UK Protective Costs Order Procedural Update – Supreme Court applies CJEU “not prohibitively expensive” guidelines

The UK Supreme Court recently issued a new costs judgment in a long-running planning case that has already had a major impact on the law surrounding protective costs orders.  In R (on the application of Edwards and another) v Environment  Agency and others, the Supreme Court had already deferred to the Court of Justice of the European Union for clarity about the Aarhus Convention’s requirement that access to courts should not be “prohibitively expensive”, and made an order for costs in the amount of £25,000.  The Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention) seeks to ensure all citizens are able to obtain access to justice through the courts in relation to environmental matters. This access must not be prohibitively expensive.

Click here to read a previous Bulletin article outlining the criteria developed by the CJEU.

In determining that the award £25 000 costs against the appellants was not prohibitively expensive, the Supreme Court said that the test is not purely a subjective one. The costs of proceedings must not exceed the financial resources of the person concerned nor appear to be objectively unreasonable, at least in certain cases. When assessing what is objectively unreasonable the court should consider the following factors:

  1. Whether the claimant has a reasonable prospect of success;

  2. The importance of what is at stake for the claimant;

  3. The importance of what is at stake for the protection of the environment;

  4. The complexity of the relevant law and procedure;

  5. The potentially frivolous nature of the claim at its various stages.

The respondents in the case agreed to limit their joint claim to £25 000. That was the amount of security already paid by one of the appellants as the condition for bringing the appeal. The court found that it was impossible on the material available to hold that the order for costs was subjectively unreasonable. In assessing whether the £25,000 was an unreasonable amount of costs to be paid the court returned to the criteria outlined above.

The court discounted the second (importance to claimant) and fifth (potentially frivolous) factors straight away. The court found that there was no evidence that the appellant had any economic interest of her own in the proceedings and, given the grant of permission at each stage, they could not be said to be frivolous. The fact that the court heard the case for three days satisfied the fourth factor (complexity). With regard to the remaining factors – (i) the prospects of success and (iii) the importance of the case for the protection of the environment, the court said that they were at best neutral from the applicant’s point of view.  The court therefore said  it was impossible to say that the figure of £25,000, viewed objectively is unreasonably high, either on its own or in conjunction with the £2,000 previously awarded in the Court of Appeal.

Click here to read the Supreme Court’s judgment.

Click here to watch a video on the UK Supreme Court’s YouTube channel of the judgment being delivered.  

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