Weaver v London Quadrant Housing Trust
17 February 2009
 EWCA 235
The C applied for a protective costs order in judicial review proceedings against her landlord. An important issue for the D, a registered social landlord, was whether it was a public authority for the purposes of the Human Rights Act and was amenable to judicial review. It lost on this point at first instance, though the court dismissed the challenge to the notice seeking possession on the facts. It therefore obtained leave to appeal to the Court of Appeal. The matter was of great general concern to registered social landlords generally. The Legal Services Commission had said that it would fund leading and junior counsel for the appeal but only on condition that it would not pay the D's costs if it won. The Court had not imposed conditions on the appeal as it could have done, e.g. that the D should pay the C's costs if it won. The D resisted the making of a protective costs order, saying that the principles in R (Corner House Research) v SSTI  1 WLR 2600 at paragraph 74 did not apply.
(1) The basic approach is that the court should, in its discretion, do what is fair and just having regard to a number of considerations.
(2) There could be no doubt that the case was one of great importance, particularly to the D.
(3) If the C did not obtain the PCO then either the intervener, the Equality Rights Commission, would have to provide the necessary representation or an amicus would have to be appointed. In neither case could the D recover its costs. There was therefore an air of unreality about the D's position.
(4) The Court had not been referred to any case where a PCO was sought by a respondent to an appeal. The principles had been developed to deal with an appellant who would not continue with an appeal unless a PCO was made. That was not the case here. Thus the Corner House principles could not be applied precisely but it was appropriate to make a PCO.
(5) The D maintained that the C had a private interest in the outcome such that a PCO should not be made, following Goodson v HM Coroner for Bedfordshire and Luton  EWCA Civ 1172 and R v Lord Chancellor, ex parte Child Poverty Action Group  1 WLR 347. The Court disagreed that she had a private interest of a sort to render her ineligible for a PCO.
(6) By analogy with Corner House the C would play no further part in proceedings if the PCO were not granted.
(7) The PCO should be made, stipulating that the Trust could not seek to recover its costs against the C or the LSC.
The principles in Corner House are not to be applied rigidly.