Public law – Environmental cases – Access to review procedure – Aarhus Convention – Article 15a of Directive 96/61/EC Catchwords – Article 15a of Directive 96/61/EC – Requirement that review procedure not prohibitively expensive – House of Lords awarding costs against appellant after dismissing appeal – Proper application of Aarhus principles in assessment of costs – Guidance given – Costs awarded in favour of respondents
The appellant was a party to judicial review proceedings to challenge the grant to a cement-works operator of a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000, which implemented Council Directive 96/61/EC (the IPPC Directive) on integrated pollution prevention and control. The original claimant had appealed against the dismissal of the claim at first instance but had withdrawn at the end of the Court of Appeal hearing; the appellant was added as a party at that point in order to continue the appeal. The appeal was subsequently dismissed but leave was given to appeal to the House of Lords.
The appellant applied for a waiver of the requirement to pay £25,000 as security for cost on such an appeal and for a protective costs order (PCO), but the appeal committee refused that application. In doing so, it rejected the appellant’s submissions based on article 15a of the IPPC Directive and article 10a of Directive 85/337/EEC (the EIA Directive). Those articles implemented the Aarhus Convention by providing, in similar terms, that members of the public should have access to a review procedure that was “not prohibitively expensive” in order to challenge the substantive or procedural legality of environmental decisions. Although both directives applied to the case, the appeal committee considered that information on the appellant’s means was material to the issue and that she had not made any case for saying that the proceedings would be prohibitively expensive. The appeal was dismissed in what was then the House of Lords (see [2008] UKHL 22) and the appellant was ordered to pay the respondents’ costs. The latter lodged bills totalling £88,100.
On the assessment of costs, the costs officers decided, as a preliminary issue, that they were entitled to consider the application of the directives, since the House of Lords had not already considered that matter in its earlier costs decisions, and that they should disallow any costs that were prohibitively expensive. On a review of that decision by the full court, it was held that the costs officers did not have jurisdiction to consider the issue but that the full court could consider it under its jurisdiction to correct a possible injustice: see [2010] UKSC 57. The court then made a reference to the Court of Justice of the European Union (CJEU) to clarify the meaning of the expression “prohibitively expensive”; the order for costs was stayed in the meantime. The CJEU subsequently gave its judgment on the reference: see Edwards v Environment Agency (No 2) Case C-260/11 [2013] 1 WLR 2914.
The costs hearing was further deferred until after the receipt of an Advocate General’s opinion in infraction proceedings against the United Kingdom relating to alleged non-implementation of the directives; that opinion was given in European Commission v United Kingdom Case C-530/11. The court then proceeded to its decision on costs.
Held: Costs were awarded in favour of the respondents.
The following guidance could be derived from the CJEU judgment in Edwards (No 2): (i) the test of prohibitive expense was not purely subjective. The cost of proceedings should not exceed the financial resources of the person concerned not appear to be objectively unreasonable, at least in certain individual cases. The justification for the requirement related to the objective of the relevant European legislation, namely to ensure that the public played an active role in protecting and improving the quality of the environment; (ii) the CJEU had not given definitive guidance on how to assess what was “objectively unreasonable” and, in particular, had not adopted the suggestion of Sullivan LJ, contained in his 2008 report on Ensuring Access to Environmental justice in England and Wales, of an objective assessment based on the ability of an ordinary member of the public to meet the potential liability for costs. Although the CJEU had not rejected that matter as a possible factor in the overall assessment, it had indicated that exclusive reliance on the resources of an “average applicant” was not appropriate since it might have little connection with the situation of the person concerned; (iii) the court could also take into account the “merits” of the case, including whether the claimant had a reasonable prospect of success, the importance of what was at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, and the potentially frivolous nature of the claim at its various stages; (iv) the fact that the claimant had not in fact been deterred from carrying on the proceedings was not in itself determinative; and (v) the same criteria were to be applied on appeal as at first instance. That last point did not mean that the same order had to be made at each stage of the proceedings, or that there should be a single global figure covering all potential stages, but rather that the same principles should be applied to the assessment at each stage, taking account of costs previously incurred: European Commission v United Kingdom Case C-530/11 considered.
(2) Regarding the factors identified by the CJEU in (iii) above, in relation to the “merits” of the claim, and in light of the guidance given by the Advocate General in European Commission v United Kingdom Case C-530/11, the following considerations applied: (i) reasonable prospect of success: the lack of a reasonable prospect of success in a claim might be a reason for allowing the respondents to recover a higher proportion of their costs. Since “frivolity” was mentioned separately suggested that more was envisaged than the threshold test of reasonable arguability; (ii) the importance of what was at stake for the claimant: that factor was likely to increase the proportion of costs fairly recoverable, since a person with extensive individual economic interests at stake in the proceedings might reasonably be expected to bear higher risks in terms of costs; (iii) the importance of what was at stake for the protection of the environment: that was likely to be a factor reducing the proportion of costs recoverable, or eliminating recovery altogether, since the environment could not defend itself but needed to be represented by concerned citizens acting in the public interest; (iv) the complexity of the relevant law and procedure: the relevance of that factor was that a complex case was likely to require higher expenditure by the respondents and thus, objectively, to justify a higher award of costs. Although the CJEU had mentioned only complexity of law or procedure, similar considerations might apply to technical or factual complexity; and (v) the potentially frivolous nature of the claim at its various stages: the respondents should not have to bear the costs of meeting a frivolous claim. In domestic judicial review proceedings, whether at first instance or on appeal, that issue was likely to be resolved in favour of the claimant by the grant of permission.
(3) Applying the foregoing principles to the instant case, an award of £25,000 costs against the appellant was not prohibitively expensive. That was the amount of the security already paid by the appellant as the condition for bringing the appeal and the respondents were not now seeking to recover more than that sum. It was not “subjectively” unreasonable since there was no evidence that it was beyond the appellant’s means or would cause her hardship and she had chosen to proceed with her appeal in full knowledge of the risks involved. As to whether there was some objectively determined lower limit, the respondent should not be confined to the figure of £5,000 now embodied in the High Court rules by virtue of the amendment to the CPR made in 2013. The new rules applied only to proceedings commenced after June 2013 and in any event recognised that, while the same general principles applied on appeal, the factors affecting the judgment of what was reasonable might have changed. Moreover, the factors that justified a relatively low standard figure for an advance cap, including the desirability of avoiding satellite litigation in advance of a hearing on the merits, would not apply with the same force to consideration after the event. At that stage, the court would be in a better position to take a view on both the “merits” of the case and on the costs incurred and their consequences for the parties. The test in principle remained the same but the court was considering it in a difference context.
As to the “merits” of the instant case, factors (ii) and (v) could be discounted since there was no evidence that the appellant had any economic interest of her own in the proceedings and, given the grant of permission at each stage, the proceedings could not be said to be frivolous. As to factor (iv), the case was relatively complex, the costs incurred by the respondents were not excessive in respect of the issues involved in the case and the and the figure of £25,000 now claimed represented a very significant reduction from those costs. The remaining factors (i) and (iii), concerning the prospects of success and the importance of the case for environmental protection, were at best neutral from the appellant’s point of view. Taking all those factors into account, it could not be said that the figure of £25,000, viewed objectively, was unreasonably high. Since that figure was neither subjectively nor objectively excessive, an order for costs in that amount would be made in favour of the respondents jointly.
David Wolfe QC (instructed by Richard Buxton Environmental & Public law, of Cambridge) appeared for the appellant; James Eadie QC and James Maurici QC (instructed by the legal department of the Environment Agency and the Treasury Solicitor) appeared for the respondents.
Sally Dobson, barrister
