UK: Costs In Environmental Cases - Some Encouragement For Claimants

Last Updated: 10 December 2009
Article by Aidan Thomson

On 2 March 2009, in Morgan and another v Hinton Organics (Wessex) Ltd, the Court of Appeal considered arguments in connection with the 1998 Aarhus Convention.

The appellants resided in a rural hamlet. Hinton Organics owned a nearby site and conducted composting operations there under the terms of an environmental permit.  

The appellants complained of smells. The Environment Agency and the local authority took some enforcement action. This did not satisfy the appellants, however, who brought proceedings in private nuisance against Hinton Organics for an injunction and damages.

An interim injunction was granted pending trial in favour of the appellants. This prevented Hinton Organics from causing odours in the vicinity of the appellants' properties at levels that were likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the site boundary, as perceived by an authorised officer of either the Environment Agency or the Council. 

The Environment Agency and the Council were notified of the injunction. They were unhappy with their role as arbiters under the injunction which, they considered, might conflict with their statutory duties. Alternative wordings for the injunction were considered but could not be agreed. Eventually, it was decided that the injunction would be discharged and the case would be set down for an early trial.

The decision as to who was to pay the costs of the interim injunction application might have been left to the trial judge. However, the judge who discharged the injunction ordered the appellants to pay the respondent's and the local authority's costs (the local authority was not a party to the action, but had been represented during the injunction hearing process). This left the appellants with a potential costs bill of £25,000 to be paid straight away.

The appellants applied to the Court of Appeal for permission to appeal against the costs order. They argued that the discharge of the injunction did not happen because the court thought that injunctive relief was not appropriate or that there was not a serious issue to be tried. Indeed, the reverse was true. Even though they had legal expenses insurance up to £50,000, the appellants argued that the costs award put at risk the prospect of their being able to pursue their claim to trial. As a result the order was "unfair and prohibitively expensive" and therefore contrary to Article 9(4) of the UNECE Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters, usually referred to as the 1998 "Aarhus Convention".

The Aarhus Convention came into force in October 2001. It was ratified by the UK in February 2005, at the same time as its ratification by the European Community.

What is the status of the Aarhus Convention before the UK courts?

  • For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect.
  • If it had been encapsulated in an EC Directive or other EC legislation, it would very likely have increased status, either now or in the future. However, it has only been implemented via the EC legislative system in limited respects that are not relevant to this case.

Nevertheless, the claimants argued hard. Eventually, the Court of Appeal did allow the claimants' appeal on the costs order, but this was on conventional principles of costs and not as a result of anything to do with the Aarhus Convention.

In relation to the Aarhus Convention, it said that it was not relevant to this case. It did not constitute a rule of law relating to costs that was directly binding on the Court and had to be considered by the judge of his own motion.

The principle of the Aarhus Convention that costs should not be prohibitively expensive was, at most (but possibly with the exception of cases that involved the limited EC law that already incorporated Aarhus Convention principles), a matter to which the court might have regard in exercising its discretion in respect of ordering costs. However, the judge at first instance had not even been asked to consider whether the order was prohibitive as he reached a decision. As subsequent events had shown, the costs order had not deterred the appellants from proceeding to trial after all.

Notwithstanding the Court's disinclination to use the Aarhus Convention as a basis for its decision to allow the appeal, it made a number of useful comments.

  • The requirement of the Aarhus Convention that costs should not be "prohibitively expensive" should be taken as applying to the total potential liability of claimants, including the threat of adverse costs orders, and not just court fees.
  • The ongoing Jackson review of civil litigation costs provides an opportunity for considering the Aarhus principles in the context of the system for costs as a whole. Modifications of the present rules in the light of that report are likely to be matters for Parliament or the Civil Procedure Rules Committee.
  • Apart from the issue of costs, the Aarhus Convention requires remedies to be "adequate and effective" and "fair, equitable, timely". The variety and lack of coherence of jurisdictional routes currently available to potential litigants may arguably be seen as additional obstacles in the way of achieving these objectives.

Since this judgment, there have been some further developments relevant to the compatibility of costs rules in the UK with the access to justice requirements of the Aarhus Convention. 

  • Commission v Ireland (16 July 2009) concerned an area of law - Environmental Impact Assessment - where (unlike in the Hinton Organics case) Aarhus requirements have been enshrined in an EC Directive. In this case, the ECJ accepted that (as in the UK) Irish judges had a discretion not to award costs against an unsuccessful party. However, this was not sufficient to  implement the Directive's requirements.
  • The European Commission has now commenced infringement proceedings against the UK concerning the Environmental Impact Assessment Directive and access to justice.

The comments in the Hinton Organics case together with the Commission v Ireland case and the ongoing UK infringement proceedings suggest very strongly that the UK has some work to do to become Aarhus compliant, at least in so far as access to justice and litigation costs are concerned.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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