R (Lynn McCaw) v. City of Westminster Magistrates Court (D) and Middlesex SARL (IP)

Transcript date:

Thursday, June 19, 2008



Divisional Court

Judgement type:

Pre-emptive Costs


Latham LJ and Nelson J

Transcript file:

CO/4891/2008, CO/5504/2008


Neutral Citation Number: [2008] EWHC 1504 (Admin)




Royal Courts of Justice

The Strand




Thursday  19  June  2008

B e f o r e:


(Vice-President of the Court of Appeal, Criminal Division)



B E T W E E N:

The Queen on the application of




- v -







Interested Party


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Mr David Hart QC and Mr Jeremy Hyam (instructed by Richard Buxton,

Cambridge) appeared on behalf of the Claimant

Mr M Lewis (instructed by London Borough of Tower Hamlets)

appeared on behalf of the Defendant in CO/5504/2008

Mr Peter Harrison QC and Mr Lee Bennett

(instructed by Clifford Chance LLP, London E14 5JJ)

appeared on behalf of the Interested Party



As Approved by the Court


Crown copyright©





Thursday  19  June  2008


1.  At the present stage these proceedings are before us in form as an application for permission to apply for judicial review of a decision of the district judge sitting in the City of Westminster Magistrates' Court.  They relate to proceedings brought under section 82 of the Environmental Protection Act 1990.  The application is brought by the proposed claimant because, having commenced proceedings by way of complaint under section 82(1) of that Act, she sought to add to her complaint a number of other potential complainants.  The district judge determined that the consequence of seeking to do so was to produce a complaint which was duplicitous.  He put the claimant to the option as to which of what was conceived to be the multiple charges should be the one upon which she intended to proceed.

2.  It is submitted on behalf of the claimant that the district judge was wrong; that the proposed amendment did not propose a duplicitous complaint; and that she was entitled to add the other complainants in that one complaint.  For the moment I do not need to deal with the underlying merits of the respective arguments, but it may be helpful to deal shortly with the background to that complaint.

3.  The interested party is a property developer who has permission to develop a site in Tower Hamlets which is adjacent to the property which is a multiple occupancy property in which the claimant resides, as do most of the persons whom she proposed to join in her complaint.  (There are one or two of the proposed claimants, as I understand it, who are not residents but who visit the premises on a regular basis.)

4.  The claimant together with others has made complaints both orally and in writing in relation to what is said to be a statutory nuisance produced by the works at the site and has sought, in the first instance by agreement, to produce an abatement of what is said to be that nuisance.  No accommodation was possible between the parties.  As a result the claimant made a complaint under section 82(1) of the Act on the basis that she is a person aggrieved by the presence of that nuisance.  It is against that background that proceedings commenced.  In support of her complaint she produced in the first instance eleven statements and then subsequently others from those who live in the premises or have been affected by the works.  Those are the people she sought to add to the complaint.

5.  The position that has been reached today is the result of judicial review proceedings that were dealt with originally by Langstaff J where different complaints were made.  In the course of his judgment Langstaff J indicated that perhaps the matter could be resolved by the inclusion of additional complainants.  That is how and why the matter went before the district judge in the way that it did. 

6.  The hearing today is the result of another decision of a single judge in the current application for permission to apply for judicial review, whereby it was ordered that the application for permission to apply, together with the substantive application if permission were granted, should be heard today, but together with an application which was made on behalf of the claimant for a Protective Costs Order.  The basis of that application, it is said, is that unless such a Protective Costs Order is granted, the claimant's rights (which are rights protected by the provisions of the Convention on Access to Information, Public Participation Making and Access to Justice in Environmental Matters) may be affected.  That Convention was held at Aarhus in Denmark and has become known as the "Aarhus Convention".  The basis upon which the claimant asserts that she is entitled to the protection of that Convention is that otherwise her rights, which are contained in article 9 of that Convention, which is headed "Access to Justice" will be affected.  The relevant paragraphs of the article are as follows:

"3.  In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4.  In addition and without prejudice to paragraph 1 above, 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.  Decisions under this article should be given or recorded in writing.  Decisions of courts, and whenever possible of other bodies, shall be publicly accessible."

The claimant accepts that the environmental issue underlying the complaint and the claims that she makes are in one sense not of themselves matters of general public importance.  She complains of the environmental effects which cause detriment to her and those within the premises in which she lives.  However, it is submitted on her behalf by Mr Hart QC that the procedural issue, which is what the judicial review proceedings are about, of itself raises issues of general public importance as to the way in which members of the public can exercise their rights under section 82 of the Act, which are essentially the rights with which article 9 of the Aarhus Convention is concerned.  He submits that in those circumstances the court should not permit the claimant's access to this court for the determination of that issue to be obstructed by the consequences if no Protective Costs Order is made, namely of exposing her to the risk of a substantial costs order were she to fail in the underlying application.

7.  The Interested Party has submitted to us that the basic principles relating to the making of Protective Costs Orders have been laid down by the Court of Appeal in Regina(Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600.  In that case the decision of the court, which was prepared by Brooke LJ, was that the following principles were to be applied, in general terms:

"(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) 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, it is fair and just to make the order; (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.  (2)  If those acting for the applicant are doing so pro bono, that will be likely to enhance the merits of the application for a protective costs order.  (3)  It is for the court, in its discretion, to decide whether it is fair and just to make a protective costs order and what form such an order should take, depending on what is appropriate and fair."

