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Protective costs order

A protective costs order (PCO) enables a person of limited means to pursue a public interest case without running the risk of having to pay unaffordable costs if they lose.

In R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 at [6], Lord Phillips of Worth Matravers explained it thus:

“The general purpose of a PCO is to allow a claimant of limited means access to the court in order to advance his case without the fear of an order for substantial costs being made against him, a fear which would inhibit him from continuing with the case at all.”

A PCO is a matter for the court’s discretion. It normally arises in judicial review proceedings. To make a PCO the court must be satisfied that:

  • the issues raised are of general public importance;
  • the public interest requires that the court deal with those issues;
  • the applicant has no private interest in the outcome of the case;
  • 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 to make a PCO; and
  • if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

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