Neutral Citation Number:  EWHC 711 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Monday, 8 February 2010
B e f o r e:
MR JUSTICE WYN WILLIAMS
THE QUEEN ON THE APPLICATION OF B
HINTON ORGANIC (WESSEX) LTD
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Mr Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant
Mr Angus McCullough QC (instructed by the Environment Agency) appeared on behalf of the Defendant
Mr Peter Village QC (instructed by Bond Pearce LLP) appeared on behalf of the Interested Party
J U D G M E N T
(As Approved by the Court)
1. MR JUSTICE WYN WILLIAMS: These proceedings have a somewhat chequered history. On 3 July 2008 the claimant began proceedings in this court in which she was seeking to judicially review a decision expressed to be as follows; the failure (1) to investigate whether bio‑aerosol emissions arising from the interested party's waste site are causing or potentially are causing adverse health effects to the claimant and other local residents; (2) to properly regulate the interested party and prevent it causing pollution and carrying out unlawful activities; (3) to take a precautionary approach to the regulation of waste disposal at the interested party's waste site.
2. The claim form as initially filed did not contain very detailed grounds and statement of facts though I make no criticism of that because detailed facts and grounds soon followed. The defendant defended robustly. It served detailed grounds of defence. That provoked a reply on behalf of the claimant. So the parties were ready by about the autumn of 2008 for a decision about whether or not permission should be granted.
3. That issue first came before His Honour Judge Birtles, sitting as a High Court judge, who adjourned the application for permission into open court for there to be an oral hearing. That oral hearing took place before Mr Justice Burnett on 18 September 2008. After debate between Mr Hyam for the claimant and Mr McCullough for the defendant permission was refused.
4. The claimant sought permission from the Court of Appeal to appeal against the decision of Mr Justice Burnett. That was considered on the papers by Lord Justice Laws, and he granted permission to move for judicial review on 14 January 2009. He gave as his reasons that the grounds were arguable. So it was that one might have assumed that within months of that decision there would have been a substantive hearing of this claim. That did not occur. What did occur was an exchange of correspondence beginning in February 2009. On 10 February 2009 the defendant wrote to the claimant's solicitors, indicating that it was contemplating taking a step which might have the effect of rendering the application for judicial review academic. The step in question was a proposal to vary the conditions upon which the interested party would be permitted to operate its site.
5. In the face of the prospect of a change in those conditions, the claimant was asked to consider the suggestion that the judicial review proceedings should be stayed until the issue of a revised permit had been determined. During much of 2009, as I understand it, this suggestion was the subject of debate in correspondence. Essentially the stance being taken was that the defendant was saying that there was no need for a hearing, "we are about to issue a revised permit", the claimant was saying "we want our hearing because there is as yet no permit".
6. In September 2009 the defendant was faced with the claimant seeking to have the substantive claim listed for hearing. Again the defendant resisted that proposed step in correspondence, referring to the fact that a revised permit would soon be issued. Again the stance taken by the claimant was, in the absence of a permit, "we wish to have our challenge heard". During all of this time, the interested party asserts that it was unaware of the proceedings.
7. On 30 November 2009 the defendant issued what is described as a variation notice in respect of the interested party's site. In summary ‑ and probably inaccurate terms ‑ it was a permit to operate the site which contained conditions not hitherto attached to the permits. Some of those conditions sought to monitor the situation in relation to issues raised in the judicial review. By the time that permit was issued this hearing for today had been fixed. When I say "this hearing" at that stage what was contemplated was the hearing of the substantive judicial review claim. Earlier this year the claimant accepted that a hearing of the substantial claim should not take place today. I say that because the claimant made a formal application to the court to adjourn the hearing.
8. The suggestion, in summary, was that the claim for judicial review should either be stayed or adjourned but, if adjourned, for a period of, say, six months. That was to permit, as the claimant describes it, an evaluation of life after the permit, if I can put it in that way. Essentially the claimant wished to be satisfied that the defendant would enforce the terms of the permit which had been issued in November 2009.
9. Underlying the application for a stay or an adjournment is an acceptance by the claimant that as things stand there is nothing to litigate as between the claimant and defendant. As I understand Mr Hyam's very helpful submissions, there is currently no issue to be tried as between the claimant and defendant because he accepts that the grounds for judicial review as formulated in the pleadings raise no issue which is currently worth litigating.
