Key Facts
- •The appellant, CR, applied for a costs capping order (CCO) under s.88 of the Criminal Justice and Courts Act 2015 (CJCA) for judicial review proceedings.
- •The CCO was initially granted but later, legal aid was granted to CR, backdated to a time before the CCO.
- •CR applied to set aside the CCO, arguing it was no longer necessary due to the backdated legal aid.
- •The judge varied the CCO to apply only to costs incurred before the date of the order, effectively making it prospective only.
- •CR appealed this decision, arguing the CCO should be set aside entirely (ab initio).
Legal Principles
A court has jurisdiction to vary a judicial review CCO (CPR 46.19).
CPR 46.19
A CCO can only be made if certain criteria are met under s.88(6) CJCA (public interest proceedings, applicant would withdraw without it, and it's reasonable to do so).
s.88(6) CJCA
A CCO limiting the applicant's liability to pay costs must also limit the other party's liability to pay the applicant's costs (s.89(2) CJCA).
s.89(2) CJCA
The court has a discretion to vary or revoke a CCO, but will only do so in exceptional circumstances (ATLEU [2022] EWHC 1962 (Admin)).
ATLEU [2022] EWHC 1962 (Admin)
The purpose of a CCO is to ensure access to justice, not to guarantee a particular level of remuneration for the claimant's legal representatives.
R (Elan-Cane) v Secretary of State for the Home Department [2020] EWCA Civ 363; Western Sahara Campaign UK v Secretary of State for International Trade [2021] EWHC 1756 (Admin)
Outcomes
The appeal was dismissed.
The court held that while it had jurisdiction to vary the CCO, the circumstances were not exceptional enough to warrant setting it aside entirely. The judge's decision to make the CCO prospective only was a reasonable exercise of discretion, balancing the interests of both parties and upholding the principles of legal certainty and reciprocity inherent in the CCO regime. The subsequent grant of backdated legal aid, while a change in circumstances, did not invalidate the original, validly made CCO.