ALBA Annual Summer Conference 2012Practice & Procedure 

James Maurici

Landmark Chambers

Introduction

• Focus on some fundamental changes in practice & procedure in JR • Being driven by the Aarhus Convention and EU law in

environmental JR • Focus: (i) delay and promptness; and (ii) costs • Also touch on: standing, interim relief and standard/intensity of

review• These changes influencing non-environmental JR also and will

continue to do so …• That is because the Courts have already said it is not justifiable to

have one set of procedural rules for environmental JR and another set for other JRs.

• That was also the view of Jackson LJ in his costs report.

Delay and Promptness 1

• Key feature of JR is requirement that claim be filed “(a) promptly and (b) in any event not later than 3 months after the grounds to make the claim first arose” (CPR 54.5).

• White Book says "The test is promptness and a claim will not necessarily be made promptly simply because it has been made within the three months period” and it cites R v Independent Television Commission Ex p TV NI Ltd. (1991) and R v Cotswold DC, Ex p Cotswold Barrington Parish Council (1997)

 

Delay and promptness 2

• C-406/08 Uniplex: requirement to bring public procurement proceedings “promptly and in any event within three months” in the UK transposing Regulations offends vs. EU procurement legislation. – “precludes a national provision ...

which allows a national court to dismiss, as being out of time, proceedings ... on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.”

• The CJEU’s reliance on general principles of EU law (effectiveness and legal certainty) in reaching this conclusion suggested might well take the same approach to CPR r 54.5 in the context of JR claims involving directly effective EU law.

Delay and promptness 3

• Initially domestic courts interpreted Uniplex restrictively: see R (Pampisford Estate) v Secretary of State for Communities and Local Government [2010] and R (Carroll) v Westminster City Council & Anr [2010] – held confined to procurement.

• But in R. (Buglife) v Medway Council [2011] and R (U & Partners (East Anglia) Ltd) v The Broads Authority [2011] High Court said promptness rule disapplied in these 2 environmental JRs which were within the scope of EU Directive

Delay and promptness 4

• In U & Partners Collins J said Uniplex also disapplied s. 31(6) SCA 1981• Berky [2012] in CA now the leading case albeit that all the observations on

promptness were strictly obiter. • Each Judge took a different view on the Uniplex delay issues. • Carnwath LJ (as he then was) considered that:

– (1) Uniplex probably did apply to planning cases but considered the position sufficiently uncertain that he would have made a reference had the case turned on delay;

– (2) if Uniplex applied it would not have affected the promptness requirement in respect of the domestic law grounds in the case, only the EIA ground;

– (3) contrary to what was said by Collins J in U & Partners, assuming Uniplex applied, it was concerned only with the time allowed for commencing proceedings and did not affect the Court’s power to withhold remedies under s. 31(6) of the Senior Courts Act 1981.

Delay and promptness 5

• Moore-Bick LJ and Sir Richard Buxton by contrast considered that, on the assumption that Uniplex applied in planning cases, it also applied to s. 31(6).

• Sir Richard Buxton though thought that the application of Uniplex to planning cases merited reconsideration and that had delay been the determinative issue he would have made a reference. Sir Richard Buxton also said that assuming Uniplex applies to planning then it disapplies the time limits in respect of all the grounds (both domestic and European) so long as one of the grounds raised was an EU point and not “plainly unarguable”.

Delay and promptness 6

• A further issue considered in Berky was a possible distinction made in Uniplex between the types of remedy sought by a claimant. AG Kokott’s opinion in Uniplex distinguishes: (i) a remedy is aimed at having a contract already concluded with a successful tenderer declared void (primary legal protection); and (ii) a declaration of an infringement of procurement law and possibly an award of compensation (secondary legal protection).

• The CJEU did not explicitly make the distinction. But could say implicit.

• CA in Berky said the distinction drawn between primary and secondary remedies was relevant only to the question of date of knowledge, not to the question of promptness in Uniplex.  

• Is that correct?• Berky is unlikely to be the last word on the subject.

Delay and promptness 7

• 2 First instance cases: R (Salford Estates (No.2)) Limited v Salford City Council [2011] and R (Macrae) v. Herefordshire District Council [2012]. Uniplex no application in non-EU case.

• The history: R. (Burkett) v Hammersmith and Fulham LBC (No.1) [2002] per Lord Steyn

• What about the ECHR? Lam v UK – revisited?• Hardy v Pembrokeshire CC [2006] • Macrae went to CA. CA did not decide issue “interesting arguments”• A two-speed requirement? For cases which raise general principles

of EU law, claimants will have up to three months to file their claim. For those cases which do not, the promptness requirement remains.

Delay and promptness 8

• The Aarhus Compliance Committee in the Port of Tyne case (September 2010):• “the courts in England and Wales have considerable discretion in reducing the time limits by interpreting the requirement under the same provision that an application for a judicial review be filed “promptly” …. This may result in a claim for judicial review not being lodged promptly even if brought within the three-month period.” • “The Committee also considers that the courts in England and Wales, in exercising their judicial discretion, apply various moments at which a time may start to run, depending on the circumstances of the case …” • “The justification for discretion regarding time limits for judicial review, the Party concerned submits, is constituted by the public interest considerations which generally are at stake in such cases. While the Committee accepts that a balance needs to be assured between the interests at stake, it also considers that this approach entails significant uncertainty for the claimant. The Committee finds that in the interest of fairness and legal certainty it is necessary to (i) set a clear minimum time limit within which a claim should be brought, and (ii) time limits should start to run from the date on which a claimant knew, or ought to have known of the act, or omission, at stake”.

