Costs in public interest litigation: whose pocket should be picked?

Abstract

In Hong Kong, the development of public interest litigation faces mounting difficulties due to the lack of means to secure funding to finance judicial review applications. While activists and non-governmental organizations are anxious to test the constitutionality of legal provisions and the legality of alleged wrongful acts by the public authorities in order to pursue their causes, they are, as depicted by Hartmann J, “placing [their] neck[s] beneath the guillotine of costs” in the process as they have to bear the uncertain risks of the respondent public authority's legal costs if they do not succeed in the challenge. This article will discuss the funding system and the costs jurisprudence of public interest litigation in Hong Kong. It will seek to argue for an expansion of the funding regime for public interest litigation. In light of the public benefits arising from public interest litigation in the elucidation of public law, promotion of deliberative democracy and good administration, the court should adequately reflect such benefits in the cost allocation of public interest cases. Costs discretion should be exercised in a flexible and purposive manner, with due regard to access to justice concern, so that the future development of public interest litigation will not be unnecessarily stifled.