ON APPEAL FROM CARDIFF DISTRICT REGISTRY
HIS HONOUR JUDGE JARMAN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE GROSS
| ALYSON AUSTIN and others
|- and -
|MILLER ARGENT (SOUTH WALES) LIMITED
Mr. Geraint Webb and Mr James Pereira (instructed by DLA Piper LLP) for the Respondent
Hearing date : 28 July 2011
Crown Copyright ©
Lord Justice Jackson:
Part 1 Introduction
Part 2 The Facts
Part 3 The Appeal to the Court of Appeal
Part 4 Did the judge err in refusing to make a Group Litigation Order?
Part 5 Did the judge err in ordering the claimants to pay the defendant's costs of the application?
Part 6 The Claimants' Application for a Protective Costs Order
Part 7 Conclusion
"Aarhus Convention" means the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters made at Aarhus, Denmark on 25 June 1998.
"ATE" means "after the event".
"BTE" means "before the event".
"CFA" means "conditional fee agreement".
"EIA Directive" means Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment.
"PCO" means "Protective Costs Order".
"9.3 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.
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."
"I am instructed that all claimant experience either dust or noise pollution arising from the opencast 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 opencast. 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."
"5. The Claimants' case is that since November 2007, the Defendant has carried on its opencast operations (including mining, coal haulage, blasting, waste removal, stripping, formation etc.) in such a manner as to cause or permit both noise and dust to be emitted from the site in such a way as to cause detriment to the use and enjoyment of the Claimants' homes.
6. The same amounts to a material interference with the Claimants' use and enjoyment of their homes and is, and has been a nuisance. To the extent it is necessary to rely on it, it is also an interference with Claimants' Article 8 right to private and family life.
Particulars of Noise and Dust Nuisance and Other Air Pollution
7. The Defendant has carried out its 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 gardens, 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 s.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."
"(1) the Claimants' means of funding;
(2) whether there are arguably common issues of fact between the proposed Claimants in respect of: (a) noise, and (b) dust; and
(3) whether the number of logged complaints to the Defendant is indicative of the actual problems at the site."
"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 three distinct neighbourhoods of Dowlais, Bradley Gardens and Mountain Hare."
i) The judge should not have been deflected from granting a GLO by funding considerations. Although (as now known) ATE insurance cannot be obtained, the claimants will be entitled to a PCO, since their claim falls within article 9 of the Aarhus Convention.
ii) Since the judge did not consider that the claimants had furnished sufficient information about their proposed claims, he ought to have adjourned the application, in order that the claimants could provide further information.
iii) The judge ought not to have ordered the claimants to pay the defendant's costs of the GLO application assessed on the standard basis. Such an order would expose the claimants to a liability for prohibitive expense, contrary to article 9.4 of the Aarhus Convention.
"The judge erred in law in failing to grant a GLO at the hearing on 11 November 2010. He should have dealt with issues of funding and additional information in respect of the effect on specific individuals in the course of GLO directions."
"(1) The court may make a GLO where there are or are likely to be a number of claims giving rise to the GLO issues. (Practice Direction 19B provides the procedure for applying for a GLO.)
(2) A GLO must –
(a) contain directions about the establishment of a register (the 'group register') on which the claims managed under the GLO will be entered;
(b) specify the GLO issues which will identify the claims to be managed as a group under the GLO; and
(c) specify the court (the 'management court') which will manage the claims on the group register."
"The following information should be included in the application notice or in written evidence filed in support of the application:
(1) a summary of the nature of the litigation;
(2) the number and nature of claims already issued;
(3) the number of parties likely to be involved;
(4) the common issues of fact or law (the 'GLO issues') that are likely to arise in the litigation; and
(5) whether there are any matters that distinguish smaller groups of claims within the wider group."
"He has been frank enough to say that if the hoped for after-the-event insurance policies are not forthcoming then it may be that that the claimants will seek a cost capping order or alternatively it may be that certain claimants would not be wiling to proceed with the litigation."
"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 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 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 make 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 for that comes from rule 19 itself which refers to the court making, or having a discretion to make, a GLO where there are, or 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 the 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."
"For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect (see Halsbury's Laws Vol 44(1) Statutes para 1439)). Ratification by the European Community itself gives the European Commission the right to ensure that Member States comply with the Aarhus obligations in areas within Community competence (see Commission v France Case C-293/03 (2004) ECR I-09325 paras 25-31. Furthermore provisions of the Convention have been reproduced in two EC environmental Directives, dealing respectively with Environmental Assessment and Integrated Pollution Control (neither applicable in the present case)."
"49. It is unnecessary, in our view, to consider the application of the Convention in further detail, because there is in our view an insuperable objection to the claimant's case in this respect. That is that the point was not mentioned before the judge. This is admitted by Mr Hart. His answer is that the requirement to comply with the Convention is "an obligation to the Court", which should have been considered by the judge of his own motion; or alternatively, it is a requirement on this court in reviewing the judge's decision in order to avoid contravention of the Convention.
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 have wished to give evidence of its own position."
Lord Justice Gross:
Lord Justice Pill: