“2. Registration of an area of land as a [town or village green] has important legal consequences for the landowner and for members of the public wishing to make use of it for recreational purposes. Upon registration, the landowner becomes obliged to let members of the public enter and use the land in certain ways. Two Victorian statutes, which enacted criminal offences designed to protect the public’s use of [town or village greens], also have a potential impact on the landowner. The central question on this appeal is whether the registration of the Land as a [town or village green] would have the consequence that the continuation of the landowner’s pre-existing commercial activities would be criminalised under the Victorian statutes.”
“The High Court may order a register maintained under this Act to be amended if— (a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by fraud to withdraw an objection to the registration or to refrain from making such an objection; or (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act; and, in either case, the court deems it just to rectify the register.”
“There is no principle by which a man can be at the same time Plaintiff and Defendant.”
“I desire to add, though the matter is perhaps one of form rather than substance, that it is incorrect to make any individual the defendant twice over because he happens to fill two capacities or has two different interests. The case often arises in actions in relation to trusts and the practice to the contrary is, in my experience, invariable.”
“This action is unusually constituted in that the three defendants are named as parties twice over, first, without any statement as to the capacity in which they are sued, and secondly, with a statement that they are sued on their own behalf and on behalf of all other members of the Association. Two separate sets of counsel have been briefed for the three defendants, one set to represent them in their personal capacity and another set to represent them in their representative capacity. In my opinion, this double naming on the record and double representation by counsel is altogether irregular.”
“I am unable to see how the Public Trustee can appear on both sides of the record, and accordingly I direct that the summons be amended by striking out the Public Trustee as defendant and substituting a person beneficially interested.”
“4. Suing oneself (even purportedly in a different capacity) is something that traditionally could not be done. ‘There is no principle by which a man can be at the same time Plaintiff and Defendant’, said Best CJ in Neale v. Turton and Others 4 Bingh. 149, at 151; and see to the same effect In re Phillips, Public Trustee v. Meyer (1931) WN 271, per Maugham J. Mr Hall Taylor, for the claimants, disclaimed any suggestion that the CPR have altered that, and so the naming of Mr Allnutt and Mr Parsons as defendants would appear to have been a step in the wrong direction. I propose to strike them out as defendants. That will make no difference to the substance of the claim as all the right people are before the court.”
“18. I would nevertheless venture the following observations on the provisions which were canvassed in the courts below. By s.2(1) and (3) of theLocal Government Act 1972 a county council, like every other local authority, is a single body corporate. A local authority may well have to take care from time to time (for example when considering whether to grant itself planning permission) to keep its various capacities distinct, but it is one body in law. Agreements between its departments may be necessary for budgetary purposes, but they are not contracts because a legal person cannot contract with itself. For this reason I would not in any event have found it easy to adopt the view of Neuberger J that s.36(2)(a) contemplated a highway authority acting as such.”
“47. Mr White rightly accepts that these remarks [that is, para 18 of Sedley LJ’s judgment in Gulliksen] were obiter dicta and thus not binding on us: the case had already been decided on another point. With respect to Sedley LJ and his colleagues who agreed with him, I cannot accept them. It may well be true that for the purposes of the law of contract a local authority is a single body corporate. But it does not follow that it is indivisible for all purposes. To take only one example, a council which is both housing authority and planning authority is not exempt from the need to obtain planning permission if it wishes to construct new housing. On the capacity issue under s 36(2)(a) of the 1980 Act I entirely agree with the reasoning and conclusions of Neuberger J.”
