The case of R versus Environment Agency and others (Number 2) (2013) UK SC 78 is perhaps now the leading case on the application of the Aarhus Convention in domestic law insofar is that convention is concerned with questions of cost. The Aarhus Convention requires that proceedings to which it applies should be “fair, equitable, timely and not prohibitively expensive”.
Although the Convention is not directly applicable in domestic law the same requirements have been incorporated into European Union directives relating to environmental impact assessment and integrated pollution prevention and control.
Quickly recapping the litigation concerned a cement works in rugby, Warwickshire. The environment agency had issued a permit to continue operations with an alteration in its fuel from coal and petroleum coke to shredded tyres.
This decision enraged the public who started a public campaign, one such opponent being a local pressure group engagingly called “Rugby in Plume”. The litigation proved a disaster for the claimant who lost in the High Court and the Court of Appeal and then ultimately in the House of Lords, though curiously at a late stage in the Court of Appeal the claimant was substituted for another individual. To get to the House of Lords, she was obliged to put down £25,000 as security for costs.
On 18 July 2008 costs of the appeal in the House of Lords were ordered against the claimant in favour of the Environment Agency and the Secretary of State who then claimed a total sum of just over £88,000.The problem created for a litigant of modest means who pursues an appeal is plain and obvious: the costs that may be incurred even if assessed down to what the court considers reasonable and proportionate may yet prove to be prohibitively expensive for an individual.
In those circumstances how is the court to give effect to the United Kingdom’s international obligations to ensure that environmental litigation is not “prohibitively expensive”?
As is well known on 1 April 2013 there was an amendment to the civil procedure rules to deal precisely with this issue. In relation to claims in the High Court for judicial review to limits were set on the costs recoverable from a claimant by defendant of £5000 with the claimant is an individual and £10,000 in any other case and on the costs recoverable by claimant from a defendant a limit of £35,000
For appeals a new rule was added in CPR 52:
Orders to limit the recoverable costs of an appeal
(1) In any proceedings in which cost recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to-
(a) the means of both parties;
(b) all the circumstances of the case; and
(c) the need to facilitate access to justice.
(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).
(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise
In the Supreme Court the Costs Practice Direction Number 13 was amended with effect from November 2013 to include a specific provision for “an order limiting the recoverable costs of an appeal in an Aarhus convention claim”.
Canny observers will note that whilst in proceedings at first instance the rules make it easy to determine what an individual’s costs liability will be both in terms of their own costs and cost they may be ordered to pay for example a local authority, the position is more open textured once one goes to the Court of Appeal and potentially above.
In those circumstances how is the discretion given to the court by the rule and the practice direction to be exercised. The answer seems to lie in a judgement of the European Court of Justice in the Edwards case reported as Edwards versus The Environment Agency (number 2) (case C-260/11) (2013) 1WLR2914. As noted by the Supreme Court the substantive guidance was set out in full:
40 That assessment cannot, therefore, be carried out solely on the basis of the financial situation of the person concerned must also be based on an objective analysis of the amount of the costs, particularly since, as has been stated in paragraph 32 of the present judgement, members of the public and associations are naturally required to play an active role in defending the environment. To that extent, the cost of proceedings must not appear, in certain cases, to be objectively unreasonable. Thus, the cost proceedings was neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable.
41 As regards the analysis of the financial situation of the person concerned, the assessment which must be carried out by the national court cannot be based exclusively on the estimated financial resources of an average applicant, since such information may have little connection with the situation of the person concerned
42 The court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure in the preferred potentially frivolous nature of the claimant its various stages.
43 It must also be stated that the fact, put forward by the Supreme Court of the United Kingdom, that the claimant has not been deterred, in practice, from asserting his or her claim is not in itself sufficient to establish that the proceedings are not, as far as the claimant is concerned, prohibitively expensive for the purpose (as set out above) of directives 85/337 and 96/61.
44 Lastly, as regards the question whether the assessment as to whether or not the costs are prohibitively expensive ought to differ according to whether the national court is deciding on costs at the conclusion of first instance proceedings, an appeal or a second appeal, an issue which was also raised by the referring court, no such distinction is envisaged in directives 85/337 and 96/61, nor, moreover, would such an interpretation be likely to comply fully with the objective of the European Union legislature, which is to ensure wide access to justice and to contribute to the improvement of environmental protection.
45 The requirement that judicial proceeding should not be prohibitively expensive cannot, therefore, be assessed differently by national court depending on whether it is adjudicating at the conclusion of first instance proceedings, an appeal or second appeal
The Supreme Court summarised the points which could be extracted from the European Court of Justice’s judgement in the following way:
- First the test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor appear to be objectively unreasonable, at least in certain cases (the meaning of the latter qualification is not immediately obvious, but it may be better expressed in the German version meaning simply in individual cases). The justification is related to the objective of the relevant European legislation referred to in paragraph 32 of the judgement which is to ensure that the public plays an active role in protecting and improving the quality of the environment.
- The court did not give definitive guidance as to how to assess what is objectively unreasonable. In particular it does not in terms adopt Sullivan LJ’s suggested alternative of an objective assessment based on the ability of an ordinary member of the public to meet the potential liability for costs. While the court did not apparently reject that as a possible factor in the overall assessment, exclusive reliance on the resources of an average applicant was not appropriate, as it might have little connection with the situation of the person concerned.
- The court could also take into account what might be called the merits of the case: that is in the words of the court whether the claimant has a reasonable prospect of success, importance what is at stake for the claimant and the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim that its various stages.
- That the claimant is not in fact been deterred from carrying on the proceedings is not in itself determinative.
- The same criteria are to be applied on appeal as at first instance.
In the event the Supreme Court limited the costs which had to be payable by the losing party to the £25,000 which she had already provided as a term of pursuing her appeal to the House of Lords. An excellent example of the judgment of Solomon, in the context of environmental litigation. Given that the amendments to the civil procedure rules have largely overtaken the issues in this litigation, the focus of the judgement will be undoubtedly on cases that proceed to the Court of Appeal.
Although certainties provided by the fixed costs prescribed by the rules deal with the position in the High Court one has to view with unease the potential arbitrary nature of any Order provided by the Court of Appeal and the scope that this might create for tactically stifling any appeal which does not proceed with the benefit of for example legal aid funding.