HS2 Action Alliance, R (on the application of) v London Borough of Hillingdon & Anor [2015] EWCA Civ 203

Case No C1/2015/0234[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
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 11 th March 2015
Before
LORD JUSTICE LONGMORELORD JUSTICE SULLIVANLORD JUSTICE LEWISON
Between
THE SECRETARY OF STATE FOR TRANSPORT AND ANOTHERRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Charles Banner (instructed by Nabarro LLP Solicitors) for Second AppellantJames Maurici QC and Ms Jacqueline Lean (instructed by Treasury Solicitors) for Respondent for The First Appellant did not appear and was not representedHearing Hearing date: 24 th February 2015
Judgment
[1]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.[2]On the 9th December 2014 we dismissed the appeal by the First and Second Appellants against the Order dated 6th 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.[3]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 16th October 2014 and 17th October 2014 (amending the Order dated 6th 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

[4]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.[5]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[6]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 29th 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 6th 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 25th June 1998 (“the Aarhus Convention”).

The Aarhus Convention

[7]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 ...”
[8]“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;(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;(d) The institutions of any regional economic integration organization referred to in article 17 which is a Party to this Convention. This definition does not include bodies or institutions acting in a judicial or legislative capacity; 9. “The public” and “The public concerned” are defined in Articles 2(4) and (5), respectively:
“4. The public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups; 5. “The public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental rotection and meeting any requirements under national law shall be deemed to have an interest.”

