Aarhus cost cap applies at all stages of environmental claims: CoA

The cost cap on cases brought under the Aarhus Convention can be applied at any stage of a claim and costs may divided between the parties involved, the Court of Appeal has ruled.

The Kent branch of the Campaign to Protect Rural England (CPRE) brought the case against the secretary of state for communities and local government, Maidstone Borough Council and Roxhill Developments. Campaign to Protect Rural England & Anor v Secretary of State for Communities and Local Government & Ors [2019] EWCA Civ 1230

This followed an earlier refusal by Lang J of an application for statutory review of decisions by the council and secretary of state to allow development by Roxhill of mixed employment space at Woodcut Farm.

Lang J had accepted that the claim was subject to the Aarhus cap and ordered that the CPRE pay the secretary of state’s costs in preparing an Acknowledgement of Service of £2,879 and Maidstone’s costs for this of £5,245.50.

Roxhill's costs were £6,675 but assessed by the judge at £1,875.50, so the total sum awarded reached the £10,000 Aarhus cap. Coulson LJ noted that Roxhill had not complained that the judge had been wrong to apply the Aarhus cap, despite the detriment to it.

The CPRE objected to the award of more than one set of costs and to the quantum ordered. Its main argument was that it was wrong in principle for the costs at the permission stage to absorb the entirety of the Aarhus cap.

Coulson LJ said he rejected the CPRE’s basic submission that, because the claim failed at the permission stage, rather than failing after a substantial hearing, the costs should be subject to some sort of lower cap than the £10,000 one.

“The starting point must be the absence of any express sub-caps or lower limits for particular stages of environmental litigation,” he said. “The Aarhus cap is global. It is applied to the costs that have been incurred by the successful defendant or interested party, at whatever stage the costs assessment is being done.”

He said no different rules applied whether there was one defendant or several. “The cap does not justify a further reduction in the costs of successful defendants or interested parties below that which is assessed as being reasonable and proportionate.”

The CPRE was also wrong to argue that the cap could be applied only if a case failed after a substantial hearing. “That is patently not so,” the judge said. “The £10,000 is an arbitrary cap designed to bring [benefits to] claimants in environmental claims. It has nothing to do with the average costs of civil litigation, much less the costs incurred in the making of an environmental claim, which can be notoriously high.

“It is therefore wrong in principle to assume that the £10,000 Aarhus cap must be referable to the costs of a claim that went all the way through to trial.”

The principle of the Aarhus Cap was that the costs of these claims should not be prohibitively expensive, not that they involve no costs risk at all, the judge said.

He also rejected the CPRE’s contention that the £10,000 cap was used as a ‘top-down’ costs assessment tool, which permitted an assessment of figures at a higher total than was reasonable or proportionate.

“On the contrary, in the present case, the council had their reasonable and proportionate costs assessed at £5,245.50,” Coulson LJ said.

“There is no material before this court to suggest that that amount was in some way unreasonable or disproportionate for the amount of work done. The same is also true of the [secretary of state’s] costs at £2,879. The party who has suffered as a result of the cap is Roxhill…however, they do not complain about that.”

The Aarhus Convention of 1998 provided that environmental litigation should not be “prohibitively expensive”. In the UK this forms part of the CPR and provides for a £10,000 cap on the total costs liability of claimants to other parties.