Why Mrs Litvinenko did not get her PCO – but what if it had been an environmental claim?

9 October 2013 by David Hart KC

R (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin)  4 October 2013, judgment behind Lawtel paywall       UPDATED x 2 

An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.

Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.

Mrs Litvinenko issued judicial review proceedings challenging the refusal to order a public inquiry. She said that the SoS had exclusive control of the evidence which was covered by public interest immunity; that the UK authorities had failed to protect her late husband from a real and immediate threat by third parties; that there was prima facie evidence of Russian Federation responsibility, and that  death had occurred in suspicious circumstances, so that it was inappropriate to wait until the end of the inquest before holding a public inquiry.

To mitigate her costs in the judicial review, she sought a protective costs order (PCO) so that, if she lost, her liabilities were capped at an affordable limit, She said, not without cause, that the issues of an alleged murder of a United Kingdom citizen by the Russian Federation and the UK’s alleged failure to prevent it were of general public importance, but that she would be unable to continue the judicial review proceedings without a PCO.

The Divisional Court said that the starting point was that a PCO would not be made unless there was a real prospect of success in the judicial review proceedings, the issues raised were of general public importance, and there were compelling public interest reasons for them to be resolved, on traditional Corner House principles. It added that whilst there might have been a public interest in assessing the culpability and preventability issues at some stage, a further assessment of those issues could take place after the  inquest if necessary. As they put it, it was merely L’s preference to have those issues raised at an earlier stage.

But Corner House has always been hedged about with limitations which later cases have sought to relax. Helpfully, the Court confirmed that a private interest in the claim was not fatal to the application for a PCO. Subsequent cases had emphasised the need for “flexibility” when considering the Corner House requirement  that an applicant should have no private interest in the case: see a case of mine, Morgan v Hinton Organics (Wessex) Ltd [2009] . The more recent cases had set out the correct approach, namely that an applicant’s private interest was a factor to consider when balancing against the other elements of the Corner House guidance. Mrs Litvinenko’s private interest would not of itself prevent the making of a PCO in the instant circumstances.

But the real problem in getting a PCO was that Mrs Litvinenko’s unencumbered assets (£500,000) outweighed the value of the secretary of state’s estimated costs (£40,000 – both these figures revised in the light of the full judgment) and therefore she had greater means than many litigants. She had the financial means to bring the proceedings if she chose to and it would not be reasonable for her to withdraw proceedings on the basis that she did not have a PCO.

The Court expressed its conclusions as follows- that last phrase seems to have been a throwaway line, and, as Haddon-Cave J noted in the  Richard III PCO application (see my post here) it forms no part of the Corner House principles.

Taking Mrs Litvinenko’s financial resources into account in the balancing exercise I need to perform, I have concluded, not without some regret, that I cannot say it would be fair and just to make the order she seeks. Regarding the Corner House criteria as flexibly as I can, this is not one of those exceptional cases to which they apply.

That last phrase about “exceptional cases” seems to have been a throwaway line, and, as Haddon-Cave J later noted in the Richard III PCO application (see my post here) it forms no part of the Corner House principles.

Comment

In UK terms, not a very surprising result, given that Mrs L’s potential costs liability amounted to rather less than 10% of her unencumbered assets . Corner House, whilst in its time a ground-breaking decision, is a brake on the making of PCOs which the European Court of Justice or the Aarhus Compliance Committee would find surprising. And the difference? There is no general principle at English law that someone should be not be put to prohibitive costs to complain about a public wrong, of some public interest.

The cruel irony will be readily apparent to most of my readers. Had poor Mrs L’s judicial review claim involved some complaint involving the release of polonium to the environment (rather than merely into her late husband), she would have got a default PCO limiting recovery of costs from her to the sum of £5,000 – see my post on the CJEU on “prohibitively expensive” and the new PCO regime. And the explanation – Aarhus, and its domestic application, only applies to environmental claims.

Now surely a tiny bit of the polonium leaked out in that restaurant, didn’t it?

Neil Sheldon of 1 Crown Office Row was for the SoS on this application. He played no part in the writing of this post.

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