England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE DYSON: There are before me interlocutory applications for orders that no order as to costs be made against the applicants in these proceedings, whatever their ultimate outcome. Mr Drabble describes the orders that he seeks as “protective” costs orders. I think that the adjective “pre-emptive” is more apt, but nothing turns on that. Leave to move for judicial review has been granted in both cases. Both respondents have refused to agree in advance not to seek an order for costs against the applicants if their applications for judicial review are dismissed. It is conceded by both respondents that there is jurisdiction to make pre-emptive costs orders in these cases. There is, however, no agreement as to the principles which should guide the court in deciding whether a pre-emptive costs order should be made in judicial review cases which concern what the Law Commission has described as “public interest challenges”. Nor is there agreement whether, applying the relevant principles to the facts of the two cases, pre-emptive costs orders should be made. The researches of counsel have not discovered any case in which the court has been asked to decide whether or not to make a pre-emptive costs order in an application for judicial review.

2. There is some authority as to the position that applies in ordinary private law litigation. In McDonald v Horn [1995] ICR 685,694E , Hoffmann LJ said that the general rule that costs follow the event, encapsulated in RSC Ord 62 r 3(3) was:

3. It is not disputed that, if these applications were made in private law actions, I would be bound to dismiss them. The main question of principle that arises in these applications is whether different considerations of public policy apply in cases which can aptly be characterised as “public interest challenges”. I shall explain later in this judgment what I understand to be meant by “public interest challenges”. Before I come to deal with the submissions that were made before me, I ought to describe in outline the nature of the applications in the two case.

4. CPAG is a registered charity which was founded in 1965. Its objects include the promotion of action for the relief of poverty among children and families with children. It is widely recognised as the leading anti-poverty organisation in the UK. It has a particular reputation in the field of welfare benefits law, and engages in test case work by supporting cases before Social Security Commissioners and courts in this country.

5. Section 14 of the Legal Aid Act 1988 (“the 1988 Act”), so far as material, provides:-

6. Schedule 2 to the 1988 Act lists the types of proceedings for which legal aid is available. It includes some tribunals, such as the Employment Appeal Tribunal, but not Social Security Tribunals or Commissioners.

7. It is not in issue that hearings before Social Security Tribunals and Commissioners can be extremely complicated, especially if points of law are raised. On the 4th November 1996, the solicitor acting for CPAG wrote to the Lord Chancellor, inviting him to exercise his power under Section 14 (2) of the 1988 Act to extend legal aid to at least some cases before Social Security Tribunals and Commissioners. On 22nd November 1996, the Lord Chancellor refused to do so, at least for the time being.

8. The application for leave to move for judicial review of that decision was refused by Laws J on the papers. It was renewed at an ex-parte hearing before Popplewell J, who granted leave on the basis of what CPAG calls its “European arguments”. These arguments, which are novel and complex, and which Mr Sales describes as “speculative”, are set out at paragraphs 22 to 24 of the Form 86A. The points are difficult. One or two of them were touched on lightly by Counsel before me. It is obvious that I cannot begin to assess the likelihood of the European arguments succeeding, nor was I asked to do so.

9. The Finance and Administration sub- committee of CPAG resolved on 13th May 1997 that “CPAG should not allow itself to be exposed to the risk of an adverse costs order and that the case should be withdrawn if adequate protection in one form or another cannot be obtained”. The sub-committee had delegated authority to make decisions on financial matters of that nature. Part of the background to that decision was the fact that CPAG had recently purchased the freehold of its office premises. This meant that, in the short term, there was an urgent need to raise several hundred thousand pounds to finance the purchase. Virtually all the organisation’s fund-raising efforts had to be geared to this imperative. Accordingly, the view taken by CPAG was that, irrespective of the wisdom or otherwise of exposing CPAG to a large costs risk in “normal” times, it would be irresponsible to do so at the present time.

10. In his affidavit sworn on behalf of CPAG on 23rd September 1997, Mr Thomas says that there is no reasonable possibility of an individual or another organisation agreeing to indemnify CPAG against any potential liability for costs to the Lord Chancellor. The reality is that, if a pre-emptive costs order is not made, the substantive application will “ in all probability” have to be withdrawn.

11. Both of these applicants are human rights organisations of international standing, whose objects include the abolition of torture, and the implementation of national and international law against torture. They claim that they have an interest in ensuring the proper enforcement of laws relating to weapons of torture, including an interest in any particular case in which a decision is taken as to whether or not to prosecute for breach of such laws.