“69. Neuberger J [at first instance in Gulliksen] appeared to accept the submission made by counsel in Gulliksen that the interpretation he would give to s. 36(2)(a) would involve the reading in of the words ‘as such’ into that provision, in other words to make it clear that it only applies where a highway authority constructs a highway acting in its capacity as such. I do not consider that any words have to be read into the provision. In my view, it has the effect that Neuberger J thought it had, simply on its face. This is because, in my view, the words ‘highway authority’ are used by Parliament to mean ‘an authority exercising its highway functions’. 70. This is consistent with how Parliament refers to all kinds of public authorities in many different statutes. For example, planning legislation refers to a ‘planning authority’; housing legislation refers to a ‘housing authority’; education legislation refers to an ‘education authority’ and so on. Often the body that exercises the relevant functions will be the same entity: for example, a district council will often have planning functions and housing functions; a county council will often have highways functions and education functions. But Parliament is not referring to that entity as such. It is referring to that entity only in so far as it exercises the functions referred to in that particular statutory provision. This is why I disagree with the analysis of Sedley LJ in Gulliksen. His analysis turned simply on the fact that a local authority is a single body corporate. So it is but that does not lead to the conclusion that it does not matter in what capacity it was acting in a particular context, that is what statutory functions it was exercising.”
“26. … For example, if money was left by someone to enable the employees of the highway authority to enjoy a Christmas party, I would have thought that it could not seriously be argued that all employees of the local authority were entitled to attend the Christmas party because the local authority was the highway authority: it would only be those employees in the highways department.”
“41. … I see nothing in [Leeds Group Plc v Leeds City Council[2010] EWHC 810 (Ch) ] nor in the dicta in [Oxfordshire County Council v Oxford City Council[2006] 2 AC 674 ] which denies the [commons registration] authority the right to take a more active role in section 14 proceedings, should it wish to do so. Lord Hoffmann simply referred to the absence of a duty on the part of the registration authority to investigate or to adduce new evidence. 42. Without having heard full argument, I am inclined to the view that the fact that the authority has a quasi-judicial role at the decision-making/registration stage does not and should not preclude it, where appropriate, from fully defending its decision in the context of a subsequent section 14 claim, including by challenging new evidence and new submissions and/or by calling new evidence of its own. By the same token, if, having heard new evidence and submissions, an authority were to take the view that its original decision was wrong, it would surely not be right for it to defend it.”
“Article 1 OBJECTIVE In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention. [ … ] Article 2 DEFINITIONS For the purposes of this Convention, 1. ‘Party’ means, unless the text otherwise indicates, a Contracting Party to this Convention; 2. ‘Public authority’ means: (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; … [ … ] Article 3 GENERAL PROVISIONS 1. Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention. [ … ] Article 6 PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES 1. Each Party: (a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I; (b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and (c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes. [ … ] Article 9 ACCESS TO JUSTICE 1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law. Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph. 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 procedures 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. 5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice. [ … ] Article 15 REVIEW OF COMPLIANCE The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention. [ … ]”
“SECTION IX Costs Limits in Aarhus Convention Claims 46.24. (1) This section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims. (2) In this Section— (a) ‘Aarhus Convention claim’ means a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on25 June 1998 (‘the Aarhus Convention’); (b) references to a member or members of the public are to be construed in accordance with the Aarhus Convention. (3) This Section does not apply to appeals other than appeals brought undersection 289(1) of the Town and Country Planning Act 1990 (1) orsection 65(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (2), which are for the purposes of this Section to be treated as reviews under statute. 46.25. (1) Subject to paragraph (2), rules 46.26 to 46.28 apply where a claimant who is a member of the public has— (a) stated in the claim form that the claim is an Aarhus Convention claim; and (b) filed and served with the claim form a schedule of the claimant’s financial resources, which is verified by a statement of truth and provides details of— (i) the claimant’s significant assets, liabilities, income and expenditure; and (ii) in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided. (2) Subject to paragraph (3), rules 46.26 to 46.28 do not apply where the claimant has stated in the claim form that although the claim is an Aarhus Convention claim, the claimant does not wish those rules to apply. (3) If there is more than one claimant, rules 46.26 to 46.28 do not apply in relation to the costs payable by or to any claimant who has not acted as set out in paragraph (1), or who has acted as set out in paragraph (2), or who is not a member of the public. 