R HS2 Action Alliance (First Appellant) London Borough of Hillingdon (Second Appellant) v The Secretary of State for Transport and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 11 March 2015 |
| Neutral Citation | [2015] EWCA Civ 203 |
| Docket Number | Case No: C1/2015/0234 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 2015 |
[2015] EWCA Civ 203
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE LINDBLOM
CO/11729/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Sullivan
and
Lord Justice Lewison
Case No: C1/2015/0234
and
Charles Banner (instructed by Nabarro LLP Solicitors) for the Second Appellant
James Maurici QC and Ms Jacqueline Lean (instructed by Treasury Solicitors) for the Respondent
The First Appellant did not appear and was not represented
Hearing date: 24 th February 2015
This is the judgment of the Court.
Introduction
The issue in this cross-appeal by the Respondent is whether a local authority, such as the Second Appellant, is entitled to the costs protection conferred on claimants in Aarhus Convention claims by Section VII of Part 45 of the Civil Procedure Rules and paragraph 5.1 of Practice Direction 45.
On the 9 th December 2014 we dismissed the appeal by the First and Second Appellants against the Order dated 6 th August 2014 of Lindblom J dismissing their claim for judicial review of the safeguarding directions made by the Respondent for Phase 1 of the proposed High Speed Two railway: [2014] EWCA Civ 1578.
Lindblom J ordered the Appellants to pay the Respondent's costs. There is no challenge to his decision to cap the First Appellant's liability at a maximum of £10,000 pursuant to CPR 45.41 and Practice Direction paragraph 5.1. The First Appellant has played no part in this cross-appeal. There was a dispute before Lindblom J as to whether the Second Appellant was entitled to costs protection under CPR 45.41 and Practice Direction 45 paragraph 5.1. Following an exchange of written submissions, Lindblom J concluded that the Second Appellant was entitled to such costs protection, and by Orders dated the 16 th October 2014 and 17 th October 2014 (amending the Order dated 6 th August 2014) capped the liability of each of the Appellants at £10,000 under CPR 45.41 and paragraph 5.1 of Practice Direction 45. In this cross-appeal the Respondent challenges these Orders insofar as they confer costs protection on the Second Appellant.
CPR 45.41 – 44
Section VII of Part 45 of the Civil Procedure Rules makes provision for "Costs Limits in Aarhus Convention Claims", 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 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998, including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject. (Rule 52.9A makes provision in relation to costs of an appeal.)
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, and that order may be enforced notwithstanding that this would increase the costs payable by the defendant beyond the amount prescribed in Practice Direction 45.
Practice Direction 45 provides:
"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."
In the Civil Procedure Rules a Claimant means a person who makes a claim: see the definition in CPR 2.3(1).
Factual background
The factual background to the appeal is set out in the judgment of Lord Justice Sullivan: [2014] EWCA Civ 1578. The Appellants' claim form stated that the claim was an Aarhus Convention claim. In support of the proposition that the claim was an Aarhus Convention claim the claim form referred to the pre-action protocol letter dated 29 th July 2013 sent on behalf of the First Appellant. In his acknowledgement of service the Respondent did not deny that the claim was an Aarhus Convention claim. The Respondent had understood that the claim for Aarhus costs protection was limited to the First Appellant because the pre-action protocol letter was sent on behalf of the First Appellant. Whether or not there was a misunderstanding between the parties prior to the 6 th August 2014 when Lindblom J handed down his judgment, before this Court there was no dispute that the Appellants' claim for judicial review had proceeded upon the basis that the Respondent's decision to make the safeguarding directions was subject to the provisions of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 th June 1998 ("the Aarhus Convention").
The Aarhus Convention
Article 9 (Access to Justice) of the Aarhus Convention provides (so far as relevant) as follows (emphasis added):
"…2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned"
(a) Having a sufficient interest
or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedure prior to recourse to judicial review procedures, where such a requirement exists under national law.
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.
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 …"
"Public authority" is defined in Article 2(2) as:
(a) Government at national, regional and other level;
(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;
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