Costs protection in private nuisance

In 2007 an open-cast coal mine began operating 450 metres from the applicant’s home, causing significant noise and dust pollution. Ms Austin brought private nuisance proceedings against the mine operator, but the key preliminary issue was whether she should have costs protection as this was a claim covered, she said, by the Aarhus Convention, which limits a claimant’s costs exposure in environmental claims.

She was unsuccessful in the High Court and then the Court of Appeal (although the Court did suggest that protection could be available in some cases). She was refused permission to appeal by the Supreme Court. She then applied to the European Court of Human Rights (ECtHR), contending that the United Kingdom had failed to provide an appropriate mechanism to secure the proper regulation of private sector activities, and failed to protect her from dust and noise pollution from open-cast coal mining, because pursuing private nuisance proceedings carried a significant costs risk, in breach of her rights under Article 8 and Article 1 of Protocol No. 1 of the European Convention on Human Rights (ECHR).

The ECtHR declined to consider the claim, noting that Ms Austin had not invoked the ECHR in support of her claim for costs protection in the High Court and Court of Appeal, but only in her unsuccessful application for permission to appeal to the Supreme Court. Thus “the applicant cannot be said to have provided the domestic courts with the opportunity which is in principle to be afforded to a Contracting State by Article 31(1) of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it.”