The Plantagenet Alliance Ltd, R (on the application of) v Secretary of State for Justice (Rev 1)

A protective costs order in judicial review is governed by the Corner House principles, applied flexibly and proportionately. A claimant’s private interest is a factor in the overall assessment, not an automatic bar. The public importance of a decision cannot be separated from the importance of securing a lawful decision-making process. A protective costs order should be reconsidered only for a compelling reason. The reciprocal costs cap must be modest, but the court has a broad discretion to reflect the circumstances, equality of arms and reasonable representation. In judicial review, the duty of candour does not prevent a specific disclosure order where case management requires guidance on the material reasonably required for the court to decide the case.

The claimant sought judicial review concerning the licensing and proposed reburial of the remains of Richard III. Permission had been granted, together with a protective costs order preventing the Secretary of State for Justice and the University of Leicester from recovering their costs from the claimant.

The Secretary of State applied to discharge or vary the protective costs order, sought security for costs, and requested variation of a disclosure order. The University supported the first two applications and separately sought to set aside the protective costs order. The Secretary of State also sought an extension of time for filing grounds and evidence. The issues concerned the continuing validity of the protective costs order, security for costs, the appropriate reciprocal costs cap, disclosure, and procedural time limits.

1. Protective costs order. The court had jurisdiction to reconsider an order made on paper under CPR rule 23.8(c). The late application was allowed to proceed because the procedural error was promptly corrected. However, reconsideration required a compelling reason, and no such reason was established.
2. The five Corner House principles were to be applied flexibly. The case raised matters of considerable public importance because the importance of the underlying decision was inseparable from the public importance of following a lawful process. Press or public debate was no substitute for compliance with the common-law duty to consult. The claimant’s preference for York did not amount to an exclusively private interest in the judicial review, and any private interest was merely a factor in the assessment.
3. The evidence that the claimant lacked the means to fund the litigation was properly taken at face value. There was no requirement to prove that public fundraising had been exhausted or that lawyers had first been sought on a pro bono basis. The protective costs order was therefore maintained against both defendants.
4. Security for costs. Security was refused. There was no proper basis for inferring improper incorporation or motivation, security would stifle the claim, and the issue did not arise while the protective costs order remained in force.
5. Costs cap. A broad-brush and fact-sensitive approach was required. Treasury rates, rather than commercial rates, were appropriate. A CFA uplift was not appropriate. Equality of arms justified recovery for two junior counsel. The overall reciprocal cap was fixed at £70,000, with liberty to apply if circumstances changed.
6. Disclosure and extension of time. The common-law duty of candour requires disclosure of material reasonably required for an accurate decision, and the approach to disclosure is flexible. A specific disclosure order was justified for case-management reasons. Time for the Secretary of State’s grounds and evidence was extended to 25 October 2013.
7. The applications to discharge or vary the protective costs order, for security for costs, and to vary the disclosure order were dismissed.

The judgment records that the Secretary of State initially lodged an impermissible appeal to the Court of Appeal against the paper decision granting the protective costs order. The Court of Appeal file was closed for want of jurisdiction, and the matter was then brought back before the Administrative Court for reconsideration.