The costs team at Kings Chambers explains the principles underlying protective costs orders
The Court of Appeal in R (on the application of Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749, [2008] All ER (D) 12 (Jul) has recently refined the principles concerning protective costs orders. Protective costs orders (PCOs) are a type of pre-emptive costs order which (generally speaking) are only available in public law claims. Unlike other pre-emptive costs orders (such as costs capping orders), their aim is not solely to control extravagant expenditure; instead, their aim is to protect litigants who reasonably bring public law proceedings in the public interest from the liability of an adverse costs order in the event that they lose. That said, PCOs can, and often do, impose a cap on the recoverable costs.
Principles matter
The principles guiding these types of orders were established by Mr Justice Dyson (as he then was) in the pre-CPR case of R v Lord Chancellor ex parte Child Poverty Action Group [1998] 2 All ER 755. Following the advent of the CPR those principles were affirmed and summarised by Mr
