Neutral Citation Number: [2007] EWHC 2494 (Admin)

Case No: CO/10390/2006 and others
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 1 November 2007

Before :

MR JUSTICE MUNBY
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Between :

	R (A and others)
(Disputed children)	Claimants	
	- and -		
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Defendant	
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(Transcript of the Handed Down Judgment of
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Ms Stephanie Harrison (instructed by Bhatt Murphy) for the claimants
Ms Jenni Richards (instructed by the Treasury Solicitor) for the defendant

Hearing date: 15 October 2007
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Judgement

Mr Justice Munby : 

1.	This is an application for a protective costs order. It is made in what has become known as the Disputed Children Litigation.
The background
2.	Asylum seekers who are children (that is, who have not reached the age of 18) enjoy what, from their perspective, are various advantages denied to asylum seekers who are adults: the processes by which their claims are adjudicated are different; they are less likely to be detained; they are less likely to be prosecuted for immigration offences; they are less likely to be removed if their claims fail; and they may seek accommodation and financial and other support from the local authority in accordance with Part III of the Children Act 1989. 
3.	There is therefore an incentive for persons who are not in fact children but who think they can more or less plausibly pass themselves off as children to assert falsely that they are children. There are also, of course, those who genuinely believe that they are children although in fact they are not.
4.	Immigration officers at ports of entry face difficulties. Many asylum seekers claim to have no documents, asserting that they have been told by agents or handlers to destroy them. Many asylum seekers present documents which there are proper grounds for suspecting may not be genuine. What is the immigration officer to do if faced in such a situation with someone who claims to be only 17 years old?
5.	Plainly the matter cannot rest on the mere assertion, however obviously ludicrous, of the asylum seeker. If, for example, I was to present myself – an obviously middle-aged, some might say elderly, man – at Heathrow and claim to be a child, my claim to be a child would rightly be rejected on the spot. But other cases may be far less clear cut and may take time to resolve. So the Secretary of State has to have a policy. 
6.	His primary policy, which no one challenges, is to accept that certain persons claiming to be children but whom he has reason to suspect may not be children should nonetheless be treated as children until their true age has been established, whilst others, for convenient shorthand referred to as “Disputed Children,” should, notwithstanding their claim to be children, nonetheless be treated as adults until their true age has been established. But the application of this policy necessarily requires two further policies: in the first instance, a policy to determine which class or classes of persons are to be treated as Disputed Children; and, secondly, a policy setting out how the true age of a Disputed Child is in fact to be ascertained.
7.	Both of these latter policies have come under challenge. The question of how the issue of whether a Disputed Child is or is not in fact a child is to be resolved was considered by Stanley Burnton J in R (B) v London Borough of Merton [2003] EWHC 331 (Admin). The other policy, that which determines which class or classes of persons are to be treated as Disputed Children, is the subject of the present litigation, the Disputed Children Litigation.
The Disputed Children Litigation
8.	I need not for present purposes go into great detail. Fundamentally the Disputed Children Litigation challenges the policy of the Secretary of State that a person will be treated as an adult, even if he claims to be a child, if his appearance and/or demeanour “strongly suggests” that he is over 18. It is said that this policy is unlawful, providing inadequate protection for those who, despite appearances, are in fact children.
9.	During 2005 and 2006 a significant number of actions raising this generic issue were commenced: some in the Administrative Court by way of judicial review; others in the Queen’s Bench Division or in the County Court as simple actions in tort claiming damages for unlawful detention. The solicitors acting for the various claimants issued an application in the Administrative Court seeking a Group Litigation Order. 
10.	That application came before me on 13 October 2006. I declined to make a Group Litigation Order but assumed case management responsibility for all the cases and gave directions to enable the litigation to proceed in a suitably structured way. By then there were 34 claimants in all. (Two subsequently decided not to proceed with their cases, leaving a total of 32 claimants.) Those directions were eventually embodied in an order that I made on 15 November 2006. Four cases were identified as lead cases to be tried first. One of those cases was R (A) v Secretary of State for the Home Department CO/10390/2006, an application for judicial review. A’s case and the other lead cases were fixed for trial before me for three days starting on 24 January 2007.
11.	In the event the trial never took place. The Secretary of State conceded that the “strongly suggests” policy as operated prior to 30 November 2005 was unlawful, though the concession was confined to decisions made for the purpose of detention. A declaration to that effect was embodied in an order that I made on 26 January 2007. That order also contained directions for the trial of all remaining generic issues later in the year. That trial also has not taken place.  
