The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter of discretion. At the hearing it was not clear that any claimant would be able to proceed, and it had since become clear that After The Event costs insurance would not be obtainable. The applicants had not complied with the requirements for the making of an order, and none had yet issued proceedings. The judge had already adjourned the application to allow progress by the potential claimants, and his refusal to allow a further adjournment could not be criticised.
The defendants had already issued a bill of costs for over andpound;250.000. The potential claimants said that the Aarhus Convention should apply to limit them. On analysis and after concessions by the defendant the court established that no potential cliamant should to date face any liability greater than andpound;362. The Aarhus convention claim had to have been raised in the court below, and there was no evidence before the court to apply it now.
As to the protective costs order, the sums before the court, after undertakings by the defendant, were not excessive: ‘every uninsured person who embarks upon litigation, must accept some degree of cost risks. There are strong policy reasons why this should be so, not least to maintain proper discipline over litigation, to incentivise reasonable litigation behaviour and to reduce the financial burden upon those who are vindicated. The Aarhus Convention does not require that environmental litigation should be cost free, merely that it should be not prohibitively expensive.’
Pill, Jackson, Gross LJJ
[2011] EWCA Civ 928
Bailii
Civil Procedure Rules 19, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters made at Aarhus, Denmark on 25 June 1998
England and Wales
Citing:
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
Cited – Morgan and Another v Hinton Organics (Wessex) Ltd CA 2-Mar-2009
The claimants had alleged that smells from a composting site near their homes constituted a private nuisance. Following the discharge of an interim injunction, Judge Seymour ordered the claimants to pay the costs of the injunction proceedings. The . .
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Costs, Environment
Updated: 01 November 2021; Ref: scu.442415