R (British Union for Abolition of Vivisection) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady,MR JUSTICE BEAN,MR JUSTICE MITTING |
| Judgment Date | 25 April 2008 |
| Neutral Citation | [2008] EWHC 892 (Admin),[2006] EWHC 250 (Admin),[2007] EWHC 1964 (Admin) |
| Docket Number | Case No: QB/2008/APP/0148,CO/7004/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 April 2008 |
[2006] EWHC 250 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Bean
CO/7004/2003
MR RICHARD DRABBLE QC AND MR SIMON COX (instructed by David Thomas, BUAV, 16a Crane Court, London N7 8NN) appeared on behalf of the CLAIMANT
MR JONATHAN SWIFT (instructed by The Treasury Solicitor,) appeared on behalf of the DEFENDANT
This is an application by the British Union for the Abolition of Vivisection, the claimant in judicial review proceedings, for a protective costs order. The claimant is a well-known company, limited by guarantee, that claims to be the leading antivivisection body in the UK. Like Stanley Burnton J, who heard a permission application last year, I should record that the claimant campaigns by lawful means, in particular seeking to uphold the law providing for the protection of laboratory animals.
The Animals (Scientific Procedures) Act 1986 regulates circumstances in which animals may be used for experimental or other scientific purposes. It prohibits such procedures where they may have the effect of causing a vertebrate pain, suffering, distress, or lasting harm unless authorised by licences granted by the Home Secretary under the Act to animal researchers.
The present proceedings challenge the terms of licences granted to Cambridge University. There are four surviving grounds on which permission has been granted: two by Stanley Burnton J and the other two, on appeal, by Keene LJ. I note what these judges respectively said about the public interest in this case. Stanley-Burnton J, who had granted permission on two grounds but refused it on two others, awarded the Secretary of State only 50 per cent of his costs and said:
"I do seek to make the least order that I can because this was a public interest case and matters were genuinely in the public interest."
In due course, by consent, however, that costs order was altered so that the entire costs of the permission hearing had become costs reserved. That followed Keene LJ's decision, to which I referred, where he said:
"… there is a public interest in clarifying these matters and, given the merits of these two grounds [that is grounds 1 and 2], the passage of time should not in all the circumstances have stood in the way of permission to seek judicial review."
The case is now proceeding towards a substantive hearing and I need only say that the costs already incurred are very substantial. The defendant's estimated costs to date, including VAT, are some £90,000 and the projected costs from today up to the end of the substantive hearing may be as much as a further £60,000, depending on the amount to be spent on expert evidence. The claimant is thus faced with the possibility, if the claim goes wrong for them, they lose on all points and they are ordered to pay the Secretary of State's costs, of an adverse costs order potentially of £150,000, although Mr Jonathan Swift for the Secretary of State rightly argues that the process of detailed assessment would be likely to reduce that sum perhaps to something in the bracket of £100,000 to £120,000.
The leading authority on protective costs orders is now the decision of the Court of Appeal, Lord Phillips MR, as he then was, Brooke LJ and Tuckey LJ in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. At paragraph 74, that judgment stated that the governing principles are as follows:
"1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
I) The issues raised are of general public importance;
Ii) The public interest requires that those issues should be resolved;
Iii) The applicant has no private interest in the outcome of the case;
Iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
V) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing."
After a reference to cases where the applicant's representatives are acting pro bono, the Court of Appeal said that:
"It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."
The claimant's case is not that an adverse costs order, even in the sum of £150,000, would put it out of business. The important figures in the evidence of the claimant's chief executive, Mr Sansolini, are as follows. The BUAV's income for the years 1996 to 2003 averaged some £1,240,000. It had much better years in 2003/4 and 2004/5, respectively £1,730,000 and £1,819,000, but that was because of two good years of legacies. Legacies generally averaged about half the union's income, although for the two good years they represented nearly 60 per cent of income. Legacies, for obvious reasons (as Mr Sansolini points out) are a notoriously uncertain form of income: wealthy testators do not die at predictable intervals.
The reserve of the union as at 31st October 2005 stood, in round figures, at £1,035,000. The union budgets for a slight deficit in the current year. They have substantial personnel costs, which are effectively fixed unless staff are made redundant. They spend a considerable proportion of the budget on fundraising, since otherwise future income would dry up, and the amount of what Mr Sansolini describes as "free income available for campaigning, lobbying, research and investigative work" is around £230,000 per year, if one excludes proportionate salaries and overheads attributable to campaigning, or a little over £400,000 if one includes those overheads.
In paragraphs 24 and 25 of his statement, Mr Sansolini says this:
"24. Were we to lose the case, and ordered to pay all the Secretary of State's costs, we could be considerably financially embarrassed, with redundancies possible. It would significantly restrict the work we are able to do. It is important to stress in the current climate of extremism by a small minority that the BUAV is a wholly law-abiding organisation. Already, our resources are infinitesimally small compared with the multinational companies, governments and international institutions which defend and promote animal experiments…"
"25. Although we have demonstrated, by the cap of £20,000 we have suggested, that we are willing to take the risk of substantial adverse costs (in addition to the sums we have to pay our solicitor), it would not, I believe, be fair for us to risk a sum in excess of this. Important though the case is, the BUAV could not, given its limited resources, the insecurity of its income base and all the other demands on its income, responsibly run the risk of costs at anything like the level contemplated by the Secretary of State. It is worth reiterating that the BUAV has no private interest in the outcome of the case."
As Mr Sansolini goes on to record, in paragraph 26, the claimant is willing to limit its own claim for costs should it be successful to the same sum as that specified in the protective costs order. It suggests £20,000.
Mr Swift, on behalf of the Secretary of State, opposes the making of a protective costs order on a number of grounds. Firstly, he draws my attention to paragraph 72 of the judgment in Corner House, in which the Court of Appeal, after referring to the judgment of Dyson J, as he then was, in R v Lord Chancellor ex p Child Property Action Group [1999] 1 WLR 347, added:
"Dyson J said that the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances."
However, the next sentence is in my view significant as well. The court added:
"We agree with this statement, but of itself it does not assist in identifying those circumstances."
They went on, after further reference to Dyson J's decision, to restate the governing principles in paragraph 74, which I have already set out in this judgment.
In other words, the requirement that a PCO should be made only in the most exceptional circumstances is not a sixth principle to be added to paragraph 74. It is an umbrella principle, which is defined by the five conditions in paragraph 74. Those five conditions are unlikely to be satisfied in the great majority of cases. Accordingly, a protective costs order is a most exceptional form of order: but, as I read the judgment, if the five principles in paragraph 74 are satisfied, there is no sixth principle, for example that the issues must be of exceptional public importance.
Mr Swift next emphasised upon the fact that a measure of protection for unsuccessful litigants is already provided by the process of detailed assessment, to which I have already referred. That, in my submission, is not an argument against the grant of a protective costs order. The process of detailed assessment of costs on the standard basis is a question of dividing, the burden of proof being on the paying party, whether costs incurred by the conceding party were reasonably incurred. That assessment does not have regard to the means of the applicant nor to the public interest in the litigation. Mr Swift was right to say that £150,000 is very much a "worst case scenario" but I think the only relevance of the assessment process is to bring the likely figure, on what is inevitably a somewhat provisional and uninformed estimate at this stage, to be...
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