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Costs capping on the march? Aarhus communication on private law protective costs held to be admissable

Article 9(2) of the Aarhus Convention requires that members of the public (with a sufficient interest) should have access to the courts to challenge the legality of decisions, acts and omissions subject to the Convention’s provisions.  Article 9(3) provides the same rights in respect of ‘national law relating to the environment’.  The protections in Article 9 apply equally to claims against public authorities and claims against private persons.  Article 9(4) requires that such procedures shall be adequate, effective remedies and must be fair, timely and, crucially, not prohibitively expensive.

The UK Government, to ensure compliance with article 9, recently implemented changes to Part 45 of the Civil Procedure Rules (rules 45.41-45.44) introducing a cost capping regime for Aarhus cases in judicial review (with caps of £5000/£10,000 for Claimants and £35,000 for the Defendant public authority). 

On 28 June 2013 the Aarhus Compliance Committee held communication ACCC/C/2013/86 (available here) to be admissible.  Alyson Austin, the communicant, lives within 500 metres of coal mining operations in Wales.  Ms Austin, as well as other nearby residents, consider the noise and dust which emanates from those operations to constitute a nuisance.  The communication describes how in June 2010, Ms Austin and 491 other residents applied for a pre-action group litigation order but the application was dismissed by the High Court on 11 November 2010, following which the mining operator sought £257,104 for its pre-action legal costs. The group claim did not go ahead because of cost risks.  Ms Austin has since individually sought to commence proceedings, applying “for costs protection consistent with Articles 9(3) and (4) of the Aarhus Convention in order that she may once again seek a legal remedy.”

Ms Austin also sought assurance that the costs protection hearing would itself be ‘no order as to costs’.  On 31 January 2013, the High Court refused that request and ruled that the hearing should be costs in the application (i.e. the unsuccessful party pays the other side’s costs).  The communication states that “The High Court order of the 31.1.13 and the consequent costs exposure has prevented the communicant from proceeding with the one day costs protection hearing and has applied to stay the proceedings.”

The communication asserts that the protective costs regime in place in respect of such claims continues to be non-compliant with the requirements of Article 9.  Further non-compliance with Article 9(3) is said to arise by the UK:

1) failing to ensure that the courts are not preventing members of the public from exercising their rights under Article 9(3) and that judicial procedures (including private nuisance proceedings) are fair, equitable, timely and not prohibitively expensive under Art. 9(4); and
2) failing to recognise that, contrary to proposed Rule 45.41(2) of the Civil Procedure Rules5, an “Aarhus Convention claim” should not be limited to claims for judicial review and should include, for instance, a private nuisance claim such as the present case.”

Any expansion of the current Part 45 costs capping regime that applies in respect of judicial review into private nuisance litigation would be controversial.  In particular, the variable means of Defendants would, it is suggested, make the fixed cap of £35,000 that applies for judicial review defendants untenable.  So too, the wider the sphere of environmental litigation that benefits from an ‘enhanced’ protective cost regime, the greater the anomalies that will arise between such claims and other important or public interest but ‘non-environmental’ claims which do not benefit from such enhanced protection.