10. The stance taken by the parties today can be briefly described. Mr Hyam says that given the uncertainty over the future (those are my words, not his), the appropriate course in the interests of justice is either to stay or adjourn the proceedings. This court can be safe in the knowledge that before such proceedings are restored the court would have to be satisfied that there was a purpose in the litigation. He submits that that is the most cost‑effective way of proceeding. Counsel for the defendant and leading counsel for the interested party say no. It is accepted by everyone that there is nothing to litigate at the moment and it is not correct, as a matter of principle, to allow proceedings to continue on what they describe as a wait‑and‑see basis.
11. In my judgment they are right. If there was a likelihood of further litigation in a comparatively short period of time there might well be grounds for adjourning these proceedings. What I am faced with however is complete uncertainty. There is an appeal against the permit as varied. That will be heard by the Secretary of State's representative on a date and at a time that is unknown. It may be months away. No one knows what the result of the appeal will be.
12. To repeat therefore, there is complete uncertainty as to where we stand. The result of the appeal will either be success for the interested party or failure. What follows from that is also completely uncertain, as we are here today. The likelihood is, on any view, that many months will go by when this appeal is being litigated and therefore nothing can be done in these proceedings. This court, as Mr Hyam was quick to acknowledge, is very slow to contemplate a situation whereby a judicial review begun on 3 July 2008 subsists for many months further into 2010 and or beyond without the court having any means of regulating sensibly what should happen to the proceedings.
13. In my judgment, in those circumstances, it becomes clear that it is appropriate for these proceedings to be brought to an end. Everyone accepts now that the appropriate means of doing that is by this court dismissing the proceedings. That is what I propose to do. If it turns out to be the case that events in the future determine that there should be litigation either between these parties or between other residents who live near the interested party's site and, for example, the Secretary of State, that is something which must take place by the vehicle of fresh proceedings. The consequence in costs, in my judgment, are likely to be comparatively small and certainly do not begin to outweigh the consequences which I have found would flow from these proceedings being kept alive.
14. Accordingly I propose to accede to the submissions made that this claim should now be dismissed.
15. MR McCULLOUGH: Thank you. In relation to costs, I have two applications. The first is in relation to the costs of the substantive proceedings, as to which, in my submission, the proper order is that there should be no order as to costs. I will develop that in a moment as I anticipate it will be a matter of dispute; secondly, as to the costs of the claimant's application and the costs of today as to which different principles may apply. My application ‑ I do not know if Mr Village takes a different stance ‑ at least as to that second element of the costs is that there should be an order that the defendant's costs of this application, including the costs of today, be paid by the claimant in any event but that such costs are not to be enforced without further order.
16. MR JUSTICE WYN WILLIAMS: In other words, the appropriate
formulation where the "losing party is publicly funded".
17. MR McCULLOUGH: Exactly. It may be a Pyrrhic costs order as far as the defendant is concerned but it may not. It may avail if Miss B were to win the football pools or, perhaps more realistically, if some similar proceedings or subject matter were to be embarked upon by her in the future supported by public funding.
18. I turn to the first of those two applications. We are in what I know will be familiar territory in terms of the principles, those set out originally by Mr Justice Scott Baker in Vauxhall. To remind you of those principles, they are conveniently set out in the note to the White Book.
19. MR JUSTICE WYN WILLIAMS: Which is not conveniently to be found with me. Essentially does it come to this that in judicial review proceedings where the judge does not hear the substantive claim, he has to be pretty sure that one side is going to succeed?
20. MR McCULLOUGH: Exactly. The principles set out by Mr Justice Scott Baker have been endorsed subsequently by the Court of Appeal. Your Lordship, indeed, when sitting as a Deputy High Court judge, in R (Application of Sally Taya) v Immigration Appeal Tribunal formulated them in the following way. You said:
"It seems to me that I have to approach it on the basis does a comparatively cursory reading of the papers, albeit a reading which is intended to be informed, demonstrate to me clearly that the Secretary of State was very likely to lose and the claimant very likely to succeed as at the permission stage."
That formulation has been referred to and adopted certainly in subsequent and first instance decisions. As your Lordship says, that is essentially the test when the claimant clearly has won. The court is cautioned against embarking on expensive investigation of the underlying merits.
21. I make three submissions in support of my overarching submission that the claimant would by no means clearly have won. First, it is notable that of the three grounds which were originally being advanced, only one‑and‑a‑third was sought to be pursued before Mr Justice Burnett or the Court of Appeal. You will have seen the categorisation of them. There were three, and the second was split into three parts of which only the third part was pursued. It would seem, on the face of it, somewhat ambitious for Mr Hyam to suggest that the claimant should be the beneficiary of a costs order in her favour when such a substantial part of the original grounds have not been pursued at all.
