Commentary on Sections Judicial review in the High Court and Upper Tribunal Section 89: Capping of costs: orders and their terms
667.Section 89 sets out the way in which the High Court and the Court of Appeal should approach the decision whether to make a costs capping order and decisions about the terms of the order.
668.Subsection (1) requires the court to consider certain matters when considering whether to make such an order and (if it does decide to make an order) the terms of the order. These include the financial resources of the parties, including any third party who has provided or may provide financial support; the extent to which the applicant - or any other person who has provided or may provide funding - will benefit from the costs capping order if the applicant succeeds in the judicial review; whether the applicant’s legal representatives are acting free of charge; and whether the applicant is an appropriate person to bring the judicial review on behalf of the wider public.
669.Subsection (2) requires that where the court makes a costs capping order limiting the applicant’s liability for the defendant’s costs in the event of the application for judicial review not being successful, the court must also make an order limiting the defendant’s liability for the applicant’s costs in the event of the judicial review succeeding.
670.Subsections (3), (4) and (5) allow the Lord Chancellor to amend subsection (1) by adding, amending or removing matters that the court must have regard to when considering whether to make a costs capping order and the terms of the order (subject to the affirmative procedure).
671.Subsection (6) defines the terms ‘free of charge’ and ‘legal representative’.