Commentary on Sections Judicial review in the High Court and Upper Tribunal Section 88: Capping of costs
657.Section 88, along with sections 89 and 90, removes the ability of the High Court and the Court of Appeal to make costs capping orders in a judicial review case unless specified criteria are met. A costs capping order is an order that removes or limits the liability of a party to the proceedings (whether only for the applicant or both the applicant and the defendant) to pay another party’s costs incurred in bringing or defending a judicial review. This type of order, as developed in case law, is commonly referred to as a “Protective Costs Order”.
658.Subsection (1) provides that a costs capping order may only be made in accordance with this section and sections 89 and 90.
659.Subsection (2) defines a costs capping order as an order which limits the costs liability of any party to a judicial review.
660.Subsections (3) and (4) provide that a costs capping order may only be made when leave to bring a judicial review has been granted and the applicant for judicial review has made an application for such an order in accordance with rules of court.
661.Subsection (5) specifies that rules of court may require an applicant for a costs capping order to provide information to the court set out in the rules of court. It makes it clear that this can include information about the source, nature and extent of any financial support that has been or is likely to be provided to the applicant for use in the judicial review proceedings and, if the applicant is a corporate body that cannot demonstrate that it has the financial resources needed to meet its costs liabilities, information about the body’s membership and its members’ ability to provide financial support for the judicial review.
662.Subsection (6) allows a court to make a costs capping order only if it is satisfied that the judicial review proceedings are “public interest proceedings” (defined in subsection (7)) and that, if a costs capping order is not made, the applicant for judicial review would no longer continue with the case and that it would be reasonable not to continue with the case.
663.Subsection (7) defines “public interest proceedings”. Proceedings are public interest proceedings if – and only if – an issue being argued in the case is of general public importance, it is in the public interest for that issue to be resolved and these judicial review proceedings are an appropriate means of resolving the issue. Subsection (8) makes provision about matters which the court must consider in deciding whether the proceedings are public interest proceedings. It sets out a non-exhaustive list of such matters, including the number of people who are likely to be directly affected if the judicial review succeeds, the likely effect on those people and whether the issues being argued involve consideration of a point of law of general public importance.
664.Subsections (9), (10) and (11) allow the Lord Chancellor to amend subsection (8) by adding, removing or amending a matter that a court must consider when deciding whether proceedings are public interest proceedings. Amendment must be made by statutory instrument (subject to the affirmative procedure).
665.Subsection (12) defines what is meant by the terms ‘costs capping order’ and ‘judicial review proceedings’: in particular, it makes it clear that proceedings on appeal are covered. Furthermore, it specifies that references to the court in this section are only references to the High Court or the Court of Appeal.
666.Subsection (13) explains that for the purposes of this section and section 89 the term ‘applicant for judicial review’ means the person who is or was the applicant who brought the application for judicial review and references to relief being granted include where the decision to grant relief has been upheld on any appeal brought against that decision.