Costs Capping Order | Court Sets Different Caps Despite Defendant's Push For Parity In Facial Recognition Challenge

Mrs Justice Farbey’s costs capping order judicial review decision demonstrates how courts approach differential cap levels in public interest litigation.

THOMPSON & ANR v COMMISSIONER OF POLICE OF THE METROPOLIS [2025] EWHC 2355 (Admin)

In Thompson & Carlo v Commissioner of Police of the Metropolis the court determined three interim applications, the primary issue being the Claimants’ application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015. The parties agreed reciprocal caps were appropriate but disputed the amounts; the Claimants sought an asymmetric order capping their liability at £40,900 and the Defendant’s at £107,700, while the Defendant argued for identical caps of £107,700. The court, applying the statutory criteria with focus on the parties’ resources, found the non-profit organisation indemnifying the Claimants, Big Brother Watch, held sufficient unrestricted and reserve funds (£235,221 and £262,699 respectively) to contribute more than the sum raised by specific fundraising. The court held it was not unreasonable to expect the organisation to prioritise the litigation and risk a ‘modest dip’ in its reserves. Consequently, the court imposed a differential order, capping the Claimants’ liability at £70,000 and the Defendant’s liability at £100,000, finding this struck a fair balance between access to justice and the call on public funds. The court also granted the Claimants’ applications to rely on expert evidence and a further witness statement, each to be considered *de bene esse*.

The court can expect BBW's approach to financial prudence to accommodate a High Court costs order in litigation which it has chosen to drive forward. To the extent that Lord Strasburger suggests that it would be irresponsible to earmark even a modest draw on reserves for that eventuality, he goes too far.

Citations

Good Law Project v Secretary of State for Health and Social Care [2021] EWHC 997 (TCC) Public authorities are not assumed to have unlimited resources; courts should weigh the burden on public funds when determining the reasonableness and proportionality of cost capping orders.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

A costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015 must reflect the financial resources of all parties, including those of any third party providing, or likely to provide, financial support for the litigation. [31]
When assessing the financial resources of a supporting organisation, the court is entitled to consider both unrestricted funds and reserves, and may expect the organisation to take reasonable strategic decisions to allocate funding in light of the litigation’s importance. [31–37]
The statutory requirement for reciprocal costs caps in public interest proceedings under section 89(2) of the Criminal Justice and Courts Act 2015 does not require the caps to be identical; different caps may be imposed based on a fair assessment of each party’s resources and circumstances. [24, 40]
The court must assess whether it would be reasonable for a claimant to withdraw the claim in the absence of the costs cap sought, taking into account the availability of additional funding and whether support could reasonably be expected to be extended. [39]
Discounted fee arrangements for legal representatives are a relevant factor when imposing a cap on a public authority’s costs liability, but do not in themselves preclude the imposition of a modestly higher cap on the defendant to ensure fair and proportionate case management. [23, 40–41]

"In all the circumstances of the case, I have concluded that a total cap on the Claimants' costs liability of £70,000 strikes an appropriate balance between the comparative resources of the parties. It strikes a fair and just balance between the competing interests of access to justice for the Claimants and the call on public funds that will be needed to defend the claim."

Key Findings In The Case

The court found that Big Brother Watch (BBW), the organisation supporting the Claimants, had significant financial resources—including £235,221 in unrestricted funds and £262,699 in reserves—which it could reasonably be expected to deploy to fund the litigation to a modest extent, despite its preference not to deplete reserves [18–21, 31–37].
The Claimants’ proposed adverse costs cap of £40,900 was found to be insufficient given BBW’s available resources; the court held that a higher cap of £70,000 was reasonable and proportionate in view of BBW’s financial position and its role in driving the litigation [31–38].
The court determined that identical reciprocal costs caps were not required by statute; instead, it imposed a higher cap on the Defendant’s costs liability (£100,000) than on the Claimants, reflecting the parties’ differing financial circumstances and the importance of supporting public interest litigation without undue burden on the public purse [24, 40].
The court was not satisfied that it would be reasonable for the Claimants to withdraw the judicial review claim if the cap on their liability was set at £70,000, finding that BBW could reasonably be expected to provide the balance beyond the initial £40,900 raised through crowdfunding and grants [39].
Discounted fee arrangements for the Claimants’ legal team were acknowledged as relevant to the court’s decision on the Defendant’s costs liability, though the court held that they did not preclude imposing a modestly higher cap of £100,000 on the Defendant, in the interests of fairness and proportionate costs management [23, 40–41].

"I agree with Mr Squires that parity between the parties is neither necessary nor fair in the present case. The cap on the Defendant's costs liability should be higher than £70,000. In the interests of the efficient and focused progress of the litigation, the difference should be clear but moderate."

The High Court’s decision in Thompson & Anor v Commissioner of Police of the Metropolis [2025] EWHC 2355 (Admin) demonstrates that costs capping orders under sections 88-89 of the Criminal Justice and Courts Act 2015 need not be set at identical levels.

Background

The claim for judicial review was issued on 24 May 2024 by Shaun Thompson and Silkie Carlo against the Commissioner of Police of the Metropolis. The claim initially challenged the lawfulness of the Defendant’s policy governing the deployment of Live Facial Recognition (LFR) technology. The proceedings were stayed by order of Sheldon J pending a review of that policy by the Defendant. Following the review, the original policy was withdrawn and replaced with a new policy dated 11 September 2024. The claim was subsequently amended to challenge the new policy, and the grounds relating to the old policy were withdrawn by consent.