22. Secondly it is notable that in relation to the permission stage, although ultimately that hurdle was cleared it was not cleared with any particular air beneath it. Mr Justice Burnett, after a fairly protracted oral hearing, was not satisfied that the claim was arguable which, notwithstanding that Lord Justice Laws, on the papers, took a different view, did not augur particularly well for the prospect of the underlying grounds which have now been taken over by events.
23. Thirdly ‑ and I will perhaps delay any development of these two in reply ‑ simply to point out that in relation to the two grounds sought to be advanced until they became overtaken by events, as to the first it was dependent upon what the view of the underlying ‑ ‑ (I say the first, it was categorised as 2c, the planning decision and the exemption) was dependent upon the view of the planning authority as to the legality of the activity being performed on the site. If the activity was being performed in accordance with planning permission then it was appropriate to grant an exemption because there was no issue as to the other conditions. And if it was not being performed in accordance with planning requirements then it was not an appropriate for an exemption to be granted.
24. What the agency has done throughout is to reflect the apparent position of the planning authority. It is true to say ‑ and Mr Stookes makes something of this in his third witness statement ‑ that the planning authority were somewhat coy about declaring their hand. The agency, when faced with an application for an exemption, having asked the planning authority as to what the position was, had initially said we are not going to issue the exemption until the planning authority has told us that they are satisfied that the position is lawful. Unfortunately the planning authority never replied to that before the agency felt that it was required to issue the exemption.
25. The exemption was issued. Subsequent to it the planning authority did indicate that they felt that the position was lawful activity that was being carried out in accordance with planning permission or that rather planning permission was not required. The planning authority then changed its mind as to that. When the planning authority did so the exemption was withdrawn by the agency. It remains undetermined whether the planning authority is correct as to its view of the law and it remains undetermined whether the exemption was properly issued or indeed, conversely, properly revoked. It is far from established that the granting of the exemption constituted an error of law on the part of this defendant (the Environment Agency).
26. As to bio‑aerosol monitoring, as I hope would have been apparent from the papers, there has been a national review of standard permitting conditions in relation to such sites. The variation of the permit in this respect is consequent upon that national review and not as a response to the claimant's claim. The dates almost establish that unequivocally. I say "almost" because, if one looks at the chronology, Lord Justice Laws' decision on the papers was on 14 January. I do not know when it actually reached the parties.
27. But by 3 February ‑ far too early in my submission for there to be any realistic suggestion from Mr Hyam that this was a response to the grant of permission ‑ the letter was written to Mr Cunningham of the interested party, responding, as Mr Village has quite rightly pointed out, to an application made by the interested party itself for a variation of the permit and proposing that there should be bio‑aerosol monitoring as part of the proposed package of measures. One can see that from the letter at page 68, to which you referred, which, in turn, refers back (I think it is not before the court) to the letter of 3 February but is referred to in the penultimate paragraph on page 68. A copy of that was enclosed and sent to the claimant's solicitors, indicating (that paragraph is) ‑
"Similarly in response to a request from the site owners, the agency is proposing a revision of the current licensing regime at the site and is suggesting bio‑aerosol monitoring as part of a proposed package of measures. We enclose a copy of our letter of 3 February 2009 concerning this."
28. Indeed, also enclosed, one sees from the first paragraph of that same letter was the existing guidance on risk management framework for composting facilities and the revised guidance was produced later that year. Copies of it appear between tab 9 and tab 10. This was not a response on the part of the defendant on what was perceived to be a strong or a viable claim. This was part of a review instigated, in the first instance, by the interested party but against a background of a review of the national permitting policy and by no means indicative that the claimant had a claim that was likely to have succeeded at the end of the day.
29. I will leave the second element for the moment if your Lordship thinks that is appropriate.
30. MR JUSTICE WYN WILLIAMS: Mr Village, what do you want to say?
31. MR VILLAGE: My clients clearly have a separate interest from the Environment Agency. We certainly feel that our approach in these proceedings has been slightly different from those of the Environment Agency inasmuch as we have brought to the attention of the court the circumstances of the appeal gainst the permit. On any basis therefore we would say we would be entitled to our costs of and incidental to the preparation of the evidence in this case against the claimant. But, in my submission, the costs ought to include also the costs of attending these proceedings.