46.26. (1) Subject to rules 46.25 and 46.28, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule 46.27. (2) For a claimant the amount 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)£10,000 in all other cases. (3) For a defendant the amount is£35,000 . (4) In an Aarhus Convention claim with multiple claimants or multiple defendants, the amounts in paragraphs (2) and (3) (subject to any direction of the court under rule 46.27) apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties. 46.27. (1) The court may vary the amounts in rule 46.26 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim. (2) The court may vary such an amount or remove such a limit only on an application made in accordance with paragraphs (5) to (7) (“an application to vary”) and if satisfied that— (a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and (b) in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant. (3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either— (a) exceed the financial resources of the claimant; or (b) are objectively unreasonable having regard to— (i) the situation of the parties; (ii) whether the claimant has a reasonable prospect of success; (iii) the importance of what is at stake for the claimant; (iv) the importance of what is at stake for the environment; (v) the complexity of the relevant law and procedure; and (vi) whether the claim is frivolous. (4) When the court considers the financial resources of the claimant for the purposes of this rule, it must have regard to any financial support which any person has provided or is likely to provide to the claimant. (5) Subject to paragraph (6), an application to vary must— (a) if made by the claimant, be made in the claim form and provide the claimant’s reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant; (b) if made by the defendant, be made in the acknowledgment of service and provide the defendant’s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant; and (c) be determined by the court at the earliest opportunity. (6) An application to vary may be made at a later stage if there has been a significant change in circumstances (including evidence that the schedule of the claimant’s financial resources contained false or misleading information) which means that the proceedings would now— (a) be prohibitively expensive for the claimant if the variation were not made; or (b) not be prohibitively expensive for the claimant if the variation were made. (7) An application under paragraph (6) must— (a) if made by the claimant— (i) be accompanied by a revised schedule of the claimant’s financial resources or confirmation that the claimant’s financial resources have not changed; and (ii) provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made; and (b) if made by the defendant, provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made. [ … ] 46.28. (1) Where a claimant has complied with rule 46.25(1), and subject to rule 46.25(2) and (3), rule 46.26 applies unless— (a) the defendant has in the acknowledgment of service— (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 denies that the claim is an Aarhus Convention claim, the court must 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 shall, except for good reason, make no order for costs in relation to those proceedings; (b) if the court holds that the claim is an Aarhus Convention claim, it shall, except for good reason, order the defendant to pay the claimant’s costs of those proceedings to be assessed on the standard basis, and that order may be enforced even if this would increase the costs payable by the defendant beyond the amount stated in rule 46.26(3) or any variation of that amount.” (a) ‘Aarhus Convention claim’ means a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on25 June 1998 (‘the Aarhus Convention’); (b) references to a member or members of the public are to be construed in accordance with the Aarhus Convention. (a) stated in the claim form that the claim is an Aarhus Convention claim; and (b) filed and served with the claim form a schedule of the claimant’s financial resources, which is verified by a statement of truth and provides details of— (i) the claimant’s significant assets, liabilities, income and expenditure; and (ii) in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided. (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)£10,000 in all other cases. (a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and (b) in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant. (a) exceed the financial resources of the claimant; or (b) are objectively unreasonable having regard to— (i) the situation of the parties; (ii) whether the claimant has a reasonable prospect of success; (iii) the importance of what is at stake for the claimant; (iv) the importance of what is at stake for the environment; (v) the complexity of the relevant law and procedure; and (vi) whether the claim is frivolous. (a) if made by the claimant, be made in the claim form and provide the claimant’s reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant; (b) if made by the defendant, be made in the acknowledgment of service and provide the defendant’s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant; and (c) be determined by the court at the earliest opportunity. (a) be prohibitively expensive for the claimant if the variation were not made; or (b) not be prohibitively expensive for the claimant if the variation were made. (a) if made by the claimant— (i) be accompanied by a revised schedule of the claimant’s financial resources or confirmation that the claimant’s financial resources have not changed; and (ii) provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made; and (b) if made by the defendant, provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made. [ … ] 46.28. (1) Where a claimant has complied with rule 46.25(1), and subject to rule 46.25(2) and (3), rule 46.26 applies unless— (a) the defendant has in the acknowledgment of service— (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. (a) if the court holds that the claim is not an Aarhus Convention claim, it shall, except for good reason, make no order for costs in relation to those proceedings; (b) if the court holds that the claim is an Aarhus Convention claim, it shall, except for good reason, order the defendant to pay the claimant’s costs of those proceedings to be assessed on the standard basis, and that order may be enforced even if this would increase the costs payable by the defendant beyond the amount stated in rule 46.26(3) or any variation of that amount.”
