Orders

Closely related to the idea of “public interest” standing is that of Protective Costs Orders (PCOs). Historically associated with the Corner House judgment of the Court of Appeal in England and Wales (R (Corner House) v Department of Trade and Industry [2005] EWCA Civ 192), PCOs were originally given in “public interest” cases brought by applicants who could satisfy the court that, among other things, they had no private interest in the outcome of the proceedings. Their corresponding aim was to ensure that public bodies did not escape judicial review just because an applicant might be unable to meet a costs order “against” in the event of the application for judicial review being dismissed. A PCO would thus limit the costs liabilities of an applicant where the court was of the view that the issues to be raised were of a wider public interest and that they should for that reason be heard. Indeed, while the early case law established that PCOs could not issue where the applicant had a private interest in the outcome of the case, subsequent case law has since held that this need not always be so where the application still raises important points of public interest (Re Thompson’s Application [2010] NIQB 38). The emphasis, once more, has therefore been on tracking possible government illegality rather than allowing it go unchallenged.

One of the areas in which applications for PCOs are made most frequently is environmental law, where there is a pronounced overlap with EU law. For instance, in the recent case of R (Edwards) v Environment Agency ([2010] UKSC 57), the applicant sought a PCO to limit her costs in a long-running planning/environmental dispute about the development of a cement works in Rugby. Part of her argument was based upon EU Directives that implement the Aarhus Convention and its requirement that access to justice in environmental cases should not be “prohibitively expensive”. When the issue came before the Supreme Court on appeal, the question arose as to how far the circumstances of an individual applicant should be taken into account when determining whether particular proceedings could be termed “prohibitively expensive”. On this point, the Supreme Court noted a distinction between a “subjective” approach (which would focus exclusively on the means of the applicant) and an “objective” approach (which would look to the ability of an “ordinary” member of the public to meet the likely costs). However, having concluded that EU law itself was unclear on which approach should be followed, the Supreme Court referred the matter to the European Court of Justice under Article 267 TFEU. The corresponding ruling of the European Court of Justice is expected in mid-2012.

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