78 - Aarhus costs - a problem that needs a solution

During one of the CMCs for the Heathrow litigation (R. (Spurrier) v Secretary of State for Transport [2020] P.T.S.R. 240) the then Planning Court Liaison Judge, Holgate J., raised the question of what could be done if a party with the benefit of Aarhus costs protection behaved in a procedurally unreasonable way thereby causing other parties to the litigation to incur significant additional costs which they were unable to cover because of the overall £5,000 or £10,000 cap imposed by the Aarhus costs rules.

I have been thinking about this again this week given some pretty unreasonable behaviour on post-permission procedural matters on the part of a claimant with Aarhus costs protection and where my client is an interested party with no chance whatsoever of recovering any costs given the cap.

The issue arises because:

1. Costs under the CPR are intentionally designed to impose a disciplining effect on parties, promoting efficiency, proportionality, and responsible behaviour in civil litigation.
2. Aarhus costs protection is determined very early in the proceedings, usually at the permission stage, and once it is held that the case is an Aarhus Convention claim the grounds on which the cap in favour of the claimant may be revisited are very limited indeed (see CPR 46.27(6)). The grounds do not include, for example, that the claimant with the benefit of the costs cap has acted unreasonably and thus caused the other parties to waste additional costs. What is said in the rules is that an application to vary a cap if made at any time later than the responding parties’ summary grounds is only possible “if there has been a significant change in circumstances (including evidence that the schedule of the claimant’s financial resources contained false or misleading information) which means that the proceedings would now— … (b) not be prohibitively expensive for the claimant if the variation were made.” The criteria for what is "prohibitively expensive" are set out and do not specifically reference unreasonable behaviour. Rather, they focus on financial resources and objective reasonableness given factors such as the importance of the case, its complexity, and whether the claim is frivolous.
3. The hard line the ACCC has taken with the UK on its costs regime does not leave much room for any possible amendment of the rules to deal with this situation. For example, by making any cap subject to a rule that it may be set aside if there has been unreasonable conduct by the party concerned. No doubt, it would be said, that this would cause uncertainty and have a chilling effect on environmental litigation. (A chilling effect on unreasonable behaviour more like … - ed).
4. Now I accept that it is not that common for those with the benefit of Aarhus costs protection to behave unreasonably but it DOES happen. In one case, long ago, when acting for the Government I reserved my position to raise the issue where the claimants had introduced very late on in the proceedings several lever arch files of evidence thus necessitating an adjournment. But nothing ever came of this …
5. One way to deal with this problem is for the Court to be very active in its management of Aarhus Convention claims in terms of making orders that curtail or prevent any unreasonable conduct on pain of the proceedings being struck out if the rules and/or orders are not complied with. That said the Planning Court does not always have the resource to be as active as it needs to in case management.
6. Another possibility is a wasted costs application, or the threat thereof, against the legal representatives of the party concerned. These are provided for by the Senior Courts Act 1981 s. 51(6) and 7, CPR 46.9 and CPR PD 46 at para. 5. But such orders are very rarely made: see Fordham Judicial Review Handbook 8^th ed. at para 18.2.14. Moreover, it is difficult to predict what the ACCC would make of this. For my part I cannot see such an order would offend the protections in Article 9. The costs consequences do not fall on the party bringing the claim but their lawyers.
7. Anyone have any other bright ideas?

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

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.