12. Their substantive application is for judicial review of the decision made by the DPP not to prosecute a Mr Morris and a Mr Hall for possession of an electro-shock baton without licence, contrary to section 5 (1) (b) of the Firearms Act 1968. That is a strict liability offence. The factual background to the commission of the offences is complex, and it is unnecessary to go into it for the purposes of this judgment.

13. Section 3(2) of the Prosecution of Offenders Act 1985 sets out the duties of the DPP in relation to the institution and conduct of criminal proceedings. They include the duty:

14. Paragraph 4.1 of the Code of Practice, issued by the DPP pursuant to section 10 of the 1985 Act, provides for two stages in the decision to prosecute. First, an evidential test has to be satisfied. The DPP was of the view in this case that the evidential test was satisfied in relation to both Mr Morris and Mr Hall. Secondly, as set out at paragraph 4.2 of the Code, there is a public interest test. A prosecution will only start or continue when the Crown Prosecutor is satisfied that the case passes both tests.

15. The public interest test is explained in paragraph 6 of the Code. So far as material, it provides:

16. The DPP gave three reasons for her decision not to prosecute. They were (i) the way in which the incident was prompted; (2) the impact of a genuine mistake or misunderstanding; and (3) the circumstances that were particular to the potential defendants. In amplification of the second reason, the Chief Crown Prosecutor, writing on behalf of the DPP on 12th August 1997, said that both men mistakenly believed that they had lawful authority to possess the baton. A little later in his letter he said:

17. The Form 86A identifies five grounds of challenge, one of which is particularly relied on by Mr Emmerson as justifying the making of a pre-emptive costs order, and it concerns the second of the three reasons given for the decision not to prosecute. Mr Emmerson submits that, when applying the public interest test in deciding whether or not to prosecute, the DPP was not entitled to have regard to the fact that the two men had made an honest mistake. The offences were serious, and the state of mind of the men afforded no defence. Mr Emmerson argues that the fact that the men were honestly mistaken, although relevant to sentence, was irrelevant to the decision whether or not to prosecute. The error is said to raise a public interest challenge. The extent of the discretion vested in the DPP, and in particular, the question whether she can take honest mistake (and, presumably, other matters of mitigation) into account, are matters which are of general public importance, being by no means limited to the facts of this case.

18. So much for the nature of the challenge. During argument, I expressed concern as to why this application is being made by two separate organisations. No satisfactory explanation was provided. I was told that all concerned are working pro bono publico (as indeed are those on the applicants side in the CPAG case). Everyone should be grateful to all those who are giving their services free out of a sense of public duty, but that does not seem to me to be a sufficient reason for having two applicants ( with separate representation) in the second case.

19. Leave to move for judicial review was given by Forbes J on the papers. Neither Amnesty nor Redress has said that if the application for pre-emptive costs fails, it will withdraw the application, but on the evidence that is certainly a possible outcome. The affidavit of Mr Bull states that the Board of Amnesty has become “more anxious” about the extent of the cost risk as the case has developed, and that it will have “great reservations” about proceeding to a substantive hearing if Amnesty remains potentially liable for the DPP’s costs at the end of the day. On behalf of Redress, Mr Carmichael says in his affidavit that it will be “difficult” for the trustees to agree to commit the funds of the charity if this application fails, and that he is “very concerned” that Redress may have to discontinue proceedings in that event.

20. As I have already said, it is common ground that there is jurisdiction to make the orders sought in these cases. It is based on Section 51 of the Supreme Court Act 1981, which, so far as relevant, provides:

21. That the discretion conferred by that section is very wide was confirmed by the House of Lords in Aiden Shipping Ltd v Interbulk Ltd [1986] AC 965 , in particular per Lord Goff at page 975F-H.

22. The relevant rules as to costs in the High Court are contained in RSC Ord 62. RSC Ord 62 r2(4) provides, so far as relevant:

23. The general rule is that costs follow the event, as stated in RSC Ord 62 r3(3), which provides:

24. As Hoffmann LJ said in McDonald v Horn (supra) at page 694D-E, this rule reflects a basic rule of English civil procedure, that a successful litigant has a prima facie right to his costs.