12.	By a letter dated 31 January 2007 the Secretary of State formally admitted that the detention of the claimants in each of the four lead cases was unlawful. By further letters dated 2 March 2007 and 7 March 2007 the Secretary of State likewise formally admitted liability in relation to the detention of a further 25 claimants. So the outcome is that in relation to 29 out of the 32 claimants, all of whom had at some time or another been detained, the Secretary of State has admitted liability. In relation to each of those claimants, including of course A, the only remaining issue is the quantification of damages. Since A was in detention for 74 days his damages are likely to amount to a significant sum. I say no more because the question of quantum may yet arise for judicial determination.
13.	The matter came before me again for directions as to the future conduct of the litigation on 15 October 2007.
14.	According to Ms Stephanie Harrison, who represents all the claimants, there remain the following generic issues to be resolved, namely whether the “strongly suggests” policy is unlawful for all purposes and in particular (a) for the purpose of proceedings on third country grounds and (b) for the purpose of any decision or steps to facilitate and/or refer a Disputed Child as an adult for prosecution for immigration offences. There is also an issue in relation to the true meaning and effect of paragraph 352 of HC 395. 
15.	Ms Jenni Richards, who represents the Secretary of State, did not accept that this was in all respects an accurate statement of the remaining generic issues. But more fundamentally she disputed, in the light of the Secretary of State’s admission of liability, and given certain changes in practice introduced since the events originally complained of, that any useful purpose would now be served by the continuance of the litigation in any “generic” sense. Not least in circumstances where the vast majority of the individual claims were now academic, save only as to the assessment of damages, any remaining issues should, she said, be litigated individually on the specific facts of particular cases.
16.	On 3 September 2007 an application for judicial review had been issued by HBH: R (HBH) v Secretary of State for the Home Department CO/7677/2007. That case raises in the most direct and acute form the issue which Ms Harrison formulates as to the legality of the “strongly suggests” policy in the context of prosecution for immigration offences. So on any basis HBH’s case could serve as an appropriate and convenient vehicle for determining at least some of the remaining generic issues.
17.	Despite what had been pressed on me by Ms Richards, the conclusion I arrived at was that there were a number of generic issues which required to be resolved and that in principle A’s case and HBH’s case were, other things being equal, appropriate vehicles for resolving them. I left Ms Harrison and Ms Richards to formulate appropriate directions to this end.
18.	This was all subject to one vital question: whether A should be given the benefit of a protective costs order.
A’s application for a protective costs order
19.	Entirely understandably from his perspective, A is not prepared to continue as a lead case in relation to issues which are now of only academic interest so far as he is concerned unless his damages are ‘ring-fenced’ by means of a protective costs order. The Secretary of State is not prepared to agree that A’s damages should be ring-fenced, whether by means of a protective costs order or otherwise. If A continues and loses then the Secretary of State sees no reason why he should be denied what would otherwise be his right to seek to set-off his costs against A’s damages. The question is whether in the circumstances I can, and if I can whether I should, make a protective costs order in favour of A.
Protective costs orders – the law 
20.	I can go straight to R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, where the Court of Appeal set out at para [74] what it referred to as “the governing principles”:
“(1) 	A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
(2) 	If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
(3) 	It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”
21.	Previously at para [72] the Court of Appeal had adopted Dyson J’s view in R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 that:
“the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances.”
22.	At para [73], recasting what Dyson J had said on the point, the Court of Appeal considered that:
“no PCO should be granted unless the judge considers that the application for judicial review has a real prospect of success and that it is in the public interest to make the order.”
23.	This brings out the important point that the public interest has here to be considered from two different aspects. First, as set out in para [74], the court has to be satisfied (a) that the issues raised are of general public importance and (b) that the public interest requires that those issues should be resolved. Secondly, and additionally (para [73]), the court must be satisfied that it is in the public interest to make a protective costs order.
24.	As Moore-Bick LJ said in Goodson v HM Coroner for Bedfordshire and Luton [2005] EWCA Civ 1172 at para [17]:
“it does not necessarily follow from the fact that the issue is one of general importance or from the fact that the judge, quite rightly in my view, expressed the view that it was appropriate for the case to be heard by this court, that the public interest requires it to be resolved. We were not concerned with whether the case raises an issue that is fit for appeal, but whether a protective costs order should be made in favour of Mrs Goodson. At the end of the day, therefore, the court had to decide whether, having regard to the nature of the issue and the position of the parties, it was in the public interest that it should be determined in this case rather than any other, even though that could only be achieved at the expense of the Hospital, at least as regards its own costs.”
25.	I need not cite the passages in detail but it is apparent (see for example paras [69]-[70]) that central to the Court of Appeal’s analysis in Corner House was the recognition of an important difference which distinguishes public law litigation from private law civil and family litigation. 