Introduction – Aarhus 1

• UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters

• Entered force October 2001• UK ratify 2005, EU also ratified• Very unusual individual right to make communications to the Compliance Committee

in Geneva

• NB scope – not all environmental matters – see Article 6 and Annex I – only projects likely to have significant effects on the environment – link to EIA Directive ...

Introduction – Aarhus 2, the EU element

• Directive 2003/35/EC – the PP Directive - inserted into the EIA Directive and the IPPC Directive Articles 11 (ex 10a) and 15a respectively which mirror Article 9 of the Aarhus Convention. Within the ambit of these Directives the Aarhus Convention has the force of EU law.

• Ratification by EU itself gives the Commission the right to ensure that Member States comply with the Aarhus obligations in areas within Community competence (see Commission v France (C-239/03) [2004] [25]–[31]).

Introduction – Aarhus 3

Article 9 - ACCESS TO JUSTICE

2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission [within scope of the Convention]. What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention ...

4. ... the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive...”

Costs: the influence of Aarhus 1

• Aarhus featured heavily in story of the relaxation of the requirements for grant of PCO, and not just in environmental JRs – see– R (Compton) v Wiltshire Primary Care Trust [2009] – R. (Buglife) v Thurrock Thames Gateway Development Corp

[2009]– Morgan and Baker v Hinton Organics (Wessex) Ltd [2009]

• R (Garner) v. Elmbridge Borough Council [2011] – the Aarhus Convention and the PP Directive are based on the

premise that it is in the public interest that there should be effective public participation in the decision-making process in significant environmental cases

– the issues of “general public importance”/“public interest requiring resolution of those issues” in the Corner House conditions disapplied.

– i

Costs: the influence of Aarhus 2

• Findings of the Aarhus Compliance Committee in the Port of Tyne case (September 2010) – UK failed to adequately implement Art. 9(4) on cost, interim relief, delay (see above). But also doubts on scope of review: http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-33/Findings/C33_Findings.pdf

• Commission announced infraction proceedings against UK in respect of costs in environmental JR cases under the PP Directive (6 April 2011).

• Reference by the Supreme Court in Edwards (15 December 2010).• Aarhus prominent role in Jackson report – and influenced his

recommendations on costs in JR generally. He rejected different rules environmental and non-environmental JR cases.

Costs: the influence of Aarhus 3

• Compared to 12 months ago, and as a result of Garner, PCOs are much more readily obtainable in planning/environmental JR cases, especially if, but not only if, within scope of PP Directive.

• Easier in other JRs too?• Uphill struggle for defendants in

environmental JRs to resist some form of PCO in such cases (although see Coedbach [2010])

• Issue is often a PCO on what terms?

Where are we going (1)?

• Recommendations for reform:– Sullivan report (May 2008): liberalise Corner House criteria –

already achieved by Garner;– Jackson report: recommends “qualified one way costs shifting”

in all judicial review: costs ordered against the claimant shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including the financial resources of all the parties to the proceedings and their conduct in connection with the dispute to which the proceedings relate;

– Sullivan update report (September 2010): Propose that CPR Part 44 is amended to include the following provision: “44.X An unsuccessful Claimant in a claim for judicial review shall not be ordered to pay the costs of any other party other than where the Claimant has acted unreasonably in bringing or conducting the proceedings.”

Where are we going (2)?

• MoJ consultation paper 21 October 2011 (closing date 12 January 2012)• Cost Protection for Litigants in Environmental Judicial Review Claims. • The consultation paper summarises the main proposals as follows:

– The rules would apply to JR cases falling under Aarhus (including under PP Directive). The rules would apply in relation to all claimants in the same way, regardless of whether claimant in a particular case is a natural or legal person

– A PCO obtained by making application. However, application not need to be supported by grounds/evidence unless order other than the “default order” is sought

– PCO only be granted if permission to apply for judicial review is granted – Applications should normally be made at the same time as the application

for permission/in the claim form. It would be decided on by the court when it considers whether to grant permission, and would normally be considered on the papers

cont.

Where are we going (3)?

– PCO would limit the liability of claimant to pay defendant’s costs to £5,000 and also limit liability of defendant to pay the claimant’s costs to £30,000

– By way of exception the defendant may apply for the cap to be removed – i.e. that there should be no costs capping because the claimant is not in need of costs protection – where information on the claimant’s resources is publicly available.

– Consultees asked for views on the possibility of allowing the cap to be raised as well as removed. An application to remove the cap would only be on the basis that the claimant has such resources available for litigation that access to justice is not in issue and no costs protection is required. This would have to be supported by such evidence as is publicly available, as the applicant will not be able to require the claimant to disclose his or her means

– Costs of the PCO application would not be payable by either party if the PCO is applied for with default terms and is made in those terms (that is to say, there should be no additional costs element for a “default” application and order).

