Lawyers for Mr Grayling argued that taxpayers should not have to foot the bill.
But yesterday a judge ruled that the relatives, who have formed the Plantagenet Alliance Ltd to fight for the remains to be buried at York Minster, are entitled to a protective costs order (PCO).
Richard’s bones were discovered buried under a council car park in Leicester last year and the plan is for them to be re-interred at the city’s cathedral.
But the relatives claim it was the King’s wish to be buried in York and have launched what the judge has described as “Wars of the Roses Part II”.
The Plantagenet Alliance is seeking a High Court judicial review and accusing the Justice Secretary of failing to consult properly before giving archaeologists from the University of Leicester licence to excavate and to decide where the bones should be reburied.
Judge Mr Justice Haddon-Cave observed: “It seems that this case will be hard fought, despite entreaties, with no quarter being given on either side”.
Tom Weisselberg, representing Mr Grayling, had urged the judge to reconsider his decision to grant a PCO. Mr Weisselberg said: “It is wrong in principle that the taxpayer should be required to bear the risk of the entire cost of this litigation – that is the effect of the PCO your lordship has granted.”
Gerard Clarke, appearing for the Alliance, said the PCO was justified because the case raised an important legal issue concerning the proper application of the 1857 Burial Act in relation to archaeological discoveries.
Ruling in favour of the Alliance, the judge said the Justice Secretary had argued that there was no “public interest” in the outcome of the judicial review – merely “a parochial interest by York sympathisers driving the claim”.
The judge said Mr Weisselberg had argued that the interests of the public about where Richard’s remains should be interred were “entirely served by a public debate on the matter”, and it was sufficient that the issues were “ventilated” in the newspapers.
Disagreeing, the judge said: “In my judgment, this argument is flawed and heretical. It ignores the fundamental need for the court to ensure that the due processes of the Common Law are adhered to.”