Hot air

March is proving to be the conference season. Fresh from the Ropewalk Chambers Personal Injury Conference on Friday, I note that I am giving a presentation at the Credit Hire Conference in Manchester on 2nd April 2020 and also, attending the Costs in Judicial Review conference organised by the Public Law Project in London, on 19th March 2020.

Regrettably, I shall now be unable to attend the Personal Injury Bar Association conference in Oxford at the end of the month, but that is a mixed blessing: fascinating presentations by eminent speakers are counterbalanced by sleeping on a plank in the austere environs of St Catherine’s College in a throwback to Oxford’s clerical traditions for two nights.

It is also the season of public law challenges as the legal year begins to pick up pace. A very important decision in terms of judicial review in the environmental context was handed down some ten days ago: the judgment in the Court of Appeal on the public law challenge to the proposed third runway at Heathrow.

The full judgment of the Court of Appeal can be read here: Heathrow-judgment-on-planning-issues-27-February-2020 but the summary of the judgment, itself an unusual step notes the following:

1. This morning we are handing down the judgments of this court in a number of related proceedings that have come before us from the Divisional Court, which concern the proposed expansion of capacity at Heathrow Airport by the addition of a third runway under the policy set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (“the ANPS”). That document, designated by the then Secretary of State for Transport in June 2018, is a national policy statement prepared under section 5(1) of the Planning Act 2008. It was subject to a number of legal challenges brought by claims for judicial review in accordance with the procedure that Parliament has provided for such challenges to be brought, in section 13(1) of the Planning Act.

9. However, we have concluded that the challenges should succeed in one important respect. This relates to the legislative provisions concerning the Government’s policy and commitments on climate change, in particular the provision in section 5(8) of the Planning Act, which requires that the reasons for the policy set out in the ANPS “must … include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016 (paragraphs 222 to 238 and 242 to 261).

10. We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not (paragraph 283).

11. That, in our view, is legally fatal to the ANPS in its present form. As we have explained, the normal result in a successful claim for judicial review must follow, that the court will not permit unlawful action by a public body to stand. Appropriate relief must therefore be granted, as normally it will be where unlawfulness in the conduct of the executive is established (paragraph 284). The Secretary of State did not contend that, if this was our conclusion, the outcome would or might have been no different – though such an argument was pursued by Heathrow Airport Ltd. In our view, it is necessary to grant a suitable remedy at this stage to ensure, at least, that the ANPS does not remain effective in its present unlawful form pending the outcome of its statutory review – under section 6 of the Planning Act – in the light of the Paris Agreement (paragraph 278). Section 6(5) of the Planning Act states that “[after] completing a review of all or part of a national policy statement the Secretary of State must do one of the following … (a) amend the statement; (b) withdraw the statement’s designation as a national policy statement; (c) leave the statement as it is” (paragraph 39).

12. The parties have had an opportunity in the light of our draft judgments to make submissions to us on the appropriate remedy to reflect the conclusions we have reached. In the light of those submissions, we have concluded that the appropriate remedy is a declaration, the effect of which will be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant statutory provisions, including the provisions of section 6, 7 and 9 of the Planning Act 2008. Any such review would have to be conducted in accordance with the judgment of this court. The initiation, scope and timescale of any review must and will be a matter
for the Secretary of State to decide (paragraphs 279 to 280).

13. Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed (paragraph 285).

14. We should add finally that, having seen our judgment in draft, the Government has not opposed the grant of a remedy. Nor has the Government sought permission to appeal from our decision to the Supreme Court.

Judicial review like public law litigation generally, is a difficult area of practice. The procedural dice are very much loaded in favour of the public law decision maker, whether that be by the limited grounds upon which judicial review can be brought, or the very short time limits, within which any such challenge must be made or by the requirement for permission.

One other issue that might prove problematic is the expense of such litigation: but in England and Wales the government has been forced to modify the normal rules on costs which apply to a judicial review claim in this context by dint of international obligations contained in the Aarhus Convention to which the United Kingdom is a party, including especially a requirement to ensure that legal costs are not rendered prohibitively expensive: because such expense might render an ostensible right of challenge to a court, nugatory, if a claimant cannot afford to bring proceedings.

This in turn has required amendment, on several occasions now, to the recesses of part 45 CPR which reads as follows:

45.41

(1) This section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims.

(2) In this Section—

(a) “Aarhus Convention claim” means a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”);

(b) references to a member or members of the public are to be construed in accordance with the Aarhus Convention.

(3) This Section does not apply to appeals other than appeals brought under section 289(1) of the Town and Country Planning Act 1990 or section 65(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which are for the purposes of this Section to be treated as reviews under statute.

An “Aarhus Convention claim” is the key concept: if the claim falls within this category as defined in rule 45.41, the peculiar rules on costs pertinent to Aarhus Convention claims apply.

In order to rely upon the rules, the claimant in such a claim must pray them in aid, and also file and serve a schedule of her means.

