It was a battle fought in the Court room and in the media but is it right that the taxpayer has been left to pick up the bill?
Earlier this year The Plantagenet Alliance was unsuccessful at the final hearing of its Application for Judicial Review seeking to challenge the decision of the Secretary of State for Justice in which it granted the University of Leicester a licence to exhume remains (which at that time were identified as ‘persons unknown’) and to reinter them at Leicester Cathedral.
Those remains were later identified to be those of Richard III, the last King of England to die in battle, and The Plantagenet Alliance alleged that the Secretary of State had a duty to consult (or alternatively a duty to require the University of Leicester to consult) about where the remains of Richard III should be reinterred. The Plantagenet Alliance claimed that Richard III should be laid to rest in York.
That challenge was unsuccessful but unusually The Plantagenet Alliance was not liable to pay the legal costs of its opponents (i.e. The University of Leicester and the Secretary of State) as it had obtained a Protective Costs Order at the outset.
A Protective Costs Order is unique to Judicial Review proceedings and allows a Claimant to seek protection from the risk that if it is unsuccessful in its Application for Judicial Review it will be ordered to pay its opponent’s costs. The Plantagenet Alliance was successful in obtaining a Protective Costs Order because the Court held that the issues raised in the case were of general public importance and required to be resolved. The Court also compared the resources of The Plantagenet Alliance, really a campaign body with little or no assets, to its opponents, the Government and an established University and it was ruled that the financial inequality should be balanced.
However following the conclusion of the case, Mr Grayling, the current Secretary of State for Justice, has shown little reserve when expressing his feelings about The Plantagenet Alliance and the costs that have been incurred in these proceedings. Mr Grayling, who is seeking to introduce a raft of changes to the Judicial Review process, has described these proceedings as “nonsensical” and a “perfect example of how the Judicial Review system is being misused – and at a ridiculous expense to the taxpayer”.
The above comments are against the backdrop of the Government considering the Criminal Justice and Courts Bill which seeks to reserve Protective Costs Orders to cases “of the highest public interest”. The Government is also looking to introduce a “stricter approach” and to require Claimants to provide details about the source of their funding for the litigation. The proposed changes have attracted widespread criticism as an attempt by the State to restrict the ability of its citizens to challenge decisions it (or its bodies) make unless you have the ability to fund that litigation.
The Criminal Justice and Courts Bill is continuing its passage through Parliament but the issues being debated about funding for Judicial Review claims are issues which ought to be addressed before the impending changes take force with the potential to restrict access to justice.