COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEEN'S BENCH DIVISION A2/2008/0038
HIS HONOUR JUDGE SEYMOUR - A2/2008/0038 &
QUEEN'S BENCH DIVISION, BRISTOL DISTRICT REGISTRY – A2/2008/0951
HIS HONOUR JUDGE BURSELL QC – A2/2008/0951
HQ06X02114 & 7BZ90889 Respectively
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MAURICE KAY
| FRANCIS ROY MORGAN
CATHERINE MARGARET BAKER
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Stephen Tromans and Richard Wald (instructed by Messrs Bond Pearce LLP) for the Respondent
David Wolfe appearing for the intervening party CAJE
Hearing dates : Monday 2nd & Tuesday 3rd February, 2009
Crown Copyright ©
This is the judgment of the Court to which all members have contributed.
i) The claimants' appeal against Judge Seymour's interim costs order of 21st December 2007 ("the interim costs issue");
ii) The defendant's appeal against Judge Bursell's order of 8th April 2008, relating to the evidence of their odour expert ("the expert witness issue").
(1) The Interim Costs Issue
The proceedings before the judge
"…at levels that are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the boundary, as perceived by an authorised officer of [either the Agency or the Council]."
"The Judge made plain that, if an order was made in those terms, it was at the risk of the claimants as to whether either [the Agency] or [the Council] was prepared to co-operate. The judge did not envisage that either body would take any steps in relation to the monitoring of "odours" other than such as they, respectively, considered appropriate in the usual exercise of their respective functions…."
"…it is inappropriate in principle to constitute an individual, who has other statutory functions to perform, the person to determine whether or not an order of the court has been infringed."
He remained of the view that the injunction would be unworkable without some objective means of assessment. He thought it right therefore to reconsider "on a balance of convenience basis" whether it had been appropriate to make any form of order. He noted the suggestion that there might be substituted a reference to an independent expert, but commented:
"That in my view would be appropriate if, but only if, there was an agreement between the claimants and the defendant as to the identity of such a person. That is not the position…."
"I am satisfied that the case raises an issue of some general importance relating to the relevance of the Aarhus Convention in the exercise of the Judge's discretion as to costs. This is given added significance by the recent publication of the report of the working party under Sullivan J on 'Ensuring access to environmental justice in England and Wales' (in which this case is mentioned in paragraph 73)."
He added that the claimants faced a "serious hurdle" having failed to raise this issue before the judge.
i) Was the application for an injunction against the Defendant within the scope of Article 9(4) of the Aarhus Convention?
ii) If yes, what is the nature of the Aarhus obligation on the Court when exercising its discretion on costs (regardless of whether or not the Convention is raised by one of the parties)?
iii) In the light of (a) and (b) above, was it outside the Court's proper discretion to order the Claimant to pay the costs of the Defendant and the authorities?
The Aarhus Convention
Article 3(8): "Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings."
Article 9(3): "In addition and without prejudice to the review procedures referred to in paragraph 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."
Article 9(4): "In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible." (emphasis added)
"4. 'The public' means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;
5. 'The public concerned' means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."
"Setting out provisions in relation to private persons would impinge upon the very core of member states systems since it means that a community law might address an issue as close to member states' competence as the possibility for private persons to challenge in courts acts by private persons."
"the failure by the United Kingdom to provide details showing that review procedures provided for under Articles 3(7) and 4(4) of the Directive are 'fair, equitable, timely and not prohibitively expensive'" (their emphasis added).
They had also asked for clarification on the availability of injunctive relief in environmental cases. Following a meeting with Ministry of Justice officials it had been agreed to await the publication of the then imminent Sullivan report, and the comments on it of the United Kingdom authorities, before deciding what further steps needed to be taken.
"Question 1 – To which procedures and remedies in this kind of case do the provisions of article 9, paragraphs 3 and 4, of the Convention apply?
The rights and obligations created by international treaties have no effect in UK domestic law unless legislation is in force to give effect to them, i.e. they have been "incorporated". The provisions of the Aarhus Convention cannot therefore be said to apply directly in English law to any particular procedure or remedy. There is, however, in English law a presumption that legislation is to be construed so as to avoid a conflict with international law, which operates where legislation which is intended to bring the treaty into effect is ambiguous. The presumption must be that Parliament would not have intended to act in breach of international obligations.
In the kind of case in question, i.e. a claim by one private party against another in nuisance, the rules which govern civil court procedure in England and Wales (the Civil Procedure Rules 1998 or "CPR"), as laid down in secondary legislation under powers in the Civil Procedure Act 1997, are therefore, insofar as they are ambiguous/discretionary rather than clearly prescriptive, to be construed so as to be consistent with article 9(3) and (4) of the Convention.
The procedure to challenge acts or omissions by public authorities for contravention of provisions of national law relating to the environment is also prescribed in the CPR and the same therefore applies."
95. The Commission founds its objection that there is insufficient protection against prohibitive costs in particular on the basis that the costs of successful parties can be very high in Ireland, stating that costs of hundreds of thousands of euro are possible.
