Waste management – Nuisance – Expert witness – Appellants obtaining interim injunction in private nuisance claim – Court discharging injunction and ordering appellants to pay respondent’s costs – Judge ruling evidence of expert inadmissible on ground of bias – Whether judge erring in law in making costs order – Whether judge applying correct test in excluding expert evidence – Appeals allowed
The appellants lived near a composting site that the respondent operated a under planning permission that had been granted by the council and a waste-management licence that had been issued by the Environment Agency. They frequently complained of smells emanating from the site, but the enforcement action taken by the authorities did not resolve the problem to their satisfaction. Accordingly, they began their own proceedings in private nuisance for an injunction and damages.
In November 2007, the county court granted an interim injunction pending trial and reserved the costs of the interim application to the trial judge. Following representations by the council and the Environment Agency, the judge discharged the interim injunction and ordered the appellants to pay the respondent’s costs. The appellants sought permission to appeal against the costs order on the ground that it contravened the Aarhus Convention under which costs in environmental proceedings should not be prohibitively expensive. The application was adjourned and the costs order was stayed.
The trial of the action began on 7 April 2008. The appellants objected to the evidence of the respondent’s odour expert on the ground of apparent bias. The judge ruled that that evidence was inadmissible on the basis that the expert was not independent because he was employed by a company that had advised the council on waste-planning matters. The judge adjourned the proceedings and ordered the respondent to pay the appellants’ costs. The court subsequently gave the respondent permission to appeal against that order (the expert witness issue) and directed that that appeal should be heard with the appellants’ adjourned application for permission to appeal against the interim costs order (the interim costs issue), with the hearing to follow directly were permission to be granted.
Held: The appeals were allowed.
With regard to the interim costs order, in a case of this kind, where the merits of the interim application were so closely linked with the merits of the case overall, the judge should have considered the desirability of leaving issues of costs between the principal parties to be resolved when the final result was known.
The court was reluctant to interfere with the judge’s decision on costs if to do so resulted in satellite litigation at the interlocutory stage. Furthermore, it was often difficult to consider the merits of a costs order except in the context of the merits of the substantive order to which it was linked. In the instant case, the judge’s decision to discharge the interim injunction was not being appealed and its merits were therefore not in issue. In all the circumstances, the respondent’s costs would be reserved to the trial judge: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council (Costs) [2004] EWCA Civ 1342; [2005] JPL 25, R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600 and R (on the application of Buglife: The Invertebrate Conservation Trust) v Thurrock Gateway Development Corporation [2008[ EWCA Civ 1209; [2008] 45 EG 101 (CS) considered.
With regard to the expert witness issue, the judge’s order on admissibility would be set aside because he had applied the wrong test. Expert evidence came was varied and involved many different types of issue. It was always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he or she gave evidence, but such disinterest was not automatically a precondition to the admissibility of the evidence. The material before the judge did not support his apparent finding of a kind of institutional bias. Nor had there been any significant breach of the obligation to inform the court of a potential conflict of interest: Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No 2) [2002] EWCA Civ 932; [2003] QB 381 applied.
The question of whether an expert should be permitted to give evidence should be determined in the course of case management. In considering that question, the judge had to weigh the alternative choices should the expert’s evidence be excluded, having regard to the overriding objective of the Civil Procedure Rules. Even if the judge’s concerns in respect of the position of the expert witness had been well founded, to rule the evidence inadmissible once the trial was under way was wrong.
Per curiam: The principle of the Aarhus Convention whereby costs should not be prohibitively expensive, which applied to private nuisance proceedings, was at most a matter to which the court might have regard in exercising its discretion. No legal principle would enable the court to treat a purely treaty obligation, even one adopted by the European Community, as having been converted into a rule of law directly binding on the English courts.
David Hart QC and Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellants; Stephen Tromans and Richard Wald (instructed by Bond Pearce LLP, of Bristol) appeared for the respondent; David Wolfe (instructed by Leigh Day) appeared for the intervenor.
Eileen O’Grady, barrister