On 30 April 2025, Mrs Justice Farbey granted permission for the Claimants to proceed on two amended grounds. Ground 1 alleged that the ongoing use of LFR breached the Claimants’ right to respect for private life under Article 8 of the European Convention on Human Rights because it was not “in accordance with the law”. Ground 2 alleged breaches of the rights to freedom of expression and assembly under Articles 10 and 11, on the basis that the interference was not “prescribed by law”. The Defendant did not resist the grant of permission, acknowledging the public importance of the issues.

At the permission stage, the court was also required to determine three interim applications made by the Claimants: an application to rely on expert evidence from Professor Martin Utley; an application for a costs capping order; and an application to rely on a third witness statement from Ms Carlo. This judgment deals solely with the determination of those applications.

Costs Issues Before the Court

The primary costs issue for determination was the Claimants’ application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015. The parties agreed that reciprocal costs caps should be imposed. The dispute centred on the appropriate level of those caps. The Claimants sought an order capping their own liability at £40,900 and the Defendant’s liability at £107,700. The Defendant contended that both caps should be set at an identical figure of £107,700. The court was required to resolve this dispute by applying the statutory criteria, with particular focus on the financial resources of the parties.

The Parties’ Positions

The Claimants’ position was that the caps should not be identical. They argued that the statutory requirement was for reciprocal, not mirror, limits. They emphasised that their financial resources were limited. Ms Carlo is the Director of Big Brother Watch (BBW), a non-profit organisation which had agreed to indemnify the Claimants against an adverse costs award. Evidence was provided that BBW had raised £24,409 from crowdfunding (reducing to £23,299 after fees) and had secured an offer of £15,000 from Law for Change, totalling £40,900. It was argued that this was the maximum sum that could be raised through specific fundraising for the case. Further evidence from Lord Strasburger, Chair of BBW’s Board, stated that the organisation’s unrestricted funds of £235,221 were needed for core operational costs and that its reserves of £262,699 were below the recommended minimum. He stated that diverting funds to meet a costs award would be “completely irresponsible” and would jeopardise the organisation’s existence. The Claimants also argued that their legal team was working at significantly discounted rates and that a higher, identical cap would act as a disincentive to lawyers taking on public interest cases, thereby inhibiting access to justice.

The Defendant’s position was that the caps should be identical and set at £107,700. They submitted that BBW was effectively driving the litigation and should therefore be expected to deploy some of its own funds to pay for it. It was argued that a cap of £40,900, funded entirely by external donations, would allow the Claimants to litigate without meaningful financial constraint. The Defendant contended that the Claimants’ resort to expert evidence demonstrated a lack of concern for costs that would necessitate a costly response. The Defendant also relied on the principle that the public purse is not a “bottomless pit”, citing Good Law Project v Secretary of State for Health and Social Care, and argued that BBW was not impecunious, holding over £500,000 in combined unrestricted and reserve funds.

The Court’s Decision

The court allowed the application for a costs capping order but set the caps at different levels from those proposed by either party. On the Claimants’ costs liability, the court imposed a cap of £70,000. The court found that whilst it was appropriate to consider BBW’s financial resources, the organisation could reasonably be expected to contribute more than the £40,900 raised through specific fundraising. The court noted that BBW held £235,221 in unrestricted funds and £262,699 in reserves. Whilst acknowledging the importance of good governance and maintaining reserves, the court concluded that it was not unreasonable to expect BBW to make a strategic choice to prioritise the High Court litigation and take the risk of a “modest dip” in its reserves. The court found that a total cap of £70,000 struck a fair and just balance between the competing interests of access to justice and the call on public funds. The court was not satisfied that it would be reasonable for the Claimants to withdraw the claim if this cap were imposed.

On the Defendant’s costs liability, the court rejected the argument for identical caps and imposed a cap of £100,000. The court agreed with the Claimants that parity was neither necessary nor fair. The higher cap for the Defendant was intended to reflect the efficient and focused progress of the litigation whilst acknowledging the discounted rates at which the Claimants’ legal team was working. The court concluded that this moderate difference served the public interest.

The court also allowed the other two applications. Permission was granted for the Claimants to rely on the expert report of Professor Utley, to be considered de bene esse at the substantive hearing. Permission was also granted for the Claimants to rely on Ms Carlo’s Third Witness Statement, also to be considered de bene esse.

Implications for Costs Practice

This decision clarifies several important points for practitioners handling costs capping applications in judicial review cases.

The court will look beyond specific fundraising to assess the true financial resources available to support litigation. Campaign organisations cannot simply point to limited specific fundraising while holding substantial unrestricted funds. Good governance requirements for maintaining reserves will be recognised but will not automatically insulate those reserves from contributing to litigation costs.

The statutory requirement for “reciprocal” caps under section 89(2) does not mean identical caps. Courts will consider the relative financial positions of the parties and other relevant factors, including whether legal teams are working at reduced rates in the public interest.

Strategic arguments about deterring lawyers from public interest work carry some weight but will not override the court’s assessment of what each party can reasonably afford based on their actual financial resources.

For practitioners, the case reinforces the importance of providing comprehensive evidence about financial resources when seeking costs caps, while recognising that courts will expect applicants with significant organisational backing to contribute meaningfully to the costs risks they create through High Court litigation.

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