ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE NICOL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE SULLIVAN
| THE QUEEN ON THE APPLICATION OF GARNER
|- and -
ELMBRIDGE BOROUGH COUNCIL
(1) GLADEDALE GROUP LTD
(2) NETWORK RAIL INFRASTRUCTURE LTD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Findlay QC and Mr Robert Williams (instructed by Clifford Chance, Denton Wilde Sapte and Sharpe Pritchard) appeared on behalf of the Respondent.
Jeremy Hyam (instructed by Leigh Day and Co) appeared on behalf of WWF (UK) and Friends of the Earth, intervenors.
Crown Copyright ©
Lord Justice Sullivan:
"Given his individual limit on funds, he could not and would not afford to take on the risk of fighting a judicial review without costs protection. If the PCO is no granted, I am instructed that he would have no option but to withdraw from the proceedings or find a substitute claimant."
"There was a failure to give a summary of the reasons for granting permission in accordance with Article 22(1) of the Town and Country Planning Act (General Permitted Development) Order 1995, as the defendant accepts. Such a failure may well not justify the grant of permission where it is otherwise apparent that the planning authority have taken into account and weighed properly the relevant policies and other material considerations. Here, however, the Council were required to have special regard to the desirability of preserving the setting of Hampton Court Palace, and, in view of the duty, an important issue was whether the river frontage of the site should be kept free of substantial development. There is in any view a clearly arguable case, as evidenced by the officer's report, that, while detailed consideration was given to the design of the proposed buildings, the Council failed to apply the statutory requirement, of which there is no mention in the report, and failed to address this important issue, which the report does not discuss, by reference to it.
There is no reasonably arguable case on the application of PPG25, in my view. This matter, which was not apparently of concern to the claimant at any earlier stage, was dealt with in paragraphs 8.4.1 to 8.4.6 of the officer's report in a way that appears to me to address properly both the sequential test and the criteria in the exception test.
Had the claimant objected to the application for planning permission, he would have had sufficient standing. On what is not simply a local issue but one of national significance because of the importance of Hampton Court Palace, his interest, as a person concerned with the protection of historic buildings, and the Palace in particular, and as one whose views appear to accord with those of many individuals and groups, including Historic Royal Palaces, would have qualified him to bring proceedings. I would also have considered it an appropriate case for a protective costs order. But he did not object to the application, despite the fact that the Committee resolution in December 2008 to grant permission must have alerted him to the need for the Council, when determining the applications in June 2009, to consider the issue of keeping the river frontage substantially free of development. Not having sought to influence the decision, I do not think that he has sufficient standing.
In addition the application was not made promptly, in that over five weeks elapsed before he sought legal advice and a further five weeks elapsed before the pre action protocol was issued. It appears that delay is financially prejudicial to the charity the Royal Star and Garter.
Despite the importance of the issue that the claimant seeks to bring before the court I do not think in these circumstances that permission should be granted."
"The first interested party (Gladedale) indicated that it would not be seeking an order that the claimant pay its costs even if the judicial review application was dismissed. So far as its costs were concerned, the application for a protective costs order was therefore academic. For the defendant and the first interested party (Network Rail Infrastructure, hereafter "Network Rail") the issue was potentially a real one. They opposed the making of a PCO. In the alternative, they asked that, if one was to be made, an order should also be made limiting their costs liability in the event that the judicial review application should be successful."
"For the principles to be applied in relation to a PCO, both parties referred me to R(Corner House Research) v the Secretary of State for Trade and Industry  1 WLR 2600. At paragraph 74 Lord Phillips MR said this:
"74. We would therefore restate the governing principles in these terms:
1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
i) the issues raised are of general public importance;
ii) the public interest requires that those issues should be resolved;
iii) the applicant has no private interest in the outcome of the case;
iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."
"Member states shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive."
"The challenge is not one where the issues in the case are of general public importance and which the general public interest requires to be resolves."
"1.28. Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, is it fair and just to make the order; and if the order is not made will the applicant probably discontinue the proceedings and be acting reasonably in so doing?"
"1.29. Even if I was wrong about the general public importance of the case, I am quite clear that the claimant has not satisfied me of these next matters."
