In Austin v Miller Argent (South Wales) Limited  EWCA Civ 1012, the Court of Appeal considered an application for a Protective Costs Order by a claimant in a private nuisance claim. Her claim related to substantial landscape work which was being carried out close to her home. She argued that the proceedings in nuisance would be prohibitively expensive if she was not granted a PCO which mean that she was exposed to no liability for the defendant’s costs, but that the defendant should pay her costs if she won.
The Court of Appeal noted that CPR 45.41ff imposes a PCO on “Aarhus Convention Claims” only in judicial review cases. However, this did not exclude the power of the court to grant a PCO under its case management powers under CPR 3.1.
The Claimant argued that the requirement that the obligations should not be prohibitively expensive arose from two sources. Firstly, although the Aarhus Convention had not been directly incorporated into domestic law, UK law should be interpreted and applied in harmony with the UK’s international obligations, and this principle extends to having an impact upon the scope of the court’s discretionary power. Secondly, it was required by EU law: the Aarhus Convention has been incorporated by the EIA directive, and the EU is a party to the Aarhus Convention.
The Court of Appeal held that private nuisance actions cannot be excluded in principle from the scope of Article 9.3 of the Aarhus Convention. Private litigants can help ensure that high environmental standards are kept even if they are vindicating a private interest in doing so. However, for private nuisance actions to come within Article 9.3, two conditions must be met. Firstly, the “nature of the complaint must have a close link with the particular environmental matters regulated by the Convention, even although the action in private nuisance does not directly raise them”. Secondly, the claim must “if successful, confer significant public environmental benefits” (paragraph 22). Where the principal purpose of a claim is to protect private property interest, and any public interest was limited and incidental, then it should not benefit from the costs protection of Article 9.4.
Where there is a cheaper procedure to ensure protection of the environment, this is a relevant factor in the exercise of the court’s discretion as to whether to grant a PCO. An example may be enforcement proceedings by a public authority. However, where the public authority is unwilling or unable to take such action, then the only alternative may be a private action.
The Court of Appeal rejected the argument that the Aarhus Convention was engaged through the EIA Directive. The EIA Directive implemented the Aarhus Convention only in part: it related only to the process prior to the grant of consent. To argue otherwise was to introduce Article 9.3 to the Directive by the back door. It was also contrary to the decision of the Court of Appeal in R (Prokopp) v London Underground Ltd  EWCA Civ 961.
With respect to the argument that the Aarhus Convention applied since it is part of EU law due to the EU being a party to the Convention, the Court of Appeal observed that Article 9.3 does not have direct effect, and there was no EU right in play.
The Court of Appeal also rejected the argument that the fact that the Convention was part of the UK’s international obligations meant that the court had to exercise its discretion in accordance with the principles in the Convention. Article 9.4 was not totally irrelevant, however it was “not more than a factor to take into account”, but it “reinforces the need for the courts to be alive to then wide public interest in safeguarding environmental standards when considering whether or not to grant a PCO”.
The mere fact that the claimant has a personal interest in the outcome of the litigation would not prevent her from benefiting from a PCO.
On the facts of this case, the Court of Appeal agreed with HHJ Jarman QC at first instance that the public benefit in this case was relatively limited and uncertain. The Court was therefore not satisfied that it fell within the scope of Article 9.3. Furthermore, there was a strong element of private interest in the claim; it was not clear that the potential of the Council intervening had been adequately explored; and the respondent to the application was not a public body but rather a private body with private resources. It had already had to expend considerable sums in relation to a group litigation order claim unsuccessfully brought by the claimant.