Protective Costs Orders

Protective Costs Orders (PCOs) are court orders that impose a limit on the costs that can be awarded against an unsuccessful applicant who brings a court case which addresses public interest issues.

The terms of a PCO will typically provide that an unsuccessful applicant of limited means will either not be liable for the other party’s costs or will only be liable up to a fixed amount. A PCO will also typically provide that a successful applicant of limited means will still be entitled to recover all or part of their costs from the other party.

PCOs are a valuable access to justice tool. PCOs enable organisations and applicants of limited means to launch public interest litigation without facing the risk of facing a substantial adverse costs order if the matter is not decided in their favour and provide a level of certainty for applicants.

PCOs are not universally available, and an organisation or individual must apply for a PCO and demonstrate their eligibility for a PCO before the court will agree to such an order.

Eligibility for a PCO

Whether or not to grant a Protective Costs Order is a matter of the court’s discretion. The court will consider whether making a PCO is fair, just, and reasonable in the circumstances, having consideration to all of the criteria.

Criteria

The court must be satisfied that the issues raised are of general importance.

You can refer to PILS’ definition of public interest to inform whether a matter is of general importance. It would be important to highlight if the issue in the proceedings would impact vulnerable members of society. Such litigation would be viewed to be of general public importance.

Case law from the High Court suggests that the decision must demonstrably impact more individuals than the applicant. In Re McHugh’s Application for Judicial Review, for example, the Court determined that the health trust’s decision not to make arrangements to provide the applicant with assistance to adapt her home to her needs was not a matter of public importance.

The court must be satisfied that the public interest requires that those issues be resolved.

It is not sufficient that the matter raises an issue of public importance. That issue of general importance must have some consequence which begs that it be resolved in this particular matter. It might be helpful here to highlight the urgency of the matter, or the number of individuals who are and will continue to be adversely impacted by this issue if it is not resolved.

The court must be satisfied that the applicant’s interest in the outcome of the case is not exclusively private.

The general rule is that the court must be satisfied that the applicant does not have a private interest in the outcome of the case. Caselaw has however established that it is not essential that the party applying for a PCO have no personal interest in the proceedings, but rather that the interest not be entirely private or personal. In Re McHugh’s Application for Judicial Review, the Court notes that the fact that the applicant had a personal interest in the proceedings did not invariably amount to a complete bar to making an application for a PCO.

The court must be satisfied that the applicant is likely to discontinue if the PCO is not made.

If this is the case, it is important to state this expressly in your application for a PCO. You should also show the court that the applicant cannot bear the financial risk of a cost order by providing the court with the applicant’s financial information. It is also relevant to advise the court if the applicant is either ineligible for legal aid or if legal aid was refused. Advise the court if professional services are being provided pro bono. The fact that services are being provided pro bono are likely to enhance the argument in favour of a PCO. All of these things help to demonstrate that the applicant cannot afford to bear a risk of unlimited costs.

The court must be satisfied that making the PCO is just and fair, having regard to the parties’ financial resources and the amount of costs likely to be involved.

The parties’ individual financial resources and their relative financial resources to each other are relevant to determining both whether to grant a PCO and to determining its terms. In Re Thompson’s Judicial Review, the Court found that a limit of £10,000 on any adverse costs order against an individual applicant was fair when challenging a planning permission decision. The applicant’s financial circumstances made her eligible for legal aid, but it was refused because she was a part of a forum community group objecting to the development who were deemed to be in a financial position to pay for the litigation. The Court imposed the cap of £10,000 because she was a person of limited means and the evidence before it showed that exposure to unlimited costs would make it inevitable that she could not proceed with the litigation if the cap was not imposed.

In Commissioner of Valuation v Doherty, a Tribunal imposed a PCO which required that the appellant, a public body with access to substantial resources, bear both its costs and the respondent’s costs regardless of the outcome of the proceedings. In this matter, the individual respondent had a very low annual income. The President of the Tribunal considered that this PCO was fair and just in respect of the parties’ financial circumstances.

Applying for a Protective Costs Order

Before Applying for a PCO

You should advise the other parties involved in the litigation and the court of your intention to apply for a PCO at the earliest opportunity. In an application for judicial review, you should include that you intend to apply for a PCO in your pre-action protocol letter.

You should also consider making a Protective Costs Agreement (PCA) with the other party before applying for a PCO.

