Case Report – a worrying development in case law for Interested Party adverse costs R (ota Bertoncini) v Hammersmith and Fulham London Borough Council

By Elf

The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’) requires contracting states to ensure that the costs of making certain environmental challenges in court are not prohibitively expensive. The Civil Procedure Rules (‘CPR’) recognise this requirement through a specific costs regime for Aarhus Convention claims (CPR 45.41-45.55).

On 2 December 2019, Waksman J refused permission on paper for the Claimant to proceed with a JR application. The claim was determined to be an Aarhus Convention Claim however in determining costs, an application by the interested party to vary and increase the Claimant’s cost cap, the Claimant’s cost cap was increased from £5,000 to £20,000 in total. 

In June, Judge Bird considered whether an interested party has standing to apply for a variation to the Aarhus cost cap, and in doing so, whether Waksman J order should be reconsidered. Judge Bird upheld the original decision, finding that there is no doubt that an interested party will be subject to the Aarhus cost cap, and from that basis, it would be ‘unjust’ and ‘contrary to principle’ if the interested party had no standing to ask the court to vary the cap.

Although acknowledging that CPR 45 does not have any express requirements in respect of an application by an interested party, he found that this should not be read as a ban on all applications by interested parties. In determining this, he relied on Coulson LJ in CPRE v SoS (of Communities and Local Government and others) [2019] EWCA Civ 130 who, dealing with a different point, said that the absence of express reference to interested parties is of no consequence because the purpose of CPR 45 is to limit costs exposure to the claimant and as such it ‘does not spell out to whom the claimant might be paying the costs up to the limit of the cap’.

Judge Bird further found the Court’s discretion to interpret the Aarhus Convention as such in CPR 45.44, as long as he can be satisfied that the variation would not make the costs of proceedings prohibitively expensive for the claimant, (and if the variation sought is a downward variation, that without the variation the costs of the proceedings would be prohibitively expensive for the claimant). Although the Claimant argued that such an increase would be prohibitively expensive and that a cap to £10,000 would be appropriate, the Judge found that there was no real basis to reach a different conclusion from that of Waksman J and was satisfied that increasing the cap to £20,000 would not render the proceedings prohibitively expensive for the same reasons. He concluded by stating that refusal to award costs to an interested party would disincentivise participation on planning proceedings of this kind.