"31. In his witness statement the claimant said only this:
"During this period from 1 September I then had to consider if my funding would permit me to proceed and whether I could raise a community fund to help depending on Elmbridge's response to the pre action letter. Once we had Elmbridge's response on the 7th, I decided I would act individually as the claimant and set up [a] fund which local residents could contribute to. Because I was concerned about an adverse cost award in the event the claim was unsuccessful, it has been explained to me that I am acting on a matter of great public interest, in a situation where the HRP hasn't acted although the advice of counsel is that the permission is potentially unlawful."
32. In my judgment, the defendant and Network Rail were entitled to observe that the lack of information about the claimant's resources was striking. Ms Foster's statement is vague in the extreme. It entirely lacks the detail which would allow the defendant and Network Rail to test it, or for the court to determine its accuracy. Even these general comments about the claimant's means are presented in just her witness statement. They are not endorsed, let alone elaborated on, in the claimant's own witness statement beyond the even vaguer statement that he was "concerned about an adverse costs order". The point as to the paucity of evidence on this issue was taken clearly in the acknowledgments of service. Yet there has been no evidence subsequently to fill that gap. The claimant has provided a second witness statement which speaks to his standing to bring these proceedings, but that, too, is silent on the question of his resources.
33. Mr Barnes, the Director of Conservation and Learning at HRP, has provided a witness statement in which he says that the claimant has his organisation's full moral and some limited financial support. The amount is not specified in the evidence, but the claimant's reply to the acknowledgment of service says that it amounted to £5,000. In the course of submissions, I was told that the claimant had contributed £2,000 to the fund for costs, and other donations had amounted to about £1,630.
34. The claimant submits that Article 10a of the Directive requires that legal proceedings to challenge environmental decisions should not be "prohibitively expensive". I do not think that that takes the matter any further. It is impossible to tell whether the proceedings would be "prohibitively" expensive unless there is information about the resources which the claimant would have available to fund them. That evidence is simply lacking.
35. Because I have insufficient evidence as to the claimant's financial position, it is also not possible for me to determine whether it would be reasonable for him to discontinue the proceedings if a PCO is refused. Of course, in a general sense, legal proceedings can be very expensive. But generalities of that kind are not much use. They have to be related to the financial position of the particular claimant.
36. The insufficiency of evidence as to the claimant's financial resources, in my judgment, is a clear reason why the application for a PCO must fail."
"I am left with the uncomfortable feeling that the significance of Article 10a and the centrality of the arguments based on Article 10a has been more prominent in the submissions put before me today by Mr Drabble than had been the case before either Nicol J or Sullivan LJ…"
"If this was a case which had to be determined purely according to domestic Corner House principles, it seems to me that, for all the reasons given by Sullivan LJ, there is no conceivable basis upon which this court should be invited to intervene. But the fact is, as is common ground before me today, that this is a case in which there is a directly applicable European directive and it was arguable that Nicol J was wrong in his approach in terms of law and principle to Article 10a."
The parties' submissions.
"47. It may be helpful at this point to draw together some of the threads of the discussion, without attempting definitive conclusions:
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 objectives."
"We live off primarily my company pension although I also have a state pension. I also hold investment portfolio which reflects the savings of my life's work. I consider myself to be a normal citizen who worked hard for over 40 years and I am now able to enjoy a comfortable retirement with moderate good health. I could not put our home or investments at risk to join this case since I have no significant assets or income other than as stated above."
"…I am not remotely in the league of rumoured wealth referred to at the hearing before Nicol J for example pertaining to the owner of a well known department store or certain footballers."
Discussion and Conclusions.
"4. The "public" means one or more natural legal persons and, in accordance with national legislation or practice, their associations, organisations 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 procedures referred to in Article 2(2); for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."
"Thus, over the course of 13 years, leading up to the council's decision on the [classical scheme] in December 2008, I had detailed meetings and discussions with Elmbridge Borough Council English Heritage, the Thames Landscape Strategy, Railtrack, local residents and a succession of developers and their professional advisers and have made numerous written submissions both on behalf of the HRP and, more recently, in my own name."
Lord Justice Lloyd:
Lord Justice Richards:
Order: Applications granted with costs; appeal allowed