A PCA is an agreement made between the parties to legal proceedings, limiting the costs awarded against one or more parties. A PCA will provide certainty and not require the judge to consider a request for a PCO. A party can seek a PCA by writing to the other party and asking them to consent to your proposed terms for the PCA. It may be necessary to negotiate with the other party as to the specific costs which will be payable on the conclusion of proceedings, and who will bear those costs. Any PCA agreed between the parties should be committed to writing. PCA’s do not have to be disclosed to the court, but it is good practice to write to the court to advise it of the agreement. In some instances, the parties may request or consent to the PCA being made a PCO.

If there is a PCA in place at the conclusion of proceedings, the parties may either request that the court make no order as to costs or request that the court make a Costs Order as per the terms of the PCA.

Application Process

There is no established procedure that you must follow to apply for a PCO.

You can make an application for a PCO by way of:

a letter to the court;
an affidavit lodged with the court; or
by including the application for a PCO within the Order 53 statement (if the case is an application for judicial review).

There are similarly no rules outlining the content of an application for a PCO. However, best practice would be to ensure that your application, in whatever form, addresses each of the criteria set out in bold text above.

These are called the Cornerhouse criteria, and make up the test that the court will apply when deciding whether to grant your PCO. You must demonstrate to the court that these criteria are met, or that, on the balance, the court should exercise its discretion in favour of making a PCO.

Your application should also include information on why, in your view, a PCO is needed in this case, and your proposed terms of the PCO.

The terms could include: (1) that the respondent cannot recover any costs; (2) that the respondent can recover only up a particular amount in costs; or, (3) that neither party can recover costs. Remember that the court will consider whether your proposed PCO is just and fair having regard to the parties’ financial circumstances. It is therefore best practice to ensure that your proposed terms for the PCO are reasonable and fall within the range of terms that would be fair and just in the circumstances.

Practical Considerations

Timing

You can apply for a PCO at any stage in the proceedings. However, it is best practice to apply as early as possible.

Fees

There may be a fee for lodging an application for a PCO. The fee associated with the application will depend on the court in which the application is lodged and the method by which you make the application.

You can find out the fees that might be associated with making an application for a PCO in courts and tribunals in Northern Ireland here.
A process exists to apply for an exemption or remission of a court fee; more information on that is available here.

An applicant seeking a PCO may also be liable to pay the costs that the other party incurred in the PCO application proceedings in the event that the application is unsuccessful. In practice, these costs are likely to be minimal and the respondent usually does not seek recover those costs. However, it is still important to be aware of this risk.

You can apply for financial support from PILS to cover the court fees for applying for a PCO and an indemnity against any adverse costs that may be made if the application for a PCO is unsuccessful.

Hearing

The court will usually consider PCO applications when the case is first listed before the court. In judicial review proceedings, this is likely to be the leave (permission) hearing.

If the PCO application is made after the leave hearing then the court will consider the PCO at the first available opportunity, usually at a review hearing.

PCOs in Environmental Cases

There are specific rules setting out caps on legal costs in environmental cases in Northern Ireland.

The Costs Protection (Aarhus Convention) Regulations (Northern Ireland) 2013 provide a framework for fixed costs in legal challenges of environmental decisions. Under these provisions the maximum amount recoverable from the application was capped at £5,000 where the applicant was an individual and at £10,000 in other cases (for example where the applicant was a Non-Governmental Organisation). If the application succeeded, the amount recoverable from the respondent was £35,000.

The 2013 regulations have been amended by The Costs Protection (Aarhus Convention) (Amendment) Regulations (Northern Ireland) 2017, which came into force on 14, February 2017. The 2017 Regulations provide the courts greater flexibility when setting the cost caps which apply to the applicant and the respondent in environmental cases.

It is important to know that your service user or client still needs to make an application for a PCO to avail of this framework. The relevant PCO application should cite the 2017 Regulations. This regulatory framework eases the burden on applicants seeking a PCO in environmental cases.

Case study – The Clean Air NI Case

Friends of the Earth NI availed of the caps imposed on environmental litigation under The Costs Protection (Aarhaus Convention) Regulations (Northern Ireland) 2013 in the diesel emissions case.

Friends of the Earth brought an application for judicial review against the Department for Infrastructure’s ongoing failure to perform legally compliant exhaust emissions tests on diesel cars in Northern Ireland since 2006. PILS provided Friends of the Earth with junior and senior counsel from our Pro Bono Registry.

After lodging proceedings, Friends of the Earth obtained a Protective Costs Order fixing that, in the event that Friends of the Earth is unsuccessful, the maximum amount that the Department can recover in costs is £10,000. PILS has also agreed to indemnify Friends of the Earth, which means that, if they are unsuccessful, PILS will pay the £10,000 costs order.

Protective Costs Orders