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Costs - Aarhus Convention - "prohibitively expensive" - objective and subjective factors
Whether an order for costs in cases to which the Aarhus Convention applies is "prohibitively expensive" must be determined by consideration both subjective and objective factors.
11 December 2013
Lords Neuberger (President of the Supreme Court), Hope, Mance, Clarke and Carnwath
(1) The dispute concerned an order for costs made by the House of Lords in the context of litigation concerning a permit issued by the Environment Agency for a cement works to continue operations with an alteration in its fuel from coal and petroleum coke to shredded tyres.
(2) The House of Lords had awarded costs to the respondents. In assessing the schedules of costs submitted by the respondents, the Supreme Court, to whom jurisdiction was transferred, determined that they could consider whether any costs should be disallowed as "prohibitively expensive" (as required by the Aarhus Convention) part of their jurisdiction to correct a possible injustice arising from the original costs order.
(3) The Court made a reference to the Court of Justice of the European Union (CJEU) on the basis that it was not clear whether the term "prohibitively expensive" should be interpreted objectively, by reference to the ability of an ordinary member of the public to meet the potential liability for costs, or subjectively, by reference to the means of the particular claimant.
(4) Considering the resulting judgment of the CJEU, Lord Carnwath (with whom the rest of the Court agreed) held: (1) The significant points which could be extracted from the CJEU's judgement were: (i) The test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor "appear to be objectively unreasonable", at least "in certain cases". (ii) In determining what is "objectively unreasonable", a court should not exclusively rely on the resources of on average applicant, as this might have "little connection with the situation of the person concerned". (iii) A court could also take into account the "merits" of the case: "whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, and the potentially frivolous nature of the claim at its various stages". (iv) That the claimant has not been deterred from carrying on the proceedings is not "in itself" determinative. (v) The same criteria are to be applied on appeal as at first instance. (2) Applying this test to the present case, the order was not subjectively unreasonable. The respondents had subsequently agreed to limit their joint claim to £25,000, and no evidence had been put forward to suggest that this would be beyond the means of the appellant or cause her hardship. The appellant had proceeded with the case after the refusal of a protective costs order in the full knowledge of the risks involved. (3) Considering the "merits" of the case in the sense discussed above, the order was not objectively unreasonable. The case involved a relatively point of law, there was no strong prospect of success and the point at issue was of limited practical significance by the time the case came before the House.
Order for costs of £25,000 made in favour of the respondents
 -  - Introduction
 -  - Judicial review proceedings
 -  - The dispute over costs
 -  - The CJEU's decision
 -  - The present case
 - Conclusion