Weaver v London Quadrant Housing Trust

A protective costs order is discretionary and must be fair and just. The Corner House criteria may be applied by analogy where the applicant is a respondent to an appeal, even though the appeal itself will continue regardless of the order.

A benefit shared with all persons in the applicant’s position is not a disqualifying private interest. In that setting, the requirement concerning discontinuance is satisfied if refusal of the order would reasonably cause the respondent to cease participating in the appeal. Proper representation on both sides of a public-interest appeal may therefore justify an order preventing recovery of the appellant’s costs from the respondent and the Legal Services Commission.

The applicant was an assured tenant of social housing managed by the respondent registered social landlord. After receiving a notice seeking possession, she brought judicial review proceedings in the Divisional Court.

The Divisional Court dismissed the challenge to the possession notice on the facts, but declared that the Trust was amenable to judicial review as a public authority for the purposes of section 6(3)(b) of the Human Rights Act 1998. The Trust was permitted to appeal that declaration.

The Legal Services Commission would fund the applicant’s representation on the appeal only if she and the Commission were protected from an adverse costs order. The applicant therefore sought a protective costs order. The central issue was whether such an order could properly be made for a respondent to an appeal in these unusual circumstances.

Application granted. The Court ordered that the Trust could not recover its costs of the appeal from either the applicant or the Legal Services Commission.

1. The jurisdiction to grant a protective costs order was available at the appellate stage. Although the Corner House criteria were developed for proceedings which would be discontinued without an order, they did not precisely fit an application by a respondent. The jurisdiction was a common-law development and could be applied by analogy to that unusual situation.

2. The relevant factors favoured the order. The appeal raised an issue of general public importance and the public interest required its resolution. The disparity between the parties’ resources did not militate against relief.

3. The applicant had no relevant private interest that disqualified her. Any advantage from the declaration would be shared by tenants in the same position, while the possession order against her would stand whatever the appeal’s outcome. That was the type of shared benefit recognised in Goodson v HM Coroner for Bedfordshire and Luton [2005] EWCA Civ 1172.

4. The discontinuance criterion had to be adapted. The correct analogous question was whether refusal would cause the applicant reasonably to stop participating in the appeal. It would: she faced a potential costs risk but had no individual interest beyond that of other affected tenants.

5. Effective representation for both sides was necessary. If the applicant were unrepresented, an intervenor or an amicus would be needed, and the Trust could not in any event recover costs from either. The Court also observed that CPR Part 52.37 could originally have supported a condition protecting the applicant from costs. Toulson LJ agreed that justice required the limited order made.

• Court of Appeal (Civil Division): Granted the applicant’s protective costs order application. The Trust could not recover appeal costs from the applicant or the Legal Services Commission.
• Queen’s Bench Division, Divisional Court: Dismissed the judicial review challenge to the possession notice on the facts, but declared that the Trust was amenable to judicial review as a public authority within section 6(3)(b) of the Human Rights Act 1998. The Trust was permitted to appeal the declaration.