A battle and a gamble: The spectre of an adverse costs order in constitutional litigation
Date of this Version
Extract: With the notable exception that an Attorney-General intervening is not liable to pay or entitled to receive costs, the High Court has almost invariably applied the indemnity rule, which is that the winner receives their costs of the litigation from the loser. This rule applies to the 'substantive' issues raised in a case and also to procedural' arguments over such things as standing. Constitutional cases are treated no differently from other cases. No special privilege applies to constitutional cases in light of the significant function they have in securing the rule of law through judicial review. In other words, you may need to pay the government to ensure that its acts are constitutional.
This document has been peer reviewed.