Slow but steady on access to environmental justice from supreme court

20 December 2010 by

R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment

The development of the principles of access to justice in environmental cases moves on apace.

This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.

The case failed on the merits at first instance and on appeal. Although she was granted leave to appeal to the House of Lords, the appellant failed to obtain an order from their Lordships to dispense with the requirement to give security of costs;  they also refused her a protective costs order, which would have capped her liability of the appeal. She was therefore ordered to pay the respondents’ costs in full.

The Supreme Court was established before costs were assessed under the House of Lords’ order and therefore it was under the Supreme Court jurisdiction that two costs officers were appointed to carry out a detailed assessment of the costs payable by the appellant. The question was whether, in carrying out this assessment, the costs officers had any jurisdiction to implement the Aarhus principles as set out in the EIA and IPPC Directives, not only as directly effective principles but also as a relevant consideration as part of an international Treaty provision.  They decided that they did, since the House of Lords had not already decided the point; therefore they would disallow any costs which they considered to be prohibitively expensive. This goes beyond the normal power of a costs officer to consider the reasonableness of the winning party’s costs – a test which does not take in to account the losing party’s ability to pay, or public interest principles such as lie at the heart of the Aarhus Convention and leading cases on protective costs orders such as Cornerhouse.

“Prohibitively expensive”

The cost officers’ decision that they had jurisdiction to implement the Directives was set aside.  The question of prohibitive expense was one for the Court itself when making a costs order rather than when assessing how much is to be paid under an existing order.  More uncertain – and therefore one for a reference to the ECJ – was the matter of what is required by way of information about the claimant’s means, before making a costs order. A preliminary ruling is awaited.

The Supreme Court accepted the appellant’s submissions that the House of Lords had not fulfilled its obligation to take measures necessary to achieve the objectives of the Aarhus Convention as implemented by the EIA and IPPC Directives. Since the Lords had determined the costs question in this case, there had been developments  which suggest that a different approach should have been adopted.

The House of Lords had rejected the appellant’s application, on the grounds, amongst other things, that she had not made full disclosure of her means. This purely subjective approach – assessing costs on the basis of a particular  claimant  – did not fulfil the Aarhus requirements as interpreted by  Suliivan LJ in R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006.

There are other recent considerations, particularly the Jackson Review of  of Civil Litigation Costs and its requirement that in  environmental judicial review cases that the costs ordered against the claimant “should not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances”, which is an “entirely different proposal” to that in the 2010 Sullivan Update Report which says that an unsuccessful claimant in judicial review proceedings should not have to pay the costs of any other party unless they have acted unreasonably in bringing or conducting the proceedings. These two pieces of guidance now have to be read in the light of the Aarhus Convention Compliance Committee’s conclusions that the public interest nature of environmental claims does not seem to have been given sufficient consideration in the apportionment of costs by the courts in this country.

It is clear that the test which the court must apply to ensure that the proceedings are not prohibitively expensive remains in a state of uncertainty. The balance seems to lie in favour of the objective approach, but this has yet to be finally determined.

Hence the reference to the ECJ. It will be interesting to see which way the ruling goes; if it is established that an objective test is the only one that will fulfil the Aarhus requirements, it will mean that claimants will be able to seek protective costs orders and cost capping without any disclosure of means – provided of course that the proceedings involve an environmental issue and raises points of public importance.

The distinction between claimants qualifying for this threshold and those who are still governed by the normal costs rules will consequently become a critical, and costly one, creating fertile ground for preliminary point litigation.  On the other hand, such a move will be an entirely welcome one in terms of improving access to the courts for environmental litigation, by eliminating at a stroke interim procedures concerning means, which under the current system for protective costs orders threatens to destroy that which is sought to be achieved by them.

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