We Love Hackney Ltd, R (On the Application Of) v London Borough of Hackney

A costs capping order in judicial review proceedings requires all conditions in sections 88(6) and 88(7) of the Criminal Justice and Courts Act 2015 to be satisfied. A challenge directed to the lawfulness of one public authority’s decision or policy will not necessarily raise an issue of general public importance. The statutory references to persons directly affected do not extend to broad, amorphous groups whose connection with the policy is indirect or prospective. An order may also be refused where well-resourced individuals with a commercial interest can fund the litigation. Security for costs may be ordered where an impecunious claimant has backers who could reasonably provide security and the claim would not thereby be stifled.

The claimant sought judicial review of Hackney’s revised statement of licensing policy, including changes to core hours and special policy areas. Permission had been granted on challenges concerning the public sector equality duty and whether the decision-maker had properly addressed relevant considerations.

The claimant renewed its application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015. The defendant sought security for costs under CPR 25.13. The central questions were whether the claim constituted public interest proceedings, whether withdrawal without a costs cap would be compelled and whether security would unjustly stifle an arguable claim.

1. Costs capping order dismissed. The proceedings were not public interest proceedings. The challenge concerned the lawfulness of a particular local authority’s decision-making process and did not raise a general issue or point of law of general public importance. The legal principles governing the public sector equality duty were accepted and established, and the claim raised no unresolved general legal question.
2. The people said to be affected included investors, workers, venue users and future licence applicants. Those groups were too amorphous and prospective to satisfy the statutory concept of persons likely to be directly affected. The possible effects were difficult to measure, and indirect effects were not entitled to decisive weight.
3. The claimant accepted that it would withdraw without a costs capping order. However, withdrawal would not be reasonable because the company was supported by directors and backers with substantial resources and commercial interests in the outcome. The evidence indicated a choice to rely on public funding rather than genuine inability to fund the litigation.
4. The statutory section 89 factors could not independently justify an order once the condition in section 88(7) was absent. The argument based on access to justice did not alter the balance struck by Parliament.
5. Security for costs allowed in part. The claimant was unable to pay the defendant’s costs, satisfying CPR 25.13(1)(b) and 25.13(2)(c). Applying CPR 25.13(1)(a), the claim would not be stifled because resourceful backers could provide security. It was just to make an order, but the amount sought was excessive in light of the preparation undertaken. Security was fixed at £60,000.

First-instance judicial review and costs applications before the High Court (Administrative Court). The renewed costs capping order application was dismissed and security for costs was ordered in the sum of £60,000.