45.42

(1) Subject to paragraph (2), rules 45.43 to 45.45 apply where a claimant who is a member of the public has—

(a) stated in the claim form that the claim is an Aarhus Convention claim; and

(b) filed and served with the claim form a schedule of the claimant’s financial resources, which is verified by a statement of truth and provides details of—

(i) the claimant’s significant assets, liabilities, income and expenditure; and

(ii) in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided.

(2) Subject to paragraph (3), rules 45.43 to 45.45 do not apply where the claimant has stated in the claim form that although the claim is an Aarhus Convention claim, the claimant does not wish those rules to apply.

(3) If there is more than one claimant, rules 45.43 to 45.45 do not apply in relation to the costs payable by or to any claimant who has not acted as set out in paragraph (1), or who has acted as set out in paragraph (2), or who is not a member of the public.

A claimant can then achieve the benefit of a costs capping order.

45.43

(1) Subject to rules 45.42 and 45.45, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule 45.44.

(2) For a claimant the amount is—

(a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person;

(b) £10,000 in all other cases.

(3) For a defendant the amount is £35,000.

(4) In an Aarhus Convention claim with multiple claimants or multiple defendants, the amounts in paragraphs (2) and (3) (subject to any direction of the court under rule 45.44) apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties.

Although the default levels of such an order are prescribed by the rules, and they are weighted in the claimant’s favour, the court has a discretion to vary the amounts. This brings the concept of the Aarhus costs capping jurisdiction into line with more conventional costs capping orders. The procedure for seeking a variation is as follows:

45.44

(1) The court may vary the amounts in rule 45.43 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim.

(2) The court may vary such an amount or remove such a limit only on an application made in accordance with paragraphs (5) to (7) (“an application to vary”) and if satisfied that—

(a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and

(b) in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant.

(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant; or

(b) are objectively unreasonable having regard to—

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous.

(4) When the court considers the financial resources of the claimant for the purposes of this rule, it must have regard to any financial support which any person has provided or is likely to provide to the claimant.

(5) Subject to paragraph (6), an application to vary must—

(a )if made by the claimant, be made in the claim form and provide the claimant’s reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant;

(b) if made by the defendant, be made in the acknowledgment of service and provide the defendant’s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant; and

(c) be determined by the court at the earliest opportunity.

(6) An application to vary may be made at a later stage if there has been a significant change in circumstances (including evidence that the schedule of the claimant’s financial resources contained false or misleading information) which means that the proceedings would now—

(a )be prohibitively expensive for the claimant if the variation were not made; or

(b )not be prohibitively expensive for the claimant if the variation were made.

(7) An application under paragraph (6) must—

(a) if made by the claimant—

(i) be accompanied by a revised schedule of the claimant’s financial resources or confirmation that the claimant’s financial resources have not changed; and

(ii) provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made; and

(b) if made by the defendant, provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made.

(Rule 39.2(3)(c) makes provision for a hearing (or any part of it) to be in private if it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.)

A defendant may deny that the claim is an Aarhus Convention claim at all: in which case the issue must be adjudicated upon speedily by the court to determine if that allegation is well founded:

45.45

(1) Where a claimant has complied with rule 45.42(1), and subject to rule 45.42(2) and (3), rule 45.43 will apply unless—

(a) the defendant has in the acknowledgment of service—

(i) denied that the claim is an Aarhus Convention claim; and

(ii) set out the defendant’s grounds for such denial; and

(b) the court has determined that the claim is not an Aarhus Convention claim.

(2) Where the defendant denies that the claim is an Aarhus Convention claim, the court must determine that issue at the earliest opportunity.

(3) In any proceedings to determine whether the claim is an Aarhus Convention claim—

(a) if the court holds that the claim is not an Aarhus Convention claim, it will normally make no order for costs in relation to those proceedings;

(b) if the court holds that the claim is an Aarhus Convention claim, it will normally order the defendant to pay the claimant’s costs of those proceedings to be assessed on the standard basis, and that order may be enforced even if this would increase the costs payable by the defendant beyond the amount stated in rule 45.43(3) or any variation of that amount.

The Aarhus Convention and its costs capping jurisdiction is a welcome addition to the rules which govern judicial review; because although a claimant may be able to find solicitors and counsel to act on a conditional fee basis, since the introduction of LASPO 2012 with the reduction in Legal Aid and abolition of recoverable ATE premiums, finding protection from adverse costs can be problematic.

Perhaps predictably, the government has set its face against introducing similar principles for mainstream judicial review claims, as being a principal target for public law litigation it has no wish to encourage these cases. Turkeys after all, do not vote for Christmas.

But it may be that public law litigation is going to increase anyway, as the government moves into uncharted territory with its Brexit based initiatives. In environmental terms, if the government is now obliged to take into account or rather to take proper account of climate change considerations and emissions, when building roads, railways or other large infrastructure, there may be a particular rise in Aarhus Convention claim accordingly.

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