Edwards and Another, Regina (on The Application of) v Environment Agency and Others (No 2): SC 11 Dec 2013

The court considered the consequences of a finding that the UK was in breach of the Aarhus Convention, as regards the ‘prohibitively expensive’ cost of proceedings. The Agency had given permission for the change of fuel for a cement works to shredded tyres, and the applicants had mounted a sustained challenge. The applicants had not been granted legal aid, but initially had had had their costs liability capped. Following a loss at the House of Lords, their opponents submitted bill of nearly andpound;90,000.
Held: The liability of the appellants would be limited to andpound;25,000. This was the amount put forward as security for costs, and which was not opposed by the respondents. The court set out principles deriveable from the judgment at the ECJ: ‘i) First, the test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor ‘appear to be objectively unreasonable’, at least ‘in certain cases’. (The meaning of the latter qualification is not immediately obvious, but it may be better expressed in the German version ‘in Einzelfallen’, meaning simply ‘in individual cases’.) The justification is related to the objective of the relevant European legislation (referred to in para 32 of the judgment), which is to ensure that the public ‘plays an active role’ in protecting and improving the quality of the environment.
ii) The court did not give definitive guidance as to how to assess what is ‘objectively unreasonable’. In particular it did not in terms adopt Sullivan LJ’s suggested alternative of an ‘objective’ assessment based on the ability of an ‘ordinary’ member of the public to meet the potential liability for costs. While the court did not apparently reject that as a possible factor in the overall assessment, ‘exclusive’ reliance on the resources of an ‘average applicant’ was not appropriate, because it might have ‘little connection with the situation of the person concerned’.
iii) The court could also take into account what might be called the ‘merits’ of the case: that is, in the words of the court, ‘whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages.’
iv) That the claimant has not in fact been deterred for carrying on the proceedings is not ‘in itself’ determinative.
v) The same criteria are to be applied on appeal as at first instance.’
Applying the principles, the amount of andpound;25,000 was neither subjectively nor objectively excessive.

Lord Neuberger, President, Lord Hope, Lord Mance, Lord Clarke, Lord Carnwath
[2013] UKSC 78, [2014] 1 WLR 55, [2014] 3 Costs LO 319, [2014] 1 All ER 760, [2014] 2 CMLR 25, [2014] Env LR 17, UKSC 2010/0030
Bailii, Baillii Summary, SC Summary, SC
EIA Directive 85/337/EEC, IPPC Directive 96/61/EC, Council Directive 2003/35/EC 6
England and Wales
At HLEdwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
SC ReferenceEdwards 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 . .
ECJ (Opinion)Edwards v Environment Agency (No 2) ECJ 11-Apr-2013
ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively . .
ECJEuropean Commission v United Kingdom of Great Britain And Northern Ireland ECJ 12-Sep-2013
ECJ Opinion – Aarhus Convention – Directive 2003/35/EC – Access to justice – Concept of ‘prohibitively expensive’ judicial procedures – Transposition . .
CitedRegina v Richmond Upon Thames London Borough Council and Another, Ex Parte JC (A Child) CA 10-Aug-2000
The restrictions placed upon the maximum class sizes in turn restricted the rights of parents to appeal against refusal of a school place. It is for the parent to satisfy the original admissions committee and the appeal committee of the need for a . .
At First InstanceEdwards, Regina (on the Application Of) v Environment Agency and Another Admn 2-Apr-2004
The claimant challenged the granting of permission to a cement factory to change its energy systems to be operated by the burning of waste tyres. The respondent was concerned as to the standing of the claimant. He was impecunious, but associated . .
CitedDEB Deutsche Energiehandels-Und Beratungsgesellschaft mbH v Bundesrepublik Deutschland ECJ 22-Dec-2010
ECJ Effective judicial protection of rights derived from European Union law – Right of access to a court – Legal aid – National legislation refusing legal aid to legal persons in the absence of ‘public interest’ . .

Cited by:
At SC (2)European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 13-Feb-2014
ECJ Failure of a Member State to fulfil obligations – Public participation in decision-making and access to justice in environmental matters – Concept of ‘not prohibitively expensive’ judicial proceedings . .

Lists of cited by and citing cases may be incomplete.

Environment, European, Costs

Updated: 26 November 2021; Ref: scu.518898