26.	Goodson was a case where the daughter of a man who had died in hospital sought judicial review with a view to compelling the Coroner to conduct the inquest in accordance with the requirements of Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Her claim failed before Richards J, who gave her permission to appeal. She sought a protective costs order in relation to the costs of the appeal. Her application for a protective costs order failed.
27.	The decision and reasoning in Goodson is illuminating, not least because Moore-Bick LJ, with whom both Chadwick and Ward LJJ agreed, acknowledged (see at paras [14] and [31]) that the Court of Appeal in Corner House had not been laying down hard and fast rules and that the guidelines in Corner House were not to be regarded as inflexible. Yet the Court of Appeal anchored its decision in Goodson very clearly and firmly on the precise formulation of principle in Corner House.
28.	In Goodson the Court of Appeal considered in particular the requirement that the applicant for a protective costs order have no private interest in the proceedings. Moore-Bick LJ recorded (at para [26]) counsel’s submission that it is not necessary that the applicant should have no private interest of any kind in the outcome of the proceedings before a protective costs order can be justified, it being sufficient, so it was said, that the public interest in having the issue decided transcends or wholly outweighs the interest of the particular litigant. 
29.	Moore-Bick LJ explained (at para [27]) why that submission had to be rejected. He pointed out that in Corner House the court, which was well-placed to decide where to draw the line in terms of private interest, had expressed the requirement that the applicant must have no private interest in the outcome of the case in unqualified terms, although the court could easily have formulated this part of the guidelines in more qualified terms corresponding to counsel’s submission if it had thought it appropriate to do so. He repeated that a protective costs order should only be made in the most exceptional circumstances. He concluded:
“Moreover, it is apparent from the decided cases to which the court referred … that an increasing number of challenges to decisions of public authorities has been mounted by bodies of one kind or another which have no interest in the outcome of the proceedings other than a general desire to ensure that the law is complied with. Against that background I do not find it particularly surprising that the court should have expressed itself in the terms one finds in paragraph 74.”
30.	Moore-Bick LJ went on in para [28] to make some further observations which seem to me of some significance in the context of the present case:
“The requirement that the applicant have no private interest in the outcome of the case may also be regarded as consistent with the rules relating to standing for the purposes of applying for judicial review. In the present case Mrs Goodson has no financial interest in the appeal (leaving aside, as I think one must, the matter of costs), but she clearly does have a private interest in the outcome of the case in the form of her claim to obtain by this route a fresh enquiry into the circumstances of her father's death. It is her relationship to her father that gives her both the interest in seeking relief by way of judicial review and sufficient standing in law to pursue her claim. As [counsel] was constrained to accept, it is unlikely that she would have been entitled to take similar action to challenge the verdict resulting from an inquest on a stranger whose death occurred at the same hospital. All this suggests that a personal litigant who has sufficient standing to apply for judicial review will normally have a private interest in the outcome of the case, although in rare cases a public-spirited individual may be permitted to make such an application in relation to a matter in which he has no direct personal interest separate from that of the population as a whole: see for example, R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg [1994] QB 552. The possibility that a person might have sufficient standing to make an application in both a private and a purely public capacity was canvassed in argument, but I find it difficult to envisage circumstances in which that might arise. It does not arise in this case and in the circumstances I prefer not to express any opinion on it.”
31.	Moore-Bick LJ concluded at para [31]:
“Leaving aside Mrs Goodson’s undoubted private interest in the proceedings, I can see no reason for concluding that the public interest in having the issues which arise in this case decided by this court is so great that they should be decided in this appeal and at the inevitable expense of the Hospital as regards its own costs. When one adds to that the fact that Mrs Goodson has a strong interest of her own in seeing the case through to a successful conclusion, the case for refusing an order becomes even stronger.”
A’s application for a protective costs order – the parties’ submissions
