Neutral Citation Number:  EWCA Civ 174
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(THE HONOURABLE MR JUSTICE LINDSAY)
Royal Courts of Justice
Wednesday, 8 February 2006
B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE RIX
LORD JUSTICE MAURICE KAY
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FIRST SECRETARY OF STATE
SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS
RUGBY GROUP LIMITED
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(DAR Transcript of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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THE FIRST APPLICANT APPEARED IN PERSON.
MR D WOLFE and MS T HETHERINGTON (instructed by Messrs Richard Buxton, 19b Victoria Street, CAMBRIDGE, CB1 1JP) appeared on behalf of the Second Appellant.
MR D ELVIN QC and MS K SMITH (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
MR N PLEMING QC and MR S TROMANS (instructed by Rugby Limited RMC (UK) appeared on behalf of the Interested Party.
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J U D G M E N T
(As Approved by the Court)
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1. LORD JUSTICE AULD: This is an application by Mr Wolfe, instructed by Mr Richard Buxton on behalf of Mrs Pallikaropoulous, to add her as an appellant in these judicial review proceedings brought by Mr David Edwards, a publicly funded claim against the Environment Agency and the Secretary of State for the Environment, Food and Rural Affairs. Mr Edwards is one of many concerned residents of Rugby who challenge the grant by the Environment Agency to Cemex UK Cement Ltd, formerly Rugby Limited (“Cemex”), in August 2003 of a permit under the pollution control regime under the Environmental Protection Act 1990 and its supporting regulations.
2. The permit was to enable Cemex to continue its already permitted operation in Rugby of manufacturing cement, and to introduce tyre chips as a partial substitute for other fuels that it used for the purpose, subject to satisfactory completion of trials. On 2 April 2004, Keith J considered and sanctioned Mr Edwards’ standing as a claimant in these proceedings, in effect to represent the interests of the many concerned residents of Rugby who were, prior to the grant of the permit and remain since the grant, anxious about the environmental impact of the plant’s continued operations under the new permit. It is his claim, or the claim in his name, that is funded by the Legal Services Commission.
3. On 19 April 2005 Lindsay J upheld part of the complaint in the judicial review claim, namely of procedural unfairness by the Environment Agency leading to the grant of the permit, but refused Mr Edwards relief in the exercise of the court’s discretion. In this appeal, which is now at the end of its third day of hearing, Mr Edwards, through Mr Wolfe instructed by Mr Buxton, has challenged that refusal. The Environment Agency and the Secretary of State as defendant respondents, and Cemex as an interested party, each represented by leading and junior counsel, have resisted the appeal. They maintain that there was no procedural unfairness and that in any event the judge correctly refused relief.
4. Over the three days of the appeal Mr Wolfe, seemingly on the direct insistence of Mr Edwards, has sought to know whether any member of the court is a Freemason. The court on each occasion has declined to make any observation on that request. It was and is of the view that the answers to the question, whatever they might be, had and have no relevance to the proceedings or to the competence or entitlement of the court as constituted to hear the appeal. At about midday today, when Mr Wolfe rose to address the court in reply to the arguments on behalf of the respondents and the interested party, he first put before the court copies of speaking notes that he had prepared overnight for his reply and indicated that he intended to address the court by reference to and in amplification of those notes.
5. Second, and loyal to further instructions from Mr Edwards, he made the third of the requests to which I have referred and the court gave the same answer. Mr Edwards thereupon stated with some vehemence that he was “withdrawing” the appeal and his instructions to Mr Wolfe. We understood him to include in the latter his instructions also to Mr Buxton. There was then some discussion in the presence of Mr Edwards between counsel and the court as to how the matter should proceed, punctuated by at least two short retirements of the court. In the course of that discussion, Mr Wolfe indicated that Mr Buxton had instructions from Mrs Pallikaropoulous, who has been present in court throughout the appeal and has been closely involved throughout in the opposition to the permit, to apply to the court for an order permitting substitution or addition of her as an appellant to enable to the appeal to proceed and to conclude the argument today. Mr Edwards’ audible reaction to that indication was that this was his appeal and that his instructions were to withdraw it.
6. He then left the court and, we understand, returned by train to Rugby. Implicit in his behaviour was his objection to Mrs Pallikaropoulous becoming substituted for or associated with him as an appellant in these proceedings if they continue, as they must unless the court gives Mr Edwards permission to withdraw his appeal. In Mr Edwards’ absence, we canvassed with counsel shortly before and after the short adjournment the following consequences of his conduct today as we saw them at that time:
1) The appeal continued unless the court otherwise ordered.
2) Mr Edwards was unrepresented.
3) Public funding continued to be available and the Legal Services Commission had indicated informally over the telephone that it would look favourably on the matter proceeding, with Mrs Pallikaropoulous as a substituted or an associated appellant.
