ALBA Annual Summer Conference 2012
Practice & 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 threemonth 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 (C239/03) [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.
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/C200833/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?