“I wonder if anyone ever took a case on this before?” is a question that people interested in law often consider, perhaps when reading the newspaper or examining a law book. That person may believe that they would have grounds to take a public interest case. The problem is, of course, that they have not got the money to take the case. There is a risk however: a person could be certain their case is in the public interest but if they lose, they may have to pay the other side’s costs and that could be very expensive indeed.
Protective costs orders can alleviate this problem. It is open to a court to order how the costs will be spilt between the parties at the outset of the case regardless of the final outcome. They exist to facilitate public interest cases so that the applicant does not have to stop taking their case of public importance purely because of financial reasons.
Ireland’s first protective cost order was granted on 16th July this year in the case Max Schrems v Data Protection Commissioner.
Mr. Schrems is an Austrian post-graduate law student who is an online privacy campaigner. He is the chair of the Europe v Facebook campaign. Mr. Schrems made a complaint to the data protection commissioner about concerns that Facebook Ireland was sending users’ personal data to the United States, where it could be viewed by the National Security Agency.
After the Data Protection Commissioner chose not to investigate as they believed that users’ privacy was already protected, Mr. Schrems issued judicial review proceedings to challenge the decision. In the High Court, Justice Hogan agreed that Mr. Schrems complaint was not frivolous or vexatious and that it raised serious issues in European Union Law.
Funding of the case presented Mr Schrems with serious difficulty however. Mr. Schrems therefore decided to apply for a protective costs order to alleviate the risk of facing a huge costs award against him, should his challenge be unsuccessful.
In his decision on the application for a protective costs order, Mr Justice Hogan acknowledged that there was a financial barrier to Mr. Schrems pursuing his challenge. He considered the importance of this case for the public interest. Mr Justice Hogan stated that finances should not stop Mr. Schrems simply because he was only on the “cusp of his career” and decided to grant a Protective Cost Order, which capped Mr. Schrem’s costs at €10,000.
The granting of this order is a very significant and welcome development. It will hopefully set a precedent for other plaintiffs engaged in similar litigation to seek Protective costs order, to enable them to pursue public interest despite the financial risks and constraints.
Áine Bullock
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