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

The claimant sought a costs capping order and the defendant sought security for costs in respect of judicial review proceedings challenging the Council's revised statement of licensing policy. The judge applied the statutory tests in sections 88 and 89 of the Criminal Justice and Courts Act 2015 and concluded that the proceedings were not "public interest proceedings" because the challenges were particular to the defendant's statement of licensing policy and did not raise a point of law of general public importance. The claimant was held not to be compelled by impecuniosity to withdraw the claim because its directors and backers had significant commercial resources despite the company's limited assets and the existence of crowdfunding. Accordingly the application for a costs capping order was dismissed, and an order for security for costs was made in the sum of 60,000 as just in all the circumstances.

The claimant, a company formed from a campaigning association called We Love Hackney, sought judicial review of the London Borough of Hackney's adoption on 18 July 2018 of a revised statement of licensing policy (SLP) that included changes to core hours and Special Policy Areas (SPAs) for Shoreditch and Dalston. The claimant alleged unlawful decision-making including failure to comply with the public sector equality duty under section 149 of the Equality Act 2010 and that the report to councillors was unbalanced.

Nature of the applications:

• The claimant renewed an application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015.
• The defendant applied for security for costs under CPR 25.13.

Issues framed:

• Whether the judicial review proceedings were "public interest proceedings" within the meaning of section 88(7) of the 2015 Act (issues of general public importance; public interest in resolution; appropriateness of proceedings).
• Whether, absent a costs capping order, the claimant would withdraw because of impecuniosity and whether it would be reasonable for it to do so (section 88(6)).
• Whether it would be just to order security for costs, and in what amount, under CPR 25.13.

Court's reasoning and findings:

• The judge held that the legal challenges related to how the Council formulated its own SLP and did not raise points of law of general public importance or a public interest need for resolution beyond the local context. Reference to established equality-law authorities (Bracking and Hotak) showed no dispute of general principle and the claimant did not identify a novel general legal issue.
• Section 88(8) factors were considered: the number of people directly affected and the likely significance of any effect were difficult to delineate and did not establish general public importance for the purposes of a CCO.
• On the section 88(6) limb, although counsel for the claimant said the claim would be withdrawn without a CCO, the judge found that the directors and supporters of the claimant had commercial interests and resources and were unlikely to be compelled by impecuniosity to discontinue the litigation; the company had been used as the vehicle for litigation funded by third-party donations.
• The judge therefore dismissed the application for a costs capping order. Separately, having found the claimant could not pay the defendant's costs if ordered, the conditions for security existed under CPR 25.13, and it was just to order security. The judge quantified security at 60,000 to reflect costs to date with a modest uplift for limited further preparation.

The judge recorded practical concerns about disproportionate documentation and emphasised the statutory balance between access to justice and protection of the public purse when considering CCOs.

The application for a costs capping order is dismissed. The court held that the proceedings are not "public interest proceedings" within section 88 of the Criminal Justice and Courts Act 2015 because the challenges were specific to the defendant's statement of licensing policy and did not raise a point of law of general public importance. The court also held that the claimant would not be compelled by impecuniosity to withdraw, given the financial resources of its directors and backers. The defendant's application for security for costs is allowed and security is ordered in the sum of 60,000 as just in all the circumstances.