32. One might think that this is all academic in light of the legal aid position of the claimant. But my second application is that the court orders that Mrs B be personally liable for these costs in respect of the existence of the Legal Services Commission funding. The reason for that is set out in my skeleton argument at paragraph 11 which is where I state that in the nuisance proceedings Mrs B has given evidence. I note the last sentence:
"The reality is that Louisa B has been on ‑ ‑ ‑ ‑ ‑ "
33. MR JUSTICE WYN WILLIAMS: I thought I was being a bit slow. Mrs B is not the claimant?
34. MR VILLAGE: Mrs B is the mother of Louisa.
35. MR JUSTICE WYN WILLIAMS: I could not conceivably make an order against a non‑party without giving them the opportunity to deal with it, could I?
36. MR VILLAGE: It seems that Mrs B is the claimant because she ‑ ‑ ‑ ‑ ‑
37. MR JUSTICE WYN WILLIAMS: Only in a representative capacity.
38. MR VILLAGE: In a representative capacity. She brings the proceedings but she does so on behalf of Louisa B.
39. MR JUSTICE WYN WILLIAMS: Yes, by virtue of her incapacity. So she is not in those circumstances under normal principles putting herself in the frame. She could only be put in the frame surely if one of the bases for making an order against the third party was made out. Anyway it may be that Mr Hyam can deal with it all. My initial reaction is that I cannot do it without having express notice of it and being able to deal with it in her personal capacity.
40. MR VILLAGE: We will see what My Hyam says. It seems that in my submission Mr Hyam is appearing on behalf of Mrs B in these proceedings, Mrs B herself in a representative capacity on behalf of her daughter. The reality, as I say in paragraph 11, is that Louisa B has been adopted as the claimant in order to take advantage of Legal Services Commission funding and to protect Mrs B from any liability to costs. That was admitted by her in cross‑examination on day 3 of the High Court nuisance claim. The truth of what is said in the skeleton argument is attested to by Mr Angus Cunningham in his witness statement.
41. In circumstances where there is not a shred of evidence of any real concern as to the health of Louisa B, the child, in my submission, it is appropriate for the court to look behind the veil and to look at the reality here. The reality is that this is a claim by Mrs B, part and parcel of other proceedings which she is bringing against my client. In those circumstances we would not ask for an order for costs formulated in the same way that my friend Mr McCullough asked for in relation to the Environment Agency. We say there should simply be an order for costs against Mrs B.
42. MR HYAM: I deal with each matter quite quickly. First, in relation to my friend Mr McCullough's application for costs on the dismissal in the usual legal aid form, no objection. That is entirely appropriate.
43. In respect of my friend Mr Village's application for a personal order against Mrs B, that is strongly reisted on two grounds: (1) she is not here and has not had proper notice; a better ground even than that simply that it would be wrong in principle to make such an order. There is no abuse by Mrs B in these proceedings. These are judicial review proceedings brought by Mrs B on behalf of Louisa B who is not a busy‑body (Louisa B), brings judicial review about perceived risk of environmental harm, permission is granted by Lord Justice Laws. We sought to deal with this application on the papers. We ended up with an oral hearing. She has lost. The usual legal aid costs order should follow. I accept that. I do not accept that Mrs B should stand in the shoes and you should pierce the veil, or whatever phrase you want to use.
44. MR JUSTICE WYN WILLIAMS: Does your client accept the appropriateness of making an order for two sets of costs.
45. MR HYAM: I am just coming to that. Bolton says no, no two sets of costs. I say clearly the interested party has an interest in getting rid of the judicial review because, as we know from the interested party's skeleton, what they say is "we think the agency has caved in to pressure from the claimants". They are very keen to get rid of it. If you ask yourself the question what have they really added that Mr McCullough has not been able succinctly to put before you, the answer is zero we say. And there would be no justification in making two sets of costs order against Louisa B.
46. I say the right order is simply an order in respect of dismissal that the defendant's costs are paid by the claimant on the usual legal aid basis.
47. As to the costs, I have no dispute between with Mr McCullough and I as regards the approach. I certainly do not want you to get bogged down in a minute analysis of how good or bad the case was.
48. MR JUSTICE WYN WILLIAMS: I am very pleased to hear you say that.
49. MR HYAM: I accept that one has to deal with it on a broad brush generalities approach. The Boxall criteria essentially point to special cases: is it clearly going to succeed or is it not? And the default position would be no order.
50. Our simple submission is ‑ and Mr McCullough said if you look at the dates, the change in policy cannot have been a reaction to Lord Justice Pill ‑ we make a far more general point. Our case has been that the tide has turned in respect of bio‑aerosol, the concerns about it and the risks. Our claim was ‑ whether to Article 4 of the Directive or other routes ‑ you are going to need to monitor this.