25. The Court of Appeal has held that, on its true construction, Ord 62 r3(3) deals with the manner in which, as opposed to the time when, the Court’s discretion to order costs is to be exercised: see Davies (Joseph Owen) v Eli Lilly &Co [1987] 1 WLR 1136. In that case, the trial judge had ordered that any costs that were ordered or fell to be borne by any plaintiff in the lead actions should be borne proportionately by all plaintiffs. His order was appealed on the grounds that making prospective orders as to costs was not within the jurisdiction of Section 51 of the Supreme Court Act 1981 and RSC Ord 62. The Court of Appeal held that there was jurisdiction to make anticipatory costs orders. Lloyd LJ said at 1144F:

26. So jurisdiction is not in doubt. The issue that divides the parties is : in what circumstances will the discretion to make pre-emptive costs orders be exercised?.

27. I should start by explaining what I understand to be meant by a public interest challenge. The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interest of his or her own.

28. The central submission advanced on behalf of the applicants is that, because of those essential characteristics, the court should be more willing to make no order as to costs against an unsuccessful applicant in public interest challenge cases than in other cases. It is submitted that public interest challenges are not “ordinary litigation” between adverse parties of the kind that Hoffmann LJ was contemplating in McDonald v Horn.

29. It is argued that it is now recognised by the courts that the true nature of the court’s role in public law cases is not to determine the rights of individual applicants, but to ensure that public bodies do not exceed or abuse their powers. It is a consequence of this recognition that procedural rules and practices that apply to the adjudication of the classic lis inter partes in private law cannot apply without modification to a public interest challenge to a decision of government. Hence, for example, the liberalisation of the law of standing. In R v Inland Revenue Commissioners, ex parte National Federation of Self Employed [1982] AC 617, 644E, Lord Diplock said:

30. Mr Drabble submits that if the courts did not make pre-emptive costs orders in public interest challenge cases, there would arguably be an even greater lacuna in our public law, since genuine public interest challenges could effectively be stifled, unless the executive agreed in advance not to seek its costs whatever the outcome of the proceedings. In fact, as he points out, there have been several cases in which, admittedly at the conclusion of the proceedings, courts have decided that costs should not be ordered against an unsuccessful party because of the general importance of and significant public interest in the resolution of the questions raised by the particular case. By way of example, I was referred to New Zealand Maori Council v AG of New Zealand [1994]1 AC 466, 466G, where Lord Woolf, delivering the judgment of the Privy Council said:

31. That case was concerned with the question whether certain legislation, which it was contended threatened the survival of the Maori language (taonga), was inconsistent with a treaty made between the Crown and Maori. It is clear that this was a good example of a public interest challenge.

32. It is submitted by Mr Drabble that the same considerations that would lead a court to make no order for costs in such a case at the conclusion of the proceedings, should also persuade a court to make a pre-emptive order for costs to like effect at the interlocutory stage. He says that the factors that the court takes into account when deciding whether to make no order for costs against the unsuccessful applicant at the end of the proceedings are familiar. These applications in essence ask the court to treat the costs question as if the substantive application has already failed, and simply bring forward the point at which the exercise of the costs discretion is carried out. It is obviously of benefit to an applicant to know where he stands in relation to costs; the uncertainty as to whether he will be liable to pay the respondent’s costs if the application fails may deter an applicant from pursuing his application at all.

33. The uncertainty of costs issue was considered by the Ontario Law Reform Commission in a report in 1989. It proposed that the applicant could ask for a decision on costs at any point in a public interest case, and that the court would be prevented from ordering costs against the applicant if the following conditions were met:

34. The applicants suggest the following as examples of the sorts of factors which may be relevant in determining when it is appropriate to make a pre-emptive costs order:

35. In my judgment, the discretion to make pre-emptive costs orders even in cases involving public interest challenges should be exercised only in the most exceptional circumstances. The starting point must be the basic rule encapsulated in RSC Ord 62 r3(3) that costs follow the event. It is true that the role of the court in all public law cases is to ensure that public bodies do not exceed or abuse their powers, but the parties to such proceedings are nevertheless adverse as is the litigation. As Lord Diplock said in Hoffmann -La Roche v Secretary of State for Trade and Industry [1975] AC 295,365E:

36. I accept the submission of Mr Sales that what lies behind the general rule that costs follow the event is the principle that it is an important function of rules as to costs to encourage parties in a sensible approach to increasingly expensive litigation. Where any claim is brought in court, costs have to be incurred on either side against a background of greater or lesser degrees of risk as to the ultimate result. If it transpires that the respondent has acted unlawfully, it is generally right that it should pay the claimant’s costs of establishing that. If it transpires that the claimant’s claim is ill-founded, it is generally right that it should pay the respondent’s costs of having to respond. This general rule promotes discipline within the litigation system, compelling parties to assess carefully for themselves the strength of any claim.

