AC-2024-LON-001764 - [2025] EWHC 2355 (Admin)

I turn to my conclusions on the appropriate level of cap on the Claimants’ costs liability. By virtue of section 89(1)(a) of the Act, the court must have regard to the financial resources of the parties including those of any person who provides, or may provide, financial support. In determining the maximum costs liability of the Claimants, I take into account the financial resources of BBW.

I agree with Ms Proops that the Claimants – supported by BBW – have initiated litigation in the High Court against a public authority whose resources are not a bottomless pit. The deployment of funds for this litigation inevitably has an impact on the resources available to the Defendant for other cases, or for frontline policing to protect those living and working in the Metropolitan Police District. A cap of £40,900 for the Claimants would be a heavy burden on the public purse if the Defendant were successful in defending the claim and the Claimants were ordered to pay costs.

The court is not limited to the consideration of funds available from crowdfunding or specific donations but can consider the financial resources of BBW more widely. Looking at the wider picture, the best evidence is that BBW has unrestricted funds of over £235,000. It spends about £2,500 per month from unrestricted funds on legal fees for its other campaigning work, which may or may not come to court. Mr Squires told me on instructions that this money is raised by other specific fundraising efforts but the evidence in Lord Strasburger’s witness statement is that the money for lawyers comes from funds that are not restricted in what they can be used for. At any rate, I was not provided with an adequate explanation as to why some of the funds currently used for other legal work should not be put towards any costs order made against the Claimants.

The use of some of BBW’s unrestricted funds to finance the present claim may be sub-optimal for BBW. However, any organisation will at times have to make strategic choices about its spending priorities. It is not unreasonable to expect BBW to take strategic decisions about what it will and will not prioritise. The court can expect that the present claim for judicial review – with its draw on both Police and expert resources – be prioritised.

On the evidence before me, BBW has over £262,000 in its reserves. I accept that good governance requires the maintenance of healthy reserves. I accept too that reserves should not lightly be depleted. However, support for High Court litigation is not a light matter. It is not unreasonable to expect BBW to take the risk of a modest dip in its reserves to cater for the eventuality that the Claimants are ordered to pay costs.

The court can expect BBW’s approach to financial prudence to accommodate a High Court costs order in litigation which it has chosen to drive forward. To the extent that Lord Strasburger suggests that it would be irresponsible to earmark even a modest draw on reserves for that eventuality, he goes too far.

For these reasons, the Claimants can reasonably be expected to seek from BBW some further, modest sum. BBW can reasonably be expected to provide a further modest sum from its unrestricted funds and reserves.

In all the circumstances of the case, I have concluded that a total cap on the Claimants’ costs liability of £70,000 strikes an appropriate balance between the comparative resources of the parties. It strikes a fair and just balance between the competing interests of access to justice for the Claimants and the call on public funds that will be needed to defend the claim.

By virtue of section 88(6)(b) and (c) of the Act, I must consider not only whether the Claimants would withdraw the claim on a £70,000 cap but also whether it would be reasonable for them to do so. Given that £40,900 can be achieved by fundraising, BBW would need to divert less than £30,000 from the nearly £500,000 that it has in unrestricted and reserve funds. BBW can reasonably be expected to take such a course. In these circumstances, I am not satisfied that it would be reasonable for the Claimants to withdraw the claim. The cap on the Claimants’ costs liability will therefore be £70,000.