That is not the view of my Committee. I commend our report to the hon. Lady, if she has not read it, because it deals with this point very thoroughly.
Pre-permission costs in judicial review proceedings are often substantial: the Bingham Centre for the Rule of Law told our inquiry that they may comfortably exceed £30,000, and that restricting the availability of costs capping orders until permission is granted will in practice undermine their usefulness in ensuring effective access to justice. It is worth repeating the words, which we quote in our report, of the Bingham Centre on judicial review proceedings:
“The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect”—
the chilling effect—
“of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk.”
The whole point of costs capping orders is that they provide assurance to litigants in advance, before the defendants to judicial review proceedings start running up costs that, without a costs capping order, the claimant may have to pay. To ensure that costs are not a barrier to upholding the rule of law, that protection should be available in relation to costs incurred at the very outset of the proceedings, before permission is granted. That is what amendment 42 is designed to achieve.
1.45 pm
My Committee recommends amendment 44, which would prevent the Bill from going too far in the provision relating to cross capping. A cross-cap is a reciprocal order limiting an unsuccessful defendant’s liability for the claimant’s costs. The Government, in their consultation paper, proposed that, where a costs capping order is made, there should be a presumption that the court will make a reciprocal order capping the defendant’s costs. The Bill, however, goes further than this by imposing a duty on the court to make such a cross-capping order.
In conclusion, the Committee thinks there should still be room for judicial discretion in deciding whether it is appropriate to make a cross-capping order in the circumstances of a particular case. Amendment 44 would achieve this untying of the courts’ hands by replacing the duty with a presumption. I support amendment 39, in the name of my hon. Friends the Members for Hammersmith and for Barnsley Central, which is recommended by my Committee. It would remove from the Lord Chancellor the unnecessary and problematic power the Bill gives him to change the matters to which a court must have regard when deciding whether proceedings are public interest proceedings.