96. In this regard, Ireland's submissions that rules providing for legal aid – the Attorney General's Scheme – exist and that, furthermore, potential applicants can make use of the Ombudsman procedure which is free of charge are hardly compelling. The Attorney General's Scheme is, according to its wording, inapplicable to the procedures covered by the directive. It cannot therefore be acknowledged to be an implementing measure. The Ombudsman may offer an unbureaucratic alternative to court proceedings but, according to Ireland's own submissions, he can only make recommendations and cannot make binding decisions.
97. As the Commission acknowledges and Ireland emphasises, Irish courts can though, in the exercise of their discretion, refrain from awarding costs against the unsuccessful party and even order the successful party to pay his costs. Therefore, a possibility of limiting the risk of prohibitive costs exists.
98. This possibility of limiting the risk of costs is, in my view, sufficient to prove that implementing measures exist. The Commission's action is therefore unfounded in relation to this point too.
99. I wish to make the supplementary observation that the Commission's wider objection that Irish law does not oblige Irish courts to comply with the requirements of the directive when exercising their discretion as to costs is correct. In accordance with settled case-law, a discretion which may be exercised in accordance with a directive is not sufficient to implement provisions of a directive since such a practice can be changed at any time. However, this objection already concerns the quality of the implementing measure and is therefore inadmissible."
Public interest cases in domestic law
i) That the "not prohibitively expensive" obligation arising under the Convention extends to the full costs of the proceedings, not merely the court fees involved (in this respect differing from the Irish High Court in Sweetman v An Bord Pleanala and the Attorney General  IEHC 153);
ii) That the requirement for procedures not to be prohibitively expensive applies to all proceedings, including applications for injunctive relief, and not merely the overall application for final relief in the proceedings;
iii) That costs, actual or risked, should be regarded as "prohibitively expensive" if they would reasonably prevent an "ordinary" member of the public (that is, "one who is neither very rich nor very poor, and would not be entitled to legal aid") from embarking on the challenge falling within the terms of Aarhus (para 20).
iv) That there should be no general departure from the present "loser pays" principle, provided that the loser's potential liability does not make litigation prohibitively expensive in the way described above (para 38).
"…no difference in principle between the approach to PCOs in cases which raise environmental issues and the approach in cases which raise other serious issues and vice versa." (para 17)
He also indicated that the principles stated in Corner House were to be regarded as binding on the court, and were to be applied "as explained by Waller LJ and Smith LJ" (para 19). We take the last words to be a reference to the comments of Waller and Smith LJJ respectively that the Corner House guidelines were "not… to be read as statutory provisions, nor to be read in an over-restrictive way" (Compton para 23); and were "not part of the statute and… should not be read as if they were" (para 74). These comments reflect the familiar principle that:
"As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule." (per Lord Lloyd of Berwick, Bolton MDC v Secretary of State for the Environment  1 WLR 1176, 1178; cited in Corner House at para 27).
"To carry out an independent review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost."
The report is due to be presented in December 2009.
Protective Costs Orders and Private Interests
i) In Wilkinson v Kitzinger  EWHC835(Fam), the President (without specific reference to Goodson) commented on the difficulty of applying the private interest test in a case where the applicant "whether in private or public law proceedings" is pursuing a personal remedy, "albeit his or her purpose is essentially representative of a number of persons with a similar interest". He thought that in such cases the extent and nature of the private interest should be treated as "a flexible element in the court's consideration of whether it is fair and just to make the order" (para 54).
ii) In July 2006 the Kay report was published. The authors (paras 77-85) discussed the difficulties they perceived in a strict application of the private interest test, particularly in cases under the Human Rights Act, in which it is a requirement that an applicant be "personally or directly affected" by the alleged violation. They recommended that the private interest if any should be regarded as a matter to be taken into account; "the weight to be attached to it should be a matter for the judge considering the application".
iii) In R(England) v Tower Hamlets LBC  EWCA Civ 1742, the question of a PCO did not arise for decision, as permission to appeal was refused. However, Carnwath LJ (with the agreement of Neuberger LJ) noted the recent publication of the Kay Report, and its "valuable discussion" of the issues arising from Corner House. The court expressed doubts as to the "appropriateness or workability" of the private interest criterion, and suggested that different considerations might in any event apply where the interest of the applicant, as in the instant case, was "not a private law interest but simply one he shares with other members of his group in the protection of the environment", and suggested that the Aarhus Convention might be relevant in this respect. The court expressed the hope that the Civil Procedure Rules Committee would take the opportunity in the near future to review the questions in the light of the Kay Report.
iv) In R (Bullmore) v West Hertfordshire Hospitals NHS Trust  EWHC 1350 (Admin), Lloyd Jones J, when refusing a PCO on other grounds, commented specifically on the "private interest" requirement, which he said had been "diluted in the later case law", citing Wilkinson v Kitzinger, and England (but not Goodson). He thought that a private interest should not be a disqualifying factor but "its weight or importance in the overall context" should be treated as "a flexible element" in the judge's consideration.
