Protective Costs Orders Approved By The House Of Lords

Protective Costs Orders are something of a constitutional

novelty, and the principles that govern their award, their ambit

and even their very existence have been controversial. However the

House of Lords have recently implicitly approved their status

– and they may be available even where the

applicant has a private interest in the outcome.

Public Interest v Private Interest - MO(Nigeria) Part II

It is a notorious fact that extensive litigation is generally a

privilege extended to the rich or the penurious, but likely to be

beyond the means of the public at large. The introduction of

Conditional Fee Arrangements (CFAs) has gone some way to address

this point, but glaring gaps remain. In particular, even with a CFA

a litigant is at risk of an adverse costs order. Normally of course

the litigant will seek the security of after the event (ATE)

insurance to cover an award against him, but these are provided by

the private sector and they are understandably nervous of extending

cover in either novel situations, test cases or even in areas of

the law in which they are unfamiliar. In judicial review cases, for

example, even the very best cases almost guaranteed success can be

impossible to insure.

In recent years the Courts have taken tentative steps to ensure

that litigation of general importance is not shut out by

prohibitive costs exposure through the introduction of Protective

Costs Orders (PCOs) by the Court of Appeal. In essence these orders

prevent the recovery of costs beyond a certain figure by one of the

parties, allowing the other party to know in advance the maximum

extent of its liability.

The House of Lords recently granted a PCO, the first such move

by the House, in the case of MO (Nigeria) v Secretary of State for

the Home Department [2009] UKHL 25. Duncan Lewis & Co. were the

Appellant's solicitors. The details of the case are not

important for this discussion1, save to note that the

Appellant sought leave to remain and on any...