A discrete but significant issue on costs recently came before the Court of Appeal in R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2015] EWCA Civ 203.

Do the provisions under the Civil Procedure Rules concerning costs recoverability in Aarhus Convention claims apply to public bodies? Before considering the reasoning of the court of first instance and the Court of Appeal in HS2 Action Alliance Ltd, it is important to appreciate the purpose of the convention and the specific costs rules under the CPR which apply to convention claims.

The Aarhus Convention and the CPR

The Aarhus Convention (The United Nations Economic Commission for Europe on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed 25 June 1998) grants rights regarding access to information and public participation in governmental decision-making processes on matters concerning environmental issues.

Where Aarhus proceedings are commenced, the recoverability of costs are limited under section VII of part 45 of the CPR which provides as follows:

‘45.41

(1) This section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims.

(2) In this section, ‘Aarhus Convention claim’ means a claim for judicial review of a decision, act or omission all or part of which is subject to the provisions of the UNECE Convention.

45.42

Rules 45.43 to 45.44 do not apply where the claimant:

(a) has not stated in the claim form that the claim is an Aarhus Convention claim; or

(b) has stated in the claim form that –

(i) the claim is not an Aarhus Convention claim; or

(ii) although the claim is an Aarhus Convention claim, the claimant does not wish those rules to apply.

45.43

(1) Subject to rule 45.44, a party to an Aarhus Convention claim may not be ordered to pay costs exceeding the amount prescribed in Practice Direction 45.

(2) Practice Direction 45 may prescribe a different amount for the purpose of paragraph (1) according to the nature of the claimant.

45.44

(1) If the claimant has stated in the claim form that the claim is an Aarhus Convention claim, rule 45.43 will apply unless:

(a) the defendant has in the acknowledgment of service filed in accordance with rule 54.8:

(i) denied that the claim is an Aarhus Convention claim; and

(ii) set out the defendant’s grounds for such denial; and

(b) the court has determined that the claim is not an Aarhus Convention claim.

(2) Where the defendant argues that the claim is not an Aarhus Convention claim, the court will determine that issue at the earliest opportunity.

(3) In any proceedings to determine whether the claim is an Aarhus Convention claim:

(a) if the court holds that the claim is not an Aarhus Convention claim, it will normally make no order for costs in relation to those proceedings;

(b) if the court holds that the claim is an Aarhus Convention claim, it will normally order the defendant to pay the claimant’s costs of those proceedings on the indemnity basis. That order may be enforced notwithstanding that this would increase the costs payable by the defendant beyond the amount prescribed in Practice Direction 45.’

PD 45 goes on to state:

‘5.1 Where a claimant is ordered to pay costs, the amount specified for the purpose of rule 45.43(1) is –

(a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person;

(b) in all other cases, £10,000.

5.2 Where a defendant is ordered to pay costs, the amount specified for the purpose of rule 45.43(1) is £35,000.’

HS2 Action Alliance Ltd

The first and second appellants commenced convention proceedings against the respondent for judicial review of the safeguarding directions made by the respondent for phase 1 of the proposed High Speed Two railway. Lindblom J dismissed the claim and ordered the appellants to pay the respondent’s costs.

There was no challenge to Lindblom J’s decision to cap the first appellant’s liability at a maximum of £10,000 pursuant to CPR 45.41, and the first appellant played no part in the cross-appeal.

However, there was a dispute before Lindblom J as to whether the second appellant was entitled to costs protection. Following an exchange of written submissions, Lindblom J concluded that the second appellant was entitled to such costs protection, and he capped the liability of each of the appellants at £10,000 under CPR 45.41. In the subsequent cross-appeal, the respondent challenged Lindblom J’s orders and argued that the second appellant was not entitled to the costs protections under CPR 45.41.

First instance

In his written submissions to Lindblom J, the respondent did not dispute that the claim was an Aarhus Convention claim, but submitted that the second appellant was not a ‘claimant’ for the purposes of paragraph 5.1 of PD 45 because the provisions of CPR 45.41-44 and PD 45 had to be construed against the background that they were intended to implement the protections conferred by the convention. Thus, the convention drew a distinction between ‘the public’ or ‘the public concerned’ with environmental decisions, upon whom it conferred rights; and ‘public authorities’, upon whom it imposed duties.

