UK Court of Appeal overturns protective costs order, finds violation of Aarhus

The UK Court of Appeal has reluctantly overturned a High Court decision granting a protective costs order (PCO) to a woman challenging a planning decision. However it also found that current UK costs rules for reviews of environmental decisions are incompatible with the Aarhus Convention and directed that Parliament address this incompatibility.

Ms Venn had made a statutory appeal to the High Court against a planning inspector’s decision. She requested a PCO and the High Court judge granted the order which would limit her costs exposure to £3,500 if she lost.

The UK is party to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [pdf]. Article 9(3) provides that States must ensure that review procedures for decisions affecting environmental matters are “not prohibitively expensive”. According to court rules, judicial reviews of environmental decisions which fall under the Aarhus Convention cannot result in costs exceeding £5,000 for individual applicants and £10,000 for others. However CPR45.41 limits this only to judicial reviews and not to statutory appeals, such as for the applicant Ms Venn.

In light of this, the Court of Appeal found that the costs rules were too narrow to provide costs protection to Ms Venn and reluctantly overturned the High Court PCO. However the Court was of the opinion that the distinction in costs rules between these two procedures which both fell under 9(3) Aarhus, was not compliant with the Convention. The Court of Appeal stated that judicial discretion was not sufficient to address this non-compliance and directed Parliament to address this discrepancy. The Court noted that the Courts and Criminal Justice Bill is currently addressing judicial review rules and recommended that this decision be borne in mind when passing the Bill.

PILA has previously covered the progress of the Courts and Criminal Justice Bill, which threatens to restrict judicial review. Since the House of Lords introduced amendments in favour of access to judicial review, the Bill has returned to the House of Commons, the amendments removed, and then sent back to the House of Lords, in a process known as ‘Ping Pong’. Lord Chancellor Chris Grayling was heavily criticised after he misrepresented certain provisions of the Bill relating to judicial review to Commons.  

Click here to read the judgment Secretary of State for Communities and Local Government v. Venn [2014] EWCA Civ 1539.

Click here to read an analysis from UK Human Rights Blog. 



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