Shaun Thompson & Anor v The Commissioner of Police of The Metropolis

In determining a protective costs cap, the court must consider the parties’ financial resources, including resources available from organisations supporting the litigation. The assessment is not confined to crowdfunding or funds raised specifically for the claim. Reciprocal caps need not be identical. The court should balance access to justice against the burden on public funds and may set a higher cap for a public authority where that is fair and proportionate. A claimant’s stated intention to withdraw if a lower cap is not granted must also be assessed for reasonableness.

The claimants brought judicial review proceedings challenging the Metropolitan Police policy governing the deployment of live facial recognition technology. The substantive claim raised issues under articles 8, 10 and 11 of the Convention, but this judgment concerned three interim applications: permission to rely on expert evidence, a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015, and permission to rely on a witness statement.

The central issue on costs was the appropriate reciprocal cap, having regard to the parties’ resources, the financial support available from Big Brother Watch, access to justice and the impact on public funds.

1. Applications allowed. The expert report and Ms Carlo’s Third Witness Statement were admitted to be considered de bene esse. Their relevance and evidential weight remained matters for determination at the substantive hearing.
2. Under sections 88 and 89 of the Criminal Justice and Courts Act 2015, the court was required to consider the financial resources of the parties, including resources of a person providing or potentially providing financial support. That assessment extended beyond crowdfunding and claim-specific donations to Big Brother Watch’s wider unrestricted funds and reserves.
3. The court was entitled to expect an organisation that had chosen to support and drive High Court litigation to make strategic decisions about its spending priorities. It could reasonably be expected to provide a modest contribution from unrestricted funds and reserves, although healthy reserves should not lightly be depleted.
4. Reciprocal costs caps did not need to be identical. The appropriate exercise involved balancing access to justice for the claimants against the call on public funds required to defend the claim. A cap of £70,000 on the claimants’ liability and £100,000 on the defendant’s liability struck a fair and proportionate balance.
5. Under section 88(6)(b) and (c), the court had to consider both whether the claimants would withdraw if the proposed cap were not granted and whether such withdrawal would be reasonable. Given the further contribution reasonably expected from Big Brother Watch, withdrawal at the level ordered would not be reasonable.
6. The applications were therefore allowed. Claimants’ recoverable costs liability was capped at £70,000 and the defendant’s at £100,000.