R v Secretary of State for Transport, ex parte London Borough of Richmond upon Thames

Transcript date:

Wednesday, January 25, 2006

Matter:

Court:

Court of Appeal

Judgement type:

Appeal (costs)

Judge(s):

Clarke MR, Tuckey LJ, Jonathan Parker LJ

C1 04 6013; C1 02 2232; C1 02 6008; C1 04 2232

Neutral Citation Number: [2006] EWCA Civ 193

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (ADMINISTRATION)

(LORD JUSTICE WALLER, MR JUSTICE LAWS,

MR JUSTICE JOWITT, MR JUSTICE LATHAM)

Royal Courts of Justice

Strand

London, WC2

 

Wednesday, 25 January 2006

B E F O R E:

 

SIR ANTHONY CLARKE MR

 

LORD JUSTICE TUCKEY

 

LORD JUSTICE JONATHAN PARKER

 

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LB RICHMOND UPON THAMES & ORS

CLAIMANT/APPELLANT

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SECRETARY OF STATE FOR TRANSPORT

DEFENDANT/`RESPONDENT

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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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MS HELEN MOUNTFIELD (instructed by Messrs Richard Buxton, 40 Clarendon Street, CAMBRIDGE, CB1 1JX) appeared on behalf of the Appellant.

MR MARTIN CHAMBERLAIN (instructed by Treasury Solicitors, LONDON, WC2B 4TS) appeared on behalf of the Respondent.

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

 

1. SIR ANTHONY CLARKE MR: The three applications before the court are, to put it mildly, unusual. The first two seek to re-open cost orders, made as long ago as 29 September 1993 and 20 December 1994, in actions known as Richmond 1 and Richmond 2 respectively. The first was made by Laws LJ and the second by Latham LJ. The third application is to re-open the orders for costs made by this court and the court of first instance in an action known as Richmond 4, on 8 March 1996. The court comprised Leggatt LJ, Morritt LJ, and Brooke LJ. There was an action known as Richmond 3, with which we are not concerned. Indeed I think I am right in saying that there are actions known as Richmond 5 and 6, again with which we are not concerned. The applicants ("the councils") accept that each of the orders was correct, or at least not open to challenge under English domestic law when it was made. However, they say that in reaching their conclusions in Richm ond 1 and 2, in contravention of Article 13 of the European Convention on Human Rights ("the Convention") the judges applied a narrow traditional common law approach to judicial review, and in particular they failed to have regard to the principle of proportionality required by the Convention.

 

2. Although the councils do not, as I understand it, say that the underlying decisions would have been different, they say that in so far as they were adverse to them, the decisions on costs would or might have been different, and that justice requires this court to give them permission to appeal out of time in Richmond 1, to hear the appeal out of time in Richmond 2 and in each case to allow the appeals. They recognise that the applications are long out of time, but rely upon the decision of Grand Chamber of the European Court of Human Rights in Hatton v United Kingdom [2003] 37 EHRR 28 to the effect that, as the majority of the court said at paragraph 141:

 

"The scope of review by the domestic court was limited to the classic English public law concepts, such as irrationality, unlawfulness and patent unreasonableness and did not at the time (that is prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme, represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport."

 

The court added in paragraph 142:

"In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13."

 

I shall return to Hatton v United Kingdom in a moment.

 

3. The application in Richmond 4 is somewhat different. I will return to it after considering the applications in Richmond 1 and Richmond 2. The three cases all involve challenges by the council to decisions of the Secretary of State for Transport (the "Secretary of State"), in which he had imposed controls on night flying over London under The Civil Aviation Act 1982 ("the 1982 Act"). The irony of the present situation is that the substantive applications in Richmond 1 and 2, before both Laws and Latham JJ, succeeded. Laws J held that the Secretary of State's decision to introduce new restrictions upon night flying over the three main London airports, based on a quota system, according to the noise of the aircraft used, was contrary to the terms of section 78(3)(b) of the 1982 Act, because the new restrictions did not:

 

"specify the maximum number of occasions on which our aircraft or descriptions so specified may be permitted to take off or land"

 

as required by section 78(3)(b), but only sought to impose control by reference to levels

of exposure to noise. Accordingly, although the Secretary of State had intended to act within the purpose of section 78(3), he had done so by an impermissible method. His decision was therefore invalid and a declaration would be made to that effect.

 

4. Laws J set out his reasons for reaching that conclusion at [1994] 1 All ER 579 to 594. It was not therefore necessary for him to rule on other grounds of challenge advanced by the councils. However he did so, and between pages 594 and 597 rejected a challenge entitled, "Legitimate expectation and the 1988 policy". He then considered what he called "Wednesbury and the 1988 policy" and a number of specific issues, each of which was rejected on the basis that it amounted to what Laws J called a "merits challenge".

