Reference in Edwards on costs in environmental cases

On 30 July 2011 the terms of the reference of the Supreme Court in the case of R. (on the application of Edwards) v Environment Agency [2010] UKSC 57; [2011] 1 W.L.R. 79 were published in the Official Journal (OJ 2011 C 226/16 30 July 2011). This is registered as Case C-260/11.

The questions referred are:

1. How should a national court approach the question of awards of costs against a member of the public who is an unsuccessful claimant in an environmental claim, having regard to the requirements of Article 9(4) of the Aarhus Convention, as implemented by article 10a 85/337/EEC1 and article 15a 96/61/EEC2 ("the Directives")?

2. Should the question whether the cost of the litigation is or is not "prohibitively expensive" within the meaning of Article 9(4) of the Aarhus Convention as implemented by the Directives be decided on an objective basis (by reference, for example, to the ability of an "ordinary" member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases?

3. Or is this entirely a matter for the national law of the Member State subject only to achieving the result laid down by the Directives, namely that the proceedings in question are not "prohibitively expensive"?

4. In considering whether proceedings are, or are not, "prohibitively expensive", is it relevant that the claimant has not in fact been deterred from bringing or continuing with the proceedings?

5. Is a different approach to these issues permissible at the stage of (i) an appeal or (ii) a second appeal from that which requires to be taken at first instance?

James Maurici and Charles Banner appeared in the Supreme Court for the Defendants (led by James Eadie QC).

Landmark Chambers is holding a seminar on Access to Justice in the Environment on Wednesday 28 September 2011.