*ANOTHER VERSION SENT. DO NOT SET LIVE* Protective Costs Orders Approved By The House Of Lords - And May Be Available Even Where The Applicant Has A Private Interest In The Outcome

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.

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. Duncan Lewis & Co. were the

Appellant's solicitors.

The detail of the case is not important for this discussion,

save to note that on any reading the Appellant had not been the

author of her own misfortune in the substantive case, and came to

the litigation with 'clean hands'.

She had pursued her appeal all the way to the House of Lords,

acting first in person and then with the assistance of public

funding. However, almost simultaneously with the House of Lords

granting permission to appeal and setting the matter down for a

hearing, MO's spouse obtained a job at a higher salary. The

means of partners being aggregated for Legal aid purposes that put

MO outside of the scope of public funding, albeit only just, and as

a result in theory she would have to pay the cost of the further

litigation. In practice this would have been well outside of her

me...