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Restricting exposure to costs has been considered in two recent judgments which focus attention on the circumstances when a litigant can have costs protection.
The “Richard III Litigation” (R (on the application of The Plantagenet Alliance) v Secretary of State for Justice and Others  EWHC 3164 (Admin)) concerns the litigation surrounding the final resting place of the former monarch.
Upon granting permission to bring a claim for judicial review, the Administrative Court had also made a Protective Costs Order (“the PCO”) which prevented any of the parties from seeking their costs against the Claimant in the event the claim was unsuccessful.
At the hearing to set the cap which was to apply to the Claimant’s costs, the government made four additional applications including one to discharge or vary the PCO. The government sought to challenge the PCO on the grounds
As an alternative, the government argued that the PCO should be varied so that it was not a full PCO but a partial PCO, i.e. only gave the Claimant partial protection against liability for the Defendants' costs.
The Court reviewed the law as encapsulated by the Corner House principles (R (Corner House) v Secretary of State for Trade and Industry  1 WLR 2600 (CA)). A PCO may be made if the Court is satisfied that:
The judgment went on to refer to the need for the Corner House principles to be applied with a degree of flexibility.
Following a detailed analysis of the facts of the case, the Court declared a comprehensive victory for the Plantagenets by finding that the case satisfied all of the necessary criteria. The challenge by the government to the PCO was not upheld.
J.J. Food Service Ltd v Zulhayir  EWCA Civ 1304 concerned an appeal to the Court of Appeal against a decision by the Employment Appeal Tribunal. The Appellant employer had been successful in the Court of Appeal and had applied for an Order compelling the Respondent employee to meet the costs of the appeal.
The Respondent made an application for protection against such an Order pursuant to CPR 52.9A(1). This Rule provides:
in any proceedings in which costs recovery is normally limited or excluded at first instance, an Appeal Court may make an Order that the recoverable costs of an appeal will be limited to the extent which the Court specifies
It is worth emphasising that the rule is limited to proceedings where a Costs Order would not generally be made in a Lower Court such as, in the instant case, an Employment Appeal Tribunal.
CPR 52.9A(4) goes on to say:
An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.
The appeal to the Court of Appeal was issued on 22nd February 2013 and the Respondent was acting as a Litigant in Person until 7th May 2013 when his instructed solicitors came on record. The solicitors applied for an Order to limit the recoverable costs of the appeal on 26th June 2013, having sent the application to the Appellant’s solicitors on 18th June 2013.
The Court refused the application as it had not been made as soon as practicable, a mandatory requirement of such an application. It was concluded that a Litigant in Person’s ignorance of his rights did not make it impractical for him to apply and, the point was made that there are no special rules for Litigants in Person.
It was also held that the Respondent’s solicitors had not made the application as soon as possible in any event, having waited six weeks after going on record and made the application, just two weeks before the hearing.
This judgment emphasises the importance of making an application under 52.9A as soon as possible otherwise, no matter what the merits, it will not be entertained. To quote from the judgment:
it may be an old fashioned approach, but we prefer the view that rules should be interpreted as meaning what they unambiguously say