37. The basic rule that costs follow the event ensures that the assets of the successful party are not depleted by reason of having to go to court to meet a claim by an unsuccessful party. This is as desirable in public law cases as it is in private law cases. As Mr Sales points out, where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of public funds diverted from the funds available to fulfil its primary public functions.

38. I did not understand Mr Drabble to take serious issue with any of the foregoing. It is plainly right that in the normal run of the mill public law case, the unsuccessful party should pay the other side’s costs. To this Mr Drabble would respond by saying that typical judicial review proceedings involve adversarial litigation, in which the applicant is seeking to promote or protect his or her own private interest: it does not raise a public interest challenge as defined. Nevertheless, in considering whether, and in what circumstances, there should be a departure from the basic rule that costs follow the event in public interest challenge cases, in my view it is important to have in mind the rationale for that basic rule, and that it is for the applicants to show why, exceptionally, there should be a departure from it.

39. As I said earlier, Mr Drabble relies on those cases where, at the end of proceedings, the court made no order for costs against the unsuccessful applicant, on the ground that the issues raised were ones of general public importance. Mr Sales and Mr Havers submit that the court was able to take that exceptional course in those cases because it was seised of all the arguments, and could decide whether, in all the circumstances, it was truly in the public interest that the claim should have been brought. It cannot be right, they argue, that every claim for judicial review, however bad it proves to be, should attract the same favourable treatment. The critical point about such cases is that the court feels able, after full argument, to decide that public money should be spent, (by denial of recoupment from the unsuccessful party), on the clarification of the point of law.

40. Mr Drabble counters this by submitting that there is an important distinction between (i) the merits of the claim, and (ii) the merits of bringing the claim. An assessment of the merits of the claim may be complex, and will not finally be determined until judgment is given on the substantive application. The merits of bringing the claim, however, although related to the merits of the claim, can be assessed at the interlocutory stage without a detailed examination of the merits of the claim itself. He submits that the court can, and should, make a pre-emptive costs order, where it is satisfied that the claim raises a point of general public importance, and that the applicant does not have any private interest in the outcome. He says that the court can be so satisfied at the interlocutory stage, without reaching any conclusion as to the merits of the claim itself, save on the question whether it is arguable. If leave to move for judicial review has been granted, then ex hypothesi, the claim is arguable.

41. The reasons why, in my judgment, it is appropriate to make a pre-emptive costs order only in exceptional cases are as follows. First, it will often not become clear whether an issue is of sufficient public importance to justify departure from the basic rule that costs follow the event until the hearing of the substantive application. Let us take the challenge by CPAG as an example. CPAG do not contend that the Lord Chancellor should make legal aid available in all cases before the Social Security Tribunals and Commissioners, but only in a minority of cases. Certain criteria are proposed for determining which class of case should qualify for legal aid. These include (i) the complexity of the case; (ii) its general importance; and (iii) the vulnerability of the claimant. The Lord Chancellor opposes the application, inter alia, on the grounds that the existing procedures provide adequate safeguards to protect the interests of claimants. It seems to me that the court will be in a better position than I am now to judge whether the point is of sufficient general public importance to justify a departure from the basic rule that costs should follow the event, after it has seen all the material and heard all the arguments. I accept that there will be cases where it is possible to say at the interlocutory stage that the issue raised is of sufficient general public importance, but that will often not be the case.

42. The second reason why, in my view, it will only be in an exceptional case that a pre-emptive costs order should be made is that it will rarely be possible to make a sufficient assessment of the merits of the claim at the interlocutory stage. I do not consider that the fact that leave to move to apply for judicial review is enough. Leave will often have been granted on the papers, or following an ex-parte oral application. Even if the application is made at an inter partes hearing, the respondent may not at that stage place before the judge all the material or outline all the arguments that will eventually be considered by the court hearing the substantive application. It may ultimately transpire that the application is hopeless. As Lord Scarman said in ex parte National Federation of Self-Employed (supra) at page 653G:

