England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 December 2015

Mr Justice Supperstone :

1. There is before the court an application for costs by the Defendant, following the dismissal of two claims for judicial review.
2. In summary the background to this application is as follows: on 24 May 2014 Mitting J granted permission in Claim 1 (CO/1407/2014) on Ground 1 only, namely whether there was a valid screening application for the purposes of the EIA Regulations 2011. In addition the learned judge made a PCO limiting the Claimants' liability for costs to £5,000 and the maximum they can recover from the Defendant or Interested Party to £35,000.
3. On 8 August 2014 the Claimants lodged Claim 2 (CO/3730/2014) . The sole issue in Claim 2 was whether the EIA screening opinion, that by that time had been given, was flawed.
4. On 9 September 2014 I ordered that Claim 2 be joined with Claim 1 and I further ordered that Claim 2 be listed as a rolled up hearing to be heard with Claim 1 and that the PCO made by Mitting J in Claim 1 be extended to Claim 2.
5. By an application notice dated 3 October 2014 the Claimants applied to amend Claim 2 by adding Ground 2 alleging that the grant of the second permission was unlawful in that it was founded on sampling evidence that was materially false.
6. On 8 October 2014 at a hearing attended by the parties I ordered that Claim 2 be amended by the addition of the new ground and I made further orders in relation to the conduct of the proceedings. The time estimate for the hearing had been one day for the determination of the two claims; it now increased to three days by reason of the addition of the new ground (Claim 2, Ground 2) which involved the hearing of oral evidence. (See Ruling on Protective Costs Order, 19 November 2014 at para 5).
7. At the same hearing, having heard submissions from the parties, I accepted the Claimants' submission that they were entitled to know how the addition of the new ground affected the PCO before the substantive hearing (in so far as it was possible to determine that matter at that stage of the proceedings).
8. On 19 November 2014 I ruled that it would not be appropriate to lift or vary the PCO at that time as the success or failure of the new ground was likely to turn on the findings that I made on the oral evidence that was to be heard on 11 and 12 December 2014.
9. I ruled that if I found that the new ground was without foundation the terms of the PCO should be varied so that the Defendant and/or the Interested Party may recover the whole or part of the increased costs they incurred in dealing with this ground. I added that before making any such order I would hear further submissions from the parties as to the appropriate order to be made, having regard to all material factors to be taken into account.
10. On 12 December 2014, at the conclusion of the hearing relating to Ground 2 of Claim 2, I ruled that this new ground of challenge was not arguable. In my judgment I said that:

"The allegation made by the Claimants that GRM and their contractors had been dishonest and deliberately produced false soil sampling data flies in the face of the contemporaneous documentation. I am left in no doubt that the Claimants and Ms Walters are mistaken in their view that no trial pits were dug in the fenced zone area on 12 February. In my judgment, on the evidence before this court, this new ground of challenge is not even arguable. Further, if there was any basis for it, which there is not, no good reason has been given as to why it was not included as a ground in the claim as originally formulated. It is based on the Claimants' observations, made on 11 and 12 February 2014 and the soil sampling data which they contend was falsely produced was known to them in June 2014, two months before the second claim was lodged on 8 August 2014."

11. On 12 December 2014 I also heard submissions with regard to the outstanding grounds of challenge, namely Claim 1 and Ground 1 of Claim 2. On 18 December 2014 I handed down judgment on the two claims ([2014] EWHC 4296 (Admin)). I found Ground 1 of Claim 2 not to be arguable and accordingly permission was refused, and I dismissed Claim 2 (see paragraph 16). That being so Claim 1 was academic and I dismissed that claim (see paragraph 18). That only left the question of costs in relation to Claims 1 and 2 and I gave directions in paragraph 19 of the judgment as to how that issue should proceed.
12. On 29 January 2015 there was a costs hearing to determine applications made by the Defendant and Interested Party to remove the costs cap in the PCO following my decision on Ground 2 in Claim 2 and there was an application by the Interested Party for a wasted costs order against the Claimants' solicitors in respect of Claim 2, Ground 2.
13. On 29 January 2015 I ruled that the Claimants had no proper basis for proceeding with that new ground after they had had an opportunity to consider the witness statements filed on behalf of the Defendant and the Interested Party:

