CPR 45.41-44 provides a claimant with generous costs protection in environmental judicial review claims. In an ‘Aarhus Convention claim’, a party may not be ordered to pay costs exceeding the amount prescribed in the Practice Direction.
The Practice Direction specifies that the maximum liability of a claimant for the purpose of rule 45.43(1) is £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person; or otherwise £10,000. The defendant’s maximum costs liability is £35,000.
Environmental judicial review claims are sometimes brought by a number of different people. The question then arises: are they subject to a total potential costs liability of £5,000 between them, or do they each have a separate costs liability of £5,000?
The matter fell for determination by Collins J in R (Botley Parish Action Group) v Eastleigh Borough Council  EWHC 4388 (Admin). The claim in judicial review of a grant of planning permission was unsuccessful. The claim had been issued by a group of local residents, as an unincorporated association. At the start of the hearing, the Parish Council, who had been an interested party, applied to be joined as a claimant. The application was allowed.
After giving judgment, there were submissions made as to whether the costs should be capped at £10,000 (i.e. the higher of the two ‘individual’ caps), or £15,000 (the total of the two caps). The unincorporated association had previously had their costs capped at £5,000.
Collins J held that the court had discretion as to which approach to apply, and whether caps should be totalled across multiple claimants will depend on the facts and circumstances of the individual case. In the circumstances of the present case, the caps were to be totalled.
This approach has the advantage of flexibility, but it will leave claimants uncertain as to their ultimate costs liability before lodging a claim. This is potentially a serious disadvantage. A major benefit of the Aarhus costs capping rules in CPR 45.41-44 are that they enable claimants to calculate in advance what the worst possible outcome is in terms of costs, and therefore to determine whether they can afford to bring such a challenge. The result in the present case may be to deter actions brought by more than one claimant, since otherwise there is a risk of higher costs liability.