“10. I can deal with this issue briefly because Mr. James Eadie QC on behalf of the Secretary of State did not take issue with Lang J's conclusion (see paragraph 11 of the judgment) that the description of "environmental information" in Article 2(3) of Aarhus was an indication of the intended ambit of the term ‘environmental’ in the Convention, and that the Implementation Guide to Aarhus was of assistance in reaching that conclusion. The Implementation Guide says that: ‘The clear intention of the drafters …. was to craft a definition [of environmental information] that would be as broad in scope as possible, a fact that should be taken into account in its interpretation’. 11. In his Skeleton Argument the Secretary of State accepted that ‘environmental information’ is given a broad definition in Article 2.3, and further accepted that since administrative matters likely to affect ‘the state of the land’ are classed as ‘environmental’ under Aarhus the definition of ‘environmental’ in the Convention is arguably broad enough to catch most, if not all, planning matters. The Judge's conclusion that environmental matters are given a broad meaning in Aarhus (see paragraph 15 of the judgment) is supported by the decision of the CJEU in Lesoochranárske VLK v Slovenskej Republiky (Case C-240/09 )[2012] QB 606 … ”
“14. In considering the construction of the convention itself, it is significant in my judgment (i) that ‘the public’ is widely defined to include any natural or legal person, a definition that will inevitably include bodies falling within the wider definition of a ‘public authority’; (ii) that there is no provision excluding anybody falling within that definition of a ‘public authority’ from being a member of ‘the public’; (iii) that there is no apparent warrant within the convention itself inferring that the two categories are mutually exclusive in all circumstances; and (iv) that to exclude some public authorities, such as a parish council, by some inference from being a member of ‘the public’ in relation to access to environmental information held by other public authorities and from participation in the procedure leading to significant decisions for the environment taken by other authorities would undermine principles underlying the Aarhus Convention is recognised in its recitals.”
“14. … The language of the section affords no basis for any suggestion that the role of the court is the exercise of an appellate or supervisory jurisdiction or that the jurisdiction should only be exercisable if the registration authority in directing registration made an error on the evidence adduced before it or an error of law … The section requires only that it should appear to the court on the evidence before it that for any reason (factual or legal) no amendment or a different amendment should have been made and that it is just to rectify the error on the register.”
“19. The Appellant argues that the role of the court under section 14 is, in essence, to consider an appeal against the decision of the registration authority under section 13, and that although section 14 does not speak of an appeal, that is what the court would be hearing. Accordingly, it is argued, no evidence should be adduced before the High Court unless it can be justified as fresh evidence which could be admitted on an appeal within the court structure in accordance with Ladd v Marshall[1954] 1 WLR 1489 . The Respondent on the other hand points out that the section is not drafted in terms of an appeal, and contends that it is open to any party to adduce whatever evidence it wishes, subject to the court's exercise of its case management powers, though the evidence which was before the inquiry should be put before the court and should be capable of being admitted as evidence subject to the court's directions. The judge accepted that submission, and so would I.”