"My finding is … that there was no foundation for the allegation after the opportunity to consider the witness statements on behalf of the Defendant and Interested Party had been filed. So after receipt of Mr Tompkins' statement and the other statements and the evidence, there was no proper basis for continuing with Ground 2 of Claim 2. Whether one adopts the test of without foundation or no reasonable prospect of success, or frivolous to pursue in the circumstances, I find that all three tests are satisfied." (Transcript para 183)

14. After hearing submissions from Mr Sasha White QC, for the Interested Party and Mr Richard Buxton on the wasted costs application I adjourned that application to enable Mr Buxton to produce additional evidence relating solely to the issue of wasted costs. I heard submissions from Mr Jonathan Easton, for the Defendant, and Mr Matthew Dale-Harris, for the Claimants, on the PCO, and I said that I would give judgment on that application together with judgment on the wasted costs application in due course.
15. On 12 November 2015 I approved a consent order in relation to the wasted costs application.
16. As many months had passed since the hearing on 29 January 2015 I wished to give the Claimants and the Defendant an opportunity to make further submissions on the PCO application should they wish to do so before giving judgment. Accordingly on 17 November 2015, in relation to the Defendant's PCO application, I directed that (1) the Claimants and the Defendant do file and serve further written submissions, if any, by 4pm on 1 December 2015, and (2) the application will be determined thereafter by me on the papers, unless the Claimants and/or the Defendant applies by 4pm on 3 December 2015 for an oral hearing. The Defendant confirmed that they would not be filing further written submissions and did not request an oral hearing. The Claimants, through their solicitors, confirmed that they did not seek an oral hearing, and no further written submissions have been received from them.
17. In reaching my decision I have therefore had regard to the skeleton arguments of Mr Dale-Harris dated 27 January 2015 and of Mr Easton for the hearing on 29 January 2015, dated January 2015, and their oral submissions made at the hearing on 29 January 2015.
18. The Defendant's application is that the PCO should be varied so that an order for costs is made against the Claimants in the Defendant's favour that the Claimants shall pay the Defendant's costs of the proceedings in the sum of £15,723.50 (consisting of £5,000 arising out of the original PCO and £10,723.50 arising out of and in relation to the hearing on 11 and 12 December 2014). During the course of the hearing, having regard to the Claimants' financial circumstances (see further below at para 27), Mr Easton reduced the sum sought by the Defendant in respect of the hearing on 11 and 12 December 2014 in relation to the new ground to a minimum of £10,000 (see transcript, paras 593-612).
19. It is common ground that whatever the outcome of the application to lift or vary the PCO the Defendant is entitled to a costs order in their favour of a minimum of £5,000. Mr Dale-Harris's primary submission is that the costs order should not exceed that sum.
20. Mr Easton submits that the Claimants should lose their costs protection from 8 October 2014 when Ground 2 formally became part of Claim 2 (alternatively, as he appeared to accept in oral argument, from the time when the Claimants had had an opportunity to consider the evidence of the Defendant and the Interested Party in response).
21. Mr Dale-Harris submits that it is entirely inappropriate for the Claimants to be exposed to all of the extra costs borne by the Defendant (and the Interested Party); if the court is minded to do something to the PCO it should only be to allow limited further exposure to the Claimants at a level which the court considers would not be prohibitively expensive.
22. Both counsel refer to the decision of the ECJ in R (Edwards and another) v Environment Agency and others (No.2) [2013] 1 WLR 2914 which was followed by the Supreme Court in R (Edwards) v Environment Agency (No.2) [2014] 1 WLR 55.
23. In R (Edwards) v Environment Agency and another (No.2) Lord Carnwath considered the requirement in Article 9.4 of the Aarhus Convention that judicial proceedings should not be prohibitively expensive and drew the following principles from the ECJ's decision, where he stated (at paragraph 23) so far as is relevant for present purposes:

