Costs Immunity: Banishing the 'Bane' of Costs from Public Interest Litigation

For litigants raising a matter of public interest, the possibility of facing an adverse costs award if unsuccessful may act as a deterrent to pursuing their legal claim. The author evaluates a form of costs order called "costs immunity," referred to as "protective costs orders" (PCOs) in the U.K., as a means of removing the deterrent effect of costs on public interest litigants. Part Iprovides an overview of costs law in Canada. Part // reviews the various types of costs orders employed by Canadian courts to facilitate access to justice in public interest litigation. Part Ill explores the English experience with PCOs in public interest litigation, tracking the development of PCOs at common law Part IV addresses the decision in Farlow v Hospital for Sick Children, the first case to articulate a test for costs immunity orders in Canada.