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David Edwards and Lilian Pallikaropoulos (Appellants) - and - 1) The Environment Agency 2) The First Secretary of State 3) Secretary of State for the Environment Food and Rural Affairs (Respondents) - and - Cemex UK Cement Limited (formerly Rugby Limited) (Interested Party)

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Nov 15, 2010
Source
UNEP, InforMEA
Court name
United Kingdom Supreme Court
Seat of court
London
Judge
Lord Hope, Lord Walker, Lord Brown, Lord Mance, Lord Dyson
Reference number
[2010] UKSC 57
Language
English
Subject
Waste & hazardous substances, Legal questions
Keyword
Waste management Access-to-justice Transport/storage
Abstract
This first case in which the Supreme Court had to consider the relationship between Article 9 of the Aarhus Convention (as implemented by Article 10a of the EIA Directive), which requires that environmental litigation should not be ‘prohibitively expensive’, and the normal rule under the CPR that an unsuccessful judicial review claimant should pay the respondent’s costs. The issues about costs are in respect of the appellant's application for judicial review of the decision of the first respondent to issue a permit on 12 August 2003 for the operation of a cement works in Lawford Road, Rugby. Permission had been sought and granted to replace the fuel that had previously been used for their operation, which was coal and petroleum coke, with shredded tyres. The use of tyres for this purpose gave rise to a public campaign against the proposal on environmental grounds. The application was originally brought in the name of Mr David Ewards. His claim for judicial review was dismissed .He appealed to the Court of Appeal, but on the third and final day of the hearing he withdrew his instructions from his solicitors and his counsel.. Mrs Pallikaropoulos, who had been present in court throughout the appeal and had been closely involved in opposition to the permit, was added as an appellant for the remainder of the proceedings. Her liability in the Court of Appeal was capped at £2,000. The appeal was dismissed and the respondents' costs, capped at £2,000, were awarded against Mrs Pallikaropoulos: Mrs Pallikaropoulos was given leave to appeal by the House of Lords. The House of Lords had rejected Mrs Pallikaropoulos’ application for a protective costs order in advance of her appeal, on the basis (inter alia) that insufficient information had been provided as to her financial means for them to conclude that the proceedings would be “prohibitively expensive” for her. She nonetheless proceeded with her appeal. When it was dismissed, the House of Lords ordered that she should pay the respondents’ costs (totalling around £88,000). At the assessment stage, she argued that her costs should be assessed as zero on the basis that for her to have to pay the respondents’ costs would render the litigation “prohibitively expensive. In so doing she submitted that the test of whether litigation was “prohibitively expensive” was an objective rather than subjective one and therefore her means were not relevant. The Supreme Court Costs Officers accepted that they had power to give effect to Article 10a of the Directive by moderating the amount of costs payable to the respondents. The Respondents appealed to a panel of five Supreme Court justices. The apex Court accepted the Respondents’ submissions that the Costs Officers had acted outside their jurisdiction, but held that the Court itself had power to reopen one of its previous decisions (including a decision of the House of Lords prior to the creation of the Supreme Court) where necessary to correct any injustice, as was done in the Pinochet litigation. Lord Hope concluded that the decision to order Mrs Pallikaropoulos to pay the Respondents’ costs should be reopened as it had been based on a purely subjective approach to the question of whether litigation was “prohibitively expensive” and doubt had been cast upon the correctness of that approach following the subsequent decision of the Aarhus Convention Compliance Committee in the Port of Tyne case and the judgment of Sullivan LJ in R (Garner) v. Elmbridge BC [2010] EWCA Civ 1006. Given the doubt as to the proper approach to be taken, the Court referred the matter to the Court of Justice of the European Union under Art 267 TFEU.
Full text
COU-156430.pdf