Law lords blast top solicitor for abuse of process




Solicitors Journal


Rugby Cement

One of England's leading solicitors has been castigated by two law lords for abusing the procedure of the House of Lords.

Richard Buxton, a claimant environmental law specialist with his own practice, was accused by Lord Hoffman of submitting a memorandum, after he had seen the draft speeches of the law lords, referring to three European directives he had failed to mention before.

As a result of the memorandum, Lord Hoffman said publication of the judgment in R (on the application of Edwards) v The Environment Agency [2008] UKHL 22 had to be postponed by a week.

Lord Hoffman said copies of the draft speeches were provided in confidence with a request that counsel check them for "error and ambiguity".

He went on: "The memorandum, when it arrived, consisted of 27 paragraphs of closely typed submissions referring to three directives which had not been mentioned in the appellant's lengthy submissions to the House and repeating other arguments which had already been considered.

"It contains nothing which causes me to wish to change the views expressed in my draft speech. In my opinion the submission of such a memorandum is an abuse of process of the procedure of the House.

"The purpose of the disclosure of the draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue the case."

Lord Hope agreed with Lord Hoffman's that Buxton's submissions, after the hearing had ended, were an abuse of procedure.

He said the opportunity to submit further arguments ended when the parties were provided with copies of the draft speeches.

"The memorandum purported to be devoted to the correction of errors and ambiguities. But in substance it was an attempt to re-submit submissions already made and to make new submissions. It was an abuse of the procedure."

Buxton said he could understand the House of Lords not wanting the case to be reargued at the eleventh hour.

"We took the view that European law is so clear that the Supreme Court has to "get it right", including rectifying a situation where an Environmental Impact Assessment directive has not been properly applied," Buxton said.

"We felt that it was our duty to the court to point out these facts. We are quite frankly taken aback to have received such scathing comments, but, had we not done what we did, we would be open to criticism."

Buxton was advising residents concerned at the Environment Agency's decision to allow Rugby cement works, owned by Cemex, to burn shredded tyres as fuel. After the High Court and Court of Appeal ruled against them, the residents appealed to the House of Lords.

Lords Walker, Brown and Mance joined Lords Hoffman and Hope in dismissing the appeal.