European Court of Human Rights delivers judgment dismissing an application relating to alleged prohibitive costs in a private law nuisance claim

The European Court of Human Rights has today delivered judgment in Application 39714/15 Austin v. United Kingdom, in which the applicant alleged that the refusal of the English courts to award her a protective costs order in a prospective private law nuisance claim against the operator of a mine near her home resulted in a breach by the UK of her ECHR rights.

The applicant’s central contention was the UK failed to provide an appropriate mechanism to secure the proper regulation of private sector activities and failed to protect her from dust and noise pollution from open-cast coal mining, because pursuing private nuisance proceedings carries a significant costs risk, in breach of her rights under Article 8 and Article 1 of Protocol No. 1 to the ECHR. Under Article 13, she alleged that she did not enjoy an effective remedy in respect of her complaints under Article 8 and Article 1 of Protocol No. 1.

The Court unanimously dismissed the claim on the basis that she had not invoked the ECHR in support of her claim for costs protection in the High Court and Court of Appeal (she had relied instead on the Aarhus Convention and the EIA Directive). It was only in her unsuccessful application for permission to appeal to the Supreme Court that she first mentioned the ECHR, and in those circumstances “the applicant cannot be said to have provided the domestic courts with the opportunity which is in principle to be afforded to a Contracting State by Article 31(1) of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it” (para. 43 of the judgment).

Nonetheless, the Court left open the question of whether there could in principle be an ECHR basis for affording a claimant costs protection in private law environmental litigation. Para.40 of the judgment stated that, in a case where it was alleged that the domestic courts had failed to protect a claimant from the actions of a private defendant because she had been unable to bring a private nuisance claim without incurring a significant costs risk, “the Court would not exclude the possibility that the State’s responsibility under the Convention could potentially be engaged.”

A copy of the judgment can be downloaded here.

Charles Banner represented the United Kingdom, instructed by the Government Legal Department.