"(i) First, the test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor 'appear to be objectively unreasonable', at least 'in certain cases'. …. (iii) The court could also take into account what might be called the 'merits' of the case: that is, in the words of the court, 'whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages' (para 42)…"

24. At paragraph 28 Lord Carnwath made suggestions about how the issue of "merits" might be brought into account, which included the following:

"…(i) A reasonable prospect of success. Lack of a reasonable prospect of success in the claim may, it seems, be a reason for allowing the defendants to recover a higher proportion of their costs. The fact that 'frivolity' is mentioned separately (see below) suggests that something more demanding is envisaged than, for example, the threshold test of reasonable arguability. … (v) The potentially frivolous nature of the claim at its various stages. The defendants should not have to bear the costs of meeting a frivolous claim. In domestic judicial review procedures, whether at first instance or on appeal, this issue is likely to be resolved in favour of the claimant by the grant of permission."

25. In the light of my finding that the pursuit of Ground 2 in Claim 2 after the Claimants had an opportunity to consider the evidence filed by the Defendant and the Interested Party was without foundation (see para 13 above) I consider that the cap on the PCO should be varied to permit the Defendant to recover costs in relation to defending the new ground.
26. If the new ground had been put forward at the proper time (see para 10 above) I am satisfied that no PCO would have been granted in respect of it. Mr Dale-Harris appeared to accept that this would have been so (Transcript, para 846).
27. However Mr Dale-Harris submits that if the PCO is to be varied it should not be varied so that the Claimants' exposure is significantly more than the current £5,000 limit, which is already a very large sum given the Claimants' means. In support of this submission he relies on the third witness statement of Ms Bennett as to the limited financial resources of the Claimants.
28. Further, and in any event, Mr Dale-Harris submits that the court is restricted in its ability to award costs by the application of CPR 45.41-44 (fixed costs in Aarhus Convention claims). This restricts the amount which the claimants may pay to £5,000 in respect of each claim.
29. Mr Easton agrees that the two claims are Aarhus Convention claims. However he does not accept that it follows that the general jurisdiction of the court to award costs under CPR 44.2 is ousted, and that the fixed costs regime under CPR 45.41-44 applies. The authorities make clear (see paras 22-24 above), he submits, it is appropriate to have regard to the merits of the claim when considering whether there should be costs protection arising out of an Aarhus claim. If every Aarhus claim is ring-fenced with a £5,000 costs limit individual claimants can run any argument they like without the risk of a costs award in excess of that sum. In the present case at the time the PCO was extended it was appropriate to keep the PCO at £5,000, but if the new ground had been put forward when it should have been raised no PCO would have covered it (see para 26 above).
30. I have considerable sympathy with this submission of Mr Easton in relation to the present case. However, as he observes, this is a particularly unusual case. In the ordinary case the issue of "the potentially frivolous nature of the claim" is likely to be resolved at the permission stage (see para 24 above). It is common ground that the two claims are Aarhus Convention claims. That being so I agree with Mr Dale-Harris that these two claims fall within the fixed costs regime under CPR 45.41-44, and that the amounts prescribed in Practice Direction 45 apply. The Claimants are claiming as individuals and the amount specified for the purpose of Rule 45.43(1) is £5,000 (see PD 45, para 5.1(a)). It follows that the maximum which the court may order the Claimants to pay is £5,000 in respect of each claim.
31. In the light of the finding that I have made in relation to the pursuit of Ground 2 in Claim 2 (see para 10 above) I consider that the PCO should be varied. Having regard to the principles set out by Lord Carnwath in R (Edwards) v Environment Agency and another (No.2) (see paras 23 and 24 above) and the financial resources of the Claimants (see para 27 above and the third witness statement of Ms Bennett) I consider that the Claimants should pay £5,000 to the Defendant in respect of each claim, totalling £10,000. If I am wrong about the fixed costs regime applying (see para 30 above) I would still consider that the Claimants should only pay an additional £5,000 in respect of the new ground, having regard to their limited financial resources.
32. Accordingly, for the reasons I have given, the Defendant's application to vary the PCO is allowed. I order that the Claimants pay the Defendant £5,000 on each claim, totalling £10,000.