31 - Aarhus costs: An embarrassment of riches (Part 1)

Much like the old adage about buses, after a relatively quiet period on the Aarhus costs front, there has been a veritable flurry of activity in the courts over the past few months. This is the first of two blog posts concerned with the same.

The first case of note (at least chronologically) concerns a series of applications in connection with a challenge to the traffic regulation order made under the Road Traffic Regulation Act 1984 in Wesson v Cambridgeshire County Council [2023] EWHC 2801 (Admin). These included an application by the claimant for an Aarhus costs cap and by the defendant for security for costs.

The claim form recorded the name of the claimant as “Pamela Wesson on behalf of Friends of Mill Road Bridge”. Friends of Mill Road Bridge was an unincorporated association. Ms Wesson was its Chair. No schedule of financial resources of Ms Wesson was provided with the claim. Some brief details of the association’s finances were provided in a witness statement from Ms Wesson, subtitled ‘Aarhus Convention Financial Statement’, but not her own.

At the hearing, it was confirmed that it was Ms Wesson who should be the considered to be the claimant in the proceedings. The claimant accepted that a schedule of her financial resources had not yet been provided but could still be provided, the rules allowing for a schedule to be submitted late. The defendant submitted that the court had no power to make a costs capping order, the claimant having failed to provide a schedule as required under the rules.

The court (Mr Tim Smith sitting as a DHCJ) acknowledged that Ms Wesson should have filed and served a schedule of financial resources, but agreed with the claimant that a schedule could be provided late. A second witness statement was provided between the hearing and judgment, but the judge declined to consider the application for an Aarhus costs cap at that time, the defendant not having had an opportunity to consider the same or make any application to vary the default costs limits, but gave directions for how the application was to proceed.

In respect of the defendant’s application for security for costs, it was resisted by the claimant on the basis (inter alai) that such an order would not be just, with claimant’s counsel observing that “the arguments for increasing the level of a costs capping order on the one hand, and for an order for security for costs on the other hand, must be mutually incompatible: a finding that costs should be increased because proceedings would not be rendered prohibitively expensive to the claimant must also mean that there can be no reasonable doubt about the ability of the claimant to meet a future costs award for that amount, and hence no justification for security for costs being awarded.”

Ultimately, the court concluded that it would not be appropriate to make an order for security for costs on other grounds (the conditions in CPR r.25.13(2)(e) and (f) not being met). The court considered, however, that there was “considerable force” in claimant’s counsel’s submission about the overlap between the arguments for increasing a costs cap and an order for security for costs (para 80), but the level any costs cap being unknown, that had not influenced the conclusion reached. The court also went on to set out why it would not have considered an order to be ‘just’ in any event, even though it was not strictly necessary to consider that point in light of the earlier conclusions (at para 81). It is interesting to see how the Aarhus costs interface at least impliedly influenced that consideration:

“… Firstly, it is only because a costs capping order has been sought that there is any evidence available about the claimant’s resources. Ordinarily there would not be. Secondly, the level of security sought by the defendant is, I acknowledge, relatively modest. For its own reasons, the defendant does not seek an order even covering the costs it has incurred to date. I have very little evidence about the terms that have been agreed between the claimant and her advisers about meeting her own legal costs. Nevertheless, the effect of an order for security would be to dictate the prioritisation of the funds that have already been collected by removing them from the claimant now. That would be disproportionate to the risk of non-payment as I see it. Thirdly, as [defendant’s counsel] impliedly conceded in his submission on the cost capping order application, even if one could not be certain how funds raised in the name of Friends can become accessible to the claimant to meet an adverse costs award there is scope for the defendant to make an application to the court for a non-party costs order pursuant to CPR Rule 46.2”.

Whilst it was clearly not necessary for the court to delve in detail into the issues that might arise in a case to which Aarhus costs protections applied but where a defendant sought an order for security for costs, the judgment does cast some light on some issues that will likely need to be grappled with in a future case. Notably, whilst CPR PD 25A (interim injunctions) makes express provision for matters that need to be considered where a cross undertaking for damages is being considered in a case to which the protections apply (see para 2.3) CPR Part 25 is silent in this regard in the context of applications for security from costs. It also did not form part of the matters consulted on by the Government in 2015, ahead of the substantive changes to the rules introduced in 2017 (see Blog post 14: 'Costs caps: a re-cap'). The prospect of pursuing a costs order against non-parties under CPR r.46.2 is also one which may warrant more detailed scrutiny, particularly given the obligation in CPR r.46.25(1)(b) to provide a statement of financial resources which (inter alia) details “ any financial support which any person has provided or is likely to provide to the claimant”. No doubt a topic that will be returned to in a future post!

