ON APPEAL FROM
HHJ Milwyn Jarman QC sitting in the High Court
at Cardiff on 11 November 2010
Strand, London, WC2A 2LL
B e f o r e :
| AUSTIN & OTHERS
|- and -
|MILLER ARGENT (SOUTH WALES)
Charles Gibson QC (instructed by DLA Piper UK - Solicitors) for the Respondent
Hearing date: 29th March 2011
Crown Copyright ©
Lord Justice Pitchford :
1. Time within which to issue the notice of appeal extended;
2. Permission to appeal granted upon both grounds;
3. Within 7 days of the renewed permission hearing the defendant to provide the claimants with an estimate of the defendant's costs of the appeal, estimated at one day;
4. Within 21 days of the hearing the claimants to serve a witness statement making such disclosure of the means of the claimants as they are advised should be made in support of a protective costs order for the appeal to the full court. Within 28 days of the hearing the defendant to file any further evidence in response;
5. Within 35 days of the hearing the claimant to serve a skeleton argument in support of their application for a protective costs order in the appeal;
6. Within 42 days of the hearing the defendant to serve a skeleton argument in response to the application for a protective costs order in the appeal;
7. The application by the claimants for a protective costs order and any further directions by either side will be considered, at least in the first instance, in writing by a single Lord Justice of Appeal;
8. The costs of the permission to appeal hearing shall be the costs in the appeal.
These are my reasons.
"6. I am instructed that all claimants experience either dust or noise pollution arising from the open cast operations. The majority experience both. I am instructed that the extent of noise and dust impact varies due to weather conditions and other factors such as distance from the open cast. However almost all claimants instruct me that both dust and noise impacts on their quality of life (subject to a few exceptional and specific instances). Dust and noise has caused pollution since the start of the operations in 2007. This is explained further below."
The only further information provided in support of the general assertion of nuisance is a reference to the defendant's normal working hours and a statement made at paragraph 14 of the witness statement (AB2, page 10):
"14. I am instructed that noise and dust nuisance has been experienced since the open cast operations began in 2007. As [sic] recorded in Merthyr Council's, summary incident records exhibited at Exhibit PAS3, pages 1-2."
The incident records (AB2, page 40) exhibited purported to show entries of 23 complaints of dust emanating from the site and 56 complaints of noise produced by site activity recorded by Merthyr Tydfil Borough Council between November 2007 and March 2009. No details were provided of the names or addresses of those complainants. The complaints concerned dust pollution on 12 separate days during that period and noise pollution on 47 days. That represents a complaint concerning either dust or noise once every 10 days or so, but several complaints duplicate others made on the same or following days. The impression is that complaints were made to the local authority spasmodically.
"7. The defendant has carried out his operations above with sufficient regularity, frequency, duration and at a level of intensity to cause a nuisance to the claimants, in particular by way of:
(i) Noise emitted from the site by its various operations including mining, blasting, coal haulage, waste removal, stripping and replacement of soils, and the formation and removal of baffle mounds;
(ii) Dust to be emitted from aforesaid mining operations such as to fall on the homes, in the garden, on cars and on other property of the claimants; and
(iii) Fumes, odours, and other air pollution to be emitted as a result of its operations, in the gardens, on cars and on other property of the claimants.
8. While certain dust suppression and noise mitigation measures are required by the planning permission and section 106 agreement, such measures, to the extent that they have been employed, have been ineffective to prevent both noise and dust nuisance to the claimants' homes on a regular basis."
The claimants seek "an injunction to restrain the defendant by its servants or agents or otherwise howsoever from continuing the nuisance" and damages.
"14. In my view, the evidence before the court is sufficient to establish that it is at least arguable that dust and noise nuisance is being caused. Defendant's own correspondence relating to noise and dust refers to at least 3 distinct neighbourhoods of Dowlais, Bradley Gardens, and Mountain Hare."
Of the complaints logged by the local authority Mr Stookes said only (AB2, page 88/6, paragraphs 15-22) that complaints were unlikely to be representative of actual conditions during the relevant period. As to funding, Mr Stookes confirmed that he was instructed by each claimant under a conditional fee agreement. As to the ability of the claimants to meet a successful defendant's costs order he referred to a letter of 10 August 2010 to the defendant's solicitors in which it was said (AB2, page 88/3, paragraph 6):
"... insurance is either already in place or will be in place to cover the potential liability to the defendant for its costs. We will advise you as necessary of any policy and further cover as and when appropriate."
At paragraph 8 Mr Stookes continued that the claimants had sought after-the- event ("ATE") insurance cover. The insurance provider had been contacted on 24 September 2010 and on the day the witness statement was made. He continued at paragraph 9:
"9. In the event that insurance is not in place to cover all of the risk of adverse cost, then my firm will apply to the court for an order that the exposure to the defendant's costs be limited to a level to ensure that the proceedings are not prohibitively expensive. The proposed claimants do not seek any formal costs order at this stage, however they reserve the right to apply for such an order."
