A protective cost order (PCO) is an order which limits the potential liability of one or more parties to litigation in court to pay the court fees of the other party. Its purpose is to restrict the financial burden imposed on the parties to the dispute and, in so doing, preserve access to justice by the public by preventing the costs of litigation from becoming ‘prohibitively’ high.
The ability of the Court to make PCOs in respect of ‘Aarhus Convention claims’ is set out in Part 45 of the CPR. ‘Aarhus Convention claims’ were defined as judicial review claims (whereby the Court is asked to examine the activities of a public body to determine whether they were lawful) which fall within ‘the scope of the Convention’ and which relate to access to environmental information and environmental justice. This narrow scope of eligibility has meant that claims including appeals against planning decisions and public nuisance matters on environmental grounds were excluded, despite falling within the scope of the Convention.
CPR Part 45 also imposed a fixed cap on PCOs which could be made by the courts, restricting the liability of claimants to £5,000 (if claiming as an individual and £10,000 in all other cases) and of defendants to £35,000.