Costs – Aarhus Convention cases – Costs capping – Appellants failing in judicial review claim and ordered to pay respondent’s costs – Costs capped under provisions of CPR 45 and Practice Direction 45 relating to Aarhus Convention claims – Appellants’ substantive appeal dismissed – Respondent cross-appealing against costs capping order in relation to second appellant local authority – Whether local authority entitled to costs protection – Cross-appeal dismissed
In August 2014, the appellants were unsuccessful in a claim for judicial review of safeguarding directions issued by the respondent secretary of state, under the Town and Country Planning (Development Management Procedure) (England) Order 2010, in respect of phase 1 of the proposed HS2 high-speed rail link to run between London and Birmingham: see [2014] EWHC 2759 (Admin); [2014] PLSCS 237. The judge ordered the appellants to pay the respondent’s costs of the proceedings but capped their liability at £10,000 each, pursuant to the provisions for Aarhus Convention claims in CPR 45.41 and para 5.1 of Practice Direction 45. The judicial review claim had proceeded on the basis that the decision to make the safeguarding directions was a decision on environmental matters which was subject to the provisions of the Aarhus Convention and therefore attracted the requirement, in Article 9 of the Convention, that proceedings to challenge the decision should not be “prohibitively expensive”.
The Court of Appeal dismissed the appellants’ appeal against the judge’s substantive decision in the proceedings: see [2014] EWCA 1578; [2014] PLSCS 346. It then proceeded to determine a cross-appeal by the respondent against the decision to cap the costs liability of the second appellants, who were a local authority. The respondent contended that local authorities were not entitled to the costs protection of CPR 45.41 and could not be a “claimant” for the purposes of para 5.1 of Practice Direction 45. He submitted that the relevant provisions of CPR 45 and the Practice Direction had to be construed in the light of their purpose of implementing the protections of the Aarhus Convention, which drew a distinction between “the public”, on whom it conferred rights, and “public authorities”, on whom it imposed duties. He submitted that a local authority was a “public authority” for that purpose and was not therefore entitled to the protection conferred by Article 9(3) on “members of the public”.
Held: The appeal was dismissed.
The wording of CPR 45.41(2), referring to judicial review of a “decision, act or omission”, made it clear that the characterisation of a judicial review as an “Aarhus Convention claim” depended on the nature, or claimed nature, of the decision, act or omission that was the subject of the claim. While it was necessary to have regard to the Aarhus Convention for the purpose of determining that issue, once it had been resolved, the costs liability of a party to that claim was dealt within in CPR 45.43 and Practice Direction 45 without further reference to the Aarhus Convention.
The provisions of section VII of CPR 45, incorporating CPR 45.41 to CPR 45.44, were not entirely Aarhus-compliant since a decision had been taken to limit Aarhus costs protection to judicial review claims, thus excluding statutory appeals against environmental decision: Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539; [2014] PLSCS 332 applied. In its responses to consultation on the provisions, the government had expressed a concern that the new costs protection rules should not undermine legal certainty and promote satellite litigation, thereby increasing the potential for delay in the challenge process. Against that background, it was not appropriate to infer a limitation excluding “public authorities, as defined in the Aarhus Convention, from those claimants who could benefit from costs protection under para 5.1(b) of Practice Direction 45 in an Aarhus Convention case. To infer such a limitation would do that which the government had sought to avoid, namely to undermine legal certainty and promote satellite litigation, so increasing the potential for delay in the challenge process. Moreover, CPR 45.43 expressly provided that the Practice Direction could prescribe a different amount for the costs cap according to the nature of the claimant. Accordingly, if it was considered that a higher figure would not be prohibitively expensive for local authority claimants in general, or for particular kinds of local authority, then the Practice Direction could prescribe such higher figure.
The provisions of section VII of Part 45 of the CPR and Practice Direction 45 were clear and it was neither necessary nor appropriate to refer to the Aarhus Convention in order to place a gloss upon the ordinary and natural meaning of the word “claimant” in Practice Direction 45. Practice Direction 45 meant what it said. Any potentially bizarre consequences that might flow from giving the word “claimant” its ordinary and natural meaning were more theoretical than real. In the great majority of cases, central government would be the defendant, not the claimant, in any environmental challenge. Moreover, given the deliberately broad definition of “public authority” in Article 2(2) of the Aarhus Convention, no less bizarre consequences might result from denying costs protection to all “public authority” claimants who sought to challenge, on behalf of their local inhabitants, major environmental decisions taken by central government.
Charles Banner (instructed by Nabarro LLP) appeared for the second appellant; James Maurici QC and Jacqueline Lean (instructed by the Treasury Solicitor) appeared for the respondent; the first appellant did not appear and was not represented.
Sally Dobson, barrister
Click here to read transcript: R (on the application of HS2 Action Alliance Ltd and another) v Secretary of State for Transport