32.	On behalf of A, Ms Harrison submits that the requirements in Corner House are clearly satisfied and that it would be fair and just for the court to exercise its discretion to make the order. She submits that this is plainly a case in which there are issues of general public importance – she points out that the Legal Services Commission is continuing to fund the litigation, despite the Secretary of State’s admission of liability, precisely because of its general public importance; that it is “imperative” that these issues are resolved by the court; that following the Secretary of State’s admission that he was unlawfully detained, A has no private interest in the outcome of the litigation – it is an academic issue so far as A is concerned for, as a private individual, he has achieved all that he sought through the litigation; that A has no independent means and is reliant upon public funds whilst the Secretary of State has significant resources at his disposal; and that A will not (indeed could not reasonably be expected to) continue with the litigation if he remains at risk of an adverse costs order. She suggests that as considerable costs have already been spent in the litigation, and because it is unrealistic to think that the remaining generic issues will not be re-litigated sooner or later in other cases, resolving the generic issues by continuing this litigation to its conclusion is the most cost effective way forward. It would not, however, she says, be fair for A to be expected personally to bear the burden of the costs, especially if that means sacrificing any part of the damages awarded to him because of the unlawful detention to which the Secretary of State subjected him. She accepts that A’s legal representatives are not acting pro bono, the Legal Services Commission having, unusually, agreed to continue to fund the case as public interest litigation. 
33.	On behalf of the Secretary of State, Ms Richards submits that the present case simply does not meet the Corner House criteria. She submits that the issues raised are now largely academic and have been overtaken by changes in policy and/or practice; that there is accordingly no public interest requiring the resolution of these issues; that A had a private interest in the proceedings at their inception and continues to have a private interest in quantifying and recovering damages and protecting them from the effect of an adverse costs order; that it is not fair and just to make the order – if A chooses to continue with the litigation and fails there is no good reason why this should be at the expense of the Secretary of State (and thus the taxpayer); that A’s representatives are not acting pro bono; and that there is nothing exceptional about the case to justify the making of a protective costs order.
A’s application for a protective costs order – discussion 
34.	As I have already indicated I do not accept Ms Richards’ proposition that the issues raised are academic. There are, as I have said, a number of generic issues which require to be resolved and in principle A’s case and HBH’s case are, other things being equal, appropriate vehicles for resolving them. And I agree with Ms Harrison that these are issues of general public importance which require to be resolved, albeit that I think she puts the point too high when she submits that this is “imperative.” I am also prepared to accept, though with somewhat less enthusiasm, that, other things being equal, these issues require to be resolved within the present litigation.
35.	This carries Ms Harrison part of the way she would have me go but by no means all the way. Her application founders on what, in my judgment, are two insurmountable obstacles. 
36.	In the first place, I cannot accept that A does not have any private interest in this litigation. The fact is that he does. He plainly had a private interest until the point at which the Secretary of State conceded liability. That is not and could not be disputed. So on that ground alone the present case is far removed from the typical kind of case in which a protective costs order might be appropriate. But the point does not end there, for the fact, in my judgment, is that A still has a private interest in this litigation – his interest in quantifying (it may yet be with judicial assistance) and recovering the damages which the Secretary of State has conceded are in principle recoverable. And it is after all precisely that private interest which lies behind the application for the protective costs order, an order which is being sought precisely so that A’s damages can be immunised from any claim for costs. The very rationale for making the order, however understandable from A’s point of view, merely serves to demonstrate, to use Moore-Bick LJ’s words, that he is not some public-spirited individual making an application in relation to a matter in which he has no direct personal interest separate from that of the population as a whole. On the contrary, it is A’s very directly engaged private, financial, interests which are the driver of the application for a protective costs order.
37.	On that ground alone, in my judgment, this application necessarily fails. But there is a quite separate reason why I would not in any event have acceded to this application. 
38.	As I have already pointed out, the authorities demonstrate that a protective costs order will not be granted unless it can be shown (a) that the issues raised are of general public importance, (b) that the public interest requires that those issues should be resolved and (c) that it is in the public interest to make a protective costs order. But although Ms Harrison has satisfied the first and second of these three requirements she has, in my judgment, wholly failed to satisfy the third. Why does the public interest require the Secretary of State to be subjected now – he has not been hitherto in this litigation – to a protective costs order under which he is (this is what Ms Harrison is suggesting) exposed to costs in an amount which could reach £30,000 if unsuccessful whilst being denied his costs if successful? In my judgment it does not. Superficially it may seem that the Secretary of State’s pocket is deep, but as Moore-Bick LJ pointed out in Goodson at para [30] a public authority’s resources are not unlimited and money spent on litigation is money that would otherwise be available for its ordinary operations. 
39.	There is, in my judgment, nothing exceptional in this case to justify the making of a protective costs order. It would not be just or fair to do so. 
40.	I might add that if the Legal Services Commission is so impressed with the merit of and the public interest in this litigation it could always consider agreeing with the Secretary of State that it will make no application for costs in the event of success.
Conclusion
41.	The application for a protective costs order fails and must be dismissed.