R (Edwards) v Environment Agency and Others (Costs)
| Jurisdiction | England & Wales |
| Judge | LORD HOPE |
| Judgment Date | 15 December 2010 |
| Neutral Citation | [2010] UKSC 57 |
| Date | 15 December 2010 |
| Court | Supreme Court |
[2010] UKSC 57
THE SUPREME COURT
Michaelmas Term
Lord Hope, Deputy President
Lord Walker
Lord Brown
Lord Mance
Sir John Dyson, SCJ
and others
Appellant
David Wolfe
(Instructed by Richard Buxton Environmental and Public Law)
Respondents
James Eadie QC
James Maurici
Charles Banner
(Instructed by Treasury Solicitor)
LORD HOPE, delivering the judgment of the Panel
This is an appeal against a decision by two costs officers appointed by the President of the Supreme Court under rule 49(1) of the Supreme Court Rules 2009, Mrs Registrar di Mambro and Master O'Hare, a copy of which is annexed to this judgment. From the issues they were asked to decide they selected two preliminary issues which arose in the detailed assessment of bills of costs lodged by the respondents in an appeal to the House of Lords in which they were successful. The appellant, Mrs Pallikaropoulos, had been ordered to pay the costs of the appeal. The first respondent, the Environment Agency, had lodged a bill totalling £55,810. The second respondent, the Secretary of State for the Environment, Food and Rural Affairs, had lodged a bill totalling £32,290.
The preliminary issues were about the proper application of article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment ("the EIA Directive") and article 15a of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control ("the IPPC Directive"). Those articles had been inserted by articles 3(7) and 4(4) of Council Directive 2003/35/EC of 26 May 2003 to implement provisions which first appeared in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 ("the Aarhus Convention"). Among the provisions as to access to justice in article 9 of the Aarhus Convention is a requirement that the procedures to which it refers should be fair, equitable and timely and not prohibitively expensive: article 9(4).
In proceedings to which the EIA Directive applies, article 10a requires Member States to ensure that members of the public have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the directive. It also provides that
"Any such procedure shall be fair, equitable, timely and not prohibitively expensive."
Article 15a of the IPPC Directive makes identical provision with respect to proceedings to which that directive applies.
The costs officers were asked to consider the proper application of those articles to this case. The issues which were identified from the skeleton arguments provided by the parties were as follows:
The costs officers decided the first two issues in favour of the appellant. They reserved their opinion on the third issue until they had given written reasons for their decision on the first two issues and the parties had had an opportunity to consider whether to appeal against it.
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(i) where an order for costs has been made, whether as a general rule the court assessing those costs has any jurisdiction to implement the directives;
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(ii) if so, whether in the particular circumstances of this case the costs officers should seek to do so; and
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(iii) if so, whether on the evidence presented the amount of costs payable by the appellant should be moderated or even excluded altogether.
The respondents appealed against the costs officers' decision under rule 53 of the Supreme Court Rules. They asked the single Justice to refer the following questions to a panel of Justices under rule 53(2):
The single Justice referred the application to a panel of five Justices and directed that these questions should be decided after an oral hearing. The panel, having now heard counsel, is grateful for their assistance on these issues of principle.
Background
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(1) whether it was open to the costs officers, in the circumstances of this case in which applications to the court to reduce or cap a party's liability had been made to and considered by and rejected by the Court, to achieve that result through the detailed assessment process; and
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(2) if it was, whether the test indicated by the phrase "prohibitively expensive" should be focused exclusively on the actual circumstances of the parties to the litigation and not on the question what would be prohibitively expensive for the ordinary member of the public.
The issues about costs are in respect of the appellant's application for judicial review of the decision of the first respondent to issue a permit on 12 August 2003 for the operation of a cement works in Lawford Road, Rugby. Permission had been sought and granted to replace the fuel that had previously been used for their operation, which was coal and petroleum coke, with shredded tyres. The use of tyres for this purpose gave rise to a public campaign against the proposal on environmental grounds. The application was originally brought in the name of a Mr David Edwards. His claim for judicial review was dismissed by Lindsay J: [2005] EWHC 657 (Admin), [2006] Env L R 3. He appealed to the Court of Appeal, but on the third and final day of the hearing he withdrew his instructions from his solicitors, Richard Buxton & Co, and his counsel, David Wolfe. Mrs Pallikaropoulos, who had been present in court throughout the appeal and had been closely involved in opposition to the permit, was added as an appellant for the remainder of the proceedings. Her liability in the Court of Appeal was capped at £2,000. The appeal was dismissed and the respondents' costs, capped at £2,000, were awarded against Mrs Pallikaropoulos: [2006] EWCA Civ 1138. Mrs Pallikaropoulos was given leave to appeal by the House of Lords.
Mrs Pallikaropoulos then applied to the House of Lords for an order varying or dispensing with the requirement to give security for costs in the sum of £25,000 in accordance with House of Lords Practice Direction 10.6. She also applied for a protective costs order, in which she sought a cap on her liability for costs on her appeal under the principles set out in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600. She relied in support of these applications on the requirement of articles 10a and 15a of the EU Directives and article 9(4) of the Aarhus Convention that access to the courts should not be "prohibitively expensive". She declined to provide details of her means or details of the means of those whom she claimed to represent. Her applications were opposed by the respondents.
By letter dated 22 March 2007 the Judicial Office of the House of Lords wrote to the parties informing them that Mrs Pallikaropoulos's applications had been rejected. The following reasons were given for this decision:
"Their Lordships proceed on the basis that the appeal raises an issue or issues of general importance and they are prepared to assume that absence of private interest may not always preclude the making of a special costs order in such a case. But their Lordships do not accept that information about the applicant's means, about the identity and means of any who she represents and about the position generally in the absence of any special order, are or should be regarded as immaterial; further, they do not consider that the suggested protective orders regarding costs appear proportionate on the information which is before them and in the light of the nature of the issues involved; and they do not consider that any case has been made for saying that the proposed appeal would be 'prohibitively expensive' or that Directive 2003/35/EC would be breached without a special order."
Notwithstanding the rejection of these applications Mrs Pallikaropoulos proceeded with her appeal.
On 16 April 2008 the House of Lords affirmed the Court of Appeal's decision and dismissed the appeal: [2008] UKHL 22, [2008] Env LR 34. The parties were given time to make written submissions on costs. It was submitted for Mrs Pallikaropoulos that there should be no order as to costs. As in the case of her application for a protective costs order, she relied in support of that submission on the requirement of articles 10a and 15a of the EU Directives and article 9(4) of the Aarhus Convention that access to the courts should not be "prohibitively expensive". Some information was given about her means, but it was in general terms and it was not accompanied by detailed evidence. Her submission was opposed by the respondents, who sought an order for the costs of the appeal. On 18 July 2008, following consideration of what had been offered on either side, the House of Lords pronounced a costs order in these terms:
"That the appellant do pay or cause to be paid to the respondents their costs of the appeal to this House, the amount of such costs to be certified by the Clerk of the Parliaments if not agreed between the parties."
No reasons were given for this decision.
On 1 October 2009 the jurisdiction of the House of Lords was transferred to the Supreme Court by section 40 of the Constitutional Reform Act 2005. Among the transitional provisions in Schedule 10 to the Act relating to proceedings transferred to the Supreme Court from the House of Lords or the Judicial Committee of the Privy Council is para 5, which provides:
"(1) Any act, judgment or order of the original court in the transferred proceedings is to have the same effect after the transfer day as if it had been an act, judgment or order of the Supreme Court in corresponding proceedings in that court.
(2) Accordingly, after...
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