My Lords, my experience of protective costs orders arises from the Corner House case. Corner House was a tiny NGO with almost no money and it was challenging the lack of proper consultation when the export credit guarantee issues arose in relation to possible corruption. My recollection is that the Court of Appeal developed at common law the idea of a protective costs order, but it was extremely careful to limit that so that anyone with real funds would have to account at the earlier stage before such an order would be made.
I have not been aware, in subsequent case law since the decision of the Court of Appeal in the Corner House case, of protective costs orders being abused. My impression is that the courts have been strict, disciplined and very jealous of the need to avoid any waste of public money. Therefore, although I agree with the noble and learned Lord, Lord Mackay of Clashfern, that there may be some scope for rule-making, I do not believe that there is any need for a statutory requirement such as the one we are now considering.
5.45 pm