In 2004, the environmental and social justice charity The Corner House faced a dilemma. It wanted to initiate a judicial review of the Government's Export Credits Guarantee Department's failure to consult NGOs about changes to the rules for combating bribery and corruption in international trade.
It was an important issue of public interest, but the possible legal bill if The Corner House failed seemed too much of a risk. The Corner House obtained a protective costs order: these enable claimants with limited funds to advance claims without the risk of substantial cost orders. The Corner House would not be liable for the Government's legal costs if it failed.
The courts recognise that cases with wider public interest need to be brought, and they are prepared, when necessary, to lower the cost barrier by granting PCOs. Although these orders tend, in practice, to be the exception rather than the rule, they can help organisations that need to challenge government decisions, provided the relevant principles are met. So what are those principles?
An order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided it is satisfied of the following: the issues raised are of general public importance; the public interest requires that those issues should be resolved; and the applicant has no private interest in the outcome of the case. The court also needs to be satisfied that it is fair and just to make the order, given the resources of the applicant and the respondent and the likely costs, and that if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. If those acting for the applicant are doing so pro bono, it will improve the chances of obtaining a PCO.
It is for the court to decide whether it is fair and just to make the order. An order can take a number of forms: it may, for example, include a general cap on legal costs. The form of the order is at the discretion of the judge and will be tailored to the facts of the case.
Shivaji Shiva is a partner in the charity team at Russell-Cooke Solicitors.