 

5. It is perhaps sufficient for present purposes simply to refer to this passage at page 598 e to h:

 

"As regards to the second question on this part of the case which I have identified, I am quite unable to hold that the inference set out by Dr Ollerhead at para 19(c) of his first affidavit gives rise to any Wednesbury complaint. Mr Gordon's argument here (in common, I am bound to say, with much else in his case) is a disguised, though elegant, plea upon the merits. If I were a judge of the merits, I might suppose that Dr Ollerhead's inference as to the extent of any problem relating to sleep deprivation is somewhat fragile; but it is manifestly not for me to express any such view, far less treat it as the basis for the grant of relief in judicial review proceedings. It cannot be said that the reasoning under criticism is perverse in the established legal sense. In my judgment this is an area in which any assault on the Secretary of State's decision can only be mounted in an arena outside the court room. I am not suggesting that I would applaud such an assault or deplore it. I say only that the applicant's complaints on this part of the case are not legal complaints, and thus I am in no way concerned with their strengths and weaknesses."

 

6. The council thus succeeded but the judge did not award them all their costs. The last paragraph of his judgment on the merits was in these terms at page 600 g to j:

 

"In the result these applications must succeed on the single ground as to the construction of s78(3)(b) upon which I have found in Mr Gordon "In the result these applications must succeed on the single ground as to the construction of s78(3)(b) upon which I have found in Mr Gordon's favour. That ground could have been determined by reference only to the statute and a description of the intended policy: a few pages of documentation. In fact the material before me on the whole case runs to hundreds of pages. I do not say that all of Mr Gordon's other points were unarguable and ought not to have attracted leave, though I think some of them fall into that category. I do not know whether in giving leave Sedley J, before whom there were oral submissions in court, expressed any view as to the relative merits of any of the grounds. But I think the case illustrates the need, which I regard as pressing, for the provisions of RSC Ord 53 to allow the court to refuse leave on some grounds, while granting it on others, as its view of the application's merit dictates."

 

Laws J awarded the councils only 25% of their costs. There is no record of the reasons given by him for refusing to award more. I will return to his reasons after saying something about Richmond 2. Neither party appealed Richmond 1.

 

7. In Richmond 2 the councils challenged different decisions of the Secretary of State. Latham J, in a lengthy judgment, upheld the challenge on two points. The first was based on the fact that the consultation paper was misleading and misled the councils, with the result that they were deprived of making the important point that the Secretary of State's proposals were contrary to his own expressed policy objection: see [1995] Env LR 390 at 405. The second was that the Secretary of State did not take into consideration the fact that the proposed quotas, if fully utilised, would probably result in an increase in noise levels, contrary of the Secretary of State's expressed policy: see also page 405.

 

8. In short, as Latham J put it at page 408:

 

"For all these reasons, I consider that the respondent was empowered to make orders limiting aircraft movements in the form that he has, but that the decisions must be declared unlawful by reason of his failure to provide a full and fair consultation process, and for failing to take into account the fact that the decisions would permit movements at Heathrow which would produce greater noise than that which was experienced at Heathrow in summer 1988, on the basis of his own calculations, contrary to his expressed policy."

 

However, the councils in addition repeated arguments before Laws J which he had said went to the merits. Latham J followed the decisions of Laws J on those issues. On costs, Latham J accepted the submission that the councils had re-run arguments rejected by Laws J but he awarded them 75% of their costs.

 

9. The reasons which Laws J gave for refusing the councils 75% of their costs in Richmond 1 can I think be gleaned from the argument on costs before Latham J, of which we have a record. The same counsel appeared in both Richmond 1 and 2. Miss Mountfield did not come on the scene until Richmond 4 in the Court of Appeal. Mr Ian Burnett QC submitted before Latham J that the councils should not recover more than a proportion of their costs, just as Laws J had awarded only 25% of the costs in Richmond 1. Mr Richard Gordon QC, who appeared for the councils, drew Latham J's attention to the principle in Re Elgindata Ltd (No. 2) [1992] 1 WLR 1207 that costs should follow the event unless the successful party had acted unreasonably or improperly.

 

10. It was common ground before us that in reaching his decision in Richmond 1, Laws J so held, or at least that he held that the issues on which the councils failed, including the Wednesbury issues, were merit issues and not legal issues which should not have been brought by way of judicial review. Latham J took the same view of the issues before him, which had already been decided by Laws J in Richmond 1. It was for that reason that he only awarded the councils 75% of their costs, even though they had obtained the order sought. Latham J granted both parties permission to appeal but neither party took steps to have the appeals heard. The councils correctly accept that they need the permission of the court to pursue an appeal in Richmond 2 after all this time.

 

11. As I see it the position at the end of Richmond 1 and 2 can be summarised in this way.

 

(1) The councils succeeded in obtaining the order they sought before Laws J on the true construction of the relevant statutory provision and before Latham J because of the failure of the Secretary of State, among other things, to provide a full and fair consultation process.

 

(2) What may be called the "Wednesbury challenge" failed in each case because of an application of traditional common law principles. The challenge was an impermissible merits challenge and not a relevant legal challenge.

 

(3) Laws J deprived the councils of part of their costs because the merits challenges, which were broader than the Wednesbury points, could not succeed and should not have been brought by way of judicial view.

 

(4) Latham J deprived the councils of part of their costs for substantially the same reasons, because they resurrected points which Laws J had rejected.