Lindblom J’s Order

[9]In his written submissions to Lindblom J the Respondent did not dispute that the claim was an Aarhus Convention claim. The Respondent submitted that the Second Appellant was not a “claimant” for the purposes of paragraph 5.1 of Practice Direction 45 because the provisions of CPR 45.41-44 and Practice Direction 45 had to be construed against the background that they were intended to implement the protections conferred by the Aarhus Convention, and the Convention drew a distinction between “the public” or “the public concerned” with environmental decisions, upon whom it conferred rights; and “public authorities”, upon whom it imposed duties. It was submitted that the Second Appellant was a “public authority” for the purposes of the Aarhus Convention; was not therefore entitled to the protection conferred by Article 9(3) on “members of the public”; and that “claimant” in paragraph 5.1 of Practice Direction 45 should be construed accordingly.[10]In his Order dated 16th October 2014 Lindblom J rejected that submission for the following reasons:
“(1) In my view the provisions for costs protection in Aarhus Convention claims are clear, complete, and self-contained. The costs capping regime in CPR r.45 was not made to apply only to claimants who are members of the public. It does not provide that claimants other than members of the public are disqualified from the costs protections it affords. It relates to claims of a particular nature rather than to any particular type or category of claimant. As Mr Elvin submits, the provisions of CPR r.45.43(1) and para 5.1 of Practice Direction 45 entitle all claimants in claims challenging decisions within the ambit of the Aarhus Convention to a costs cap at whichever of the two specified levels is appropriate. There is nothing in CPR r.45.41-44 or Practice Direction 45 to indicate otherwise. (2) For the costs protection under these provisions to be engaged it is necessary only that the claim is an “Aarhus Convention Claim”, as defined in CPR r.45.41(2). The definition of such a claim does not require the claim to have been brought by a member of the public. Para 5.1 of PD45 contemplates two distinct types of claimant. The first is an “individual”, the second either “a business or other legal person” or someone who has issued a claim on behalf of such an organisation or body. The purpose of the distinction is to divide claims to which the higher level of costs protection applies from those in which the protection is at the lower level. In the second category of claimant, comprising businesses and other legal persons, there is no additional requirement for the claimant to be a non-governmental organisation. Local authorities and other public bodies are not excluded. Nor is there any qualification in terms of the claimant’s means, or its ability to fund the proceedings, or the likelihood of its being able to meet from its own resources any order for costs which might be made in favour of another party. (3) I recognise that the provisions of the Aarhus Convention – which “has the status of an international treaty, not directly incorporated” – may be taken into account in “resolving ambiguities” in legislation intended to give effect to it (as Carnwath L.J., as he then was, said in Morgan v Hinton Organics (Wessex) Ltd [2009] C.P. Rep. 26). However, I do not think one needs to resort, or should resort, to the Aarhus Convention itself as an aid to the interpretation of the provisions of CPR r.45.41, which are, I believe, entirely unambiguous. (4) But if I were wrong about that, I would not accept Mr Mould’s submission that the concept of access to justice for members of the public under article 9 of the Aarhus Convention must necessarily exclude a local authority bringing a claim in the interests of those living in its area. So far as I am aware, there is no case law to that effect, domestic or European. I note the decision of the Aarhus Convention Compliance Committee ruling admissible a communication made by Avich and Kilchrenan Community Council and the preliminary determination on admissibility in the recent communications made jointly by Hillingdon, HS2AA and Ms Charlotte Jones. But those decisions are not jurisprudence, and I do not think it would be right to give them any significant weight here. I also note Mr Mould’s reliance on the comments made in the UNECE Aarhus Implementation Guide which emphasise the importance of several definitions, including those of a “public authority”, the “public” and the “public concerned” in establishing the scope of the convention “in terms of the persons who should be bound by its obligations, as well as those who should be allowed to use the rights described...”
But I do not think that guidance helps Mr Mould. It does not seem to me to preclude the possibility of one public authority acting in the public interest when it seeks judicial review of a decision made by another authority, even though its own administrative acts may themselves be subject to scrutiny by the court in proceedings brought by an individual claimant.” For convenience, we have numbered the four reasons. Discussion[11]Mr. Maurici QC acknowledged that paragraph 5.1 of Practice Direction 45 divided claimants into two categories – individuals claiming as such and not as, or on behalf of a business or other legal person, and all other cases – and that, on the face of it, a local authority claimant fell within the latter category. He submitted that there were three reasons why this apparently unqualified category of claimants should be qualified by the exclusion of “Public Authorities” as defined in the Aarhus Convention:(1) Since Section VII of rule 45 dealt with “Costs Limits in Aarhus Convention Claims” and was expressed to apply to “a claim for judicial review …. which is subject to the provisions of the [Aarhus Convention]” (see rule 45.41(2) with emphasis added), it was necessary to refer to the terms and purpose of the Convention when deciding what was an Aarhus Convention Claim.(2) The new costs protection rules in Section VII of Rule 45 were intended to give effect to the access to justice rights conferred by Article 9 of the Aarhus Convention, but those rights were conferred only on “members of the public.”(3) Lindblom J’s interpretation of paragraph 5.1 of Practice Direction 45 would lead to “bizarre consequences”. For example Central Government would be entitled to costs protection if it challenged an environmental decision made by a local authority. We will deal with these three reasons in turn.[12]We accept Mr. Banner’s submission that the Respondent’s reason (1) (above) ignores the words “of a decision, act or omission” in rule 45.41(2). Those words make it clear that whether or not a claim for judicial review is an “Aarhus Convention claim” depends upon the nature, or claimed nature (see the last part of the rule), of the decision act or omission that is the subject of the claim. It is plainly necessary to have regard to the Aarhus Convention for the purpose of determining that issue, but once that issue has been resolved (affirmatively in the present case), further recourse to the Aarhus Convention is unnecessary for the purpose of deciding whether the claim for judicial review is an “Aarhus Convention claim” for the purpose of Section VII. Once it is established that a claim for judicial review is an “Aarhus Convention claim” the costs liability of a party to that claim is dealt with in rule 45.43 and Practice Direction 45 without further reference to the Aarhus Convention.[13]Turning to reason (2) (above), the Ministry of Justice said in Cost Protection for Litigants in Environmental Judicial Review Claims Outline proposals for a cost capping scheme for cases which fall within the Aarhus Convention Response to Consultation CP(R) 16/11, published on 28th August 2012, that the Government would put proposals based on the principles set out in the Response to Consultation to the Civil Procedure Rule Committee for consideration at the earliest opportunity. The Civil Procedure Rules were then amended by the inclusion of Section VII in Part 45 of the CPR. While it is true that the Response to Consultation referred to the fact that the Aarhus Convention “requires parties [to the Convention] to ensure the public have access to a procedure to challenge decisions subject to the public participation procedures…” (emphasis added); it is also the case that the Response to Consultation said that Aarhus costs protection would be limited to judicial review claims, thus excluding statutory appeals against environmental decisions, with the consequence that the amended rules in the CPR are not, in at least one important respect, Aarhus compliant: see The Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539 at paragraphs 33 and 34. There is also an indication that the Government was concerned that the new costs protection rules should not “undermine legal certainty and promote satellite litigation thereby increasing the potential for delay in the challenge process”: see paragraphs 5 and 6 of “Conclusion and Next Steps” in the Response to Consultation.[14]Against this background, it would not be right to infer a limitation excluding “Public Authorities” as defined in the Aarhus Convention from those claimants who can benefit from costs protection under paragraph 5.1(b) of Practice Direction 45 in an Aarhus Convention case. To infer such a limitation would do that which the Government wished to avoid: it would undermine legal certainty and promote satellite litigation and thereby increase the potential for delay in the challenge process. Inferring a limitation upon the type of claimant who can benefit from costs protection under Practice Direction 45 would be doubly inappropriate because CPR 45.43 expressly provides that the Practice Direction may prescribe a different amount for the costs cap according to the nature of the claimant. Thus, if it is considered that a higher figure would not be prohibitively expensive for local authority claimants in general, or for particular kinds of local authority, eg London Borough or District Councils, then the Practice Direction may prescribe a higher figure, or figures. Mr. Maurici submitted that in Venn both Lang J at first instance and this Court on appeal had used the Response to Consultation as an aid to the interpretation of CPR 45.41. That is not correct. The wording of the rule was clear: it excluded statutory appeals. The Response to Consultation merely confirmed that the exclusion of statutory appeals was deliberate, it was not referred to for the purpose of altering the clear wording of the rule: see paragraph 7 of my judgment, and paragraph 30 of Lang J’s judgment in Venn [2013] EWHC 3546 (Admin).[15]Turning to reason (3), the words in the Practice Direction mean what they say. While interpreting the word “claimant” in Practice Direction 45 in accordance with the definition in CPR 2.3(1) (thus giving the word its ordinary and natural meaning) might conceivably have “bizarre consequences” as contended by the Respondent, those consequences are more theoretical than real. In the great majority of cases, Central Government will be the defendant, not the claimant, in any environmental challenge. Given the deliberately broad definition of “Public Authority” in Article 2(2) of the Aarhus Convention (see paragraph 8 above), it might be said that excluding from costs protection all “Public Authority” claimants including, arguably, those at the very lowest level (parish councils in the England), when they challenge on behalf of their local inhabitants major environmental decisions taken by Central Government, would produce consequences that were no less “bizarre”.[16]For these reasons, which largely echo reasons (1)–(3) given by Lindblom J (see paragraph 10 above) the provisions of Section VII of Part 45 of the CPR and Practice Direction 45 are clear, and it is neither necessary nor appropriate to refer to the Aarhus Convention in order to place a gloss upon the ordinary and natural meaning of the word “claimant” in Practice Direction 45. It follows that the Respondent’s cross-appeal must be dismissed.

