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 claimants appealed against the costs order on the ground that this imposed upon them prohibitive expense, contrary to article 9.4 of the Aarhus Convention.
Held: The claimants appeal was dismissed. The court reviewed the history of protective costs orders. Carnwath LJ summarised the status of the Aarhus Convention in English law as follows: ‘For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect (see Halsbury’s Laws Vol 44(1) Statutes para 1439)). Ratification by the European Community itself gives the European Commission the right to ensure that Member States comply with the Aarhus obligations in areas within Community competence (see Commission v France Case C-293/03 (2004) ECR I-09325 paras 25-31. Furthermore provisions of the Convention have been reproduced in two EC environmental Directives, dealing respectively with Environmental Assessment and Integrated Pollution Control (neither applicable in the present case).’ and It is unnecessary, in our view, to consider the application of the Convention in further detail, because there is in our view an insuperable objection to the claimant’s case in this respect. That is that the point was not mentioned before the judge. This is admitted by Mr Hart. His answer is that the requirement to comply with the Convention is ‘an obligation to the Court’, which should have been considered by the judge of his own motion; or alternatively, it is a requirement on this court in reviewing the judge’s decision in order to avoid contravention of the Convention.
We are unable to accept that argument. Mr Hart could not point to any legal principle which would enable us to treat a pure treaty obligation, even one adopted by the European Community, as converted into a rule of law directly binding on the English court. As we have said, it is at most a matter potentially relevant to the exercise of the judge’s discretion. If the claimants wished him to take it into account, they needed not only to make the submission, but also to provide the factual basis to enable him to judge whether the effect of his order would indeed be ‘prohibitive’. The defendant would also no doubt have wished to give evidence of its own position.’
Carnwath LJ
[2009] EWCA Civ 107
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
CitedCorner 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 by:
CitedEweida 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. . .
CitedAustin and Others v Miller Argent (South Wales) Ltd CA 29-Jul-2011
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 . .

These lists may be incomplete.
Updated: 13 February 2021; Ref: scu.311764