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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