If you bring a court case, and you lose, you will typically be liable to pay the other side’s “costs”. This means their legal fees, and other costs they have incurred from the case. If you win the case, it is likewise the case that they would typically pay your costs.
Costs capping orders (CCOs) are orders made by a judge to limit the costs you are liable to pay the other side if they win in a judicial review proceeding. CCOs are a way of allowing individuals and groups to challenge decisions without exposing themselves to the risk of having to pay large and unpredictable costs if they lose the case.
The court does not have to grant a CCO (unless your judicial review is an environment or planning case). The court will decide whether to grant a CCO before the full hearing of the case – usually at the time you are asking for permission to proceed with judicial review.
If the CCO is granted, the judge will set a limit on how much you have to pay the other side for their legal costs if you lose the case. Sometimes, they will set a reciprocal cap, which means the other side will also be limited in the amount they have to pay for your legal costs, if they lose.
In a judicial review, the court will look at whether, in your case:
a) The proceedings are “public interest” proceedings
b) In the absence of the cost capping order, you would withdraw the application for judicial review or cease to participate in the proceedings, and
c) If it would be reasonable for you to do so.
Your application for a CCO will need to meet all three criteria.
The rules for granting a CCO are contained in Sections 88-90 of the Criminal Justice and Courts Act 2015.