The respondent submitted that the second appellant was a ‘public authority’ for the purposes of the convention and as such was not entitled to the protection conferred by article 9(3) on ‘members of the public’ and the term ‘claimant’ in paragraph 5.1 of PD 45 should be construed accordingly.

Lindblom J rejected the respondent’s arguments on the following grounds:

  • The provisions for costs protection in convention claims are clear, complete, and self-contained. The costs-capping regime in CPR 45 was not made to apply only to claimants who are members of the public. It does not provide that claimants other than members of the public are disqualified from the costs protections it affords. It relates to claims of a particular nature rather than to any particular type or category of claimant. The provisions of CPR 45.43(1) entitled all claimants in claims under the convention to a costs cap at whichever of the two specified levels is appropriate. There was nothing in CPR 45.41-44 or PD 45 to indicate otherwise.
  • For the costs protection to apply it was necessary only that the claim is an Aarhus Convention claim, as defined in CPR 45.41(2). The definition of such a claim does not require the claim to have been brought by a member of the public. Paragraph 5.1 of PD 45 contemplates two distinct types of claimant. The first is an ‘individual’, the second either ‘a business or other legal person’ or someone who has issued a claim on behalf of such an organisation or body.
  • There was no need to resort to the convention itself as an aid to the interpretation of the provisions of CPR 45.41, which are entirely unambiguous. But even if this approach was incorrect, Lindblom J rejected the contention that the concept of access to justice for members of the public under article 9 of the convention must necessarily exclude a local authority bringing a claim in the interests of those living in its area. There is no case law to that effect.

Court of Appeal

Giving the judgment of the court, Sullivan LJ agreed with Lindblom J’s approach and rejected the respondent’s appeal. His lordship held that the words ‘of a decision, act or omission’ in CPR 45.41(2) made it clear that whether or not a claim for judicial review is an Aarhus Convention claim depended upon the nature, or claimed nature of the decision, act or omission that is the subject of the claim.

It was necessary, Sullivan LJ explained, to have regard to the convention for the purpose of determining that issue, but once that issue has been resolved (which it had been in the present case) further recourse to the convention was unnecessary for the purpose of deciding whether the claim for judicial review is an convention claim.

Sullivan LJ stated: ‘Once it is established that a claim for judicial review is an “Aarhus Convention claim” the costs liability of a party to that claim is dealt with in rule 45.43 and Practice Direction 45 without further reference to the Aarhus Convention.’

Sullivan LJ also noted that, following a Ministry of Justice consultation on the issue of capping costs for convention claims, the CPR had been amended by the inclusion of section VII in part 45. Thus, it would not be right to infer a limitation excluding public authorities as defined in the convention from those claimants who can benefit from costs protection under paragraph 5.1(b) of PD 45 in a convention case.

To infer such a limitation would, Sullivan LJ argued, be counter to what the government wished to avoid: ‘… it would undermine legal certainty and promote satellite litigation and thereby increase the potential for delay in the challenge process’.

Sullivan LJ also held that the words in the Practice Direction mean what they say. While interpreting the word ‘claimant’ in PD 45 in accordance with the definition in CPR 2.3(1) (thus giving the word its ordinary and natural meaning) might have ‘bizarre consequences’ as contended by the respondent, those consequences were more theoretical than real. In the great majority of cases, central government will be the defendant, not the claimant, in any environmental challenge.

Given the deliberately broad definition of public authority in article 2(2) of the convention, it might be said that excluding from costs protection all public authority claimants, including, arguably, those at the very lowest level, would produce consequences that were no less ‘bizarre’.

The decision of both the Court of Appeal and the approach adopted at first instance are to be welcomed. Both approaches adopt a clear and sensible approach to the interpretation of ‘claimant’ under the relevant provisions which preserves the underlying aims of the convention and the relevant CPR costs rules. The rules are, as both courts confirmed, clear.

To depart from the wording of the rules would open the door to lengthy and expensive satellite litigation.

Masood Ahmed, University of Leicester

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