England and Wales
Where it was in the public interest to resolve a challenge to systemic unfairness in processing asylum claims and counsel, and those instructing, them were acting pro bono and would not seek costs if successful, the Court made a Protective Costs Order.
The Refugee Legal Centre challenged a fast-track pilot scheme to deal with asylum claims which in practice selected single male applicants from countries where there was believed to be no serious risk of persecution. The Refugee Legal Centre had concerns that the scheme’s timescales were insufficient to prepare their clients’ cases.
The Court of Appeal made a PCO protecting the Claimant in respect of the costs of an appeal of an unsuccessful judicial review, on the understanding that the Claimant would not seek costs against the Secretary of State if they won.
The Secretary of State asserted that it was open to applicants to obtain a legal aid certificate and bring individual claims. Accordingly normal costs rule should apply. However the challenge was to systemic unfairness and about a dozen such claims would be necessary to prove this, which was not a satisfactory way to proceed. Counsel and those instructing them were acting pro bono in a matter of public interest and would not seek costs against the Secretary of State if successful.
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, however is useful in demonstrating a purposive approach to the granting of PCOs.