IS v Director of Legal Aid Casework

The Court of Appeal allowed an appeal against the refusal of a protective costs order (PCO) in judicial review proceedings challenging the refusal of exceptional legal aid funding under s.10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The court applied and reviewed the Corner House principles and related authority, emphasising that the requirement of absence of a private interest must be applied flexibly. On the facts the claim raised issues of general public importance about the operation of the exceptional funding scheme for vulnerable persons (including interaction with s.149 Equality Act 2010 and Article 8 ECHR), the claimant was destitute and there was a real risk that the litigation would be frustrated or delayed without a PCO. The court concluded that a PCO was fair and just and ordered a PCO capped at £55,000 with a reciprocal order in the same sum.

Background and parties:

• The claimant is a vulnerable, mentally impaired Nigerian national in the United Kingdom seeking advice to regularise his immigration status; he is represented by the Official Solicitor and the Public Law Project (PLP).
• PLP sought exceptional legal aid funding for non-litigious immigration advice under s.10 LASPO; the Director refused and the claimant brought judicial review of that refusal and of the administration of the exceptional funding scheme generally (grounds 1 and 2) and of the decision in his own case (ground 3).

Procedural posture:

• Permission to judicially review the refusal of exceptional funding was granted; the claimant sought a protective costs order but a Deputy High Court Judge refused it on paper. Ouseley J granted permission to appeal to the Court of Appeal.

Relief sought:

• A protective costs order to limit the claimant's exposure to an adverse costs order, given his destitution and the Official Solicitor's inability to fund the case without indemnity.

Issues framed by the court:

(i) Whether the claim raised matters of general public importance warranting a PCO; (ii) whether the claimant's private interest in the outcome precluded a PCO or should be treated flexibly; (iii) whether the Law Society indemnity and cap were adequate and whether the risk of costs and likelihood of discontinuance or delay justified a PCO; (iv) whether a reciprocal PCO should be ordered.

Court’s reasoning and decision:

• The court reviewed the Corner House principles and later authority (including Compton, Morgan and Bullmore), holding that the private interest test is flexible and context-dependent.
• The court found that grounds 1 and 2 raised issues of general public importance about access to justice for disabled or mentally incapacitated persons under the exceptional funding regime and that the balance of public interest outweighed the claimant's private interest.
• The court accepted that the claimant was destitute, that the Law Society had provided a limited indemnity of £55,000 and that there was a real risk of delay or non-determination if a PCO were refused, particularly given the managed multi-claim hearing and severance of issues.
• Weighing the Corner House criteria and all circumstances the court concluded a PCO was appropriate and ordered a PCO capped at £55,000 and a reciprocal PCO in the same sum.

Wider context:

The court noted the rarity of PCOs but emphasised judicial flexibility where vulnerable litigants raise public interest issues about access to justice under LASPO.

Appeal allowed. The Court of Appeal held that a protective costs order should be made because the claimant's challenge raised issues of general public importance about the operation of the exceptional funding regime for vulnerable persons, the requirement that applicants have no private interest must be applied flexibly, the claimant was destitute and there was a real risk of delay or non-determination without a PCO. The court ordered a PCO capped at £55,000 and a reciprocal PCO in the same sum.

This is an appeal from the High Court (Queen's Bench Division). On paper, a Deputy High Court Judge (Mr CMG Ockleton sitting as a Deputy Judge) refused the claimant's protective costs order application. Ouseley J considered the matter and granted permission to appeal to the Court of Appeal on 25 April 2014.