E, R (on the application of) v Governing Body of JFS & Anor

Factual and Procedural Background

The case concerns the refusal by the School Governing Body (a voluntary-aided comprehensive school in The Borough) to admit the Respondent’s child for the 2007/2008 academic year. Admission was denied because the child was not recognised as Jewish by the Office of the Chief Rabbi, a criterion used when the school was oversubscribed.

The Respondent sought judicial review alleging racial discrimination under the Race Relations Act 1976 and breach of the public sector equality duty. Judge Munby (sitting in the Administrative Court) upheld only the equality-duty complaint. On appeal, the Court of Appeal held that the school’s oversubscription policy constituted direct or, alternatively, indirect racial discrimination, quashed the refusal to admit, and ordered costs against the school (50 %) and the Religious Organization (20 %).

Leave to appeal on the discrimination issues (and, for the Religious Organization, on costs) was granted to the newly created Supreme Court. After the Court of Appeal’s stay expired, the child was admitted, effectively rendering the admission dispute moot, but the substantive legal questions and cost liabilities remained.

This judgment deals solely with a procedural application by the Respondent for a protective costs order (“PCO”) that would prevent the Appellants from recovering any costs from either the Respondent or the Legal Services Commission (“LSC”) in the Supreme Court, thereby preserving the Respondent’s entitlement to public funding.

Legal Issues Presented

1. Whether the Court should grant a protective costs order shielding the Respondent and the LSC from any adverse costs orders in the Supreme Court appeal.
2. Whether the LSC’s decision to withhold funding unless such a PCO was obtained was lawful under the Access to Justice Act 1999, the Community Legal Service (Cost Protection) Regulations 2000, and the Funding Code.

Arguments of the Parties

Respondent’s Arguments

• The PCO was necessary to secure continued public funding; without it the Respondent would be forced to abandon participation, undermining the public interest in full argument.
• The criteria in R (Corner House Research) v Secretary of State for Trade and Industry supported the making of a PCO because the appeal raises issues of general public importance and the Respondent has no substantial private stake after his child’s admission.

Legal Services Commission’s Arguments

• Funding would be refused unless the Respondent secured either (a) a costs-neutral agreement with the Appellants or (b) a PCO eliminating the Fund’s exposure.
• The refusal was justified by proportionality considerations in the Funding Code: the child was already admitted, the beneficiary group was said to be small, and the potential costs exposure to the Fund was high.

Appellants’ Arguments

• The requested PCO would unfairly deprive the School Governing Body of its statutory right under regulation 5(3)(d) of the 2000 Regulations to seek a costs order against the LSC if it were successful.
• The Respondent had already received funding below and the LSC should continue funding without shifting risk onto the Appellants; otherwise the LSC’s stance was arguably unlawful.
• A PCO would render the Religious Organization’s separate appeal on costs “pointless.”

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hope, Judge Hale, and Judge Brown analysed the application as follows:

1. Stage of Proceedings and Legitimate Expectation – The Respondent had been publicly funded throughout and was successful below. Ordinarily, that carries a reasonable assurance that funding will continue through any appeal initiated by the losing side.
2. Statutory Framework – Section 11 of the Access to Justice Act 1999 and regulation 5(3)(d) give successful non-funded parties a potential right to recover costs from the LSC. The LSC’s stance sought to negate that protection without statutory basis.
3. Funding Code Provisions – Parts A and C create a presumption of continued funding in cases of significant wider public interest, especially at a late procedural stage. None of the exceptional reasons for discharge applied; the Respondent remained financially eligible, and the merits were unchanged.
4. Public Interest and Access to Justice – The appeal raises fundamental questions about racial discrimination in school admissions. Adequate representation for both sides is essential and cannot be secured in time by appointing an amicus.
5. Comparison with Weaver – Unlike Weaver, the Respondent here still faced personal costs risk and retained a tangible interest (the pending private claim and the principle at stake). Therefore, denial of funding absent a PCO was less justifiable.
6. Wednesbury Unreasonableness – Given the considerations above, the LSC’s refusal was so unreasonable that it was unlawful. Compelling reasons would be required to withdraw funding in these circumstances, and none were shown.
7. Impact on Legal Aid Providers – The Court stressed the negative systemic consequences of routinely denying inter partes costs where publicly funded parties succeed; such a practice would undermine the viability of legal aid representation.

Holding and Implications

HOLDING: The Court REFUSED to grant the protective costs order. Instead, it declared that the only reasonable course open to the Legal Services Commission is to continue funding the Respondent for the Supreme Court appeal without requiring a PCO. The LSC was ordered to pay the costs of the procedural application to the Respondent and the Appellants, and an anonymity order protecting the child’s identity was continued.

Implications: The decision reinforces that, once public funding has been granted and a litigant succeeds, the Legal Services Commission will ordinarily be expected to fund that litigant through any ensuing appeal brought by the other side. It also affirms that protective costs orders are exceptional when a party is already entitled to statutory cost protection and that withdrawing legal aid in such situations may be unlawful. No new substantive precedent on discrimination law was set; the ruling pertains solely to cost-funding principles.