The Supreme Court today handed down judgment in R (Edwards & Pallikaropoulos) v. Environment Agency & DEFRA  UKSC 57, the first case in which it had to consider the relationship between Article 9 of the Aarhus Convention (as implemented by Article 10a of the EIA Directive), which requires that environmental litigation should not be ‘prohibitively expensive’, and the normal rule under the CPR that an unsuccessful judicial review claimant should pay the respondent’s costs.
In the present case, the House of Lords had rejected Mrs Pallikaropoulos’ application for a protective costs order in advance of her appeal, on the basis (inter alia) that insufficient information had been provided as to her financial means for them to conclude that the proceedings would be “prohibitively expensive” for her. She nonetheless proceeded with her appeal. When it was dismissed, the House of Lords ordered that she should pay the respondents’ costs (totalling around £88,000). At the assessment stage, she argued that her costs should be assessed as zero on the basis that for her to have to pay the respondents’ costs would render the litigation “prohibitively expensive. In so doing she submitted that the test of whether litigation was “prohibitively expensive” was an objective rather than subjective one and therefore her means were not relevant.
The Supreme Court Costs Officers accepted that they had power to give effect to Article 10a of the Directive by moderating the amount of costs payable to the respondents. The Respondents appealed to a panel of five Supreme Court justices.
Delivering the lead judgment, Lord Hope accepted the Respondents’ submissions that the Costs Officers had acted outside their jurisdiction, but held that the Court itself had power to reopen one of its previous decisions (including a decision of the House of Lords prior to the creation of the Supreme Court) where necessary to correct any injustice, as was done in the Pinochet litigation. Lord Hope concluded that the decision to order Mrs Pallikaropoulos to pay the Respondents’ costs should be reopened as it had been based on a purely subjective approach to the question of whether litigation was “prohibitively expensive” and doubt had been cast upon the correctness of that approach following the subsequent decision of the Aarhus Convention Compliance Committee in the Port of Tyne case and the judgment of Sullivan LJ in R (Garner) v. Elmbridge BC  EWCA Civ 1006. Given the doubt as to the proper approach to be taken, the Court referred the matter to the Court of Justice of the European Union under Art 267 TFEU. A further hearing before the CJEU is likely to take place in late 2011 or early 2012.