The Anti-Trafficking and Labour Exploitation Unit & Anor v The Secretary of State for Justice

A judicial review costs capping order may be varied retrospectively where the court has jurisdiction and the circumstances are sufficiently exceptional. The fact that costs have already been incurred creates powerful public-policy reasons for restraint, because parties and their representatives require certainty. It does not create an absolute bar.

The court must assess all the circumstances, including procedural failures, delay, the parties’ conduct, the public-interest purpose of the proceedings, the financial and pro bono context, and the need to avoid a chilling effect on future public-interest litigation. A pro bono costs order is not subject to a lower threshold for variation, although the fact that representatives act free of charge remains relevant under the statutory factors.

The claims concerned the adequacy of measures supporting victims and potential victims of human trafficking and modern slavery in custody. The substantive judicial review claims were compromised by consent, with the defendant agreeing to develop and publish operational guidance. The consent order left unresolved whether an earlier order should be varied so that the pro bono costs order for the first claimant’s solicitors was capped.

The defendant had not opposed the costs capping application in its acknowledgement of service and summary grounds, although it later supplied submissions which were overlooked. The issue before the court was whether paragraph 4(ii) of the order of Jay J dated 20 January 2022 could and should be varied retrospectively, and, if so, on what terms.

1. The court had jurisdiction to vary the costs capping order retrospectively. Neither the Criminal Justice and Courts Act 2015 nor the CPR imposed a jurisdictional bar. Circumstances could arise in which the factual basis of an order proved fundamentally wrong, making retrospective variation necessary.

2. Nevertheless, variation after costs had been incurred should occur only in an exceptional set of circumstances. The need for certainty, and the risk of putting litigants or their professional representatives retrospectively out of pocket, were powerful public-policy considerations.

3. The threshold was met. The defendant had failed to respond to the costs capping application in its acknowledgement of service and summary grounds, contrary to the approach identified in Buglife. The subsequent process of written submissions had not been resolved, but both parties knew that the status of paragraph 4 remained in issue. The defendant bore primary responsibility for securing a prompt determination, although the court also took account of the court office’s failure to place the submissions before a judge.

4. The pro bono nature of the solicitors’ work did not justify a lower threshold for variation. It was, however, a relevant circumstance because section 89(1)(d) of the Criminal Justice and Courts Act 2015 expressly requires regard to whether the applicant’s legal representatives act free of charge. The court also considered the need to minimise any chilling effect on future public-interest costs capping orders.

5. The defendant’s failings meant that the reciprocal cap should be materially different from what might have been imposed at the outset. The appropriate order was to limit the pro bono costs order to Freshfields’ time at GLD rates. To avoid further argument, those costs were summarily assessed at £130,000. The claims otherwise remained stayed under the consent order.

First-instance judicial review proceedings. The substantive claims were compromised by consent, while the court determined the outstanding application to vary the costs capping order made by Jay J on 20 January 2022.