8.  It is right to say that Mr Harrison QC, on behalf of the Interested Party, clearly accepts, first, that that decision did not take into account the material considered in the Aarhus Convention and that there has since been a report known as the Sullivan Report of a working group on access to environmental issues which has set out suggestions, amongst other things, as to how those conditions should be modified in order to take account of the Aarhus Convention.  He accepts that the requirements in Corner House cannot be construed rigidly, as has been made plain in subsequent cases.  For example, the apparent requirement that there should be no private interests in the outcome of the case has been in practical terms replaced with the approach that it is merely one of the material considerations when the court comes to its conclusions.  However, he submits that, underlying the making of a Protective Costs Order must be the proposition that there is engaged a matter of public importance, which the intended litigant should not be unreasonably precluded from pursuing by reason of the costs regime applied in these courts.  He submits that, when properly analysed, no such public interest issue arises in this case, particularly in relation to the Aarhus Convention because this application has no real connection with the mischief which article 9 of the Convention is designed to meet.  The claimant has her rights under section 82.  Those rights are in no way affected by the order about which complaint is made in this case.  The only relevance of the order is as to the way in which those rights might be given effect to; but if the order complained of is not disturbed, that does not prevent the claimant from pursuing her complaint under article 82; nor does it preclude her from calling all the evidence that she would wish to call in support of that complaint; nor does it preclude the other persons who say that they are aggrieved from bringing their own complaints and having those complaints dealt with within the context of the claimant's own complaint.  Accordingly, it is said on behalf of the Interested Party that there is no proper basis for any Protective Costs Order in this case.  Although he accepts that private interest is only one aspect of the matter that has to be considered, this is a case where the claimant seeks to assert her own personal right on the basis that her interests have been interfered with by a statutory nuisance which may amount to a statutory nuisance but which would entitle her to private remedies.  She is not precluded from pursuing either by reason of the order about which complaint is made.

9.  I have considered with some care the respective submissions.  I am prepared to accept, as I understand Mr Harrison was, that the principles set out in Corner House must be applied flexibly.  They must be applied in environmental case contexts in the light of the Aarhus Convention.  I accept that in general terms, without wishing to seek to tie the hands of any court that considers the matter hereafter, the suggestions of the Sullivan working party should be taken into account by the court.

10.  However, I am not convinced that there is any public interest which justifies the making of a Protective Costs Order engaged in this case.  It is a procedural wrangle which does not affect the underlying rights of the parties and does not, in my judgment, engage an issue of public interest such as to justify the grant of a Protective Order in relation to exposure to costs, which is what is sought.  I would accordingly refuse to grant a protective costs order.

11.  MR JUSTICE NELSON:  I agree.  Whether one considers this matter solely through the decision in Corner House or whether one considers that decision in the context of the Aarhus Convention, it seems to me that this is not an appropriate case in which to grant a Protective Costs Order.  Firstly, access to the courts and justice is not denied to the claimant, who can pursue her right to proceedings under section 82 of the Environmental Protection Act 1990 in any event.  Secondly, there is nothing here which requires the issues to be resolved in these proceedings from the point of view of the public interest.

12.  I agree with my Lord and for the reasons I have sufficiently given, I would refuse the application for a Protective Costs Order.


(Decision on possible appeal process)


1.  The question now arises, the claimant wishing to consider an appeal from the order that we have made, what is the nature of the order for the purposes of section 18 of the Supreme Court Act 1981.  Mr Hart QC, on behalf of the claimant, has sought to persuade us that there is at least an argument for saying that the Protective Costs Order is a separate proceeding in the sense that it does not in itself raise any criminal issues.  He has referred us to the decision of the House of Lords in Government of the United States of America v Montgomery [2001] 1 WLR 196.  That related to proceedings in relation to a restraint order which was applied for by the United States Government which was based upon convictions in the United States for fraud.  The House of Lords concluded that, although the application for the restraint order was based upon a criminal conviction, that did not mean that the nature of the proceedings was criminal.  The nature of the proceedings themselves had to be looked at.

2.  In the present case, however, the application for a Protective Costs Order seems to me to be bound up so clearly with the underlying application for permission to apply for judicial review as to mean that that distinction cannot be made here.  Essentially the Protective Costs Order is a pre-emptive order in relation to the costs of the proceedings themselves and therefore forms part of the proceedings which are, it seems to me, indubitably criminal proceedings.

3.  It follows that any appeal that is to be made from this court in relation to that order must be caught by the requirement that the appeal route is to the House of Lords from our decision and not to the Court of Appeal.

4.  In those circumstances we will leave the matter open to the claimant to determine whether or not she wishes to make an application for leave to appeal to the House of Lords, which can only be based upon a certificate that an issue of public importance is raised.  That has not yet been put into any formal document which would enable us to determine whether or not such an issue can properly be said to arise.  Accordingly, we propose to give the claimant the opportunity to make such application as on advice she determines to make.  We will deal with that application on the basis of written submissions both as to the nature of the question and, if we are prepared to certify a question, as to the question of leave to appeal.  I suggest that that is done promptly.  I see no reason why it should not be the subject of submissions to us in seven days, with seven days for the Interested Party to reply.

5.  Would you wish to respond to their reply, Mr Hart?

MR HART:  I am thinking of the timing for the reasons my learned friend has already outlined.  Probably not.  Three days after those fourteen?

LORD JUSTICE LATHAM:  All right.  We will give our responses as promptly as this case requires.