Public Authority/member of the public

[17]Underlying the Respondent’s cross-appeal was the submission that: (i). Article 9(3) of the Aarhus Convention conferred protection against (inter alia) prohibitively expensive costs upon members of the public as defined in Article 2(4), and not upon public authorities, as defined in Article 2(2) of the Convention; and (ii). the two definitions were mutually exclusive, so that a public authority for the purpose of the Convention could not under any circumstances be a member of the public for the purpose of the protections conferred by Article 9(3).[18]The Second Appellant agreed with submission(i) (above), but contended in response to submission(ii) that, while a legal person could not be both a public authority and a member of the public in respect of the same environmental decision, the two definitions were not mutually exclusive in all circumstances. A local authority was a legal person, and a legal person could be either a member of the public (Article 2(4)) or a public authority (Article 2(2)(b) and (c)). If the environmental decision was that of the local authority itself, then it would be the “public authority” for the purpose of the Aarhus Convention. On the other hand, if the environmental decision was made by another public authority, and the local authority was challenging that decision for the purpose of protecting the interests of its inhabitants under section 222 of the Local Government Act 1972, then the local authority, as a legal person, was as much a member of “the public” as “associations, organisations or groups” that might be set up for the same purpose.[19]Lindblom J accepted the Second Appellant’s submission: see reason (4) in paragraph 10 above. This conclusion of Lindblom J was obiter. Mr. Maurici invited us to decide that it was wrong, but in view of our conclusion as to the meaning of CPR 45.41-44 and Practice Direction 45 (paragraph 16 above), any view that we might express about this issue would also be obiter.[20]In Decision I/7 the Parties to the Aarhus Convention established the Compliance Committee. The Committee has power to consider communications brought “by one or more members of the public” concerning a Party’s compliance with the Convention: see paragraph 12 of the Annex to Decision I/7. The Second Appellant (with others) has brought two communications to the Compliance Committee. On 2nd July 2014 the Committee made a preliminary determination that the two communications were admissible. The United Kingdom Government was notified of this preliminary determination. The United Kingdom Government’s Response dated 9th February 2015 to the preliminary determination, drafted by Mr. Maurici and Ms Lean, included an objection to the admissibility of the communication from the First Appellant upon the basis that it was a “public authority” within Article 2(2) of the Convention and not a “member of the public”. Unsurprisingly, Mr. Maurici’s oral submissions before us echoed the Government’s response to the Compliance Committee. The Second Appellant has yet to reply to the Government’s response, but it is fair to assume that its reply will, in substance, repeat Mr. Banner’s oral submissions before us.[21]In addition to the provisions of the Aarhus Convention itself, we were referred to the UNECE’s Aarhus Implementation Guide (2014), the Compliance Committee’s decision ACCC/C/2012/68, and the Opinion of Advocate General Kokott in Commission v UK [2014] 3 WLR 853. While the parties’ submissions were ingenious, they were, with respect, shadow boxing, because there is nothing in those materials which deals expressly with the issue that is now before the Compliance Committee.[22]The Aarhus Convention is an international treaty. We were told that there are now 46 parties to the Convention, including the European Union. Given the breadth of the definition of “Public Authority” in Article 2(2), the implications of the Respondent’s submission that a public authority (so defined) cannot be a member of the public for the purposes of Article 9(3) even if it is seeking to protect the interests of its own local inhabitants when challenging an environmental decision made by another public authority are potentially of considerable significance for all of the parties to the Convention. In these circumstances, the sensible course is to let the Compliance Committee complete its determination of the issue. We were told that the Compliance Committee may not be able to determine the issue before the end of this year, but there does not appear to be any real urgency given that the position under our domestic law is clear, and if it is thought appropriate CPR 45.43(2) confers a degree of flexibility as to the amount of the costs cap for different types of claimant.