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Protective Costs Orders

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[Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary]

The Court of Appeal has handed down its judgment in Eweida v British Airways, deciding that a protective costs order is not available in private litigation.

The appellant claimed discrimination on grounds of religion, and harassment, following a decision by British Airways that she could not wear a visible cross with her uniform. She was unsuccessful in the employment tribunal and EAT. She wished to appeal to the Court of Appeal but sought a Protective Costs Order ('PCO') to protect her against having to pay the respondent's costs if her appeal was unsuccessful.

The Court of Appeal unanimously held that such orders are only available in public litigation. While the appellant's claim concerned issues of general importance, it was a claim by an employee against her employer for her personal benefit and did not therefore come within the governing principles for PCOs outlined within R(Corner House Research) v Secretary of State for Trade and Industry (2005), which relate to protecting litigants raising issues of public interest who would not be able to pursue their claim but for the PCO.