Amanat Ullah, R (on the application of) v National Crime Agency

Sections 88–90 of the Criminal Justice and Courts Act 2015 form a complete code governing costs-capping orders in judicial review proceedings. The High Court has no residual power to make a protective costs order outside that code.

Closed material procedures do not automatically breach Article 6 or require a protective costs order. Compatibility depends on a holistic assessment of the proceedings, including the claimant’s ability to continue, available funding, the extent to which the successful party relied on closed material, and the court’s ability to address costs after judgment.

The claimant brought judicial review proceedings challenging the National Crime Agency’s refusal to consent to the transfer of settlement money held by his solicitors. The proceedings involved a closed material procedure authorised under the Justice and Security Act 2013.

He sought a protective costs order, arguing that the absence of sufficient disclosure prevented him from assessing his prospects and exposed him to potentially unlimited costs. He also sought a declaration that sections 88–90 of the Criminal Justice and Courts Act 2015 were incompatible with Article 6 ECHR, or that section 88(1) should be read down under section 3 of the Human Rights Act 1988.

1. The protective costs order was refused. Section 88(1) of the Criminal Justice and Courts Act 2015 provides that a costs-capping order may not be made in connection with judicial review proceedings except in accordance with sections 88–90. The words “may not … except” establish a complete statutory code. The former common-law jurisdiction developed in Corner House and subsequent cases was replaced for judicial review proceedings by that code.
2. The statutory scheme deliberately applies to judicial review proceedings and not to other proceedings. The resulting difference between procedural regimes does not make the legislation incoherent. Pre-legislative consultation material could not alter the clear statutory language.
3. Article 6 does not prohibit closed material procedures where there is a cogent public interest justification. Nor does Begg establish that a protective costs order is necessary whenever such a procedure is used. Article 6 compliance requires a holistic assessment of the proceedings.
4. In assessing that question, the court may consider whether the claimant has been prevented from proceeding, whether adequate financial resources are available, and the extent to which the successful party relied on closed material. At the conclusion of the proceedings, the court can take account of the disadvantage caused by the claimant’s inability to assess the closed evidence. The distinction between open and closed costs may materially reduce unfairness.
5. On the facts, the claimant could proceed, his lawyers had access to a substantial settlement sum, the public authorities would not seek the costs of the closed proceedings, and the likely open-cost exposure was proportionate to that sum. A protective costs order was therefore not required for Article 6 compliance. It was unnecessary to decide whether section 88(1) could be read down under section 3 of the Human Rights Act 1988. The declaration of incompatibility was also refused.

Not stated in the judgment.