A & Ors, R (on the application of) v Secretary of State for the Home Department

A protective costs order is exceptional and depends on the governing principles identified in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. The applicant must show that the issues are of general public importance, that the public interest requires their resolution, and that it is in the public interest to make the order. The applicant must also have no private interest in the outcome. A claimant who retains a personal financial interest in recovering damages does not satisfy that requirement. Even where the issues are important and require determination, the court must separately consider whether it is fair and in the public interest to expose a public authority to an adverse costs risk.

The claim arose within group litigation concerning the Secretary of State’s policy for treating persons claiming to be children as adults where their appearance or demeanour strongly suggested that they were over 18. Liability for unlawful detention had been admitted in relation to the claimant and other lead claimants, leaving damages and certain generic issues outstanding.

The claimant sought a protective costs order so that his damages would be ring-fenced if he continued as a lead case. The Secretary of State opposed the application, arguing that the claimant retained a private interest and that no public interest justified imposing an asymmetric costs risk on the state.

1. The application for a protective costs order was dismissed.

2. The court applied the governing principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, including the requirements that the issues be of general public importance, that the public interest require their resolution, that the applicant have no private interest in the outcome, and that it be fair and just to make the order.

3. The public interest has two distinct aspects. The court must ask both whether the issues are of general public importance and whether their resolution is required in the public interest. In addition, it must ask whether it is in the public interest to make a protective costs order in the particular case. The fact that an issue is suitable for determination does not itself justify such an order.

4. The claimant had a private interest. Although liability for unlawful detention had been admitted, he retained an interest in quantifying and recovering damages. That financial interest was also the reason for seeking to protect the damages from any costs claim. The requirement of no private interest was therefore not satisfied.

5. Separately, the public interest did not justify exposing the Secretary of State to a potential liability for costs while denying him recovery if successful. Public authority resources are limited, and money spent on litigation is unavailable for ordinary operations. There were no exceptional circumstances making the order fair or just.

This was a first-instance application within ongoing Administrative Court group litigation. The court had earlier assumed case-management responsibility for the claims, and the Secretary of State had admitted liability concerning the claimant’s detention. No appellate decision was stated.