Ministry of Justice has been mulling issue for over five years already
The government this week launched a call for evidence on whether costs protection should be extended to discrimination claims in the civil courts.
As well as seeking data, the Ministry of Justice (MoJ) is canvassing views on options such as qualified one-way costs shifting (QOCS) and costs capping as seen in environment claims.
The MoJ has been considering costs arrangements for discrimination cases for several years but the issue was highlighted by a 2020 judicial review, R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin), which challenged the failure to extend QOCS to discrimination claims in the county court.
The court accepted that, at the time of the 2019 post-implementation review of LASPO, the MoJ did not consider that it had sufficient information to take a decision about the extension of costs protection to discrimination claims.
As a result, the Lord Chancellor had not failed to comply with his public sector equality duty nor had he acted irrationally. Moreover, the court held that the current costs regime for discrimination claims in the county court did not breach articles 6 (right to fair trial) and 14 (prohibition on discrimination) of the European Convention on Human Rights or the common law right of access to a court.
The call for evidence said the decision-making process of whether to extend costs protection to discrimination claims “is still on-going”.
It focuses in particular on discrimination claims under the Equality Act 2010 generally, protected characteristics under the Act, and especially disability claims.
Information sought includes how many discrimination cases are funded under conditional fee agreements, and how much after-the-event (ATE) insurance is available. “Anecdotal evidence suggests that it may be difficult to obtain ATE insurance cover for these cases,” it said.
“The government is also interested in what difference it would make if the adverse costs of discrimination cases became more certain, for example, by being subject to fixed recoverable costs (as extended from October 2023).”
The call for evidence welcomes views on costs protection of any type, but only details QOCS and costs capping, based on a version of the environmental costs protection regime, for which the default cap for unsuccessful individual claimants is £5,000, and £10,000 for organisations, and £35,000 for unsuccessful defendants.
The MoJ said it was also keen “to explore other options that might be able to improve access to justice issues around discrimination claims beyond costs protection”, particularly the role that alternative dispute resolution could play.
“We are particularly interested to hear from respondents that have previously used ADR to resolve discrimination claims relating to disability, and particularly where the resolution would not have been available to a court, such as an apology or non-financial restitution. We are interested in suggestions as to how ADR could work more effectively to resolve discrimination claims.”
The call for evidence runs to 19 February 2025. The MoJ said that, if a decision to introduce costs protection was made, “it may be that it is appropriate to pilot a new regime on disability claims in the first instance”.