Private nuisance – Article 6 and the costs conundrum

400px-Ffos_Y_Fran_open_cast_mine,_Merthyr_TydfilCoventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

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Successful A1P1 claims by photovoltaics

Breyer Group plc and others v Department of Energy and Climate Change [2014] EWHC 2257 (QB) – Coulson J read judgment 

This is an important judgment on governmental liability for a rather shabby retrospective change of the rules about subsidies for photovoltaic schemes. The Court of Appeal had decided in 2012 that the changes were unlawful: see judgment  and my post here.  The question in Breyer was whether businesses could obtain damages under A1P1 arising out of the Secretary of State’s decision. Though the judgment proceeds on a number of assumed facts, some critical findings of law were in favour of the businesses.

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Chagossians: Wikileaked cable admissible after all

Diego_garcianBancoult v Secretary of State for Foreign and Commonwealth Affairs  [2014] EWCA Civ 708 – read judgment

Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see hereherehere and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.

There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review

(i) its decision in favour of a Marine Protected Area  was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT;

(ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and

(iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union.

I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.

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Golf course judicial review case reversed on appeal

22-ep-cherkley-court-2-W1200Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment

 The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here)  that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.

 The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.

The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.

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Bad and Very Bad judges


9780854901418A recent, short (71 pages), and interesting book on the phenomenon of the bad judge, by Graeme Williams Q.C: details here.   You may not be surprised to read that, libel laws being what they are, all the subjects of Williams’ book are in their graves. But, as the author points out, the lessons derived from their badnesses live on.

A number of themes emerge.

The first is that bad judges are often clever judges, but people temperamentally ill-suited to listening patiently to other people – which is unsurprisingly a large part of their job.

The second is that some of the most disastrous appointments are truly political ones. Mercifully we now have a sophisticated system of judicial appointments which is currently divorced from the rough and tumble of politics – though with the politicisation of the office of the Lord Chancellor, and the shrilling-up of the press debate about “unelected judges etc etc” we need to keep a beady eye on that. We also have judicial training and all judges will have sat as part timers before they get appointed, so the worst instances of unsuitability get weeded out before they get the full-time job.

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Chagossians update

330px-Chagosmap

A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean. 

Here are the headlines, with a reminder of what these cases are about:

First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area. 

Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.

Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.

Now to a little more detail.

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CA says Prince Charles’ advocacy letters should be produced

article-2218614-15875C88000005DC-566_634x536R (o.t.a Rob Evans) v. Attorney-General,  Information Commissioner Interested Party, 12 March 2014 - read judgment

The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.

At that point, the Attorney-General intervened and signed a certificate saying “no”.

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Supreme Court brings private nuisance into the 21st century

270866141Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment

The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim?

Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later – can they get an injunction to stop the noise or should they be confined to damages?

 And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.

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Aarhus: CJEU rules against UK costs regime

F_AarhusConventionCommission v. UK, judgment of CJEU, 13 February 2014  – read judgment – UPDATED

Litigation costs are troublesome, but they are particularly difficult in environmental cases where the claimant is not necessarily pursuing his private interests. This case is the result of a long-running and successful campaign by NGOs to persuade the EU Commission to investigate UK environmental legal costs. The main finding may not bother the UK too much, because wisely it saw this one coming and changed costs rules in environmental public law cases. A subsidiary ruling about cross-undertakings has also been more recently included in a rule change.

 

All of this comes from Article 9 of the Aarhus Convention (to which the EU has subscribed) which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. Continue reading

Grayling’s proposals for environmental and planning judicial review

mus_1192620167Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014

At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.

This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.

Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.

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High speed rail, Parliament, and the EU Courts

World war one tankR (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, [2014] UKSC 3 – read judgments

So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.  

The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the  Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.

Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the  Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates. Continue reading

What really goes on in the Supreme Court

9781849463836On 9 December 2013, Professor Paterson launched his new book, Final Judgment (Hart Publishing, absolutely no relation), via the Second annual Bailii lecture, Decision-making in the UK’s top court – read lecture here, order book here (£21.25, Amazon) or direct from the publishers at £20 here (reference ‘PATERSON’ to get the further discount)

The lecture summarises a wise, perceptive, and at times funny work of scholarship, and this post is an unashamed plea that you read the book as well as the lecture.

The book is based upon over 100 interviews with Law Lords, Justices and counsel. Paterson is particularly well-placed, having carried out a review in the 1970s with 15 then current or former Law Lords and 46 counsel. He has also looked at the judicial notebooks of two of the outstanding leaders of the judicial House of Lords, namely Lord Reid in the 1960s and 1970s, and Lord Bingham in the 2000s. These notebooks contain not only records of counsel’s arguments, but also details of what the Law Lords or Justices thought at the end of the “first conference” held immediately after the oral hearing. And the revelation was that in many important cases the judges’ view shifted between that conference and the ultimate decision, often with a critical impact on the outcome. One of the particular interests of the book is to follow through the big cases of the last years, and see how the judges ended up where they did.

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The Supreme Court on “prohibitively expensive” costs: Aarhus again

R (Edwards & Pallikaropoulos) v. Environment Agency et al, Supreme Court, 11 December 2013 read judgment

This is the last gasp in the saga on whether Mrs Pallikaropoulos should bear £25,000 of the costs of her unsuccessful 2008 appeal to the House of Lords. And the answer, after intervening trips to the Supreme Court in 2010 and to the CJEU in 2013, is a finding by the Supreme Court that she should bear those costs.

The judgment by Lord Carnwath (for the Court) is a helpful application of the somewhat opaque reasoning of the European Court on how to decide whether an environmental case is “prohibitively expensive” per Article 9(4) of the Aarhus Convention, and thus whether the court should protect the claimant against such liabilities. The judgment also considers the guidance given by A-G Kokott more recently in infraction proceedings against the UK for breaches of that provision: see my post.

But note that the dispute has been largely overtaken by recent rule changes, and so we should start with these before looking at the judgment.

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Materiality in environmental judicial review

luftbild_web_klein_bGemeinde Altrip et al v. Land Rheinland-Pfalz, CJEU, 7 November 2013 – read judgment

When you challenge a decision in the courts on the basis that it was unlawful, you must show that the wrong is material. The other side may say that the wrong led to no difference in the decision; it would have inevitably have been the same even if the defendant had acted lawfully. The onus is on you the claimant, but it is not at the moment a high one. Only a possibility of a different outcome is enough to get you home and the decision quashed.

This materiality issue was one of the points in this challenge by local landowners to a flood retention scheme affecting some 320 ha of their land in the former Rhine flood plain. The scheme had undergone an environmental impact assessment which the locals said was defective. But did the locals have to show that correcting the defects might have made a difference to the ultimate decision? That was one of the questions which the German federal administrative court referred to the EU Court.

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Renewable energy ambitions of the Scottish Ministers “trounce the law of the land”

march-image350The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.

In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.

If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.

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