R (Corner House Research) v Secretary of State for Trade and Industry
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS,Mr Justice Davis |
| Judgment Date | 20 December 2004 |
| Neutral Citation | [2004] EWHC 3011 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6005/2004 |
| Date | 20 December 2004 |
[2004] EWHC 3011 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Davis
CO/6005/2004
LORD LESTER OF HERNE HILL QC and MR B JAFFEY (instructed by Leigh, Day and Co.) appeared on behalf of the CLAIMANT
MISS M CARSS-FRISK QC and MR B KENNELLY (instructed by the Treasury Solicitors) appeared on behalf of the DEFENDANT
These proceedings were issued as shortly ago as 29 November 2004. They had been the subject of an order made on 2 December by Beatson J., who gave a direction as to the further conduct of these proceedings. One of those directions was that the Claimant's application for what was described as an interim protective costs order be listed for an oral hearing as soon as possible. That is the hearing that has taken place before me today.
Beatson J. also directed that there be an expedited hearing by way of oral hearing of the application for permission, with substantive hearing to follow, that being listed for 13 and 14 January 2005.
Thus I should stress that the matter has not come before me today as an oral application for permission to seek judicial review, and the Defendant has not come here ready to meet such an application. Nevertheless in terms of quantity of documents placed before this Court for this hearing, the matter would appear to be a heavy one. Two folders of documents have been lodged on behalf of the Claimant amounting to some 1,000 pages. A bundle of authorities backing a detailed skeleton argument of the Claimant has been put before me containing some 48 enclosures. In addition a further five volumes of documents have been put in by the Defendant, most of them, however, duplicating the documents put in by the Claimant, it seems there having been an unhappy muddle about numbering. Nevertheless the matter has been listed before this Court for just one half a day's hearing, and has broadly speaking stuck within that time limit, albeit continuing a bit longer than that.
The position is as reflected by Beatson J.'s order that the Claimant does seek what is sometimes called a pre-emptive costs order and sometimes called a protective costs order in respect of the substantive hearing, currently listed for 13 and 14 January 2005. That is to say, the Claimant wants an order at this early stage of the proceedings that, if it loses, it will not be liable to pay the successful Defendant's costs. However, it has been made clear on behalf of the Claimant that, if the Claimant succeeds, it will be seeking costs from the Defendant, Lord Lester making clear that a conditional fee arrangement is in place for that purpose.
I have received detailed written and oral arguments from Lord Lester on behalf of the Claimant and Miss Carss-Frisk on behalf of the Defendant. In addition, a substantial document from an entity known as the Public Law Project has been placed before me without any objection from Miss Carss-Frisk. That is in effect a document dealing with the principles behind the imposition of pre-emptive costs orders. It would not appear to be directed to the facts of this particular case, but is what I might call a portmanteau opinion. Broadly speaking, that particular document urges the Courts to adopt a rather more liberal attitude to making such orders than has hitherto occurred, at least in this country.
The background shortly put is this, and, given the time of day and given the need for urgency, I am afraid I cannot really go into quite as much detail as I otherwise might have done.
The Defendant is the Secretary of State for Trade and Industry, under whose domain operates a Department known as the Export Credits Guarantee Department. That broadly speaking has long since been engaged in helping to provide finance or security to exporters in the international trade markets. One of the ancillary obligations that ECGD has in recent years accepted is in effect an obligation to help eradicate or at least minimise incidents of corruption and bribery in the context of international trade, that of course also being an avowed policy of the OECD. In 2000, a procedural code was published by the ECGD in that regard. That, as I gather from the papers put before me, in some ways sets rather more stringent guidelines than OECD itself was recommending at the time.
I was told that the ECGD currently involves itself in around £3 billion worth of trade. Particular exporters involved in that include such well-known companies as Rolls-Royce, Airbus and British Aerospace.
The Claimant is a company called Corner House Research. It is, as I gather, a non-profit-making body and is a company limited by guarantee. The flavour of its activities and nature of its purposes, it having been established, I think, a few years ago, may perhaps be gleaned from some preliminary observations in a paper by one of its consultants, called Dr Susan Hawley, entitled "Turning a Blind Eye —Corruption and the UK Export Credits Guarantee Department", that paper being published in June 2003. Corner House is described in the introduction to that paper in this way.
"The Corner House is a UK-based advocacy, research and solidarity group that aims to support the sustainable use of resources and the growth of a vibrant, democratic, equitable and non-discriminatory civil society in which communities have control over the resources and decisions that affect their lives and means of livelihood, as well as the power to define themselves rather than be defined solely by others."
Corner House has a particular interest in and, as I gather, expertise in issues of corruption and bribery in the context of international trade: one of its objectives being to seek to reduce the incidence of bribery and corruption in such international trade. In that context, in the course of being invited by the External Affairs Manager of the ECGD to a particular seminar in June 2004, it is stated to Corner House that, to the ECGD, along with another company (I think called Transparency International Ltd) those two represent "our primary NGO partners on this topic": "NGO" meaning non-governmental organisation.
So far as the assets of Corner House are concerned, those are summarised in a witness statement of Mr Nicholas Hildyard, who is a Director of Corner House. Corner House apparently has no audited accounts as such; but the accounts that it does have indicate that it has some £120,000 as at the end of the year 2003 in what are called "restricted funds", that is to say, funds which have been donated on the footing, as I gather, of being applied for certain objectives, and only some £8,000 odd in what I might call, and at all events Mr Hildyard calls "unrestricted funds". So far as this particular application is concerned, Mr Hildyard explains that Corner House is already involved in litigation currently pending before the European Court and that, so far as this litigation is concerned, they have considered alternative funding sources. None of its current funders is prepared to fund this legal action, and no individual has been found prepared to finance this particular claim.
The ordinary position in litigation in England and Wales is that, as a starting point, costs follow the event, to put it in that shorthand way. Reference in that regard may be made to Rule 44.3 of the Civil Procedure rules. But as is well known, and as accords with the overriding objective and the rules, the Court has a wide discretion in this regard. Nevertheless, that that remains the general starting point is perhaps reflected, amongst other things, by the fact that the Rules still include provision for security for costs in an appropriate case, and other such Rules.
The position of course in certain other jurisdictions in the world is that costs are not generally to be ordered to be paid by unsuccessful claimants, at all events in the absence of malice, just because of concerns about the denial of access to justice. But that is not, broadly speaking, a procedure which this country has chosen to adopt: although there are some exceptions (for example, in certain tribunals, and so on).
It is, as Lord Lester rightly acknowledges, an exceptional thing to make a protective costs order. There are of course here competing considerations. One is the very consideration of access to justice, a point much emphasised in recent years, and which has given rise, of course, to various Acts of Parliament. Another is the very fact that many litigants simply do not have enough money to fund substantial litigation in the courts, albeit having too much money to qualify for Legal Aid, or are of such a status (for example, a limited liability company) as not to be entitled to qualify for Legal Aid. On the other hand, amongst other things, there is the consideration that frivolous claims or claims which are weak should be discouraged, or settled if at all possible' and a further consideration is that it can be hard on a defendant who wins a case nevertheless to be out of pocket in that regard. All sorts of considerations obviously come into the equation as to which code a particular country or which stance a particular court will adopt as to imposition or otherwise of orders of costs.
In terms of the legal approach to pre-emptive costs orders, the starting point, I think, can be taken so far as I am concerned from the decision of Dyson J. in the case of R. v. Lord Chancellor, ex parte Child Poverty Action Group [1999]
1 WLR 347, which, so far as the...
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