“31. … the court's jurisdiction to rectify the register under s.14 is neither appellate nor supervisory in nature. It is not confined to a review of the registration authority's decision, based only on the material which was before the authority when it made its decision. Subject to any directions the court may make, it can receive additional evidence (as it has in the present case), and should determine what (if any) amendment to the register ought to have been made and whether rectification would be ‘just’, having regard to all the information available to it (including, where appropriate, the evidence which was before the public inquiry and/or the findings of the inquiry). 32. In these circumstances, TWL was clearly correct in submitting that the focus in the present case should not be on whether and in what respects the Inspector's (and therefore Essex CC's) conclusions were flawed … but rather on whether having regard to the totality of the evidence (‘old’ and ‘new’) before me, the Land or any part of it ought not to have been registered as a TVG pursuant to subsection 15(3) of the 2006 Act. ”
“28. The present appeal is concerned not with the incidence of costs in private law civil or family litigation or with statutory (or other) appeals, but with the incidence of costs in a judicial review application at first instance. Over the last 20 years there has been a growing feeling in some quarters, both in this country and in common law countries abroad which have adopted the "costs follow the event" regime, that access to justice is sometimes unjustly impeded if there is slavish adherence to the normal private law costs regime described by Buckley LJ in Wallersteiner v Moir (No 2) and by Hoffmann LJ in McDonald v Horn.”
“74. We would therefore restate the governing principles in these terms: 1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: i) The issues raised are of general public importance; ii) The public interest requires that those issues should be resolved; iii) The applicant has no private interest in the outcome of the case; iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. 2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. 3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. 75. A PCO can take a number of different forms and the choice of the form of the order is an important aspect of the discretion exercised by the judge. In the present judgment we have noted: i) A case where the claimant's lawyers were acting pro bono, and the effect of the PCO was to prescribe in advance that there would be no order as to costs in the substantive proceedings whatever the outcome (Refugee Legal Centre); ii) A case where the claimants were expecting to have their reasonable costs reimbursed in full if they won, but sought an order capping (at£25,000 ) their maximum liability for costs if they lost (CND); iii) A case similar to (ii) except that the claimants sought an order to the effect that there would be no order as to costs if they lost (CPAG); iv) The present case where the claimants are bringing the proceedings with the benefit of a CFA, which is otherwise identical to (iii). 76. There is of course room for considerable variation, depending on what is appropriate and fair in each of the rare cases in which the question may arise. It is likely that a cost capping order for the claimants' costs will be required in all cases other than (i) above, and the principles underlying the court's judgment in King at paras 101-2 will always be applicable. We would rephrase that guidance in these terms in the present context: i) When making any PCO where the applicant is seeking an order for costs in its favour if it wins, the court should prescribe by way of a capping order a total amount of the recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability; ii) The purpose of the PCO will be to limit or extinguish the liability of the applicant if it loses, and as a balancing factor the liability of the defendant for the applicant's costs if the defendant loses will thus be restricted to a reasonably modest amount. The applicant should expect the capping order to restrict it to solicitors' fees and a fee for a single advocate of junior counsel status that are no more than modest. iii) The overriding purpose of exercising this jurisdiction is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance at all, where the court considers that it is in the public interest that an order should be made. The beneficiary of a PCO must not expect the capping order that will accompany the PCO to permit anything other than modest representation, and must arrange its legal representation (when its lawyers are not willing to act pro bono) accordingly.”