43. Mr Drabble relies to some extent on the liberalisation of the law standing in support of his arguments for pre-emptive costs. But it is significant that, although the courts undoubtedly take a less strict view of the requirements for standing than previously, it has been decided that standing should not be treated as a preliminary issue, but must be taken in the legal and factual context of the whole case: see ex parte National Federation of Self Employed (supra) ,per Lord Wilberforce at page 630D, Lord Fraser at page 645D and Lord Scarman at page 653F. It seems to me that, in so far as any assistance may be derived from the cases on standing, they support the proposition that the court should be extremely cautious about making pre-emptive orders for costs. What the court is being asked by the applicants to do is to say, in advance, that a public body should subsidise proceedings that have been brought against it, and to do so even at a time when the court has an incomplete appreciation of the merits of the claim, and when it may also be unable to assess properly the extent of the general public importance of the issues raised by the proceedings. I cannot accept that a departure from the basic rule that costs should follow the event is justified in such circumstances.

44. I conclude, therefore, that the necessary conditions for the making of a pre-emptive costs order in public interest challenge cases are that the court is satisfied that the issues raised are truly ones of general public importance, and that it has a sufficient appreciation of the merits of the claim that it can conclude that it is in the public interest to make the order. Unless the court can be so satisfied by short argument, it is unlikely to make the order in any event. Otherwise, there is a real risk that such applications would lead, in effect, to dress rehearsals of the substantive applications, which in my view would be undesirable. These necessary conditions are not, however, sufficient for the making of an order. The court must also have regard to the financial resources of the applicant and respondent, and the amount of costs likely to be in issue. It will be more likely to make an order where the respondent clearly has a superior capacity to bear the costs of the proceedings than the applicant, and where it is satisfied that, unless the order is made, the applicant will probably discontinue the proceedings, and will be acting reasonably in so doing.

45. With that discussion of what I consider to be the correct approach to applications for pre-emptive costs, I turn to the particular applications that are before me.

46. I am not persuaded that I have enough material to be able to form a concluded view as to how considerable a point of public importance is raised by this application. At first sight, the question whether legal aid should be available for hearings before Social Security tribunals and Commissioners, would appear to be a matter of great public importance. But as I said earlier, CPAG is contending that legal aid should be available only in a minority of cases. On the material before me, it is not possible to assess, even approximately, the number of cases which would be likely to attract legal aid, if the applicant’s arguments were to succeed at the substantive hearing. It is not obvious at this stage that so many claimants would or might benefit from legal aid if CPAG were to succeed, that I can say with any confidence that the issue raised is of such general public importance that I ought to make a pre-emptive costs order.

47. Nor am I satisfied that I have a sufficient appreciation of the merits of the application to be able to conclude that it is in the public interest to make the order. CPAG seeks to advance difficult arguments of law. It contends that it is inconsistent with the obligations imposed by Article 6 of Directive 76/207 (Directive on Equal Treatment in Employment) and Directive 79/7 (Directive on Equal Treatment in Social Security) to fail to provide legal aid for cases involving those Directives. EC law requires that there should be effective access to judicial remedies for the protection of rights which are directly effective under EC law. Reference is made to decisions of the European Court of Justice.

48. CPAG also contends that the decision of the Lord Chancellor is in breach of Article 6.1 of the European Convention on Human Rights, which so far as material provides:

49. Reliance is placed on a number of decisions of the European Court of Human Rights, and it is submitted that the refusal to make legal aid available in complicated social security cases amounts to a breach of Article 6.1 of the ECHR.

50. By these complex arguments, CPAG seek to break new ground. I am quite unable to form a view as to their merits at this stage. It is possible that, once the considerable relevant statutory and case-law material has been examined, the arguments will be exposed as wholly lacking in substance. On the other hand, it may be that, although the arguments are finally rejected at the substantive hearing, the court will decide that they were by no means without merit, and that, in all the circumstances, CPAG should not be ordered to pay the Lord Chancellor’s costs. At this stage, however, I am unable to assess the merits sufficiently to be able to conclude that it is in the public interest that a pre-emptive costs order should be made.

51. Accordingly, neither of the conditions that I have identified as being necessary for the making of a pre-emptive costs order is satisfied. If they had been satisfied, I would have been minded to make the order sought, because the Lord Chancellor clearly has a superior capacity to bear the costs of the proceedings than CPAG, and it seems that, unless the order is made, CPAG will probably discontinue the proceedings, and, in my judgment, will be acting reasonably in so doing.

