PRIVATE LAW ENVIRONMENTAL CLAIMS:
THE COSTS AND FUNDING CYCLONE
UKELA 12th July 2011
Presented by
Gordon Wignall
PRIVATE NUISANCE PROCEEDINGS A VICTORY FOR THE PRIVATE INDIVIDUAL
Pride of Derby and Derbyshire Angling Association LD. and
Another v. British Celanese LD. & Ors [1953] Ch. 149
An injunction granted restraining the (3) Defendants from discharging
effluent into the River Derwent so as to alter the quality (including the
temperature) of the water of the river to the injury of the plaintiffs or so
as to interfere with the plaintiffs' rights of fishery
Halsey v. Esso Petroleum Co. Ltd. [1961] 1 W.L.R. 683
Damages and an injunction to restrain the emission of noise and smells
from an oil refinery; damages in respect of the emission of oily smuts
2
THE TORT
Threshold – the robust standards of ordinary English folk
Causation – is the installation the source?
State of affairs – an element of permanence rather than intermittence
Nature and character of the area?
Best practicable means – not a defence
Planning permission very unlikely to be an automatic defence
Defence! - statutory authority – Marcic (Can be defeated by
negligence)
Liability may extend to acts of independent contractors
Injunction the usual remedy
CAUTION!
Measured Duty of Care (Anthony v. Coal Authority)
Reasonable user & Barr v. Biffa Waste (18th April 2011)
3
GROUP LITIGATION
CPR PART 19
1.
2.
3.
4.
5.
6.
Common Issues of fact or law
A register of claimants
Decisions on common issues are binding on the claimants
Cost sharing (costs apportioned per quarter)
Novel case management
Cut-off date to benefit the Defendant
CAUTION!
Practice Direction – Group Litigation
6.1A “A claim must be issued before it can be entered on a Group
Litigation”
4
GROUP LITIGATION
CPR PART 19
Lord Woolf Access to Justice Final Report (1996)
1.
Common issues are not identical issues. Treat different
cases different ways: maximum flexibility; individual proceedings
in parallel
2.
“The earlier the court exercises control in a multi-party
action the better chance of managing the case to a satisfactory
resolution”
3.
Ten or more claimants: five may be sufficient
4.
“No need for the Court to take a view of the merits [at the
certification stage]”
5.
“Imagination and creativity”
5
GROUP LITIGATION IN PRACTICE
1.
Are the emissions about which the Claimants claim
caused by the operation and management of the plant?
2.
What is the distance beyond which complaints of nuisance
are not justified?
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GROUP LITIGATION
CPR PART 19
Lord Woolf Access to Justice Final Report (1996)
1.
Common issues are not identical issues. Treat different
cases different ways: maximum flexibility; individual proceedings
in parallel
2.
“The earlier the court exercises control in a multi-party
action the better chance of managing the case to a satisfactory
resolution”
3.
Ten or more claimants: five may be sufficient
4.
“No need for the Court to take a view of the merits [at the
certification stage]”
5.
“Imagination and creativity”
7
EXAMPLES
Landfill sites
Composting sites
Motor Racing
Foundries
Low Frequency Noise
Mining and quarrying
8
FUNDING VEHICLES I – CFAs
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No claimant gets a complete indemnity for fees
Waive unrecovered costs
Premiums staged
100% at trial
Covers pre-action work, s.51 applications and
enforcement
Can Sibthorpe v Southwark LBC [2011] 2 All ER 240 be
utilised?
Discounted arrangements
Limit for period of claim?
Are available for Defendants
CAUTION!
Solicitors may put themselves at risk (Myatt No2)
9
FUNDING VEHICLES II – ATE
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No rule that impecunious claimants cannot sue
Terms are important – is there protection for interim
adverse costs? What is the scope? Does it cover security
for costs as agaibst D? (See Guerrero v. Monterrico Metals
plc [2009] EHC 2475, 16th October 2009.)
Does the policy have sufficient cover?
Will top-up be made available?
Will D agree to limit its costs to avoid a premium?
There is no jurisdiction to permit an order for disclosure of
an ATE premium, although this is a fact-sensitive issue.
(See Ocensa Pipeline Group Litigation, Senior Master, 6th
May 2010.)
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DO COSTS GET OUT OF CONTROL?
Defendants do not always behave rationally
A GLO is a procedural device for the resolution of complaints
Claimants' solicitors do not put claimants on the register lightly
Do not treat a GLO like ordinary litigation
“Threshold first”: both D and C can fight their individual cases as
to nuisance if they insist.
Why indulge in satellite or procedural litigation?
Cost capping now rare. What happened to budgeting?
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THE FUTURE
Aarhus? Morgan v. Hinton Organics [2009] Env LR 30
Implementation of Jackson/Young
Reforming Civil Litigation Funding and Costs in
England and Wales – Government Response March
2011


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No QOCS
No recovery of ATE
Increase of general damages by 10%
Legal Aid, Sentencing and Punishment of Offenders
Bill: s.41 (success fees), s.43 (recovery of insurance
premiums by way of costs) (Second Reading 29th
June 2011)
12
PRIVATE LAW ENVIRONMENTAL CLAIMS:
THE COSTS AND FUNDING CYCLONE
UKELA 12th July 2011
Presented by
Gordon Wignall