51. Whether it is as a result of that decision of Lord Justice Laws or not, the consequence is we now have the condition pretty much what we were seeking subject to our concerns about the certainty which formed the basis of today's application. That is it. If you say "I cannot say that is clear enough for me" then the consequence is no order. The same point is in relation really to the exemption. We simply point to a long delay between the revocation. Mr McCullough's answer is "well, we were waiting for clarification from the planning authority and as soon as the planning authority clarified their position we revoked." Our position was the reason it is revoked is in law we were right all along, so we say. The facts speak for themselves. Again unless a clear case you are in my favour, the default position is no order for costs.
52. In short, those are the two positions I take in respect of costs.
53. I wish formally to seek permission to appeal against the dismissal on the basis that such dismissal is unfair to the claimant. It puts her at a disadvantage given the uncertainty, given the ongoing appeal proceedings and having regard to the Argos Convention. In the light of your reasoned judgment, I do not expect that application to trouble your Lordship for too long.
54. MR JUSTICE WYN WILLIAMS: I always think it would be wonderful one day to sit here and have a flash of light and say "Gosh, I got it wrong after all." I do not think I will do it on this occasion. I will refuse your application for permission to appeal.
55. MR VILLAGE: So far as adding nothing to the Environment Agency,
my Lord's decision turns very much on the uncertainty brought about by the appeal made by my clients and drawn to the court's attention, I should say, by my clients and my clients alone.
56. MR JUSTICE WYN WILLIAMS: Yes. Though it is hard to believe that Mr McCullough's clients would not also have drawn it to my attention. Probably they did not know it quite as quickly as you, but I do not know.
57. MR VILLAGE: The appeal was made on 26 January. Indeed I have to say that it is clear from the correspondence put in by Mr Stookes that they were aware of it as well.
58. MR JUSTICE WYN WILLIAMS: One way or the other I think it would have become as significant or insignificant as I have treated it in my judgment.
Ruling on costs
59. MR JUSTICE WYN WILLIAMS: I think the just orders for costs are as follows. First, between the claimant and the defendant, as Mr Hyam concedes, it is appropriate that the costs of and incidental to the application to adjourn/stay should be paid by the claimant to the defendant to be assessed on the standard basis if not agreed.
60. So far as the costs of the substantive claim are concerned, I adopt the approach which I apparently adopted earlier in my judicial career and, more importantly, the approach in Boxall. I cannot be satisfied that there was a very real likelihood, or some such phrase as is appropriate with the authorities, that the claimant would have succeeded. As Mr McCullough points out, this claim started with three grounds of challenge. By the time of the oral hearing before Mr Justice Burnett one‑and‑a‑third were being pursued. It was on one‑and‑a‑third that ultimately Lord Justice Laws gave leave to move for judicial review. Mr Justice Burnett had thought that the claim fell the wrong side of the permission hurdle. So far as one can discern from the short reasons given by Lord Justice Laws, he felt that the claim fell on the other side of the permission hurdle. There is nothing in his brief reasons that would suggest that this was a very strong claim. It would be impossible for me to determine the true strength of the claim without a very detailed appraisal of all relevant matters.
61. Doing the best that I can, approaching it as I have indicated that I should, this is classically, in my judgment, one of those cases where I should say no order as to costs.
62. As between the claimant and the interested party, I am not persuaded, in the particular context of this case, that it is appropriate to award two sets of costs. I do not think the Bolton criteria are met. The interested party came late to the proceedings. And although inevitably when advocates of the experience of Mr McCullough and Mr Village appear they are able to put things in different ways and from different perspectives, it does not seem to me that it was necessary in the Bolton sense for the opposition to the adjournment to be mounted. So I do not think the Bolton criteria are met.
63. I add that I would not have thought it appropriate to consider costs against Mrs B personally ‑ which was the thrust of Mr Village's application ‑ without giving her express knowledge of it, and sought to be represented. I think I have dealt with all matters.
64. MR HYAM: Did you refuse permission to appeal?
65. MR JUSTICE WYN WILLIAMS: Yes.
66. MR HYAM: The usual legal aid terms.
67. MR JUSTICE WYN WILLIAMS: If it is necessary I direct that the publicly funded claimant should have her costs assessed.
68. MR HYAM: My solicitor is concerned. In the costs order the usual terms?
69. MR JUSTICE WYN WILLIAMS: The order for costs which I did make in favour of Mr McCullough's client is in the form ‑ it is the convention where the claimant is publicly funded.
70. MR HYAM: I am grateful.