Costs capping orders under CPR 52.19 may be refused where granting protection would shift unrecovered costs to non-participating parties through statutory recovery mechanisms, even where access to justice considerations would otherwise support the application.
- The engagement of CPR rule 52.19, which applies to appeals from proceedings where costs recovery is normally limited or excluded at first instance, does not automatically warrant a costs capping order; it merely provides the court with a discretion to make such an order. [14(i), 14(ii)]
- When exercising its discretion under CPR rule 52.19, the court will have regard to all the circumstances of the case, including the means of both parties and the substantial weight to be given to the need to facilitate access to justice. [14(iii), 14(v)]
- Evidence in support of a costs capping order must be full and frank; bare assertions about a party’s financial position will be treated with scepticism, and the court must be satisfied that the appeal would likely be abandoned without the order. [14(vi)]
- A costs capping order may be refused if its practical effect would be to shift the costs risk from the litigating parties onto a wider group of non-participants, as this outcome may not accord with justice or the overriding objective. [19, 23]
- The fact that an appeal is wholly unmeritorious is a relevant circumstance that may justify the refusal of a costs capping order. [14(iv)]
