Held, advice given that appeal be allowed in part. (1) On the evidence the Court of Appeal had been entitled and correct to find that the claim would not be stifled by the orders for security for costs. Firstly, the claimant had positively asserted that it could obtain the funds necessary to meet any costs order made against it and it was difficult to reconcile that with the contention that its claim would be stifled if an order for security for costs was made. Indeed, the claimant did not assert in its evidence that its claim would be stifled, only that the Government defendants and the developers hoped that it would be. Secondly, and in any event, the claimant had provided no information about its supporters, their interest in the proceedings and their means and, therefore, it had failed to discharge the burden on it to show that it had no realistic prospect of raising funds from its supporters to proceed and that its claim would therefore be stifled (paras 70–72, 114).

(2) In circumstances where the claimant was a company set up to pursue claims in the interests of local residents and supporters, and where it implicitly maintained at least in part that it had standing to sue on the basis of their interests, the claimant could not show that the claim was a public interest challenge raising issues of general public importance which the public interest required to be resolved. The claimant existed to promote private interests, at least in part, and its own interest could not realistically be separated out from those of its supporters. Further, the claimant’s lack of candour in its evidence about its supporters also led to the inference that its interests could not be regarded as distinct from theirs. In all the circumstances, it was just that an order for security for the Government defendants’ costs should be made (paras 83–87, 114).

(3) But that, in relation to the order for security for costs in favour of the developers, the Court of Appeal had failed to address properly the claimant’s submissions and, therefore, the Board had to itself address afresh the question of the exercise of the court’s discretion in that respect. In order to justify an order for security for costs being made in their favour, it was incumbent on the developers to show that a costs order in their favour was likely to be made if the judicial review claim was ultimately dismissed. That meant establishing that there was a separate issue on which they were entitled to be heard, which would not be covered by the Government defendants, or that they had an interest which required separate representation, and that that was likely to justify an order for a second set of costs. The court was being asked to pre-judge the matter of costs at an early stage of the proceedings, which inevitably involved a degree of speculation and made it difficult for the developers to establish the necessary likelihood of a costs order in their favour. Since an order requiring a claimant to provide security for a developer’s costs (ie a second set of costs) risked deterring the claimant from proceeding with its claim and hence was an impediment to gaining access to the court, a court should only be willing to introduce that additional impediment for a properly arguable claim if it was confident that it would be just and appropriate to make an award of costs in the developer’s favour at the end of the proceedings, if the claim failed. The test was more demanding than that applicable in relation to an order for security for the costs of the public authority which was the primary defendant. The developers were unable at this stage to identify a relevant separate interest; all that they could say was that such an interest might emerge during the course of the proceedings, which was not a sufficient basis for an order for security being made now. Accordingly, the order for security of costs in favour of the developers should be set aside (paras 96, 103–111, 113–114).

Per curiam. (i) Public authorities have limited funds, which are supposed to be spent on promoting the public good. Absent good reason to the contrary, public authorities should not be exposed to expensive litigation which will leave them out of pocket in terms of costs if they are successful. They are also entitled to expect litigation against them to be conducted in a reasonable and proportionate manner, subject to the discipline which the costs regime is intended to impose (para 64).

(ii) The authorities relied on by the claimant do not bear out its submission that there is a troubling trend in the case law of the local courts to order that security for costs should be provided in circumstances where this has the effect that valid claims for judicial review in the environmental field are stifled. The mere fact that, in some cases, after an order for security for costs was made, a claim was not pursued does not show that the courts failed to apply the proper approach. A party might have various reasons for deciding not to proceed with a claim, including simply that it does not wish to run the risk of an adverse costs order even though it could afford to pay it (para 72).

(iii) There is no hard and fast distinction between the general public interest in checking that the rule of law is upheld and a private interest in judicial review proceedings. Rather, there is a spectrum across which sometimes the general public interest in ensuring that public bodies comply with the law and sometimes the private interest is more predominant. Also, even allowing for the importance of the general public interest in ensuring that public bodies comply with the law, a reasonable balance has to be achieved with the other public interest that their resources are not unduly depleted in meeting unsuccessful claims (para 74).