Public law – Environmental cases – Access to review procedure – Aarhus Convention – Article 15a of Directive 96/61/EC – Article 10a of Directive 85/337/EEC – Requirement that review procedure not prohibitively expensive – House of Lords awarding costs against appellant after dismissing appeal – Whether Aarhus principles to be taken into account in assessing of costs – Whether such consideration barred by issue estoppel – Those issues determined in favour of appellant by costs officers – Costs officers’ decision overturned on review by full court
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 The original claimant had appealed against the dismissal of the claim at first instance but had withdrawn at the end of the Court of Appeal hearing; the appellant had been added as a party at that point in order to continue the appeal.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, on a preliminary issue, that: (i) where a court awarded costs, the task on assessment was to assess 100% of the reasonable costs awarded and that they had no power to vary the award of costs so as to allow less than 100% of the reasonable costs; (ii) however, compliance with the EU directives naturally fell within the definition of reasonableness and was a relevant factor for the costs judges to take into account on the detailed assessment of costs in cases to which the EU directives applied, unless the court awarding costs had already taken them into account; (iii) that factor had not already been taken into account by the House of Lords in its earlier decisions; (iv) in implementing the directives, the matters to be taken into account were similar to those that applied under section 11 of the Access to Justice Act 1999 in cases where costs were awarded against a party that was legally aided for some of the proceedings to which the costs order related; (v) accordingly, it was appropriate, in deciding reasonable costs, to disallow any costs that were considered to be prohibitively expensive; and (vi) the test of “prohibitive expense” in the 2008 Sullivan Report on Ensuring Access to Environmental Justice in England and Wales should be applied, namely that costs, actual or risked, should be regarded as prohibitively expensive if they would reasonably prevent an ordinary member of the public, who was neither very rich nor very poor and who would not be entitled to legal aid, from embarking on the challenge in question: The respondent applied for a review of that decision by the full court.
Held: A review was conducted accordingly.
(1) The costs officers’ view of their jurisdiction was misconceived. Unlike cases to which section 11 of the Access to Justice Act 1999 applied, there was no statutory direction giving to the costs officers the authority to depart from the ordinary basis of assessment by setting a limit on the amount that it was reasonable for the paying party to pay. Nor had there been any direction by the court that costs were to were to be assessed on anything other than the standard basis. Accordingly, the costs officers had to confine the exercise that they carried out to the one that they were directed to perform under the Supreme Court Rules 2009. It was not sufficient for them to refrain from deciding in advance of their assessment that the respondents would receive only a part of the assessed costs. They had also to refrain from introducing a different basis than that prescribed by the rules when they were carrying out their assessment. The test of reasonableness that they were required to apply was directed to their assessment of the costs incurred by the receiving party: see CPR 44.5 as to the factors to be taken into account by the costs judge when exercising the discretion as to costs. It was not directed to the entirely different question of whether the cost to the paying party would be prohibitively expensive, which is what the Aarhus test was concerned with.
(2) The rules recognised a division of responsibility between the court on the one hand and the costs officers on the other. The question of whether the review procedure was prohibitively expensive was a matter that could, and should, be addressed by the court itself. Although that should preferably be done at the outset of the proceedings, by means of an application for a PCO to meet the requirement that the proceedings should not be prohibitively expensive, the refusal of a PCO did not preclude further consideration of the matter by the court at the end of the proceedings, by setting a limit on the paying party’s liability which met the objectives of the directives. It did not need to carry out a detailed assessment of the costs in order to do that, any more than it did when making a protective costs order. The essential question was whether the bill of costs would be, or was, excessive bearing in mind the overriding requirement of access to justice. The costs officers, for their part, should confine their attention to the basis of assessment prescribed by r 50 of the 2009 Rules, subject to any directions that may be given to them by the court.
(3) It followed that the ruling by the costs officers that they had jurisdiction to implement the EU directives had to be set aside. The House of Lords had not addressed those issues in its decision to refuse a PCO. An injustice might have been caused by the failure of the House to address itself to the correct test in order to comply with the requirements of the directives The Supreme Court had the power to correct that injustice. However, no clear and simple answer was available on the question of the correct test under the directives; in any event, it could not be said to be so obvious as to leave no reasonable scope for doubt as to the manner in which the question would be resolved. It was therefore appropriate to refer the issue to the Court of Justice of the European Union for a preliminary ruling, with the costs order to be stayed pending that ruling.
David Wolfe (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the appellant; James Maurici (instructed by the legal department of the Environment Agency and the Treasury Solicitor) appeared for the respondents.
Sally Dobson, barrister