 

(5) The councils did not seek to appeal the decision of Laws J on costs by arguing that what Laws J called "merits points" were at least arguable, even though they failed. (5) The councils did not seek to appeal the decision of Laws J on costs by arguing that what Laws J called "merits points" were at least arguable, even though they failed.

 

(6) Absent any such challenge, an application for permission to appeal on costs in Richmond 1 and an appeal on costs in Richmond 2 would have failed because in each case the judge correctly directed himself as to the relevant legal principles and made an order which was well within the ambit of his discretion.

 

(7) There is no suggestion that the council submitted to Laws J, or indeed to Latham J, that he should apply principles of judicial review, other than the traditional common law principles. It was not suggested that the court should apply the heightened scrutiny test, which was subsequently endorsed in the well known case involving homosexuals in the armed forces, namely R v Ministry of Defence, ex parte Smith [1996] QB 517, let alone the proportionality approach adopted by the European Court in the same case, reported as Smith and Grady v United Kingdom (1999) 29 EHRR 493. The European Court there held that the threshold at which the English courts could find the Ministry of Defence policy was irrational was placed so high that, as the court put it in paragraph 138 of its judgment:

 

"It effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under Article 8 of the Convention."

 

(8) In these circumstances applying the common law principles of judicial review the challenge to the Secretary of State's decision in both Richmond 1 and Richmond 2 on those grounds was bound to fail. In short, as Miss Mountfield put it in her second skeleton argument, the reason that part of the councils' costs was disallowed in Richmond 1 and 2 was that the issues on which they failed should not have been raised at all. She expressly added, "i.e. they [the issues] were a waste of time given the court's limited jurisdiction."

 

12. It follows that the councils chose to raise issues which could not succeed on the basis of domestic law. They not unnaturally failed on those issues and cannot have been surprised when they did not recover part of their costs. To my mind that is not an encouraging basis upon which to seek to reopen the issue of costs many years later because of the decision of the Grand Chamber in Hatton v United Kingdom . The councils had simply made a deliberate decision to argue a case which could not realistically succeed.

 

13. I note in passing that the councils did not submit to Laws J or Latham J that the application of traditional common law principles of judicial review was an infringement of the United Kingdom's obligations under Article 13 of the Convention and that in those circumstances the court should not deprive the councils of any part of their costs.

 

14. In paragraph 4(f) of the same skeleton, Miss Mountfield submits that had those courts, that is Laws and Latham JJ, known that the Grand Chamber would treat their domestic jurisdiction as being in violation of Article 13, they may well have taken a broader view of the matters within their jurisdiction. In any event it is unlikely that they would refrained from awarding the successful appellant their full costs, given that the appellants were shut out from a full consideration of those arguments.; not because they intrinsically lacked merit but because the scope of domestic judicial review was too narrow to comply with the United Kingdom's international law obligations, and particularly given that the respondent was the Secretary of State whose Government was responsible for upholding those standards.

 

15. It is important to note that in paragraph 5 of the same skeleton and in the course of her oral submissions yesterday, Miss Mountfield expressly stated that for the avoidance of doubt the court is not asked to exercise its discretion by reference to the Human Rights Act. Miss Mountfield made it clear in the course of her oral submissions that this is simply a case in which the law has subsequently been changed, or perhaps been perceived differently, by reason of a later decision of a relevant court and that it is now apparent that the orders for costs made in Richmond 1 and Richmond 2 should not have been made or were unjust and that justice demands that the council should be permitted to challenge those orders for costs. She submits that it is now clear from the decision of the European Court of Justice in Hatton v United Kingdom that in applying the traditional common law approach to judicial review the United Kingdom was in breach of Article 13 of the Convention in not, as the European Court later put it in the passage from Hatton v United Kingdom quoted above, allowing consideration of whether the claimed increase in night flights represented a justifiable limitation on the right to respect for the private and family lives and homes of those who lived in the vicinity of Heathrow.

 

16. Miss Mountfield submits that in the light of Hatton v United Kingdom , the challenges rejected by Laws J as unarguable were or are at least arguable and that if he had so held, he could not and would not have penalised the councils in costs as he did. The same submission is made with regard to Richmond 2. I therefore turn to the decision in Hatton v United Kingdom. In Hatton v United Kingdom the applicants were not the councils, but eight residents in the vicinity of Heathrow. I take the facts from the headnote where they are very clearly summarised. The eight applicants lived near Heathrow Airport. Before 1993 the noise caused by night flying at Heathrow had been controlled through restrictions on the number of takeoffs and landings. After that day the noise was regulated through a system of noise quotas which are assigned to each aircraft, a "Quota Count". This allowed airlines to choose whether to operate a greater number of quieter aircraft or fewer noisy aircraft, provided the noise quota was not exceeded. The 1993 scheme imposed these controls strictly between 11.30 pm and 6.00am every day throughout the year.

 

17. Following an application for judicial review brought by a number of local authorities, the scheme was found in Richmond 1 to be invalid because the Secretary of State had used total noise levels as the criteria of permissibility instead of setting a permitted number of aircraft movements as required by section 78 of the 1982 Act. The Government therefore imposed a limit on the number of aircraft movements allowed at night.

