Judgement date - 6 February 1998
The Court would not make a Protective Costs Order where they could not assess the merits of the case sufficiently to decide that it was in the public interest to make such an order.
The Child Poverty Action Group is a leading anti-poverty campaigning organisation in the UK which judicially reviewed a decision not to extend legal aid provision to some social security tribunal and commissioner cases. Amnesty International judicially reviewed a decision not to prosecute two individuals for possession of an electro-shock baton without a licence.
The High Court refused to make a PCO.
The discretion to make PCOs should only be exercised in exceptional circumstances. This is because it departs from the normal "costs follow the event" rule, which serves to promote discipline in litigation. In a definition which would guide later judgments, Dyson J defined a "public law challenge" as an action which raises "...public law issues which are of general importance, where the applicant has no private interest...".
In order for a PCO to be granted, the Court must have sufficient appreciation of the merits of the claim to conclude that it is in the public interest to make the PCO. The Court should have regard to both parties' financial resources and the likely costs. The Court is more likely to make a PCO when the Respondent has a superior capacity to bear the costs and where it is satisfied that, unless the order is made, the Applicant will discontinue its proceedings.
On CPAG's claim, it was not clear on the material that many claimants would benefit from the extension of legal aid as requested and therefore it could not be said to be of general public importance. Nor could they assess whether the absence of legal aid breached Article 6. On Amnesty's claim, the matter was substantially factual and therefore not of general public importance. Nor could they assess the merits of Amnesty's prospects of success.
Points of note
This case pre-dates R (on the application of Cornerhouse Research) -v- the Secretary of State for Trade and Industry  EWCA Civ 192, in which the Court of Appeal set out criteria for PCOs which have been applied subsequently. It is nevertheless instructive for the purpose of tracing the progression of judicial thinking on the nature of a "public interest challenge". The Irish High Court applied this case in Village Residents Association Ltd. -v- An Bord Pleanála and MacDonalds  2 IR 321.