AC-2024-LON-002644 - [2025] EWHC 2761 (Admin)

In deciding whether to allow a variation, the central focus is on prohibitive expensiveness. The idea of prohibitive expensiveness of proceedings derives from Aarhus Article 9(4). It is the idea at the heart of the framing of Rule 27 (see CPR 46.27(2)(3)). It is the explanation required of a party seeking a variation (CPR 46.27(5)(a)(b)). It has two limbs. Prohibitive expensiveness Limb (a) is this: where likely costs exceed the claimant’s financial resources (CPR 46.27(3)(a)), having regard to a single mandatory relevancy of third party financial support (see CPR 46.27(4)).

What is Limb (a)? I think the answer is this. Limb (a) is about real-world unaffordability of the actual case for the actual claimant, in light of the money which the claimant has or can access. It is really a kind of means test. It is a first way in which a level of costs of proceedings can be prohibitively expensive. That is because Limbs (a) and (b) are an “either … or” for prohibitive expensiveness of proceedings.

If a Court were considering imposing a fine on an individual, a first question could be about real-world affordability for that individual. This would be a question about means. It is real-world because theoretical ability to pay – money in a bank – is not the answer. There must be a practical, realistic ability to pay. The money in the bank may be needed to put food on the table for the children. You might decide that the fine is beyond the individual’s actual means, and so you would not impose it for that reason. That would be like a Limb (a).

Limb (a) is sometimes called the “subjective” limb. That really means it is about the actual circumstances of the individual claimant. In its CJEU reference, the Supreme Court used “subjective” to mean “by reference to the means of the particular claimant”: Edwards at §23(2). It is all about that person and what they can and cannot afford. Labelling Limb (a) as “subjective” also makes sense when you are distinguishing the other limb – Limb (b) – which, after all, is described as “objectively” unreasonable. But care may be needed with the idea of subjectivity. If the claimant – genuinely but subjectively – saw the entirety of their £1m bank balance as needed for their future grandchildren, a Court could readily say that a £5k costs cap did not exceed their financial resources. That would be a kind of objectivity. But it would be Limb (a).

I do not think there is more, or less, to it than that. I do not think any of what I have said is a gloss on the rules. I do not think any of it is cumbersome or sophisticated. In fact. I think it is very straightforward and easy to understand and apply. And I am not sure, having listened to them and read their submissions, that Mr Luckhurst and Mr Wolfe KC would disagree with any of what I have said about Limb (a).