 

18. The second judicial review, in Richmond 2, found that the Government's consultation exercise concerning the 1993 scheme had been conducted unlawfully and in March and June 1995, further consultation papers were issued. On August 16 1995 the Secretary of State announced that the noise quotas and all other aspects of the night restrictions in Richmond 1 would remain as previously announced. In July 1996 the Court of Appeal confirmed in Richmond 4 the lawfulness of the 1993 scheme as amended.

 

19. The applicants complained that Government policy on night flights at Heathrow gave rise to a violation of their rights under Article 8 of the Convention and that they were denied an effective domestic remedy for this complaint, contrary to Article 13. They claimed just satisfaction under Article 31. On October 2 2001 the Chamber held by five votes to two that there had been a violation of Article 8 and by six votes to one that there had been a violation of Article 13. The case was then referred to the Grand Chamber in accordance with Article 43.

 

20. The Grand Chamber held

 

(1) by twelve votes to five that there had been no violation of Article 8;

 

(2) by sixteen votes to one that there had been a violation of Article 13;

 

(3) by fifteen votes to two that the finding of violation of Article 13 constituted in itself sufficient just satisfaction for any damage sustained by the applicants;

 

(4) unanimously that the respondent state was to pay the applicants within three months €50,000 in respect of costs and expenses to be converted into pounds sterling at the rate applicable on the date of sale; and

 

(5) by thirteen votes to four that the remainder of the applicant's claims for just satisfaction be dismissed.

 

21. The applicants were represented in the European Court by the same solicitors as the councils in Richmond 1, 2, and 4. We were told that the applicants were funded, at least in part, by the councils. In the European Court at first instance, the Chamber analysed the applicants' complaints in terms of a positive duty of the State, the United Kingdom, to take reasonable and appropriate measures under Article 8, which provides:

 

"Right to respect for private and family life.

 

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

 

22. The Grand Chamber correctly described the Chamber's judgment as follows, in paragraphs 85 and 86 of its judgment:

 

"85. In its judgment of October 2, 2001, the Chamber held that because Heathrow airport and the aircraft which used it were not owned, controlled or operated by the government or its agents, the United Kingdom could not be said to have 'interfered' with the applicants' private or family lives. Instead, the Chamber analysed the applicants' complaints in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Art.8(1).

 

"86. The Chamber further held that, whatever analytical approach was adopted, regard must be had to the fair balance that had to be struck between the competing interests of the individual and the community as a whole. In both contexts, the State enjoyed a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. However, the Chamber underlined that in striking the required balance States must have regard to the whole range of material considerations. Further, in the particularly sensitive area of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others. The Chamber considered that States are required to minimise, as far as possible, the interference with Art. 8 rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study, with the aim of finding the best possible solution which would, in reality, strike the right balance, should precede the relevant project."

 

23. The United Kingdom challenged the decision of the Chamber on the basis that its "minimum interference" approach was contrary to a consistent line of Convention jurisprudence, that states there should be afforded a wide margin of appreciation in "an area involving difficult and complex balancing of a variety of competing interests and factors." The Grand Chamber summarised the United Kingdom Government's arguments as follows, in paragraphs 88 and 89 of its judgment:

 

"88. Not merely was there clear authority in favour of a wide margin, it was appropriate and right in principle that the State should be allowed such a margin in a context such as the present, since it involved the balancing of a number of competing rights and interests, the importance and sensitivity of some of which might be difficult accurately to evaluate. There was no single correct policy to be applied as regards the regulation of night flights; States could and did adopt a variety of different approaches. The Government reasoned that the present context was similar to the field of planning policy, where the Court had consistently recognised that by reason of their direct and continuous contact with the vital forces of their countries and because of the range of discretionary issues involved, the national authorities were in principle better placed than an international court to evaluate local conditions and needs.

 

"89. It accepted that inherent in the striking of a fair balance was a need to be sufficiently informed in relation to the relevant issues, in order to avoid making or appearing to make an arbitrary decision. However, the decision-making process was primarily for the national authorities, in this case, the Government, subject to judicial review by the domestic courts. The European Court's powers in this context were supervisory: in the absence of any indication of an arbitrary or clearly inadequate investigation, a detailed and minute critique of the information which the Government should take into account was neither necessary nor appropriate."

 

24. The Grand Chamber described the applicant's case thus, in paragraphs 90 to 93:

 

"90. The applicants argued that it was well established from previous case-law that aircraft noise is capable of infringing the Article 8 rights of those sufficiently affected by it and that national authorit "90. The applicants argued that it was well established from previous case-law that aircraft noise is capable of infringing the Article 8 rights of those sufficiently affected by it and that national authorities owe a positive duty to take steps to ensure the effective protection of these rights. Relying on earlier environmental cases and also child-care and other cases under Article 8 they submitted that the duty could be breached in circumstances where, having regard to the margin of appreciation, the Court considered that the State had struck the wrong substantive balance between the interest it pursued and the individual's effective enjoyment of the Article 8 right, or where there had been a procedural failing, such as the failure to disclose information to an individual affected by environmental nuisance or a failure to base a decision-making process on the relevant considerations or to give relevant and sufficient reasons for an interference with a fundamental right.

