Good Law Project Ltd v Minister for the Cabinet Office

A cost-capping order in judicial review proceedings may be made only where the statutory conditions are satisfied. The proceedings must concern an issue of general public importance, the public interest must require resolution, and the proceedings must be an appropriate means of resolving it. The court must also be satisfied that the applicant would otherwise withdraw or cease participation and that doing so would be reasonable.

The matters listed in section 88(8) of the Criminal Justice and Courts Act 2015 are matters for consideration, not determinative jurisdictional requirements. A one-off procurement challenge may nevertheless raise an issue of general public importance where it concerns the scope of the emergency procurement exception in regulation 32(2)(c) of the PCR 2015.

The claimant sought a cost-capping order in judicial review proceedings challenging the defendant’s direct award of a contract to the interested party for polling and related services. Permission had been granted on grounds including lack of transparency, apparent bias, the alleged absence of a lawful basis for a direct award under regulation 32(2)(c) of the PCR 2015, and disproportionality.

The defendant estimated its costs at more than £450,000. The claimant said that, without protection from that liability, it would withdraw or cease participating. The central issue was whether the proceedings were public interest proceedings under section 88 of the Criminal Justice and Courts Act 2015 and, if so, what cap should be imposed.

1. Application granted. A cost-capping order was made limiting each party’s liability for the other’s costs to £120,000.
2. The conditions in section 88(6)(b) and (c) were satisfied. The evidence established that, without an order, the claimant would withdraw or cease participating, and that it would be reasonable for it to do so.
3. The proceedings were public interest proceedings under section 88(7). The direct award of a public contract without publicity or competition raised an issue of general public importance concerning the ambit of regulation 32(2)(c) of the PCR 2015. The provision permits a negotiated procedure without prior publication only where the statutory requirements, including strict necessity, extreme urgency and unforeseeability, are met.
4. The public interest required judicial resolution of the issue. External investigations and proposed improvements to procurement practice did not remove the value of a public hearing determining whether the particular procurement was lawful.
5. The court accepted that the number of people directly affected by relief, and the practical effect on them, were limited because the contract was a completed one-off arrangement. Those considerations did not outweigh the wider public interest in lawful and proper government procurement or the importance of clarifying regulation 32(2)(c), which could apply to emergencies beyond a pandemic.
6. The matters identified in section 88(8) were matters to which the court had to have regard, rather than determinative conditions of jurisdiction. The court also considered the parties’ resources, the claimant’s lack of financial benefit, the absence of free representation, its appropriateness as a representative of public interests, and the substantial but apparently disproportionate estimate of the defendant’s costs.
7. The claimant’s allocation of funds between cases was relevant, but the evidence did not show abusive or inappropriate conduct. Having regard to all the circumstances and the guidance in The Plantagenet Alliance Limited v Secretary of State for Justice [2013] EWHC 3164, a cap of £120,000 for each party was reasonable and proportionate.