Judicial Review is a vital mechanism in the UK for holding public bodies accountable however bringing a claim can be expensive and financially risky. To reduce this barrier to justice, the courts have the power to grant a Judicial Review Costs Capping Order (JRCCO) which limits a party’s exposure to legal costs. This article explains what JRCCOs are, how they work and when they may be granted.
What Is a Judicial Review Costs Capping Order?
A JRCCO is a court order made at an early stage in Judicial Review proceedings that limits the amount of legal costs a claimant may be required to pay if their case is unsuccessful. In some situations, it may also cap the defendant’s liability for the claimant’s costs if the claimant wins.
The purpose is to ensure that individuals, charities and community groups are not deterred from bringing legitimate public interest claims due to the risk of significant adverse costs.
Why Are They Important?
Judicial Review cases often involve government departments, local authorities, regulatory bodies and publicly funded institutions which typically have access to substantial legal resources. Without cost protection, a claimant could face tens of thousands of pounds in legal fees if they lose. Costs orders enable meritorious claims to be heard and encourage challenges that raise important constitutional or societal issues.
Legal Basis and Framework
1. Civil Procedure Rules
Civil Procedure Rules (CPR) Part 46 contains the general framework for CCOs across civil litigation, including Judicial Review. It establishes that the court has discretion to make a costs capping order at any stage of proceedings however it only applies to future costs and not costs already incurred. The applicant must show that without a cap, there is a real risk that costs will be disproportionately incurred and that it is just and proportionate to impose the cap. In Judicial Review, this discretion is exercised with particular attention to public interest and access to justice considerations.
CPR Part 54 deals specifically with Judicial Review in addition to the general Part 46 principles.
Key Elements
(a) Timing of the Application – The application for a JRCCO is usually made with or shortly after filing the claim form. The rules encourage early applications, either before the permission stage or at the permission hearing.
(b) Financial Information Requirement – The claimant must file and serve a schedule of finances and details of funding arrangements. This is stricter than ordinary CCO applications because Judicial Review cost protection is closely tied to the claimant’s ability to pay.
When Will the Court Grant a JRCCO?
There is no automatic entitlement (except in certain environmental cases) and prospects of success are very much determined on a case by case basis. The court will consider several factors, including:
Public Interest – The CPR directs the court to consider whether the claim is of general public importance and that the public interest requires the issues to be resolved. If the case raises serious questions about legality, constitutional principles or systemic failures, cost protection is more likely.
Merit of the Claim – While the court does not conduct a full trial when hearing the application, it must be satisfied that the claim is arguable and not frivolous; the court will not grant a JRCCO for weak or speculative claims.
Financial Resources of the Claimant – The court examines whether the claimant could realistically proceed without protection. Evidence such as income, savings and funding sources will be required together with confirmation of any private financial interest on the part of the claimant.
Fairness and Proportionality – Judges will assess whether it would be fair to expose the claimant to unlimited financial risk given the nature of the dispute.
Reciprocal Caps – The court may cap the claimant’s liability if they lose whilst also cap the defendant’s liability if the claimant wins. The court will look at whether imposing a cap would be unjust to the public authority, particularly where public funds are involved. This ensures fairness between the parties and protects public bodies from unlimited exposure.
The CPR provides guidance on when and how cost limiting orders may be made, particularly in Aarhus Convention environmental cases, where cost caps are more structured.
2. Case Law Principles
Outside of Aarhus Convention environmental claims, courts rely heavily on judicial discretion shaped by case law. Historically, landmark decisions established that cost protection may be granted where fairness and public interest justify it with the court continuing to retain discretion to vary or revoke the order if circumstances change.
Environmental Judicial Reviews – The Aarhus Regime
Certain environmental claims benefit from a more predictable framework under the Aarhus Convention, an international treaty promoting access to environmental justice. In these cases, claimant liability is automatically capped at comparatively reduced levels and a defendant’s exposure to a claimant’s costs can also be limited. The court can vary these caps but the starting point is structured, claimant friendly and significantly reduces financial uncertainty for environmental litigants.
Practical Considerations
Parties are advised to obtain specialist legal advice at the earliest possible stage to assess eligibility and to determine whether the claim advances a genuine and demonstrable public interest argument rather than a purely personal grievance. Incorrectly assuming eligibility or presenting the application inadequately can expose a claimant to further costs and may undermine the prospects of securing protection altogether. Applications are typically made in writing and must be supported by detailed witness statements and relevant documentary evidence. Full and frank financial disclosure will be required, often in considerable detail and the defendant will be given an opportunity to respond and where appropriate, to challenge both eligibility and the proposed level of any costs cap.
Summary
Protected costs applications play a crucial role in balancing the need to prevent abusive or speculative litigation and the need to ensure meaningful access to justice and accountability of public bodies. While not automatic in most Judicial Review cases and can attract criticism for delays in many environmental cases, they remain a powerful tool for claimants raising issues of genuine public importance. Understanding when and how to apply for a JRCCO can make the difference between a case being heard or never reaching the courtroom at all.
Disclaimer: The content of this post is for general information purposes only and does not constitute legal advice. It is always recommended that professional advice is sought. Please contact us for specific advice on your circumstances.