QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
MR JUSTICE MAURICE KAY
| THE QUEEN ON THE APPLICATION OF THE CAMPAIGN FOR NUCLEAR DISARMAMENT
|THE PRIME MINISTER
|SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
|SECRETARY OF STATE FOR DEFENCE
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(Official Shorthand Writers to the Court)
MS J STRATFORD (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANTS
Crown Copyright ©
Thursday 5 December 2002
" ... in the event of the costs being awarded against the Claimant ... in the High Court, those costs be limited to the amount of £25,000."
It is made in proceedings brought by the applicants, the Campaign for Nuclear Disarmament (CND), against senior members of government for an advisory declaration that the United Nations Security Council Resolution 1441 does not authorise the use of force in the event of there being a breach, and that a further United Nations Security Council resolution would be needed to authorise such force. It is set, of course, against the background of the present inspections in Iraq.
" ... seek to give effect to the overriding objective and should have particular regard to the need, so far as practicable, to ensure that the parties are on an equal footing and that the case is dealt with in a way which is proportionate to the financial position of each party."
He then usefully stated the effect of ex parte CPAG, namely that it:
" ... sets out the following criteria or conditions for the making of a pre-emptive costs order in a public interest challenge case. First, that the court is satisfied that the issues raised are truly ones of general importance. Secondly, that it has a sufficient appreciation of the merits of the claim that it can conclude it is in the public interest to make the order. Thirdly, the court should have regard to the financial resources of the applicant and the respondent and the amount of the costs likely to be in issue and it would 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 would probably discontinue the proceedings and will be acting reasonably in so doing."
Both those decisions emphasised that the discretion to make such an order, even in cases involving public interest challenges, should be exercised only in the most exceptional circumstances. As Dyson J pointed out in ex parte CPAG, it is, after all, the case that:
" ... 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."
In neither case was the discretion in fact exercised. Indeed, neither counsel before us is aware of any case in the public law arena in which such an order has ever been made; although, of course, there are a number of cases in which, at the conclusion of proceedings, the court has declined to make a costs order against the applicant or has made a reduced order to reflect the public interest in the litigation.