 

"91. The applicants accepted that any informed assessment of whether an interference with Article 8 rights was 'necessary in a democratic society' would be accorded a margin of appreciation, the width of that margin depending on the context. However, they submitted that in the present case the margin should be narrow, because deprivation of sleep by exposure to excessive noise, like the infliction of inhuman or degrading treatment, was a matter which could and should be judged by similar standards in similar contracting States.

 

"92. Moreover, where a case – such as the present – could be decided on the basis of a procedural breach, namely the Government's failure properly to assemble the evidence necessary for the decision-making process, the doctrine of the margin of appreciation had no role to play, since the international judge was well placed to assess the adequacy of the procedural safeguards applied by the State.

 

"93. For the applicants, the approach of the Chamber – that the violation of Article 8 was based on the Government's failure to assemble the evidence that would have been necessary for the decision to be made on the basis of the relevant considerations – was but one way of dealing with the case. A violation of Article 8 could also be established on the basis that the necessary steps to ensure protection of Article 8 rights were not taken, that 'relevant and sufficient reasons' had not been given for the interference, or that the substantive balance of interests had not been properly struck."

 

25. The applicant's case thus had two limbs, what is sometimes called a procedural limb and a substantive limb. The procedural limb was outlined by the Grand Chamber in paragraphs 92 and 93 and the substantive limb in paragraph 91. The Grand Chamber held that Article 8 was engaged. It held that, following Power and Rayner v United Kingdom (1990) 12 EHRR 355, where the applicants had complained about aircraft noise, as Power and Rayner put it at paragraph 40:

 

"The quality of [each] applicant's private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow airport."

 

26. However the court accepted the United Kingdom's case, again following Power and Rayner , that it should afford the relevant state a wide margin of appreciation, "in this difficult and technical sphere": see paragraphs 100 and 123. As for the procedural element, the court said in paragraph 104 that it was:

 

"required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available."

 

27. The Grand Chamber considered the facts and arguments on either side in some detail and expressed its conclusions on Article 8 between paragraphs 116 and 130. As to the substantive challenge the court concluded, applying a wide margin of appreciation, that the United Kingdom Government struck a fair balance between the competing interests. It is sufficient to refer to paragraphs 122, 124 and 127. The last sentence of paragraph 121 says this:

 

"It is therefore legitimate for the Government to have taken the above economic interests in consideration in the shaping of its policy."

 

28. Paragraphs 122, 124 and 127 were in these terms:

 

"122. The Court must consider whether the Government can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue.

 

"124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did' the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period. The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8.

 

"127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above. The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3 percent of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure."

 

29. As for the procedural challenge, the court said this in paragraphs 128 and 129:

 

"128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the Government had consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the Government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme thus had been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that Scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken in to account, they could have challenged subsequent decisions, or the Scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN, and were thus particularly well placed to make representations.

 

"129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."

 

The court concluded in this way on paragraph 130:

 

"There has accordingly been no violation of Article 8 of the Convention."

 

30. I have already referred to the court's conclusions with regard to Article 13, which provides:

 

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

 

31. The court held that the Article 8 challenge was arguable. It said in paragraph 137:

 

"As the Chamber recalled, Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention. In the present case it has not found a violation in Article 8, but the court considers that confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it must accept that the claim under Article 8 was arguable. The complaint under Article 13 must therefore be considered".

 

32. In paragraph 140 the court referred to Smith and Grady v United Kingdom , and (as I read it) in reaching its conclusions in paragraphs 141 and 142, which I have already quoted, it was following the principles in Smith and Grady v United Kingdom.

 

33. The application to the European Court in Hatton v United Kingdom was launched in 1997. The judgment of the Chamber was delivered on 2 October 2001 and that of the Grand Chamber was delivered on 8 July 2003. The points taken by the applicants in relation to both Article 8 and Article 13 were thus formulated or at least in prospect in 1997. No notice that the councils contemplated an application of this kind to this court was, however, given at this time. The first indication that the council might wish to revisit any of the orders for costs related only to the order for costs in Richmond 4 in which, as appears below, the councils' challenge failed and they were ordered to pay the Secretary of State's costs.

 

34. In a letter dated 3 July 2000 to the Treasury solicitor, Mr Richard Buxton, who has acted for both the councils in the English proceedings and the applicants in Hatton v United Kingdom throughout, referred to the fact that the European Court had held the application to be admissible and that the court was considering it and added:

 

"If that judgment is in our clients' favour, it will raise a real question as to whether it can possibly be right for you to pursue your claim for costs in the domestic proceedings. This is quite apart from any other grounds (including very long delay) for resisting the claim. We can foresee complicated and expensive argument about this matter unless we wait for the outcome in the ECHR. In view of the delay which has occurred to date, and our agreement not to take any time point on this stage of your claim, we trust this will cause you no difficulties"

 

That letter was entitled "Night Flights No. 4", which I quote to be a reference to Richmond 4.