v) In May 2008, the Sullivan Report was published. The authors criticised the strict private interest requirement, as applied to environmental cases. They thought it inconsistent with the Aarhus principles which contain no corresponding limitation. They supported the approach recommended by the Kay Report (paras 41-55).
vi) Compton, decided in this court in July 2008, was not directly concerned with the private interest requirement. However, in discussing the definition of a "public interest case". Waller LJ quoted without criticism from the comments of the Kay and Sullivan Reports. Having referred (in the passage quoted above) to the need to avoid an "over-restrictive" approach to the Corner House guidelines, he also found "support for a non-rigorous approach" in the passage noted above from the decision of Lloyd Jones J in R (Bullmore).
vii) In November 2008 came the judgment of this court in Buglife. Again it was not directly concerned with the private interest requirement. However, before generally endorsing Waller LJ's approach to the Corner House guidelines (as already noted), the Master of the Rolls specifically referred to his approval of "the flexible approach of Lloyd Jones J in Bullmore" (para 17).
The Convention in private nuisance proceedings
i) Seeking judicial review of failure by the Agency or the Council to enforce the relevant site licence conditions or serve a statutory nuisance abatement notice.
ii) Making a complaint to the Parliamentary Ombudsman or Local Government Ombudsman in respect of such failure.
iii) Initiating a private prosecution for alleged breach of the relevant waste management licence conditions.
iv) Making a complaint of statutory nuisance under the summary procedure provided by section 82 of the Environmental Protection Act 1990.
Thus, he says, even if it were found that the private nuisance claim entailed "prohibitive cost", there would be no breach of the Convention unless it were established that the other possible routes were also defective in that or some other way.
Drawing the threads together
i) The requirement of the Convention that costs should not be "prohibitively expensive" should be taken as applying to the total potential liability of claimants, including the threat of adverse costs orders.
ii) Certain EU Directives (not applicable in this case) have incorporated Aarhus principles, and thus given them direct effect in domestic law. In those cases, in the light of the Advocate-General's opinion in the Irish cases, the court's discretion may not be regarded as adequate implementation of the rule against prohibitive costs. Some more specific modification of the rules may need to be considered.
iii) With that possible exception, the rules of the CPR relating to the award of costs remain effective, including the ordinary "loser pays" rule and the principles governing the court's discretion to depart from it. The principles of the Convention are at most a matter to which the court may have regard in exercising its discretion.
iv) This court has not encouraged the development of separate principles for "environmental" cases (whether defined by reference to the Convention or otherwise). In particular the principles governing the grant of Protective Costs Orders apply alike to environmental and other public interest cases. The Corner House statement of those principles must now be regarded as settled as far as this court is concerned, but to be applied "flexibly". Further development or refinement is a matter for legislation or the Rules Committee.
v) The Jackson review provides an opportunity for considering the Aarhus principles in the context of the system for costs as a whole. Modifications of the present rules in the light of that report are likely to be matters for Parliament or the Civil Procedure Rules Committee. Even if we were otherwise attracted by Mr Wolfe's invitation (on behalf of CAJE) to provide guidelines on the operation of the Aarhus convention, this would not be the right time to do so.
vi) Apart from the issues of costs, the Convention requires remedies to be "adequate and effective" and "fair, equitable, timely". The variety and lack of coherence of jurisdictional routes currently available to potential litigants may arguably be seen as additional obstacles in the way of achieving these objectives.
The present case
(2) The expert witness issue
"4(a) There be permission to each party to rely on the expert evidence of one witness in each of the fields of (i) odours (ii) noise (iii) bioaerosol emissions."
"The claimants doubt much reliance can be placed on Mr Branchflower as an independent expert for the reason that SLR Consulting were appointed by the Council to advise on waste planning matters as early as 29 August 2006, 'one urgent matter being three planning applications of the defendant' ".
"Now one moment. Are you saying Mr Branchflower's evidence is not admissible? Well if so you should have made that application some time ago."
"However, in my judgment where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted, however unbiased the conclusion of the expert might probably be."
"The real question in this case is whether an independent observer of this case, properly understanding the legal principles involved, might feel that the relationship within SLR is capable of affecting the views of Mr Branchflower so as to make them unduly favourable to the defendant. I put it in that way because of the quotation from the Liverpool Roman Catholic Archdiocesan Trustees case."
"An independent observer, against the background of factors I have endeavoured to outline, might reasonably feel that Mr Branchflower was not sufficiently independent to give an unbiased and independent opinion to this court. I have to say that in reaching that conclusion I have found it a difficult exercise."
The issues on the appeal
"This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the Tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence."
Factortame (No.8) was not drawn to the attention of the judge in the present case.
"The question of whether the proposed expert should be permitted to give evidence should … be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules."
In our judgment, this is a matter of considerable importance in the present case. Even if all the judge's concerns about the position of Mr Branchflower had been well-founded – and, as we have said, we do not think that they were – it seems to us that to rule the evidence inadmissible once the trial was well underway was simply wrong. The ruling gave rise to an inevitable application for an adjournment to which the judge predictably acceded.