52. It is said by the applicants that this is an important test case which raises significant points of principle. In her affidavit, Jan Gould puts the point in this way:

53. I am not convinced that the court that decides the substantive application in this case will necessarily make any statements of general principle and application as to how the DPP should exercise her discretion whether or not to prosecute. The court might decide the case quite narrowly, in which event, the decision will be of limited general public importance. There is a significant factual content in this challenge to the decision of the DPP not to prosecute. It is this element of the case which compels me to conclude that the first necessary condition for a successful application for a pre-emptive costs order is not satisfied.

54. As regards the merits of the application, I am wholly unable to form a view as to the applicants’ prospects of success. The public interest test set out in paragraph 6 of the Code requires the DPP to carry out a balancing exercise, and it may well be difficult for the applicants’ challenge to succeed. But as in the CPAG challenge, I have heard very little argument indeed on the point. For the same reasons as I gave in relation to that case, I am unable to assess the merits sufficiently to be able to say whether it is in the public interest to make a pre-emptive costs order.

55. Even if I had been persuaded that the two necessary conditions that I have identified were satisfied, I doubt whether I would have made a pre-emptive costs order in this case in any event. I am prepared to assume that the DPP clearly has a superior capacity to bear the costs of the proceedings than the applicants. I am not, however, satisfied on the evidence that if the order is not made, both applicants will discontinue the proceedings. The evidence is that each applicant would be concerned or anxious about continuing.; neither says that discontinuance would be the probable result if a pre-emptive costs order were not made. It is perhaps of greater significance that their evidence does not address the obvious possibility that the application be continued in the name of one of the applicants only, and that the proceedings be financed by both of them.

56. For the reasons that I have given, both of these applications are dismissed.

57. MR JUSTICE DYSON: Mr Drabble, I hope you have all received a copy of the judgment.

58. MR SALES: My Lord, on behalf of the Lord Chancellor I apply for his costs against Child Poverty Action. I make two points to this court. The first is that this there was a discrete argument as to what the special costs Order should be in the case. It was not dependent on the outcome or indeed the merits of the arguments as in the motion itself. Therefore, it should be treated as a matter for your Lordship to determine the costs position now.

59. Secondly, in anticipation of my learned friend urging your Lordship to make no Order as to costs, what we say is that this application plainly did not fall within its own admission or public interests litigation. It was an application made for the direct financial benefit of Child Poverty Action Group in the litigation. Your Lordship recall from the hearing last week that my learned friend drew a critical distinction, even for the test that he was putting before your Lordship, between a case in which the party mount a public law challenge, a challenge of any other kind, which has the direct financial interest in the outcome of that challenge as opposed to what he says was Child Poverty Action Group's position on the substantive case, namely that they had no financial interests of their own that they are pursuing.

60. So far as that distinction being a good one, it does not apply or assist my learned friend in relation to the costs of this particular application where there was the Child Poverty Action Group's own financial interests being pursued. For these reasons we respectfully ask for the Lord Chancellor's costs.

61. MS WHIPPLE: My Lord, on behalf of the Director of Public Prosecutions I make a similar application about the costs. I endorse really what has been said. It is my submission that costs should follow the event in this case, and the Respondents have been successful. The justice of the case simply does not require that which Child Poverty Action Group deem proper.

62. I make two brief points, my Lord. First of all, there has been no new point of law of principle that has been established. Your Lordship will recall that at the outset of case the Respondents accepted that there was a jurisdiction to make a pre-emptive costs Order.

63. Secondly, looking at the particular circumstances of these applications, I submit that Amnesty and Redress simply fell short of the criteria, which your Lordship then enunciated. In the case of Amnesty and Redress, particularly, your Lordship will recall that you were not taken with their application. On the last page of your judgment you conclude that even if they had shown sufficient public importance and demonstrated that they had merits in the case -- neither of which could be shown to you -- you would not, in any event, have made a pre-emptive costs Order against Amnesty and Redress, because you were not satisfied that absent that Order, discontinuance would have followed. In the circumstances, I would ask for my costs of this application.

64. MR DRABBLE QC: My Lord, can I respond first to the two applications for costs against the two or three organisations that I represent. I also have an application for leave to appeal, but I will come back to that in moment. As far as the application for costs are concerned, I do not accept my learned friend Mr Sales' distinction between the pre-emptive costs application and the substantive application. Child Poverty Action Group, Amnesty and Redress were creating the pre-emptive costs application in order to facilitate the litigation which, in our submission, was properly characterised as a public interests litigation. True it is that the way it was going to be facilitated was protecting Child Poverty Action Group and Amnesty against the consequences of ultimate failure. However, that is a different motivation still from the private individual pursuing his own interests in a public law case. I do not accept that we fall short of our own criteria.