 

35. After the judgment of the Chamber Mr Buxton sent an e-mail to the Treasury solicitor on 4 October 2001, saying:

 

"As you may have seen in the news, we won the case in Strasbourg. We will therefore resist paying the costs claimed. Having said that, the judgment is, technically, not a final one and until we know whether the government is going to try and appeal it to a Grand Chamber of ECHR, the situation between us in practice remains in limbo. The government has three months in which to decide whether to apply for permission to appeal, but no doubt you will be able to obtain more details from them yourself."

 

36. These communications thus related to the order that the councils should pay the Secretary of State's costs in Richmond 4. They did not refer to the fact that they had had to pay part of their own costs in Richmond 1 and 2 and all their costs in Richmond 4. On the councils' case the relevant figures for the councils' costs exclusive of interest are £55,000 in Richmond 1, £16,666 in Richmond 2 and £108,000 in Richmond 4. The Secretary of State's costs in Richmond 4 are of the order of £30,000.

 

37. On 8 September 2003 Mr Buxton wrote a long letter to the Committee of Ministers of the Council of Europe, which is charged with the enforcement of orders of the European Court. It invited the committee to make an order or give directions designed to ensure that the United Kingdom could not avoid the examination of facts occurring pre-October 2005, "In particular the 1993 scheme on which subsequently revised schemes will continue to be based."

 

38. The request was based on decisions of the House of Lords, notably Wilson v First County Trust Ltd (No.2) [2004] 1 AC 816, which held that the Human Rights Act 1998 ("the HRA") did not have retrospective effect. In paragraph 16, the letter suggested that the councils aims could be very simply achieved:

 

"… namely by open acknowledgment that the UK government recognises

- that the Grand Chamber in Hatton did not examine the details of the applicants' complaints in relation to the 1993 scheme;

- that the domestic courts were unable to examine such complaints in the prior domestic litigation;

- that domestic remedies were not exhausted in relation to challenge to the 1993 policy and scheme of implementation;

- that is was found in violation of Article 13 in this respect;

- that in any future proceedings it must be open to claimants to question 1993 scheme; and

- that should any such proceedings be brought it undertakes not to oppose such investigation on the grounds that the facts in question are pre-October 2000, or for any other time reason."

 

39. In paragraph 21, Mr Buxton for the first time referred to the cost of Richmond 1 and 2, in these terms:

 

"There is a further reason that clarification to the above effect would be helpful, and fair. That is because in the "There is a further reason that clarification to the above effect would be helpful, and fair. That is because in the Richmond cases #1 and #2 , the successful claimants were only awarded a proportion of their costs – 25% - 75% respectively. This was because the High Court considered that time had been wasted in trying to introduce arguments about these points, over which it had no jurisdiction. These rulings, and the costs consequences of them, were plainly wrong in the light of the Hatton decision on Article 13. Furthermore the costs in relation to Richmond #4 remain in dispute. The UK Government is claiming its costs, settlement of which has awaited the result in Hatton. It is at least arguable that the decision in Richmond # 4 would have been different had it been possible to explore the points that the ECHR has ruled should be explored (and there would not have been the long delay in getting to the ECHR, with continuing suffering for residents)."

 

40. The Committee of Ministers did not comply with Mr Buxton's requests. When it finally responded in 2005 it recited the fact that the Government had provided information as to the steps taken for the future and that the Government had paid the sums provided for in the judgment and declared that the United Kingdom had "exercised" its functions under Article 46(2) of the Convention. The Committee appended the information provided by the Government, which was in these terms:

 

"At the time of the facts in this case, the scope of judicial review of administrative acts by the domestic courts was limited to alleged violations of domestic law. As a result, some alleged violations of the Convention, which were not necessarily violations of domestic law, could not be challenged before a judge or any other authority, thus leading to violations of Article 13 of the Convention, as in the present case.

 

"On 2 October 2000 the Human Rights Act 1998 came into force. This Act provides the possibility of challenging government acts before domestic courts on the basis of the Convention. National courts are thus empowered to conduct judicial review of administrative policies (including those dating from before the enactment of the Human Rights Act 1998) in accordance with the Convention's requirements.

 

"The United Kingdom government provided an example of such a review ( R v Secretary of State of the Home Department ex parte Daly, [2001] UKHL 26). In this case, a prison policy dating from before the entry into force of the Human Rights Act was challenged. The House of Lords concluded that following the entry into force of the Human Rights Act the courts, when conducting judicial review, are required to go beyond classic public-law concepts and examine the proportionality of the measures taken. Further, 'domestic courts must themselves form a judgment whether a Convention right has been breached (…) and, so far as permissible under the Act, grant an effective remedy.' The prison policy concerned in this case was declared unlawful and void.

 

"Moreover, the European Court's judgment in the Hatton case has been published in the European Human Rights Reports at (2003) 37 EHRR 28 and has been widely circulated to relevant officials within the government.

 

"As regards the applicants' individual situation, the government observes that the European Court has considered the merits of their complaints and found no violation of Article 8 in the present case.

 

"The government concludes that the Human Rights Act, as it is applied by the United Kingdom courts, clearly prevents new violations of the right to an effective remedy similar to that found in the present case and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention in the present case."

