The High Court has comprehensively rejected the government’s bid to overturn the grant of a protective costs order (PCO) in favour of campaigners for the reburial of King Richard III in York.
Today’s ruling by Mr Justice Haddon-Cave also exposed an embarrassing procedural error by the Treasury Solicitor’s Department, which wrongly sought to appeal an initial decision made on paper by the Administrative Court to the Court of Appeal.
Last month, in R (on the application of The Plantagenet Alliance) v Secretary of State for Justice and Anor, the judge granted the alliance – set up by a descendant of Richard Plantaganet, the third Duke of York and father of Richard III – permission to proceed with a judicial review of the burial licence granted by the Ministry of Justice to Leicester University.
He also granted a PCO to prevent the defendants recovering any costs from the claimant.
The Secretary of State of Justice challenged this on multiple grounds, but Haddon-Cave J dismissed them all, including the argument that the case did not raise an issue of “general public importance”.
He said: “The following points, in particular, are pertinent: (i) the fundamental question as to the final resting place of Richard III’s remains has aroused a great deal of strong public feeling in the country; (ii) it has led to a parliamentary debate; (iii) the Ministry of Justice belatedly sought to arrange a consultation meeting with national bodies, including the Church of England, the Catholic Church, and HM The Queen; (iv) the discovery of Richard III’s remains is ‘unprecedented’ and touches on our history, heritage and identity; (v) the discovery of Richard III’s remains engages interests beyond those of the immediate parties, and touches on Sovereign, State and Church.”
He went on described as “flawed and heretical” the argument that there was no public interest in the outcome of the judicial review, merely a ‘parochial’ interest by York sympathisers driving the claim. The MoJ submitted that that there is no need or public interest in having a judicial review because the interests of the public about where the remains of the former King should are “entirely served” by a public debate on the matter which is already going on in the newspapers.
This submission, the judge said, “ignores the fundamental need for the court to ensure that the due processes of the common law are adhered to. It suggests that amorphous ‘public debate’ in the press or on the web is somehow a substitute for the adherence by public bodies to the duty at common law properly to consult interested parties”.
Haddon-Cave J also set a £70,000 costs cap on what the claimant could recover from the defendants in the event of success, splitting the figures each side had submitted.
He rejected the suggestion that, given the nature of the case, the claimant should have explored getting entirely pro bono representation (its solicitors, Gordon, acted pro bono up to the point where the PCO was granted, but estimated costs of around £200,000 for the entire case).
“This submission runs counter to the time-honoured principle that people are entitled to instruct lawyers of their choice (within reason) and that lawyers are entitled to be paid a reasonable fee for work done,” he said.
On 5 September, the justice secretary lodged an appeal against the grant of the PCO with the Court of Appeal. “This was a procedural mistake,” the judge said. “It is impermissible to challenge a decision of the Administrative Court made on paper on an ancillary matter by way of appeal to the Court of Appeal without having first renewed the matter orally before the Administrative Court.”
The error was pointed out to the Treasury Solicitors by “an alert lawyer in the Administrative Court Office, Samantha Lovett”, 12 days later, but the MoJ pursued it and the Civil Appeals Office had to direct that the application for permission to appeal was premature and was to be closed in the Court of Appeal for want of jurisdiction.