C1/2004/0939(1) 
Neutral Citation Number: [2004] EWCA Civ 1296
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 22nd September 2004
 
B E F O R E:

LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division) 
 
LORD JUSTICE POTTER 
 
LORD JUSTICE CLARKE 
 
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THE QUEEN ON THE APPLICATION OF THE REFUGEE LEGAL CENTRE 
Claimants/Appellants
-v-
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant/Respondent 
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(Computer-Aided Transcript of the Stenograph Notes of
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MR M FORDHAM AND MR N DE MARCO (instructed by the Public Law Project) appeared on behalf of the Appellants 

MR P PATEL (instructed by the Treasury Solicitor)  appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE BROOKE: This is a matter which came before me last week, when I made a protective costs order protecting the claimants, the Refugee Legal Centre, from any potential order for costs in relation to the application which was listed for hearing before the court this morning. I mention this because I gave an oral judgment in that case, which, like the present judgment, can certainly have any normal bar on the citation of a judgment of this kind lifted. That judgment sets out the particular circumstances of this particular appeal and this particular application. Anybody who wishes to know the nature of the order we are making today would be wise to read that judgment to see the peculiar nature of the problem that the court faced. 
2.	It is noteworthy that, in this matter, the lawyers for the Refugee Legal Centre have been acting pro bono throughout, so that the nature of the order that we are making today is not an order made in a case in which the appellants would be seeking an order for costs in their favour if they won, but seeking to be protected from such an order if they lost.
3.	The Secretary of State has consented to the order being made today in relation to the substantive appeal, which is due to be heard in the first week of October, and the court is content to make the order. But I must make it completely clear that two members of the court have really not been involved in this matter at all. They were told yesterday that there was to be a consent order, so that this cannot in any way be regarded as a considered order of the Court of Appeal following full argument on the issues in the case. On the other hand, I am is satisfied that it is appropriate to make a consent order on this occasion.
4.	Order: Consent order made to the effect that there will no be order for costs at the hearing of the substantive appeal. At the request of the appellants, the court directed that the list of Claimants' Authorities should be annexed as a Schedule to this judgment. 

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CLAIMANT’S AUTHORITIES
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	Authority	Relevance	
0	CPAG [1999] 1 WLR 347	High Court pre-CPR decision on pre-emptive costs	
1	Law Commission No. 226 (extract) 1994	Report on Administrative law procedure	
2	Australian Law Reform Commission (extract) 1995	Australian report on cost allocation	
3	Access to Justice Report (extract) 1996	Report on CPR reforms	
4	“Pre-Emptive Costs Orders” Scott [2001] CLQ 20, 298	Commentary on pre-emptive costs	
5	“Whose Cost the Public Interest?” Chakrabarti & ors [2003] PL 697	Commentary on pre-emptive costs	
6	“Pre-emptive Costs Orders” Markus & Westgate [1998] JR 76	Commentary on pre-emptive costs	
7	“Environmental Litigation – A Way Through The Maze?” Carnwath [1999] J.Env.L. Vol. 11 No. 1, 3	Costs in environmental litigation – see section 5	
8	Environmental Justice Project Report (extract) 2004 & Coalition for Access to Justice for the Env. Briefing	Costs in environmental context	
9	“Taking a Case to the E Ct HR” Leach (Blackstone)	Costs in the E Ct HR	
10	“Funding Public Litigation” Peltz & Froese (2001)	Canadian article on public interest costs	
11	Blackburn [1973] 1 QB 241	Example of no costs order – see 265B	
12	Evans [1982] 1 WLR 1155	Example of no-costs condition on leave to appeal – see 1164C	
13	Davies [1987] 1 WLR 1136	Recognising prospective costs jurisdiction	
14	New Zealand Maori Council [1994] 1 AC 466	Example of no costs order – see 485G-H	
15	McDonald v Horn [1985] ICR 685	Pre-emptive costs in pensions context	
16	WDM [1995] 1 WLR 385	Standing & public interest – see 395H-396A	
17	Bolton MDC [1995] 1 WLR 1176	Multiple sets of costs	
18	Finnie (1997) 29 HLR 658	Cross-undertaking in damages – see 661	
19	Shelter [1997] COD 1-77, 49	No order for costs	
20	Dixon [1998] Env LR 111	Standing & public interest	
21	Dyfed Powys Police (Unrep. 9 Nov 1998, HC)	Costs and licensing appeals	
22	O’Byrne [2000] CP Rep 9	Costs and joinder, see pp 5-6	
23	Village Residents Association Ltd [2000] 4 IR 321	Irish pre-emptive costs, see pp 6-9	
24	Axa Equity [2000] Westlaw transcript 1720417	Pre-emptive costs and pension schemes – see p. 11	
25	CND  [2002] EWHC 2712 Admin	Pre-emptive cost-capping order – see para 6	
26	Munjaz [2003] 3 WLR 1505	Issue-based costs & public interest – para 89	
27	C v FC [2004] 1 FLR 362	Costs in children cases	
28	Mount Cook [2003] EWCA Civ 1346	Costs and permission hearings – see paras 76-77	
29	Davies [2004] 3 All 543	Costs and coroners	
30	King [2004] EWCA Civ 613	Cost capping orders – see paras 78-109	
31	Hashtroodi [2004] 3 All ER 530	CPR as a new era – see paras 12-16	
32	Morris [2004] EWHC 1199 Admin	Test case – see paras 15-23	
33	Okanagan Indian Band (2003) 114 CCR 2d 108	Interim costs in Canadian public interest cases