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

On behalf of the Claimants, Mr Squires submitted that there was no requirement for the respective caps to mirror one another. The statutory requirement is for reciprocal rather than identical limits to costs liability (section 89(2) of the Act). The limits should reflect the parties’ financial resources (section 89(1)(a) of the Act). He submitted that the Claimants could not affect the approach of the BBW Board of Directors to financial prudence.

Mr Squires emphasised the importance of legal representatives being financially able to take on public interest cases. He pointed out that, under agreed funding arrangements, the Claimants’ lawyers will not be paid at all if the Claimants lose whereas the Defendant’s lawyers will be paid irrespective of the outcome. He emphasised that, if the Claimants succeed, their Counsel team will, on a £107,700 cap, be paid at drastically reduced rates (approximately one tenth of their standard hourly rates) with Second Junior Counsel being paid at little above the London Living Wage.

Mr Squires submitted that the Defendant’s proposal of identical caps would act as a disincentive to lawyers taking cases in the public interest and would inhibit access to justice. He submitted that, in the absence of a costs capping order in the terms proposed by the Claimants, it would be reasonable for the Claimants to withdraw the claim (section 88(6)(b) and (c) of the Act).

As I have foreshadowed, Ms Proops contended that there should be identical caps of £107,700. She made three principal submissions in support of this position.

First, she submitted that BBW was effectively driving the litigation and so should expect to deploy at least some of its own funds to pay for it. On the evidence before the court, the suggested £40,900 cap on the Claimants’ costs liability would be paid entirely from funds raised for this particular case and would leave BBW’s own funds entirely untouched. Ms Proops submitted that such a situation would enable the Claimants to mount their claim without any meaningful financial constraints. Their lack of concern for costs had already been demonstrated by their resort to expert evidence which would require a costly response from the Defendant.

Secondly, Ms Proops submitted that the Claimants’ proposal represented an undue burden on the public purse. She relied on the judgment in Good Law Project v Secretary of State for Health and Social Care [2021] EWHC 997 (TCC). In that case, O’Farrell J made the observation, at para 22, that the public purse is not a “bottomless pit” and that the court should not assume that a public authority will always be able to fund not only its own costs but also those of its opponents without any concerns.

Thirdly, Ms Proops submitted that BBW is not impecunious and has the funds to afford much more than the £40,900 offered in respect of the Claimants’ costs liability.