A protective costs order (PCO) is an order of the court that limits or extinguishes the claimant’s liability for costs in proceedings were it to lose (and, where appropriate, the costs of the defendant were the claimant to win). The availability, or otherwise, of a PCO is often a crucial factor in enabling a claimant of limited means to bring proceedings, given the possibility of an order for substantial costs being made against it.
CPR 44, together with its related practice direction, sets out the general rules as to costs. The principle that costs follow the event applies, but the CPR give the court a wide discretion to make other orders. A PCO comes within that discretion. The court will consider making a PCO in a “public interest case”, namely a case where the elucidation of public law by the higher courts is in the public interest in addition to the interests of the individual parties. The governing principles were laid down in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600.
In R (on the application of Burch) v Barnsley Metropolitan Council [2009] EWHC 3561 (Admin), the claimant had obtained permission to seek judicial review of a decision by the council to grant planning consent for a waste-composting plant on land within 100m of his home. He then applied for a PCO. More than 700 objections had been received on environmental and other grounds but the claimant was most directly affected, and the court accepted that his was the only individual interest at stake at the time of the proceedings.
Collins J referred to earlier judicial dicta to the effect that the general public interest can be local, rather than national. He acknowledged that the interest in the instant case was not as wide as in some others, and that the claimant had his own interest in pursuing the matter. Nevertheless, he held that this did not preclude him from a PCO albeit one less favourable than might otherwise be the case. On the basis of the evidence before him, he ordered that the claimant’s liability in costs should be limited to £2,500 were he to lose and that the liability of the council in costs should be limited to £25,000 were he to win.
John Martin is a freelance writer
