Protective costs orders

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Protective costs orders
  • Protective costs orders and cost capping orders
  • When will a PCO be made?
  • Claimant or defendant?
  • PCOs and costs budgets
  • Principles-Corner House
  • Timing and requirements
  • Form of a PCO
  • Procedure
  • Do the principles apply in Court of Appeal proceedings?
  • More...

Protective costs orders

Protective costs orders and cost capping orders

The purpose behind a protective costs order (PCO) is to prevent litigants from being precluded from bringing valid claims merely on the basis of the costs involved in doing so. This is achieved by the PCO placing limits on the amount of costs to be paid in proceedings. Costs capping orders (CCOs) also place such limits but it is important to distinguish between PCOs and CCOs as the source of the court’s power in respect of the two is entirely separate and the function and purpose of the two types of orders are very different. In summary:

  1. PCOs limit the level of costs a losing party will have to pay

  2. CCOs limit the level of costs a party can recover pursuant to a costs order subsequently made

For more information on CCOs generally, see Practice Note: Costs capping orders.

PCOs are not designed to achieve proportionality, in fact they positively discriminate against one party in favour of another to ensure meritorious cases will be brought to court in circumstances where they might otherwise be cost prohibitive to bring.

When will a PCO be made?

PCOs have been recognised in English public law since 1999 (R v Lord Chancellor ex parte CPAG).

The court’s power to make PCO at common law derives from its inherent power to determine by whom and to

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