England & Wales’ Divisional Court has ruled in a high-profile case that a litigant could not get a protective costs order (PCO) where her assets were only marginally larger than the defendant’s estimated costs. In 2006, ex-Russian Federation FSB agent Alexander Litvinenko was murdered by polonium-210 given to him in London. Litvinenko was an outspoken critic of Russian President Vladamir Putin. Litvinenko’s widow alleged that her husband was murdered by the Russian Federation and that only a public inquiry would ensure a proper investigation of his death took place. Mrs Litvinenko sought judicial review of the UK Government’s decision not to carry out a public inquiry.
Mrs Litvinenko applied for a PCO that would cap her liabilities for costs at an affordable limit if her case was unsuccessful. She said that she wouldn’t be able to proceed with the judicial review without a PCO. The Court said that Mrs Litvinenko’s private interest in the claim wasn’t fatal to her PCO application - this is a development on previous cases which have said that the applicant must have no private interest in the case or, more recently, the private interest was a factor to consider.
The fatal blow to Mrs Litvinenko’s case was her £50,000 of assets. This was more than the Secretary of State’s estimated costs of £45,000. The Court also said she had greater financial means than many litigants. The Court concluded that she had financial means to bring the proceedings if she wanted, and it would not be reasonable for her to withdraw proceedings on the basis that she did not have a PCO.
In a detailed article on the UK Human Rights Blog, David Hart said this case shows that there is “no general principle at English law that someone should not be put to prohibitive costs to complain about a public wrong, of some public interest. The application of the principle seems to be that you have to be prepared nearly to bankrupt yourself in order to gain some protection against the other side’s costs.”
Click here to read David Hart’s article on the UK Human Rights Blog.
Bulletin readers will be aware of the relative ease at which a PCO can be awarded in environmental cases under the Aarhus Convention. Recently, the Irish High Court granted a PCO in Hunter v Nurendale trading as Panda Waste to an applicant trying to stop an allegedly unauthorised development at a waste facility near her home. Article 9 of the Aarhus Convention says that litigation in certain environmental matters shouldn’t be prohibitively expensive. Part 2 of the (Environment Miscellaneous Provisions) Act 2011 incorporates Article 9 into Irish law, and protects an unsuccessful applicant from having costs awarded against them.