73 - Global Feedback Redux

tap* *tap*

Hello, is this thing on? Testing…testing…

Well, here it is. My inaugural blog post. And I can hear audible sighs of delight at the prospect of returning (via Northern Ireland) to the decision in HM Treasury v Global Feedback Ltd [2025] EWCA Civ 624. This blog gave you a handy precis of the Court of Appeal’s decision back in May last year (here), and the decision went on to top our mid year case law roundup in which it was described (by my esteemed colleague Alex Shattock) as an “Aarhus bonanza”.

The bonanza looks set to continue this year. The Supreme Court granted leave to appeal on 30 October 2025, and the hearing date is set for 11 June this year. All we need to do now is to wait with bated breath for the outcome….

But perhaps not. Just before Christmas, the Court of Appeal in Northern Ireland handed down a decision in which it clearly set out the scope for further argument on Global Feedback (and the earlier decisions it affirmed) in that jurisdiction, ostensibly pending the decision of the Supreme Court.

Duff v Planning appeals Commission [2025] NICA 70 concerned an application for judicial review of a decision allowing (in part) an appeal against a planning enforcement notice. In short, the Court of Appeal characterised the challenge as purely factual in nature and dismissed the appeal.

There had been no argument on (or objection to) the application of Aarhus costs protection – despite the appellant’s failure to engage at all with Art 9(3) of the Aarhus Convention in his application for judicial review. It appears from the judgment that this lack of engagement – described as “essential in future cases” (at [59])– provided a springboard for the Court to pass comment on the “misunderstanding of Aarhus Convention costs protection orders” (at [30]).

The subsequent summary of costs protection regime under the Aarhus Convention (from [53]) is a useful aide memoire of the key concepts, including the decision in Global Feedback. In addition, the Court’s doubts about the application of Aarhus costs protection on the facts of the case (at [60]) may be developed further in subsequent cases in Northern Ireland. The suggestion that there may have been no contravention of national environmental law by the Planning Appeals Commission is of particular interest, if a broader point is being made about the application of costs protection to this category of judicial review claim (cf. the approach to Aarhus costs in the context of statutory challenges in England and Wales).

However, it is the Court’s observations on Global Feedback which are worth particular attention for the purpose of this blog. Having summarised the key findings of the Court of Appeal in that case (at [57]), the Court went on:

[58] The decision in [Global Feedback] is notable for its detailed analysis and reasoning. In the context of this appeal, we confine ourselves to the three-fold observation that (a) there has been no adversarial argument on its correctness, (b) being a decision of the English Court of Appeal it is not as a matter of precedent binding on this court (noting our recent and necessarily cursory comment in Rana v Bouliach [2025] NICA 62, at [15]) and (c) its interaction with the earlier decisions noted might be productively revisited. For present purposes, it suffices to observe that there may be scope for further legitimate argument on this trilogy of decisions [Venn v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 2328 and Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012, in addition to Global Feedback] of the English Court of Appeal in a suitable future case. Finally, this court notes that leave to appeal to the UK Supreme Court in HM Treasury has recently been granted.”

Overall, a clear indication for the impatient amongst us to “watch this space” in Northern Ireland. Never fear, dear reader(s), for this blog is ever watchful. Until next time…

This blog post was written by Rebecca Sage.

----------------

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Margherita Cornaglia - Margherita’s public law practice often involves acting in claims raising environmental and climate change related issues. For instance, she acted as junior counsel in the judicial review of the Government’s Third National Adaptation Programme (NAP3), pursued with an Aarhus costs cap, advancing novel arguments under Part 4 of the Climate Change Act. She also acted as junior counsel for community claimants in the Launders Lane litigation, challenging Havering Council’s refusal to designate Arnold’s Field as contaminated land; that claim likewise proceeded with Aarhus costs protection to secure effective participation and accountability. Beyond litigation, she has advised solicitors on the Government’s recent consultation concerning access to justice in relation to the Aarhus Convention, drawing on her broader practice representing NGOs and affected communities in environmental and climate cases.

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.

– Rebecca Sage - Rebecca is a junior tenant at Landmark Chambers with a growing practice in planning and environmental law. She is regularly instructed on matters engaging the Aarhus Convention, usually through the lens of judicial review. Rebecca has a developing interest in this complex and important area of the law and its implications for access to information, public participation in decision-making and access to justice.