The second case of note is a judgment of the CJEU (Fourth Chamber) on a request for a preliminary ruling handed down in January 2024: Case C-252/22 Societatea Civlia Profesionala de Avocati AB & CD v Consilul Judetean Suceava & ors. This case also raised some interesting points on standing – which will be discussed in a future blog post.

The decision followed a request for a preliminary ruling concerning the interpretation of Articles 2(4) and 9(3) to (5) of the Aarhus Convention, arising in proceedings between a law firm partnership registered under Romanian law (AB & CD) and various public bodies concerning the lawfulness of administrative measures adopted by those bodies for the construction of a landfill site in Romania.

Three questions were referred to the CJEU for a preliminary ruling. The first two related to the question of standing. The third, on costs was whether Article 9(3), (4) and (5) of the Aarhus Convention and the first and second paragraphs of Article 47 of the Charter read in conjunction with the second sub-paragraph of Article 19(1) TEU, was to be interpreted as meaning that:

“the expression that adequate and effective remedies, including the adoption of a judicial decision, should not be “prohibitively expensive”, presupposes rules and/or criteria to limit the costs that may be incurred by the unsuccessful party to the proceedings, in the sense that a national court or tribunal must ensure that the requirement that the cost not be prohibitively expensive is met, taking into account [both] the interest of the person who wishes to defend his or her rights and the public interest in the protection of the environment?’.”

In considering that question, the CJEU reiterated that:

• The requirement in Article 9(4) that costs not be prohibitively expensive applied irrespective of the outcome of the main proceedings, even if it was dismissed as non admissible due to a lack of standing to bring proceedings;
• The requirement that litigation should not be prohibitively expensive “concerns all costs arising from participation in the judicial proceedings” and the prohibitive nature of costs must therefore be assessed as a whole, taking into account all costs borne by the party concerned (by analogy with C-260/11 Edwards & Pallikaropoulos);

• The court “may also take into account the situation of the parties concerned, whether the applicant has a reasonable prospect of success, the importance of what is at stake for the applicant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at its various stages” (again, by analogy with Edwards & Pallikarapoulous);
• Article 9(4) did not have direct effect (C-470/16 North East Pylon Pressure Campaign and Sheehy). Nor did Article 9(5), insofar as it provides that the parties to the Aarhus Convention are to consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice (C-543/14 Ordre de barreaux francophones et germanophone and Others). Those provisions were, however, intended to ensure effective environmental protection;
• In addition, the requirement that costs not be prohibitively expensive pertained, in environmental terms, to the right to an effective remedy in Article 47 of the Charter.

The CJEU was, however, unable to reach any conclusion on the compatibility (or otherwise) of Romanian law with those protections on the basis of the information before it:

“In light of the limited information contained in the request for a preliminary ruling, the Court cannot determine to what extent Articles 451 and 453 of the Code of Civil Procedure, which govern, in general, the question of costs in Romanian law and which appear to apply to the dispute in the main proceedings, allow the referring court to carry out an overall assessment of the costs borne by the party concerned and to take account, in its decision on costs, of the criteria referred to in paragraphs 74 and 75 of this judgment. It also appears that that court may reduce only part of the costs, namely those corresponding to lawyers’ fees.

As the Advocate General observed, in essence, in points 75 and 76 of her Opinion, given the broad discretion Member States enjoy when implementing Article 9(4) of the Aarhus Convention, the absence of a detailed determination of costs in environmental litigation by national legislation cannot be considered as such as incompatible with the rule that costs must not be prohibitively expensive. It is, however, for the referring court to verify to what extent the mechanisms existing in Romanian law comply with the requirements arising from that Article 9(4).

In that context, it should also be noted that, in order to ensure effective judicial protection where, as in the present case, the application of national environmental law is at issue, the referring court is obliged to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objective laid down in Article 9(4) of the Aarhus Convention, so that judicial procedure are not prohibitively expensive […]

In light of all the findings above, the answer to the third question is that Article 9(4) and (5) of the Aarhus Convention, read in light of Article 47 of the Charter, must be interpreted as meaning that, in order to ensure compliance with the requirement that judicial proceedings not be prohibitively expensive, a court called upon to make an order for costs against an unsuccessful party in an environmental dispute must take into account all the circumstances of the case, including that party’s interest and the public interest in the protection of the environment.”

A useful re-cap on the general principles to be considered in the context of the Article 9(4) protections. As to the ‘obligation’ to construe national legislation in such a way “which, to the fullest extent possible, is consistent with the objective laid down in Article 9(4) of the Aarhus Convention”, this may indicate a potential future divergence between the UK and EU Member State, having regard to the approach taken in domestic law with regards to the status of the Aarhus Convention as an unincorporated treaty (on which see Blog Post 5- ‘ The status of the Aarhus Convention in English law in 2023’).

This blog post was written by Jacqueline Lean.

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.