Judgment by the United Kingdom Supreme Court in regards to R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents) (No 2) [2013] UKSC 78 was given on 11 December 2013. The appeal concerned the meaning of “prohibitively expensive” under the Aarhus Convention. By way of background, the proceedings related to a cement works permit decision in Rugby in August 2003. Mrs Pallikaropolous led a public opposition campaign. As she was not eligible for legal aid, a local resident, Mr Edwards, began Judicial Review proceedings in October 2003. In February 2006, the substantive application for judicial review was dismissed. Mr Edwards appealed, but withdrew his instructions on the last day of the hearing. Mrs Pallikaropolous was permitted to join as an additional appellant in the public interest so the appeal could be concluded. Her potential costs liability in the Court of Appeal was capped at £2,000. The appeal was dismissed. The respondents’ costs capped at this level were awarded against her. Mrs Pallikaropolous was given leave to appeal by the House of Lords. She provided security for costs of £25,000. Her appeal was dismissed by the House of Lords. A costs order in favour of the respondents was made. The present dispute arose from this order. The Supreme Court referred questions relating to the meaning of “prohibitively expensive” (Art 9(4) Aarhus Convention) to the Court of Justice of the European Union (CJEU). The Supreme Court extracted a number of the points from the CJEU decision (given in April 2013) in its judgment, chiefly that – 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: “The court did not give definitive guidance as to how to assess what is ‘objectively unreasonable’”; iii: “The court could also take into account what might be called the ‘merits’ of the case: that is, in the words of the court, ‘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, the potentially frivolous nature of the claim at its various stages’;” iv: “That the claimant has not in fact been deterred for carrying on the proceedings is not ‘in itself’ determinative”; and v: “The same criteria are to be applied on appeal as at first instance” (see para 23). Applying this to the present case the Supreme Court found, inter alia, that: “It is impossible ….on the material before us… to hold that the order sought would be ‘subjectively’ unreasonable” (para 30); “The more difficult question is whether there should be some objectively determined lower limit, and if so how it should be assessed. Although this was one of the main issues raised by the reference, the European court has not offered a simple or straightforward answer” (para 31); “Of the five “merits” factors mentioned by the court, I would discount the second and fifth immediately. There is no evidence that the appellant had any economic interest of her own in the proceedings, and, given the grant of permission at each stage, including the appeal to the House of Lords, they could not be said to be frivolous” (para 34); “The relative complexity of the case (factor (iv)) is evidenced by the fact that it took three days before the House. It has not been suggested that the costs incurred by the respondents were excessive in respect of the issues involved in the case. They are not out of line with those incurred by the appellant” (para 35); “The other two factors – (i) the prospects of success and (iii) the importance of the case for the protection of the environment - are at best neutral from the applicant’s point of view” (para 36); and “Taking all these factors into account, I find it 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 awarded in the Court of Appeal” (para 37). The Supreme Court made an order for costs in the amount of £25,000 in favour of the respondents.
