QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|THE QUEEN (ON THE APPLICATION OF THE PLANTAGENET ALLIANCE LIMITED)
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|SECRETARY OF STATE FOR JUSTICE
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|THE UNIVERSITY OF LEICESTER
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|THE MEMBERS FOR THE TIME BEING OF THE CHAPTER, THE COUNCIL AND THE COLLEGE OF CANONS OF THE CATHEDRAL OF SAINT MARTIN LEICESTER
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First Interested Party
|THE MEMBERS FOR THE TIME BEING OF THE CHAPTER, THE COUNCIL AND THE COLLEGE OF CANONS OF THE CATHEDRAL AND METROPOLITAN CHURCH OF SAINT PETER YORK
||Second Interested Party
Tom Weisselberg (instructed by The Treasury Solicitor) for the First Defendant
Anya Proops and Heather Emmerson (instructed by University of Leicester) for the Second Defendant
Hearing date: 26th September 2013
Crown Copyright ©
MR JUSTICE HADDON-CAVE:
(1) An application for discharge or variation of the PCO.
(2) An application for Security for Costs against the Claimants.
(3) An application for a variation of the Disclosure Order.
(4) An application for an extension of time to file Detailed Grounds.
ISSUE 1: APPLICATION FOR DISCHARGE OR VARIATION OF THE PCO
"There shall be a Protective Costs Order whereby the First and Second Defendants shall be prevented from recovering their costs of these proceedings from the Claimant."
The Corner House principles (2005)
"(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
(i) the issues raised are of general public importance;
(ii) the public interest requires that those issues should be resolved;
(iii) the applicant has no private interest in the outcome of the case;
(iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
(v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO."
(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.
(1) 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.
(2) 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.
(3) 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.
Subsequent cases – the need for "flexibility"
"Finally I do not read the word "general" as meaning that it must be of interest to all the public nationally. On the other hand I would accept that a local group may be so small that issues in which they alone might be interested would not be issues of "general public importance". It is a question of degree and a question which Corner House would expect judges to be able to resolve."
"It seems to me that a case may raise issues of general public importance even though only a small group of people will be directly affected by the decision. A much larger section of the public may be indirectly affected by the outcome. Because it is impossible to define what amounts to an issue of general public importance, the question of importance must be left to the evaluation of the judge without restrictive rules as to what is important and what is general."
"It seems to me as a matter of common sense, justice and proportionality that when exercising his discretion as to whether to make an order and if so what order, the judge should take account of the fullness of the extent to which the applicant has satisfied the five Corner House requirements. Where the issues to be raised are of the first rank of general public importance and there are compelling public interest reasons for them to be resolved, it may well be appropriate for the judge to make the strongest of orders, if the financial circumstances of the parties warrant it. But where the issues are of a lower order of general public importance and/or the public interest in resolution is less than compelling, a more modest order may still be open to the judge and a proportionate response to the circumstances."
Subsequent CA cases
(1) The starting point was that a PCO would not be made unless (a) there was a real prospect of success in the judicial review proceedings, (b) the issues raised were of general public importance and (c) there was a compelling public interest for them to be resolved.
(2) A private interest in the judicial review claim is not fatal to the application for a PCO. Subsequent cases have emphasised the need for flexibility when considering the requirement in Corner House that an applicant should have no private interest in the case. The correct approach was that an applicants' private interest was (merely) "a factor" to consider when balancing against the other elements of the Corner House guidance.
(3) In the present case, Mrs Litvinenko's liquid assets outweighed the value of the Secretary of State's estimated costs and she had greater means than many other litigants. She had the financial means to bring the proceedings if she chose to and it would not be "fair or just" to make a PCO, nor was it an "exceptional" case for the Corner House principles to apply.
'Legal' issues of public importance
Application of the Law to the Facts
(1) 'General public importance'
Burial Act 1857
(2) 'Public interest'
(3) 'Private interest'
(4) 'Financial resources'
"I do not personally have the funds to finance this litigation personally. I work primarily as a self-employed gardener, and have no realisable assets, savings or other capital. Nor am I aware of any other person who has the funds to finance this litigation. Accordingly, in the event that a Protective Costs Order is not granted, neither the Company nor the individuals which it represents will be in a position to continue with this claim, and the issue will not be considered by the Court."
