Costs News

11 March 2020
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Interested party in Aarhus claim ordered to pay successful claimant’s costs

An interested party to an Aarhus Convention environmental claim has failed in its argument that it should not have to pay the costs of the successful claimant.

The High Court also made an unusual award of costs for legal research.

In Kent v Teesside Magistrates’ Court and HJ Bank and Company (Interested Party) [2020] EWHC 304 (Admin), the claimant sought his costs from the interested party for the hearing on whether his case was an Aarhus claim. The defendant was neutral on the substantive point and argued that it should not pay the claimant’s costs.

CPR 45.41-44 provide that the claimant in an Aarhus claim is entitled to costs protection limiting his total adverse costs liability to £5,000 with a reciprocal cap of £35,000. If the court holds that it is an Aarhus claim, it will normally order the defendant to pay the claimant’s costs.

The interested party said the reference to the defendant in CPR 45.45(3)(b) meant costs could not be awarded against it. But Freedman J noted that its submissions did not refer to the Court of Appeal ruling in Campaign for the Protection of the Rural Environment Kent Branch v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230, in which Lord Justice Coulson held that this was not material and that interested parties were not outside the provisions relating to the Aarhus cap.

Freedman J continued that the interested party here was the cause of the hearing and thus the costs: “In my judgment, it was available to the interested party not to oppose the application of the claimant. It could have gone further than this. It could have accepted that the Aarhus Convention costs regime should be treated as applying.”

The defendant had gone further and argued that, in the event Aarhus did not apply, the court should depart from the usual order of no costs and make an order for costs in its favour.

“This was not based simply on the technical issue as to whether the convention applied to this kind of action, but it involved an attack on the merits of the claim, the motivation of the claimant and the contention that the claimant was simply a front for others and was indemnified by others.

“All this formed part of the contentious argument of the interested party in the substantive hearing. This adds to the point that this was a controversy between the claimant and the interested party, and that the interested party was the unsuccessful party.”

The claimant sought £25,300 including VAT, a sum Freedman J thought was neither disproportionate nor excessive, especially given that the interested party’s costs were £33,600 and did not include VAT, despite the claimant having to prepare the bundles.

There was a specific objection to the claim for the costs of research. The judge said: “While it is usually the case that research cannot be claimed, each case had to be decided on its facts and fees for legal research were not excluded where a case was unusual…

“I am satisfied that the instant case is unusual and that it required an unusual amount of legal research of national and international law and procedure, as is apparent from the substantive judgment itself. The legal research is not disallowed in principle.”

He made a “modest reduction” to reflect the fact that there was a question as to whether the legal research and the skeleton and the preparation might involve some duplication. He awarded a total of £24,000 including VAT.

Dr Paul Stookes, Solicitor-Advocate (of Richard Buxton Solicitors) for the claimant and Christopher Knox (instructed by Womble Bond Dickinson) for the interested party.

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