E, Regina (On the Application of) v Governing Body of JFS and Another: SC 14 Oct 2009

The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the Legal Services Commission having withdrawn legal aid. It was argued that the protection sought would remove from the appellant school the protection on costs provided for in the 1999 Act.
Held: (Majority) It was essential that there should be representation for both sides before the Court. The case would raise issues of considerable public importance, and it was in the public interest that both sides of the argument should be properly presented. The result of the Commission’s position would be that a legally aided person could not be promised protection against personal liability for costs even if successful at all stages and took no part in an appeal.
The LSC must re-instate the legal assistance and pay the costs of the hearing.
‘It should be understood, as a principle of general application, that if the Legal Services Commission decide to fund a litigant whether by way of claim or a defence who is successful in his cause, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party whilst he remains financially eligible. This will particularly be so where (a) the withdrawal of support would expose the publicly funded litigant to a substantial risk for future costs, (b) he retains a significant interest, quite apart from his interest in resisting any future costs liability, in maintaining his success in the litigation and (c) the issues raised on the appeal are of general public importance which it is in the public interest to resolve and his case on these issues is unlikely to be properly argued unless he continues to be funded by the Legal Services Commission.’

Lord Hope of Craighead, Deputy President, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
[2009] UKSC 1, Times 17-Oct-2009, [2010] 1 All ER 1, [2009] 1 WLR 2353, [2010] 2 AC 728
Bailii, SC
Access to Justice Act 1999 7, Community Legal Service (Cost Protection) Regulations 2000 (SI 2000/824) 5
England and Wales
At First InstanceE v The Governing Body of JFS and Another Admn 3-Jul-2008
The court considered the impact of secular discrimination policy on admissions policies of religious schools.
Held: A school admissions policy which gave priority to children of their designated faith did not discriminate unlawfully either . .
At CAE, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
Appeal fromE, Regina (On the Application of) v Governing Body Of JFS and Another CA 10-Jul-2009
. .
CitedBoxall v Waltham Forest Borough Council 2001
The fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. The court . .
CitedWeaver v London Quadrant Housing Trust CA 17-Feb-2009
The respondent sought leave to appeal against a finding that as a registered social landlord it was exercising a public function and was a hybrid public authority.
Held: Leave was granted. A protective costs order was made for the respondent . .
CitedCorner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
CitedE v The Governing Body of JFS and Another Admn 16-Jul-2008
Application for leave to appeal. . .

Cited by:
See alsoE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 01 November 2021; Ref: scu.376164