16 March 2015Print This Post

Local authorities can rely on costs protections of Aarhus Convention

RCJ

Sullivan LJ: Different caps can be applied to different claimants

Local authorities can rely on the costs protections of the Aarhus Convention on access to justice in cases relating to the environment, appeal judges have ruled.

Lord Justice Sullivan said that to deny public authorities protection as claimants in judicial reviews would “undermine legal certainty and promote satellite litigation and thereby increase the potential for delay in the challenge process”.

Sullivan LJ said such a move would be “doubly inappropriate” because CPR 45.43 expressly provided that “the practice direction may prescribe a different amount for the costs cap according to the nature of the claimant”.

This meant that if “a higher figure would not be prohibitively expensive for local authority claimants in general, or for particular kinds of local authority”, then higher figures than the £10,000 cap for organisations could be applied.

The court heard in R (on the application of HS2 Action Alliance and the London Borough of Hillingdon) v the Secretary of State for Transport [2015] EWCA Civ 203, that the Court of Appeal dismissed the alliance and council’s judicial review of the transport secretary’s safeguarding directions for HS2 in December last year.

The alliance and council were ordered to pay costs, which were capped under part 45 of the Civil Procedure Rules, which implements the Aarhus Convention.

The costs of the alliance were capped at £10,000, the rate for organisations rather than individuals, and this was accepted by the transport secretary. However he disputed whether the council’s costs could be capped in the same way.

Lord Justice Sullivan said that counsel for the transport secretary argued that interpreting ‘claimant’ according to the definition in CPR 2.3(1), in other words giving the word “its ordinary and natural meaning”, might have bizarre consequences.

This idea was more “theoretical than real”, Sullivan LJ said, as central government would be the defendant, not the claimant in any environmental challenge.

He said that excluding all public authorities from the convention’s costs protections, even “those at the very lowest level” like parish councils, when challenging on behalf of their local inhabitants major environmental decisions, could have consequences that were no less “bizarre”.

He added that the convention’s compliance committee was due to issue a ruling on the issue of costs protection for public authorities, but that might not be before the end of the year. However, he said there did not “appear to be any real urgency given that the position under our domestic law is clear”.

Sullivan LJ ruled that the transport secretary’s cross-appeal on the issue must be dismissed. Lord Justices Longmore and Lewison contributed to the judgment.

By Nick Hilborne

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