Protective Costs Orders | The Principles

SWIFT V CARPENTER [2020] EWCA CIV 165

The appellant was denied a Protective Costs Order (PCO) on grounds that despite the outcome being of “wider interest to future litigants in a similar position, insurers and the legal profession” the appellant herself had “an overwhelming private interest in the outcome of the appeal”.

The decision examines the ‘Corner House conditions’ and various other authority including Eweida v British Airways plc [2009] EWCA Civ 1025 and confirms the policy and practice of the courts that a PCO should not be made in private litigation.

“On that footing, the application for a PCO in the present case must be dismissed. The present proceedings are standard private litigation for damages for personal injury caused by the defendant’s negligence. Inevitably, in the context of such litigation, and contrary to the second Corner House condition, the appellant has an overwhelming private interest in the outcome of the appeal, notwithstanding that the outcome may be of wider interest to future litigants in a similar position, insurers and the legal profession. Such wider interest is true of many, if not most, of the appeals in the Court of Appeal in private litigation.”

The decision also confirms the need for an application for a PCO to be made promptly.

“If a party wishes to have the protection of a PCO, the application must be made as soon as possible as its existence will be highly likely to have a material effect on decisions by the other party as to the incurring of costs and the making of offers of settlement.” 

SWIFT V CARPENTER [2020] EWCA CIV 165