Albie Sachs – start with the issues, forget the parties

27 April 2011 by

Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 – read judgment

Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.

I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.

There are various strands with which the UK judiciary (without, it has to be said, any help from recent government) is struggling to weave a coherent and fair system of costs.

The first is pure judge-made law, namely the power to make a Protective Costs Order, made in advance of the main hearing of the issues. A PCO abates completely or caps the costs bill which a claimant might have to pay a defendant. Strictly speaking the Corner House rules require that no private interest be held by those seeking a PCO, but, after a long and winding road, the Court of Appeal in Garner has more recently confirmed that this criterion should be applied “flexibly” – judge-speak for “you can ignore it if other factors favour a PCO“. Another criterion is that, but for the PCO, the claimant would be deterred from bringing or maintaining the litigation.

The second is Convention-made law, namely Article 9 of the Aarhus Convention which requires that environmental disputes, including those between private litigants, should not be prohibitively expensive; this protection against prohibitive costs orders can be conferred pre-emptively (like a PCO) or retrospectively (when considering costs at the end of a hearing). In some specific instances, this is directly incorporated into domestic law via an EU provision- if the challenge is, e.g. about Environmental Impact Assessment or the grant of certain environmental permits. In all other environmental cases, Aarhus plays a part – whether this is as a discretionary factor (Morgan) or as something more sterner than that (see, e.g. Lesoochranárske zoskupenie VLK – the “Slovakian Bear case” ) is still being worked out.

The third is the judge’s ability to make a prospective costs-capping order , where one aspect of the exercise is to take into account any substantial imbalance in the financial position of the parties. There are no cases so far on the reach of this obligation.

Quite how these strands fit together is still unclear, but the position appears to be that, in public interest and environmental cases, a court can in advance decide how much, if anything, an unsuccessful claimant should pay, and that this must reflect his means or the means of an “ordinary” person (the CJEU will be ruling on this distinction in due course). It is public interest that triggers the PCO jurisdiction, and an environmental case is, in effect, deemed to be public interest – because an international convention says so. The UK courts understandably do not like environmental cases being privileged over other public interest cases. But the effect of this has to be that non-environmental public interest cases must be brought up to the level of protection afforded to environmental cases – to sink the latter to the level of the former would be in breach of Aarhus.

Now to the South African case, the simplified title of which (Biowatch v. Registrar of Genetic Resources et al, Monsanto interveningperhaps tells the whole story. Biowatch, an NGO, wanted some information about GMOs from various governmental bodies. It went about it in a rather scattergun way, though ultimately was successful in persuading a court to give it most of the information under access to information legislation. Monsanto intervened, partly to protect some confidential information, and partly to support the governmental refusal to give any of the information sought. Biowatch ended up being disallowed its costs against the governmental defendants, despite “winning”, and also being ordered to pay Monsanto’s costs. Both elements were upheld by the intermediate South African courts, but reversed by the Constitutional Court.

Sachs J (Albie Sachs) gave the judgment of the Constitutional Court. He considered arguments which will be familiar to those arguing about PCOs; Biowatch and various amici curiae stressed the role of public interest advocacy groups in promoting constitutional litigation, not on its own behalf, but in the public interest. Monsanto said that Biowatch had  “inserted itself” into a matter in which it had no direct interest of its own, and accordingly had to bear the consequence of its “inappropriate” involvement.

His response reads like a breath of fresh air. His view was that it is not correct to begin the enquiry with a characterisation of the parties.

Rather, the starting point should be the nature of the issues. Equal protection under the law requires that costs awards not be dependent on whether the parties are acting in their own interests or in the public interest…The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice. [para.16]

He later observed that courts are obliged to be impartial with regard to litigants who appear before them.

Thus, litigants should not be treated disadvantageously in making costs and related awards simply because they are pursuing commercial interests and have deep pockets. Nor should they be looked on with favour because they are fighting for the poor and lack funds themselves. What matters is whether rich or poor, advantaged or disadvantaged, they are asserting rights protected by the Constitution. [para.17]

We of course do not have a constitution. However, we have an amalgam of public, EU and common law principles, and human rights, out of which most of us can trace some central rights and values which we would describe (if pushed to do so) as constitutional – with a very very small “c”. Or, more modestly, we could identify without too much trouble what we would decide to be public interest litigation, usually involving some enforcement or clarification of the general law.

Sachs J is surely right to start with the issues, and ignore the parties. This makes one think whether the PCO jurisdiction got wrongly diverted into considerations such as lack of private interest and the means of the claimant seeking a PCO, rather than just concentrating on the public interest nature of the litigation which should determine whether some different costs regime should apply.

Sachs J was well aware of the consequences of going for the issues, rather than the parties. He had sat, not long before, on the 2007 Fuel Retailers Association  case, in which he had stated, about a environmental challenge to the grant of a permit for a new filling station, that

It is ironic that the first appeal in this Court to invoke the majestic protection provided for the environment in the Bill of Rights comes not from concerned ecologists but from an organised section of an industry frequently lambasted both for establishing world-wide reliance on non-renewable energy sources and for spawning pollution. So be it. The doors of the Court are open to all, and there is nothing illegitimate or inappropriate in the Fuel Retailers Association of Southern Africa seeking to rely on legal provisions that may promote its interests.

This is one of the issues which Jackson LJ found difficulty with when considering whether to recommend that the rule that the claimant loser pays no costs (Qualified One Way Costs Shifting, in the jargon) should apply in public interest cases – whatever the position of the claimant. Indeed, ignoring the big pocket of the claimant running a public interest case, for his own benefit, sounds odd at first blush. But the sort of satellite questions which you have to get determined before you achieve a PCO or Aarhus order in your favour are so considerable (and, in themselves, costly – you end up thinking about getting a PCO to get a PCO) that you wonder whether back to the drawing-board might not be a bad idea for most cases. Courts would then concentrate on determining what really is public interest litigation – not easy to determine on the margins, but pretty straightforward at the centre.

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