R Donald John Kent v Teesside Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 14 February 2020 |
| Neutral Citation | [2020] EWHC 304 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1408/2019 |
| Date | 14 February 2020 |
[2020] EWHC 304 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: CO/1408/2019
and
Dr Paul Stookes, Solicitor Advocate (of Richard Buxton Solicitors) for the Claimant
Mr Christopher Knox of Counsel (instructed by Womble Bond Dickinson) for the Interested Party
I Introduction
Following the judgment given orally on 28 November 2019 that the Aarhus Convention applied, the question of costs falls to be determined. The Claimant contends that its costs should be paid by the Interested Party, failing which his costs should be paid by the Defendant or apportioned between the Defendant and the Interested Party.
The Interested Party submits that no order should be made against it. The Defendant, who did not appear in the application, says that there should be no order for costs as between the Claimant and Defendant. It also says that if the court is minded to award costs against the Defendant then it should be given an opportunity to make written submissions.
II Chronology
Although the Defendant ticked the box that the Aarhus convention does not apply in its acknowledgment of service, subsequently it has been neutral as to the issue of the application of the Aarhus Convention. The relevant chronology is as follows:
14.6.19 HH Judge Belcher granted permission to proceed with the claim, directing that the claim is not an Aarhus Convention claim but that the Aarhus direction may be challenged and if so, it should be determined at a hearing.
8.7.19 The Defendant noted that its costs position is neutral.
15.7.19 The Claimant renewed his application for costs protection under CPR 45.41.44.
19.8.19 The Claimant wrote to the court copying the Defendant and the Interested Party seeking that they should indicate that if they consider that CPR 45.45(3) does not apply (that is no order against the Claimant in the event that the Aarhus Convention did not apply), and if so why. The Defendant replied that it remained neutral.
The Interested Party said that costs would be in the discretion of the Administrative Court, and that it would be appropriate for the Court to exercise its discretion, to depart from the usual order of no order as to costs and to make an order for costs against the Claimant.
The objection of the Interested Party to the Claimant having Aarhus costs protection has been persistent. This has been evident from
(1) the Interested Party's summary grounds of resistance;
(2) a letter of 2 July 2019 indicating inter alia that the Interested Party had instructed its solicitors to “oppose any such application”;
(3) a letter of the Interested Party of 9 July 2019 that its position was “unchanged” and that it would not agree that the hearing of the application would be on a no order for costs basis;
(4) the Interested Party's submissions of 23 July 2019 in opposition to the Claimant's application;
(5) the Letter to the Claimant's solicitors of 30 August 2019 and 8 November 2019 seeking information on funding;
(6) the Interested Party's skeleton argument of 22 November 2019;
(7) the attendance and submissions of the Interested Party at the hearing of 27 November 2019.
III The hearing
The hearing took place on 27 November 2019 and judgment was given on 28 November 2019. There was voluminous evidence and authority cited. The hearing lasted half a day. There were skeleton arguments of the Claimant and the Interested Party who were the only parties before the Court. The costs were then reserved to be dealt with in writing. Detailed written submissions have been made by skeleton arguments from the Claimant and the Interested Party respectively. The parties are agreed in view of the judgment that the order to reflect should be that the claim falls within CPR 45.41–44 as an Aarhus Convention claim and the Claimant is entitled to costs protection limiting his total adverse costs liability to £5,000 with a reciprocal cap of £35,000. However, there are issues as to (a) the power to award costs against the Interested Party, (b) whether costs should be awarded, and, if so, to what extent, and (c) the quantum of costs.
(a) The starting point – power to award costs against the Interested Party
The rules provide at CPR 45.45(3) as follows:
“(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 to be assessed on the standard basis, and that order may be enforced even if this would increase the costs payable by the defendant beyond the amount stated in rule 45.43(3) or any variation of that amount.”
The point is taken by the Interested Party that the reference to the defendant in CPR 45.45(3)(b) means that the starting point in the event that the court holds that it is an Aarhus Convention claim, is that the costs should be paid by the defendant. There is no reference to the interested party. That point has been dealt with by the Court of Appeal in the case of Campaign for the Protection of the Rural Environment Kent Branch v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 (“ CPRE”). Coulson LJ held at [46–48] that the reference to a defendant only in CPR 45.41–45.44 was not material. In that case, the question was about the liability of the claimant for the interested party's costs. Coulson LJ held that
“47. I am in no doubt that the absence of any express reference to interested parties in CPR Pt 45 is of no consequence. It was probably deemed unnecessary by the draftsmen to refer to “and/or interested parties” after the reference to “defendant” every time the latter was mentioned. But in any event the omission makes no difference to the application of the Aarhus cap. That is because, as Ms Lean pointed out, rule 45.4.3 limits the costs exposure to the claimant; it is the claimant who “may not be ordered to pay more than …” It does not spell out to whom the claimant might be paying the costs up to the limit of the cap. The obvious answer is: any defendant or interested party who is otherwise entitled to their costs.
48. Accordingly, I do not consider that...
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