Aarhus: CJEU rules against UK costs regime

18 February 2014 by David Hart KC

Commission 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”.

To make it more complicated, this rule is strictly only part of EU law in specific contexts, namely under two directives concerned with industrial operations  (96/61, and its replacement) and environmental assessment (85/337 as amended) which got public participation provisions via Directive 2003/35.

Protective Costs case law

The Commission took up the cudgels. One of its arguments seems pretty scary to a common lawyer used to making sense out of judges’ case law – it was that you cannot transpose a directive via case law. The Court did not go quite that far. It said that it was not good enough to have a judicial practice under which a court could decline to order costs against an individual; the position was uncertain. There needed to be a rule of law stopping costs from being prohibitive [55], and the CJEU could not find such a rule of law in domestic cases about protective costs orders. It compared a debatable body of case law with what a directive requires – the conferring of specific and unequivocal rights on individuals. It could not find the precision and clarity in the case law [56], nor did the law have reasonable predictability [58].

The present rules (which arrived after the period under consideration in this case) do provide that precision. The details are in a previous post here, but the nub is that at first instance, per CPR 45.41 to 45.44 & Practice Direction 45, someone who brings a judicial review “all or part of which is subject to the provisions” of the Aarhus Convention may not be ordered to pay costs exceeding £5,000 for individuals and £10,000 for others. Costs recovery against a losing defendant (the reciprocal cap, in the jargon: see my post on the AG’s opinion) is usually capped at £35,000.

Just in case our Lord Chancellor was thinking of getting rid of these protective costs measures (and he sure does not like them in judicial review generally), this decision makes it crystal clear that the common law rules about Protective Costs Orders do not satisfy Aarhus when Aarhus applies.

The reciprocal cap

Now to the reciprocal cap limiting claimants’ cost recovery. AG Kokott thought that this also breached Aarhus – see her opinion here, and my post here. The CJEU did not adopt her findings, not, it appears, because it thought that they were necessarily wrong, but because the Commission had not sufficiently proved its case that the cap impaired access to justice. This will be a relief to the UK, though it is always open to someone else to have another go at proving what the Commission did not establish.

Cross-undertaking as to damages

But the CJEU did find that an undertaking as to damages by a claimant which is normally a requirement of courts  for getting interim relief is also in breach of Aarhus. Think a project which intends to go ahead despite the claim that it is unlawful. The claimant goes to court and says – stop whilst the case is ongoing. The courts typically require the claimant to say, well, if I am ultimately wrong, you can do me in damages for the loss of revenue between now and the ultimate judgment. Not many have the nerve or financial muscle to give such a promise – famously in Lappel Bank where the RSPB who were unwilling to give such an undertaking about the expansion of the port of Sheerness, no injunction was granted and the development proceeded – only for the ECJ to agree with the RSPB that the expansion was in breach of the terms of the Habitats Directive.

The CJEU thought that whilst such an undertaking was not automatically in breach of Aarhus, it had to be put in the balance when deciding whether the combined effect of the litigation was prohibitively expensive. Again, the Court pointed out accurately that there was currently no rule of law stopping such prohibitive expense – it was not good enough to assert, as the UK did, that such undertakings were not always imposed in practice. Nor was the Court impressed by the argument that not to require an undertaking meant that the successful defendant who won had his property unlawfully infringed per Article 1 Protocol 1. Exercise of someone’s right to property could be restricted if such restrictions corresponded to objectives of general interest, including the environment: [70].

The prospect of such a ruling on undertakings was also incorporated in domestic rule changes in April 2013. The ordinary requirement for an undertaking as to damages is to be found in CPR Practice Direction 25A, and under para.5.1B, if a court is considering whether to require an undertaking, it must have particular regard overall to ensure that continuing with the claim is not prohibitively expensive. This consideration cuts in only where an injunction is necessary to “prevent significant environmental damage”. This latter rider is not found in Aarhus, though the typical claim for an injunction may involve this.

So no huge surprises here. But let us not forget where we have got to – Aarhus remains important for ordinary people who wish to challenge environmental decisions. £5,000 will sound like a lot of money, but an unconstrained costs liability is a good deal worse.

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Related posts:

• The Supreme Court on “prohibitively expensive” costs: Aarhus again
• Aarhus, AG Kokott’s opinion and the reciprocal cap
• The CJEU on “prohibitively expensive” and the new protective costs order regime.
• Court of Appeal downplays Aarhus
• Environmental judicial review is “prohibitively expensive”, uncertain and insufficient 
• Why can’t objectors appeal a planning consent or environmental permit?