Austin v Miller Argent (South Wales) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,His Honour Judge Jarman QC,Lord Justice Gross,Lord Justice Pill |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWCA Civ 928 |
| Date | 29 July 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2010/2841 |
[2011] EWCA Civ 928
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Jarman QC
Lord Justice Pill
Lord Justice Jackson
and
Lord Justice Gross
Case No: A2/2010/2841
OCF90274
Mr. David Hart QC and Mr. Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) for the Appellant
Mr. Geraint Webb and Mr James Pereira (instructed by DLA Piper LLP) for the Respondent
Hearing date: 28 July 2011
This judgment is in seven parts, namely;
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
In this appeal the prospective claimants in a proposed group action appeal against an order dismissing their application under section III of Part 19 of the Civil Procedure Rules ("CPR") for a Group Litigation Order ("GLO").
The dispute between the parties concerns open cast mining operations which, it is alleged, caused nuisance by dust and noise to local residents. Those affected by the nuisance intend to claim damages and an injunction.
Because the subject matter of the appeal is situated in Wales and the application for a "GLO" was made in Cardiff, the Court of Appeal sat in Cardiff to hear the appeal.
At the time of the hearing below there were five hundred and sixteen prospective claimants. Their number has now increased to five hundred and forty nine. I shall refer to these individuals as "claimants", although none has yet issued a claim form.
The claimants' solicitors are Richard Buxton Environmental and Public Law, to which I shall refer as "Richard Buxton". The defendant's solicitors are DLA Piper UK LLP, to which I shall refer as "DLA".
The claimants' counsel both in this court and at first instance is Mr. David Hart QC. The defendant's counsel in this court are Mr. Geraint Webb and Mr. James Pereira. Mr. Webb deals with GLO issues. Mr. Pereira appeared below but Mr. Webb did not.
In this judgment I shall use the following abbreviations:
"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".
The Aarhus Convention requires that there be proper consultation in respect of all administrative decisions which will affect the environment. It came into force in October 2001. It was ratified by the UK and the European Community in 2005. Articles 9.3 and 9.4 of the Aarhus Convention provide as follows:
"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."
A PCO is a remedy fashioned by judges over the last decade to protect claimants in certain public law proceedings against excessive liability for adverse costs. The guidelines which cover the grant of PCOs were set out by the Court of Appeal in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600 at paragraphs 74–76. These guidelines have been the subject of subsequent glosses in a number of decisions of this court.
The Civil Procedure Rule Committee has not yet made any rules to regulate the making and effect of PCOs. There is no judicial decision on the question whether a PCO can be granted in private nuisance litigation concerning alleged environmental damage.
After these introductory remarks, I must now turn to the facts.
At Ffos-y-fran on the eastern side of Merthyr Tydfil there is an area of derelict land, which has historically been used for coal and slag tipping. On 11 April 2005 a committee of the Welsh Assembly granted planning permission for a reclamation project at Ffos-y-fran, known as the "the Ffos-y-fran Land Reclamation Scheme". This project involves the removal of coal from the site by open cast mining, followed by the restoration of the land to urban common land and agricultural land, as appropriate.
The defendant is carrying out the Ffos-y-fran Land Reclamation Scheme. The defendant will use part of the profits from the sale of coal to fund the restoration of the land. The defendant commenced work on site in June 2007. Under the terms of the planning permission the defendant must cease coal extraction within fifteen years and three months from commencement of development. The defendant must complete final restoration of the land within seventeen years, six months from commencement of development.
The claimants are residents of Merthyr Tydfil, who live in the vicinity of the Ffos-y-fran Land Reclamation Scheme. Some claimants are householders, being either owners or tenants of their homes. Others are children of householders. The claimants contend that the dust and noise generated by the coal extraction and associated works at Ffos-y-fran constitute a private nuisance.
On 15 June 2010 Richard Buxton issued an application for a GLO in order to regulate the claimants' prospective litigation. Mr. Paul Stookes, a partner in Richard Buxton, made a witness statement in support of the application. In paragraph six Mr. Stookes stated:
"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."
Mr. Stookes then set out the history of earlier, unsuccessful public law challenges to the Ffos-y-fran Land Reclamation Scheme, in which his firm had acted for the objectors. Draft Particulars of Claim were annexed to Mr. Stookes' witness statement. The draft Particulars of Claim assert that the claimants' homes are between thirty six metres and one kilometre from the site. After setting out the hours of work the draft Particulars of Claim continue:
"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."
On the basis of these alleged facts the claimants claim damages and an injunction to prevent continuance of the nuisance.
At a case management conference on 28 July 2010 Judge Milwyn Jarman QC gave directions for the defendant to serve evidence and the parties to identify issues. He directed that the GLO application be re-listed on a date after 10 September 2010.
On 26 August 2010 Mr. Paul Stone, a partner of DLA,...
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