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Aarhus costs and Article 6 ECHR - Court of Appeal refuses permission to appeal

The Court of Appeal (Lewison LJ.) has refused Mrs Venn permission to appeal against the refusal of Ouseley J. to grant her permission to apply for judicial review of the Government’s failure to amend the Aarhus costs capping provisions in the Civil Procedure Rules so as to include statutory planning challenges such as those under s.288 of the Town and Country Planning Act 1990 following the Court of Appeal's earlier judgment in Venn v. SSCLG [2015] 1 W.L.R. 2238 in which it held that, due to the wording of the current CPR provisions, Aarhus costs caps are only available in judicial review claims, even though the resulting lack of costs protection in statutory challenges could lead to breaches of Article 9 of the Aarhus Convention.

Mrs Venn sought judicial review on the basis, amongst other things, that (i) it was unreasonable for the Government to fail to give effect to the Court of Appeal’s finding that the current scope of the costs rules in the CPR did not give full effect to the Aarhus Convention and that (ii) the effect of the lack of costs protection in her case had resulted in a breach of her right to a fair trial under Article 6 ECHR.

Ouseley J. had held that (i) the Aarhus grounds were not justiciable since they were based upon direct reliance upon an unincorporated treaty, (ii) if there had been an Article 6 ECHR basis for a protective costs order then it could and should have been made to the Court of Appeal in support of her application for a PCO and (iii) in any event “there is no basis for saying that Article 6 would be breached in every environmental case, or indeed any other sort of case where a litigant’s resources, or decision as to how to spend the resources led them to abandon or not to bring or defend litigation”.

Refusing permission to appeal, Lewison LJ adopted Ouseley J.’s reasoning.

The Order of Ouseley J. can be viewed here and the Order of Lewison LJ can be viewed here. 

James Maurici QC and Charles Banner acted for the Government respondents (the Secretary of State for Justice, the Secretary of State for Environment Food and Rural Affairs, and the Secretary of State for Communities and Local Government), instructed by Joe Sullivan of the Government Legal Department. Jacqueline Lean also advised the Government respondents.

The issue of whether and if so in what circumstances the lack of costs protection in environmental cases may breach Article 6 ECHR is currently the subject of an application to the European Court of Human Rights: App. 39714/15 Austin v. UKCharles Banner is acting as sole counsel for the United Kingdom in those proceedings.