QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MEDICAL JUSTICE||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MR JONATHAN SWIFT QC (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Crown Copyright ©
MR JUSTICE CRANSTON:
"The first question is whether the plaintiffs have satisfied the first requirement laid down by the House of Lords in American Cyanamid Co v Ethicon Ltd: is their action not frivolous or vexatious? Is there a serious question to be tried? Is there a real prospect that they will succeed in their claim for a permanent injunction at the trial? The first two questions were clearly intended to state the same test, because they are joined by the phrase 'in other words', and the third cannot, I think, have been meant to state any different one."
"...the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken."
Once the application moves beyond primary legislation, the weighing of interests varies. In giving the judgment of the Court of Appeal in R v Her Majesty's Treasury  1 CMLR 621, Sir Thomas Bingham MR said that in one case the law to be disapplied may be a major piece of primary legislation on which an election has perhaps been fought, but in another it may be a minor piece of subordinate legislation affecting very few parties other than the claimant. Sir Thomas Bingham MR went on to hold that while the court would never disapply any legislation without great circumspection, its reluctance would obviously weigh more heavily in the first case than in the second: paragraph 41. In my view, if the material on which the court's judgment is to be exercised is government policy, not contained in legislation, that enters as a consideration when determining where the balance of convenience lies.
The protective costs order
"We would rephrase that guidance in these terms in the present context. (i) When making any PCO where the applicant is seeking an order for costs in its favour if it wins, the court should prescribe by way of a capping order a total amount of the recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. (ii) The purpose of the PCO will be to limit or extinguish the liability of the applicant if it loses, and as a balancing factor the liability of the defendant for the applicant's costs if the defendant loses will thus be restricted to a reasonably modest amount. The applicant should expect the capping order to restrict it to solicitors' fees and a fee for a single advocate of junior counsel status that are no more than modest. (iii) The overriding purpose of exercising this jurisdiction is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance at all, where the court considers that it is in the public interest that an order should be made. The beneficiary of a PCO must not expect the capping order that will accompany the PCO to permit anything other than modest representation, and must arrange its legal representation (when its lawyers are not willing to act pro bono) accordingly."
My Lord, I apologise that I wasn't here yesterday.