The objective/subjective debate 1

• The main issue which has occupied the domestic Courts in recent times in relation to costs and Aarhus is the question whether the cost of litigation is or is not “prohibitively expensive” to be decided on:– an 'objective' basis by reference (for example) to the ability of an

'ordinary' member of the public to meet the potential liability for costs (the Sullivan report the “elusive concept of a member of a public who is neither very rich nor very poor, and would not be entitled to legal aid ...”.) or

– a 'subjective' basis by reference to the means of the particular claimant, or

– upon some combination of the two bases?• Of course one of Corner House criteria requires regard had to having

regard to “the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved”

The objective/subjective debate 2, the cases

• (1) Garner, Sullivan LJ “[w]hether or not the proper approach to the "not prohibitively expensive requirement under Article 10a [as inserted by the PP Directive] " should be a wholly objective one, I am satisfied that a purely subjective approach … is not consistent with the objectives underlying the directive”

• (2) Coedbach, Wyn Williams J “In Garner Sullivan LJ left open whether it was permissible to have regard to the personal circumstances of the particular claimant. He did not determine that issue definitively but, in my judgment, the tenor of what he says tends to support the view that some regard should be paid to the individual circumstances of a claimant”

• (3) Edwards, Supreme Court, per Lord Hope:“[i]t is clear that the test which the court must apply to ensure that the proceedings are not prohibitively expensive remains in a state of uncertainty. The balance seems to lie in favour of the objective approach, but this has yet to be finally determined.” Made reference to CJEU.

• (4) Roadsense, Lord Stewart (20 January 2011): declined to follow Garner.

The objective/subjective debate 3

• Main argument advanced in favour of objective approach by Sullivan LJ in Garner was that examination of means in order to determine whether a PCO was required and if so on what terms might itself discourage persons from bringing challenges: – But numerous instances where Court procedures enquire into persons’ means.

Moreover, the CPR allows such hearings to be determined in private. Sullivan LJ said “[t]he possibility that the judge might, as an exercise of judicial discretion, order that the public should be excluded while such details were considered would not provide the requisite degree of assurance that an individual's private financial affairs would not be exposed to public gaze if he dared to challenge an environmental decision”. Correct?

– Also if the test is as Sullivan LJ stated it to be in Garner, not purely subjective, that entails that there will inevitably still be cases where it is relevant to look at means. Sullivan LJ did not expand on which cases this would apply to, or how this would be done without a chilling effect. The only approach that avoids this entirely is a wholly objective approach – and that has other difficulties (see below).

The objective/subjective debate 4

• Major downside of a wholly objective approach:• It allows a PCO to be granted to

“the owner of a well known department store or certain footballers” (see Garner at para. 25) despite those persons being well able to meet the costs of bringing legal proceedings.

• The burden on costs in environmental litigation therefore falls more heavily on Governments, which given the current fiscal crisis is a real concern.

• What about interested parties the beneficiaries of decisions subjected to JR?

Standing 1

• Seemed dead area in environment/planning after:– Ex p Dixon (1998): no standing only if “no interest whatsoever”/ no

legitimate concern at all “in other words, a busybody”;– Kides (2003): “[a] claimant who has a real and genuine interest in

challenging an administrative decision must be entitled to present his challenge on all available grounds notwithstanding that he has no personal interest in any of the grounds on which he is relying”

– Edwards (2004): put-up legal aid claimant no prior involvement in EA decision-making, not an abuse/had standing.

• Commission v Ireland A-G correctly says that Aarhus allows “more restrictive rules” on standing than “sufficient interest test”: see Art. 9(2) and therefore not dictate to MS courts what test should be ...

• See Ashton and Coedbach - the beginning of a backlash vs. liberal standing in planning/environmental cases?

Standing 2

• Ashton [2010]: CA on s. 288 application “person aggrieved” test - there was a difference between feeling aggrieved and being aggrieved. The lack of prior participation factor.

• Coedbach [2010]: a JR – held C. no standing to challenge decision on biomass fuel station A (by the S/S in England) in which C had no interest save that they argued the approach of the Secretary of State in respect of station A might influence the approach to the then on-going consent process for station B (by the Welsh Ministers in Wales) in which C was interested.

• But then see Case C-240/09 Lesoochranárske Zoskupenie VLK – ECJ suggest Aarhus requires liberal approach to standing– “it is for the referring court to interpret, to the fullest extent possible, the procedural rules

relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law ...”

• Could go either way ….

Standing 3

• Standing becoming an issue again, generally?– R. (UK Uncut Legal Action) v

Revenue and Customs Commissioners

– R. (Unison) v NHS Wiltshire Primary Care Trust [2012]

– R. (Williams) v Surrey CC [2012] – R. (Broadway Care Centre Ltd) v

Caerphilly CBC [2012]• If heading to a world where C’s costs

protection if lose, no limit if win; no promptness requirement ...

• What then is the control on unmeritorious claims? Standing? Raising permission test?