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Aarhus Compliance Committee issue draft findings in communication ACCC/C/2012/77 concerning compliance by the United Kingdom

The Aarhus Compliance Committee have issued draft findings in Communication ACCC/C/2012/77 brought by Greenpeace and which alleges that the costs it was ordered to pay when it was refused on the papers permission to apply for judicial review of the decision of the Secretary of State for Energy & Climate Change to designate the NPS for Nuclear Power Generation under the Planning Act 2008 were prohibitively expensive in breach of Article 9(4) of the Aarhus Convention: see http://www.unece.org/env/pp/compliance/compliancecommittee/77tableuk.html

The draft findings are that the United Kingdom has “failed to comply with article 9, paragraph 4, of the Convention since the cost order awarded against the communicant in this case made the procedure prohibitively expensive”. 

The draft findings (available on the website of the Committee, see above) state: 

The Committee considers that the particular context in which the application for permission to apply for judicial review was submitted in the present case is relevant for determining whether the costs ordered were prohibitively expensive in the sense of article 9, paragraph 4, of the Convention. The following elements are important in understanding the context:

    • the designation of the unmodified NPS, in the wake of the Fukushima accident and after the publication of the interim report by the Chief Inspector for Nuclear Installations;

    • the Interim Report contains recommendations that clearly relate to the safety of nuclear installations and to the public interest in the protection of the environment;

    • the communicant was seeking to defend that interest in challenging the NPS and the only available option for doing so was the submission of an application for permission to apply for judicial review, public participation on the NPS having been finalized prior to the Fukushima accident; and

    • during the course of the application for judicial review the communicant furthermore incurred the costs of its own lawyers while bringing a case that was in the public interest. 

In the light of the above, the Committee finds that the amount of £8,000 that the communicant was ordered to pay the defendant makes the procedures prohibitively expensive, even if the court, in revising the original amount (£11,813.00) took into account the fact that the communicant was acting in the public interest.

In coming to the above conclusion the Committee took into account the fact that the communicant did not apply for a Protective Cost Order (PCO) nor exhaust all domestic remedies, namely to appeal the costs award or to seek the renewal of its application for permission to apply for judicial review. With respect to the communicant’s failure to apply for a PCO, the Committee recalls from its findings on ACCC/C/2008/33 that the Sullivan Report estimated the cost of seeking a PCO to be in the order of £2,500-£7,500 plus VAT with no certainty that after incurring such expense that a PCO would actually be granted.[1] With respect to the communicant’s decision not to appeal the costs award nor to seek the renewal of its application for permission to apply for judicial review, the Committee considers that, after being ordered to pay £8,000 (initially £11,813) for merely the pre-action protocol stage, the communicant’s decision not to pursue further domestic remedies for fear of facing even higher costs was entirely understandable. The Committee thus finds that neither the communicant’s failure to apply for a PCO nor to appeal the costs award or to seek renewal of its application for permission preclude the Committee’s finding that the amount of £8,000 made the procedure prohibitively expensive in the circumstances of this case.

The Committee also points out that the present communication needs to be distinguished from its findings on communication ACCC/C/2008/23. In the latter case the communicant had agreed that the costs awarded against it were not prohibitively expensive.

In the light of the above considerations, the Committee finds the Party concerned to be in non-compliance with article 9, paragraph 4, of the Convention due to the cost order awarded against the communicant which rendered the procedure prohibitively expensive.

...

The Committee notes that the new rules on costs introduced in the Civil Procedure Rules and in effect since April 2013, would not in principle prevent a situation similar to the one in the present communication from arising.  The Party concerned informed the Committee that “the £10,000 cap applies to all the first instance stages, including the permission stage, providing a collective overall limit for these stages.” A claimant who is refused permission to apply for judicial review in the permission stage thus could still face a cost order of up to £10,000, which if the courts were to apply the Civil Procedure Rules in this manner may lead to non-compliance in practice. 

The UK and the communicant have been invited to provide comments on the draft by the end of the month. 

[1] Ibid, paras. 129-131

James Maurici QC appeared for the UK Government when the communication was heard in Geneva.