65. My Lord, the position, in our respectful submission, is that the applications did themselves raise genuine interests of public interests, which it was public interests that were debated at some stage. True it is that the Respondents conceded jurisdiction -- only when we got their skeleton -- but the formal concession of jurisdiction is only one step down the line. There is still a need to establish the principles on which the jurisdiction is going to be exercised and, more importantly, on the context of jurisdiction.

66. The motivation of the two or the three organisations are manifest and indeed not challenged. The applications have been brought in the public interests in that sense. The overall effect may very well be in the Child Poverty Action Group and Amnesty cases, if they do they not proceed, an overall saving of the costs for everybody and is an important background consideration.

67. Against the whole of the background, we ask your Lordship to say that the appropriate Order in both applications is no Order for costs. The fallback position is that the two Respondents should get no more than, in any event, an Order for the Respondents' costs in the cause, so that if the proceedings were to continue in the Amnesty case and were ultimately to succeed on behalf of Amnesty, then the Respondents should not get their costs. Similarly, if they were to fail on the past public interests test, the court at that stage could nonetheless make an Order that there simply be no costs in the cause at all.

68. There are similar applications by the Child Poverty Action Group. The Child Poverty Action Group will have to consider very carefully what its position is, in the light of your Lordship's Order. Your Lordship may know that leave to move for judicial review in the parallel industrial tribunal case was granted on Monday ----

69. MR JUSTICE DYSON: I did not know that.

70. MR DRABBLE QC: -- and it is not impossible that the points of law would be decided against the Lord Chancellor even if Child Poverty Action Group sought leave to discontinue, in which case we would certainly wish to argue over discontinuing at this stage, and that we should nonetheless not pay the costs.

71. Therefore, the position is, first of all, that the appropriate Order is no costs at all and, secondly, the fallback position is that the Respondents' costs in the cause rather than costs in any event.

72. My Lord, there is one final matter on costs. We were faced, the two or three organisations, with two sets of representations on both the points of principle and the individual facts. On the face of it, there is, in our submission, no reason why the two government departments concerned should have been separately represented by counsel in front of your Lordship. Both counsel disclaimed any intention or desire to go in detail through the facts or merits of the individual case. That was not basic ground. There was the submission that the jurisdiction should not be exercised, except in very exceptional circumstances. Although I fully appreciate that there are formally two sets of proceedings, I do raise the issue as to whether it was appropriate, in any event, that there should be more than one set of costs. The matters were listed together for the obvious convenience of all the parties. My Lord, that is what I wish to say about the costs.

73. As I indicated, both or all three organisations will need to give careful consideration to your Lordship's judgment. In order to reserve its position, I formally apply for leave to appeal on the basis that serious breaches of principle are raised by the application.

74. MR JUSTICE DYSON: Do you want to say anything on the separate representation point?

75. MR SALES: My Lord, on the separate representations point, these are two separate applications. The background to it was that those instructing my learned friend unilaterally listed the two applications together and then served the joint skeleton. The government departments concerned are separate departments, and they have separate budgets. The points raised, as became clear during the argument, were indeed separate in the two cases. In particular, my learned friend, Mr Havers, spent a good deal of time on his feet, your Lordship will recall, meeting points made by Mr Emmerson, or taking additional points which were not open to me in the Child Poverty Action Group case. Therefore, in my submission, that submission goes nowhere.

76. My Lord, so far as leave to appeal is concerned, when all is said and done what your Lordship has done is to exercise your discretion to reaffirm the usual costs position and not to make a wholly exceptional costs Order. In our respectful submission, that is an unimpeachable exercise of discretion on your Lordship's part, and my learned friend should be left to persuade the Court of Appeal that this really is a case for the Court of Appeal's attention.

77. MR JUSTICE DYSON: I think, so far as costs are concerned, that the right Order to make is the Respondents' costs in the cause. That sufficiently reflects the rather unusual nature of this application, that it is not one that is made for the private interests of the Applicants. I do not think that I can fairly draw the distinction between this application and the final substantive application, which Mr Sales invites me to draw.

78. So far as leave to appeal is concerned, I think that the issues raised here are of general importance, and I propose, therefore, to grant leave to appeal.

79. Thank you very much indeed.