 

41. In the meantime, in a letter dated 15 March 2004 Mr Buxton for the first time took the points raised by these applications in Richmond 1 and 2. The applications were ultimately filed on 22 October 2004 in Richmond 1, 2 and 4, pursuant to directions given by Waller LJ on 16 September 2004. The applications were considered on paper by Brooke LJ who adjourned them to the full court for argument by directions given on 22 July 2005. In the course of giving those directions Brooke LJ said this:

 

"I am fairly sceptical about the merits of these novel applications. The former jurisprudence of the Court of Appeal to allow appeals to be brought out of time following a change in law is usefully summarised in Greig Middleton and Company Ltd v Denderowicz [1998] 1 WLR 1164 at [7.1] to [7.23], although I appreciate this would not bind the court in its interpretation of the CPR and as a member of the court which decided Taylor v Lawrence , I must confess I never anticipated a sophisticated application of this type."

 

42. I have set out the history of the matter in some detail because of the unusual nature of the applications. We heard far-ranging and interesting oral submissions yesterday, which covered a wide range of aspects of both the common law and Convention jurisprudence. It is not however necessary, to my mind, to express a view on many of the questions covered by the submissions. It is important to note that Miss Mountfield, who put the case for the councils with conspicuous clarity and learning, does not rely upon the passage of the HRA. Her submission, as I indicated earlier, is simple. It depends on the decision of the Grand Chamber in Hatton v United Kingdom and is that there will be a real injustice if the court does not now rescind the orders depriving the councils of 75% and 25% of their costs in Richmond 1 and 2, respectively.

 

43. The principles are not significantly in dispute. They are substantially those discussed in the Greig Middleton case to which Brooke LJ referred. Although it must be recognised that that case was concerned with claims which had previously been struck out under CCR Order 17 rule 11. However this court analysed a large number of cases in which the court had considered applications for extensions of time for appealing following a change of the law in a number of different factual circumstances; see paragraphs 7.1 to 7.27.

 

44. The underlying principles can I think be seen from these statements of principle, which to my mind are to much the same effect. In paragraph 7.10 Saville LJ, giving the judgment of the court, which comprised himself, Brooke and Waller LJJ, said that in In Re Barclay (Deceased) [1945] Ch 1:

 

"Lord Greene MR cited in In Re J Wigfall and Sons Trademarks [1991] Ch 52 and put the matter in this way, [1945] Ch 1, 4: 'I find no difficulty in reconciling the statement that the different decision is not necessarily a ground for enlarging the time with a statement that the court can enlarge the time if it is just in the circumstances to do so. It seems to me that the principle to be extracted is that it is not sufficient for a party to come to the court and say that a subsequent decision of a superior has determined that the principle of law on which his case was decided was wrong, the court will say to him that that bald statement is not enough, what are the facts? What is the nature of the judgment? Who are the parties affected? What if anything has been done under it? And so forth. In other words the whole of the circumstances must be looked at. If the court in the light of those circumstances considers it just to extend the time, it will do so'."

 

See to the same effect Property and Reversionary Investment Corporation Ltd v Temper 1 WLR 1223 per Roskill LJ at 1225 in the context of changing approaches to rent review clauses.

 

45. A similar principle was expressed by Sir Thomas Bingham MR in In Re Dennis, a bankrupt , unreported 16 February 1994, which was referred to by the court in Greig Middleton at paragraph 7.17. As Saville LJ put it there:

 

"Sir Thomas Bingham MR said that he thought it was important that the case was not one 'in which a party seeks to appeal because a later decision throws doubt on the decision in question, but is an application made for the reasons I have indicated. That through a failure to discover an old authority, the cas "Sir Thomas Bingham MR said that he thought it was important that the case was not one 'in which a party seeks to appeal because a later decision throws doubt on the decision in question, but is an application made for the reasons I have indicated. That through a failure to discover an old authority, the case was put to the judge on a basis that may have led to a wrong decision'. He finished his judgment by putting the matter in this way: 'One starts from the position that it is the duty of the parties to appeal within the time limit and therefore the court does not by any means as a matter of course and indeed at all readily grant leave to appeal out of time. In particular it does not do so if the party has taken a decision not to appeal and has then changed its mind, but ultimately and overriding or embracing all the factors which go into the exercise of discretion on a matter of this kind, is the question as to what the interests of justice require on the facts of a particular case'."

 

46. Thus all depends on the interests of justice in the particular case which in turn must be determined having regard to all the circumstances of the case. In Greig Middleton after analysing a whole series of cases in some detail, Saville LJ said this in paragraph 7.25:

 

"In our judgment it would be quite wrong to contemplate taking an approach which was dictated simply by the fear that there might be too many cases arriving at this court which would otherwise justify the granting of leave to appeal if the proper principles were applied to them. The right course is to attempt to identify whether there are indeed any circumstances in which an extension of time for leave to appeal should in justice be given in such cases. If there are then it ought to be possible to give guidance to parties contemplating the possibility of applying for to leave to appeal out of time which will lead in some cases to the application for leave not being resisted and in others for there being no attempt to obtain it. In that way it is to be hoped that satellite litigation will be discouraged, but in a way that does not add to the possible feeling of injustice that might otherwise exist."