(5) 'Fair and just' to grant a PCO
University of Leicester's position in relation to PCO
"In early-mid October , [Sarah Levitt], Head of Arts & Museums at Leicester City Council confirmed that some form of public consultation on the reburial of Richard III would be required. Leicester City Council had employed a leading QC and that was his advice."
"[Sarah Levitt] send me an e-mail on 14 November 2012: "Hindsight is a wonderful thing though and this does not change the council's position on the need for consultation and engagement with the public".
However, on my next trip to Leicester a few days later, I was informed by [Sarah Levitt] that the consultation was not now to take place as [the University of Leicester] did not believe it was necessary. The consultation idea had, in fact, been dropped by [the University of Leicester]."
ISSUE 2: SECURITY FOR COSTS
ISSUE 3: QUANTUM OF COST CAP
(1) Costs should be capped at a level that is "modest" (Corner House, supra, at .
(2) This will normally mean restricting claimants to the costs of solicitors and one junior counsel; but there is no absolute rule (Buglife, supra, at ).
(3) CFA uplifts are, in principle, recoverable because it was important that those skilled in public interest litigation should continue to operate (per Moses LJ in Corner House, supra, at [17-19].
(4) Cost-capping in context of PCOs involves having regard to concepts of public interest (and the public purse) (c.f. R (Davey) v Aylesbury Vale District Council  EWCA Civ 1166).
(5) There is a wide discretion for judges to do what is fair and just in all the circumstances of the particular case subject to the guideline cases.
Decision on cost-capping
(1) Rates: Treasury rates are appropriate for a case such as this, rather than commercial rates. Treasury rates are, in general, a more suitable benchmark of modesty. This case also involves scholarship and intrinsic interest, rather than burdensome commercial, factual or documentary analysis.
(2) CFA: Giving effect to a CFA would not be appropriate in the context of this case or a full PCO. The concept of a CFA does not generally sit easily with the notion of a modestly funded case in any event. Moreover, the tide has turned against CFAs in the post-Jackson world.
(3) 'Uplift': It would not be appropriate to delve into 'unreasonable conduct' issues at this stage in order to second-guess any uplift to any eventual costs recovery (albeit that such conduct might not go entirely unremarked). To do so would be premature and speculative.
(4) Counsel: It would be appropriate, in the interests of fairness and equality of arms, to allow the Claimant to recover the cost of both retained Junior Counsel (Mr Clarke and Mr Cleaver of Blackstone Chambers) since the Justice Secretary has allowed himself the luxury of the Treasury Devil (Mr James Eadie QC) and two Junior Counsel, and the University of Leicester has two Junior Counsel.
(5) Overall Cap: It seems that this case will be hard fought, despite entreaties, with no quarter being given on either side. The overall cap should have regard to this fact, the amount of costs already expended and likely future costs assuming Treasury rates, allowing some headroom but reflecting the principle of modesty. In my judgment, taking all factors into consideration, an overall cap of £70,000 would be appropriate. I am fortified that this is a fair figure because it splits the difference between the parties' proffered figures (see above).
(6) Liberty: I will grant express liberty to apply to any party for the 'cap' to be revisited at any stage, in the event of exigencies. Excursions to the Court of Appeal may affect the overall costs bill.
ISSUE 4: DISCLOSURE
"The First and Second Defendants shall, within 21 days, in accordance with their respective duties of candour, each give disclosure of all correspondence, notes and other documents relevant to (i) the circumstances surrounding the original application and grant of the Licence and (ii) all subsequent discussions and exchanges concerning the remains of Richard III and their re-interment."
Duty of candour
"A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include: (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant…. and (3) disclosure at the permission stage if permission is resisted…. A main reason why disclosure is not ordered in judicial review is because the Courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is express when it transpires that they have not done so."
"[T]he time has come to do away with the rule that there must be a demonstrable contradiction or inconsistency or incompleteness in the respondent's affidavits before disclosure will be ordered. In future, as Lord Carswell puts it, 'a more flexible and less prescriptive principle' should apply, leaving the judges to decide upon the need for disclosure depending on the facts of each individual case."
ISSUE 5: EXTENSION OF TIME
(1) The application for discharge or variation of the PCO is dismissed.
(2) The application for Security for Costs is dismissed.
(3) The cost cap is set at £70,000 with Treasury rates.
(4) The application to vary the Disclosure Order is dismissed.
(5) Time for filing First Defendant's Grounds of Resistance and evidence is extended until 25th October 2013.