Since we are in Committee, perhaps I can try to assist the Committee.
The power derives from restatements of principles which, as the noble Lord said, are inherent in the court’s processes. In the Court of Appeal case Regina (on the application of Corner House Research) v the Secretary of State for Trade and Industry in 2005—EWCA Civ 192—the Court of Appeal considered that Corner House, which was an anti-corruption NGO, should, if unsuccessful in the judicial review, exceptionally be protected from being liable for the defendant’s costs because,
“the issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought”.
It also set out the general principles for when a protected costs order should be granted: first, the issues are of general public importance; secondly, the public interest requires that those issues should be resolved; thirdly, the claimant has no private interest in the outcome of the case; fourthly, the financial means of the claimant
mean that the protected costs order is fair and just; and, finally, if the order is not made, the claimant will probably discontinue the proceedings.