England and Wales
Where it was in the public interest to determine the lawfulness of licences granted to animal researchers and the NGO challenging the licences was prepared to cap costs, the Court granted a Protective Costs Order (PCO) capping costs recoverable.
The British Union for the Abolition for Vivisection is an anti-vivisection body which sought to challenge terms of licences granted to animal researchers by Cambridge University. They applied for a PCO to cap any costs order made in connection with the proceedings (whether adverse or favourable) to £20,000.
The High Court made a PCO capped at £40,000.
The requirement in R (on the application of Cornerhouse Research) –v- the Secretary of State for Trade and Industry  EWCA Civ 192 that PCOs should only be made in exceptional circumstances was not a separate principle to be satisfied but rather an umbrella principle. The applicant for a PCO was not required to show that failure in litigation would be financially fatal to them. The issues were of general public importance, the public interest required their resolution and BUAV had no private interest in the outcome. Additionally, the Court seemed impressed that the Applicants were willing to limit any potential claim for costs in the event of success.
Points of note
This case is especially useful for its findings that “exceptionality” is not a discrete requirement and that the financial resources criterion does not extend to a requirement to show that an unsuccessful outcome would be financially fatal.