Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department

A protective costs order may be appropriate for an imminent public-interest hearing where the claimant has limited funds, is pursuing a systemic challenge, is represented pro bono and will not seek costs if successful. The Civil Procedure Rules confer a flexible costs jurisdiction which should be exercised with regard to the overriding objective. The court did not finally determine the criteria governing protective costs orders, leaving that issue for the full court at the substantive hearing.

The Refugee Legal Centre challenged the fairness of the Harmondsworth fast-track asylum scheme. Collins J held that the existing system was not unlawful. Permission to appeal was granted and the substantive appeal was to be heard by the full court. This interlocutory hearing concerned whether the Centre should be protected against an adverse costs order for the costs of the next hearing, pending consideration of protection for the substantive appeal. The central issue was whether the Centre’s public-interest role, limited funds and systemic challenge justified such protection.

1. Application granted. The Refugee Legal Centre was protected against an adverse costs order in relation to the following week’s application. It was understood that the Centre would not seek an order for its own costs if successful on that application.
2. The evidence established that the Centre’s trustees reasonably considered it unsafe to expose its limited funds to adverse costs risk. The Centre was an independent, not-for-profit charity responsible for delivering quality legal services to people seeking human-rights protection. Its representatives were acting pro bono, and the challenge concerned the fairness of a procedure affecting vulnerable asylum seekers.
3. The court was unconvinced that systemic unfairness could satisfactorily be tested through numerous individual judicial reviews. Such an approach might require 10 or 12 individual cases, separate legal-aid certificates and different legal teams merely to assess whether the system was generically unfair.
4. The court recognised that the Civil Procedure Rules provide a more flexible costs jurisdiction, to be exercised in pursuit of the overriding objective in CPR 1.1. Recent decisions, including King v Telegraph Group Ltd [2004] EWCA Civ 613 and R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 543; [2004] 3 All ER 543, illustrated that flexibility.
5. Brooke LJ did not finally decide the appropriate criteria for protective costs orders or the lawfulness of the fast-track scheme. The full court was to examine those issues at the subsequent hearing. The order was confined to the costs of the imminent application.

• Court of Appeal (Civil Division): Brooke LJ granted a protective costs order for the costs of the imminent application. The substantive appeal was not determined.
• High Court (Administrative Court): Collins J held that the Harmondsworth fast-track scheme was not unlawful.