4) The court could not consider an application from Mr Wolfe on behalf of her to that end without giving Mr Edwards an opportunity a) to apply to the court for permission to withdraw his appeal, and b) if and in the event that the court refused that application, to make representations why she should not be substituted for or joined with him as an appellant.
5) Pending the court’s decision as to those two matters, Mr Wolfe had no client on whose behalf he would be entitled to address the court in reply, and that in the absence of such reply, the interests of those many interested residents of Rugby behind the claim and this appeal could be prejudiced.
7. In the result, the court directed that Mr Wolfe or Mr Buxton should inform Mr Edwards by calling him on his mobile telephone that it would sit again late this afternoon as soon as he could return from Rugby, to hear his representation on these matters to enable it to determine how to resolve the dilemma in which his conduct had placed the other parties and the court.
8. With the contingent agreement of counsel – contingent, that is, on the court refusing any application by Mr Edwards to withdraw the appeal, and on Mrs Pallikaropoulous becoming an appellant – the court indicated that it would direct that anything that Mr Wolfe wished to add to his written notes for reply could itself be reduced to writing and served on the court and the parties within a period to be directed. The court learned early in the afternoon from Mr Wolfe, and through the Civil Appeals Office, that Mr Edwards was duly contacted and informed, and that he was returning immediately by train from Rugby to London to appear before the court. Mr Edwards arrived at about 5.30pm.
9. As to the continuance of the appeal, in whoever’s name, Mr Edwards has now indicated to the court his wish to continue with the appeal. He no longer seeks permission to withdraw it. It is plainly in the public interest, the interests of all the true parties to this dispute, and of the fair, efficient and economic conduct of the procedures of the court, that the matter should reach a conclusion within the confines of this appeal, especially at this final stage of its hearing. As to the substitution or addition of Mrs Pallikaropoulous as an appellant under Part 19 Rule 4 of the Civil Procedure Rules, Mr Wolfe justifies the application on the ground for which provision is made that it is necessary so that the court can resolve the matters in dispute in these proceedings.
10. Counsel for the respondents and the interested party have indicated in short oral submissions that they do not object to the addition – which is what Mr Wolfe now seeks, not substitution – of Mrs Pallikaropoulous as an appellant, subject only to the making by the court of an appropriate order for costs. Mr Edwards on the other hand has objected, and with vehemence, to the addition of Mrs Pallikaropoulous, on grounds that do not approach any legitimate ground for objection to her association with him in the final stages of this appeal.
11. In our view, it is again plainly in the public interest, the interest of all the parties and in the fair, efficient and economic conduct of civil litigation that she should be added as an appellant, pursuant to and subject to the procedural requirements in Part 19 Rule 4. This is, we should emphasise, an exceptional case; exceptional in large part because of the very late stage at which the need for the decision has been put to the court, just as I have indicated, when Mr Wolfe was about to begin his reply and after submitting written notes of it to the court.
12. Moreover Mrs Pallikaropoulous has been, as I have indicated, involved in this matter from the very start, indeed as a prime mover much more involved in the logistics and the technical preparation for marshalling the objections of the residents of Rugby, than Mr Edwards has been. In our view, it is entirely justified and necessary in the interests of justice and for the effective resolution of this appeal that Mrs Pallikaropoulous should be added as an appellant, and we so order.
13. That leaves the question of costs; costs of the amendment necessary to effect the addition, and of any contribution that should be assessed for the purpose if the appeal were to fail. Mr Elvin on behalf of the respondents has sought a figure of a third to a quarter of all the costs of the appeal should it fail.
14. Mr Wolfe has suggested, given her means, of which we have some, but not very specific indication in the papers, her contribution in various ways to date, and the assessment in the case of Mr Edwards, that there should be an order that limits her exposure to one of £2,000. We consider that Mr Wolfe’s proposal is the more appropriate in the circumstances, and we make such an order, including in that maximum figure of exposure the costs necessitated by this amendment adding her as an appellant to the proceedings.
15. As I have indicated, the court has informed Mr Wolfe, with the agreement of the respondents and the interested party, or at least without their objection, that he should make any further representations to the court, now on behalf of Mrs Pallikaropoulous, by way of addition to his notes for reply in writing, and do so within a period which I will discuss in a minute with Mr Wolfe.
16. Mr Edwards is now unrepresented; he is still a party to the appeal and it is only right that he too should have an opportunity to make representations by way of reply to the arguments submitted on behalf of the respondents and the interested party, copies of which he has seen or had available to him in writing and which he has heard by way of oral submission in the course of the last three days. Subject to anything that Mr Edwards says about this, what we propose is that he too should make any representations that he wishes to make by way of reply now, as an unrepresented party, in writing and do so within a specified time.
Order: Application allowed.