“32. … Mr. Eadie fairly conceded that if, as I have concluded … the Claimant's section 288 application does fall within Article 9(3) of Aarhus, there will on the Judge's findings … as to the Claimant's means, be a breach of Aarhus if the discretion is not exercised so as to grant her a PCO. He also accepted that whether costs protection was available underCPR 45.41 for environmental challenges falling within Article 9(3) would, in many cases, depend solely upon the identify of the decision-taker. He recognised that there was no principled basis for that distinction if the object of the costs protection regime was to secure compliance with the UK's obligations under Aarhus. 33. Notwithstanding these implications of the Secretary of State's case, I have been persuaded that his appeal must be allowed. … Once it is accepted that the exclusion of statutory appeals and applications fromCPR 45.41 was not an oversight, but was a deliberate expression of a legislative intent, it necessarily follows that it would not be appropriate to exercise a judicial discretion so as to side-step the limitation (to applications for judicial review) that has been deliberately imposed by secondary legislation. It would be doubly inappropriate to exercise the discretion for the purpose of giving effect under domestic law to the requirements of an international Convention which, while it is an integral part of the legal order of the EU, is not directly effective … and which has not been incorporated into UK domestic law … ”
“(1) An application for a costs capping order must be made on notice in accordance with Part 23. (2) The application notice must – (a) set out – (i) whether the costs capping order is in respect of the whole of the litigation or a particular issue which is ordered to be tried separately; and (ii) why a costs capping order should be made; and (b) be accompanied by a budget setting out – (i) the costs (and disbursements) incurred by the applicant to date; and (ii) the costs (and disbursements) which the applicant is likely to incur in the future conduct of the proceedings. (3) The court may give directions for the determination of the application and such directions may – (a) direct any party to the proceedings – (i) to file a schedule of costs in the form set out in paragraph 3 ofPractice Direction 3E – Costs capping; (ii) to file written submissions on all or any part of the issues arising; (b) fix the date and time estimate of the hearing of the application; (c) indicate whether the judge hearing the application will sit with an assessor at the hearing of the application; and (d) include any further directions as the court sees fit.” (a) set out – (i) whether the costs capping order is in respect of the whole of the litigation or a particular issue which is ordered to be tried separately; and (ii) why a costs capping order should be made; and (b) be accompanied by a budget setting out – (i) the costs (and disbursements) incurred by the applicant to date; and (ii) the costs (and disbursements) which the applicant is likely to incur in the future conduct of the proceedings. (a) direct any party to the proceedings – (i) to file a schedule of costs in the form set out in paragraph 3 ofPractice Direction 3E – Costs capping; (ii) to file written submissions on all or any part of the issues arising; (b) fix the date and time estimate of the hearing of the application; (c) indicate whether the judge hearing the application will sit with an assessor at the hearing of the application; and (d) include any further directions as the court sees fit.”
“6. CCOs are very rare.CPR PD 3F at 1.1 makes plain that they will only be made ‘in exceptional circumstances’. The costs budgeting regime, introduced after costs capping as part of the Jackson reforms, is widely regarded as a more scientific way of achieving the same goal. However it is not right to say that the CCO regime is moribund. It was retained in the CPR, following the introduction of costs budgeting, at the express request of certain regular litigants, including Pension and Trust Funds, who said in their response to the CPRC that they liked the certainty that CCOs can bring, saying that they proved a useful tool in cases with a finite amount of money. The available evidence appears to demonstrate that, despite that, CCOs are rarely sought or made (and that is certainly my experience) but the available statistics are not entirely reliable. Consistent with this, the response to the CPRC concerning Pension and Trust Funds explained that the majority of cases were agreed without the need for a cost capping order, but with the knowledge that the court had the power to make one.”
“20. … It is impossible to over-state the interests of justice in the present case, given the nature, scope and extent of the respondents' allegations and what the judge said about them at [79]. If a CCO in the sum of£150,000 would have the effect of stifling these valid claims, then that might be regarded as a very powerful factor against making such a CCO. Moreover, as to the third pre-condition, costs budgeting has always been regarded as a scientific way of keeping future costs to proportionate levels, whilst [the defendant’s counsel] accepted that a CCO was – or certainly could be – ‘a blunt instrument’.”
“16. Taking into account the above, the claimant cannot afford to allocate more than£70,000 towards the litigation to cover its own legal costs and the risk of adverse costs.”