To date no cost-capping order has been sought. Elias LJ when refusing permission to appeal also refused an application for a protective costs order and suggested that the application should await the outcome of the renewed application hearing.
"13. In particular they are claims which individually may be uneconomic to bring but brought as a group can be managed in a way that is proportionate in use of court time and costs. The whole principle of Access to Justice was to allow such claims to be brought rather than raise inappropriate thresholds or procedural hurdles (as the defendant appears to be suggesting is appropriate) to stifle such claims."
"9. In relation to viability, there is sufficient information to allow and justify a conclusion that there are likely to be a number of claims arising from dust and noise as a result of these operations to make the granting of a GLO a sensible step to take. However that is not the end of the matter. Mr Hart, despite the appearance from the skeleton arguments filed on behalf of each party suggesting that there was a difference of principle on the issue as to the extent to which the court should take into account funding issues in deciding whether to make a GLO, accepted today that it is a factor which could be taken into account. What he submitted, however, was that this is not a factor which, of its own, would justify the refusal of such an order.
At paragraphs 14 and 15 the judge concluded (AB1, page 25-26):
"14. I accept the submission that if this were a case where there were plainly a number of cases with a very real chance of success in establishing a nuisance against the defendant then uncertainties as to the precise nature of funding might not be sufficient justification not to grant a GLO. However, in my judgment, the uncertainties as to funding coupled with the, perhaps understandably, sparse information available as to the effect on each of the potential claimants of the alleged nuisance is such that, with reluctance and some hesitation, and only after anxious consideration, I have come to the conclusion that the application is, at this stage, premature. I made clear that this does not rule out another application if and when, as is hoped, and of course I take Mr Hart's submissions on that basis, the funding is in place but for the moment I am not satisfied that position has been reached. In my judgment, support from that comes from rule 19 itself which refers to the court making, or having a discretion to make, a GLO where there are, or are likely to be, a number of claims giving rise to the GLO issue.
15. I accept, as Mr Hart has submitted, that there are a number of common issues of fact and law which may arise if claims were indeed commenced; such as effect of the operations since 2007, how much noise and dust is generated and how local residents are affected. There are also common issues of law as to whether those effects amount to nuisance, and the extent to which the granting of planning permission has a bearing on those claims. However, it does not seem to me that the stage has yet been reached that it can be said that there are likely to be a number of claims giving rise to those issues and, therefore, for those reasons, I dismiss this application." [emphasis added]
(1) The judge dismissed the application on the grounds of funding future defendant's costs orders. This was not an adequate reason. This was an application to which the Aarhus Convention 1998 applied. The claimant should not be shut out of a group action simply by reason of the uncertainty of funding. The judge should have adjourned the application to await the result of the application for insurance funding or an application for a protective costs order;
(2) The judge should not have made a costs order against the claimants before the proceedings had commenced. Costs should have been reserved.
"(3) In addition and without prejudice to the review procedures referred to in paragraphs 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.
(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."
"44. These arguments raise potentially important and difficult issues which may need to be decided at the European level. For the present we are content to proceed on the basis that the Convention is capable of applying to private nuisance proceedings such as these. However, in the absence of a Directive specifically relating to this type of action, there is no directly applicable rule of community law. The United Kingdom may be vulnerable to action by the Commission to enforce the Community's own obligations as a party to the treaty. However, from the point of view of a domestic judge, it seems to us (as the DefRA statement suggests) that the principles of the convention are at the most something to be taken into account in resolving ambiguities or exercising discretions (along with other discretionary factors including fairness to the defendant)."
At paragraph 47 of its judgment, the court drew together its conclusions. Included among them the court observed that in cases where EC Directives had not incorporated Aarhus principles:
"(iii) ...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."
Further, the court observed:
"(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 roots currently available to potential litigants may arguably be seen as additional obstacles in the way of achieving these objectives."
"50. We are unable to accept that argument. Mr Hart could not point to any legal principle which would enable us to treat a pure treaty obligation, even one adopted by the European Community, as converted into a rule of law directly binding on the English court. As we have said, it is at most a matter potentially relevant to the exercise of the judge's discretion. If the claimants wished him to take it into account, they needed not only to make the submission, but also to provide the factual basis to enable him to judge whether the effect of his order would indeed be "prohibitive". The defendant would also no doubt wish to give evidence of its own position."
"... Article 9(3) (of the Aarhus Convention) does not have direct effect in EU law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9 (3) of that Convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court the decision taken following administrative proceedings liable to be contrary to EU environmental law."
This decision appears at first sight to do no more than emphasise the need for domestic courts when exercising discretions such as those considered by Judge Jarman QC to give effect as far as domestic provisions allowed to the objectives of the Convention. At the time when Judge Jarman QC was invited to exercise that discretion his attention was drawn to no considerations beyond those which appeared in Mr Stookes' witness statements and Mr Hart's skeleton argument.