 

47. The court also added this in paragraph 7.26, with regard to advice not to appeal:

 

"Accordingly if a party can show that he acted on reasonable advice in the context of Order 17, rule 11 and that he did not appeal immediately in reliance on that advice and if he can also show that if an extension of time for a period were granted he has a very strong argument that his appeal will succeed then there will be the beginnings, in our view, of a successful application for this extension of time on the basis of special circumstances."

 

48. With these principles in mind, I return to the particular circumstances of this case. Miss Mountfield submits that the core elements of the council's application are these.

 

(1) Before the coming into force of the HRA, violations of the Convention were not directly justiciable in domestic courts. In a number of cases, including ex parte Smith , there was an intense debate about the degree of scrutiny which could be afforded to Convention questions on an application to judicial review. It was therefore legitimate for the appellants to canvas, in the Richmond judicial reviews, proceedings requiring a closer degree of scrutiny of the defendant's actions than conventionally afforded by the courts, given that human rights to respect for private life and home were an issue.

 

(2) Before the decision of the European Court of Human Rights in Smith and Grady , there was no express Strasbourg authority for the proposition that the degree of scrutiny afforded to Convention questions and applications for domestic judicial review was insufficiently rigorous to comply with the United Kingdom's obligations under Article 13.

 

(3) Smith and Grady formed the basis of this Grand Chamber's judgment in favour of the applicants in Hatton v United Kingdom . In the Richmond litigation advanced before that date, domestic courts may have considered that they could not, as a matter of domestic common law, apply a more rigorous standard to judicial review where Convention questions were in play. Such decisions however placed the United Kingdom in violation of its obligations under Article 13 and the courts ought to have applied a stricter standard of scrutiny.

 

(4) The appellants won Richmond 1 and 2. The general rule, now contained in CPR 44.32(a), is that the unsuccessful party will be ordered to pay the costs of the successful party.

 

(5) The reason that part of the successful appellants' claims for costs in Richmond 1 and 2 were disallowed was not simply that some issues had been lost but that the courts in each of those cases considered that what turned out to be the Convention issues should not have been raised at all. It is, as I indicated earlier, that they were a waste of time given the court's limited jurisdiction. They were indeed decided on a basis narrower even than that in ex parte Smith.

 

(6) Had Laws and Latham JJ known that the Grand Chamber would treat that domestic jurisdiction as being in violation of Article 13, they may well have taken a broader view of the matters within their jurisdiction and would have awarded the councils their costs.

 

(7) In these circumstances the councils do not seek to be treated as if they had succeeded on their Convention arguments but as if the Convention arguments had been treated as properly arguable, in which case the costs of arguing those points would, as with the rest of the costs, have followed the event.

 

(8) Substantial costs were involved which are especially significant since they come out of the councils hard-pressed environment budgets.

 

(9) There is no prejudice to the Secretary of State.

 

(10) A decision re-opening these costs orders in these unusual cases would not open the floodgates.

 

49. I entirely see the force of the submissions made by Miss Mountfield but I am not persuaded that there is any injustice in allowing the orders for costs in Richmond 1 and 2 to stand. These applications are made long out of time. In any event I touched upon the problems facing the applications earlier. The position is that the councils chose to advance a merits challenge at common law in circumstances in which, as both Laws and Latham JJ held, they could not succeed as the law stood.

 

50. The councils spent a considerable amount of money to that end. For example, Laws J said, with regard to what he described as the "health effects" issue, that the Secretary of State was not bound by law to obtain specific expert material on the possibility that aircraft noise might adversely affect the health of a sleeping person or someone trying to sleep and added that the argument could not possibly be advanced by an affidavit exhibiting experts' articles to show that health may indeed be affected by noise during sleep, which articles were not before the Secretary of State.

 

51. It is plain, as I have indicated more than once, that the reason for the order was that Laws J thought that it was unreasonable to advance the merits challenge and to incur the costs which were in fact incurred. We were told that it was thought by those advising the councils that it was reasonable to spend the money and that the councils had a reasonable prospect of success on the points, having regard to the law as it stood. There is no evidence that it was decided to spend the money in connection with an argument, either before the English Courts or subsequently before the European Court in the name of selected residents, that the common law Wednesbury tests were too narrow, either under developed principles of the common law or in order to discharge the United Kingdom's obligations under Article 13 of the Convention.

 

52. In short, the decision to take the points upon which the council lost was, as Laws J held, ill advised. If the councils wanted to challenge that view, the time to do so was in 1993. They chose not to do so. If the councils had given proper thought to the position at common law, which was the only basis of their application at the time, they would not have incurred the costs at all. In these circumstances I can see no injustice in leaving the orders for costs undisturbed. The position might conceivably have been different if the councils had appreciated that they could not succeed at common law but invited the court to defer the matter in some way, but no such steps were taken.

 

53. Such a course would have been difficult because the council itself could not the raise the matter in Europe, since it is not a victim within the meaning of Article 34 of the Convention. It might I suppose have been possible to find a victim in the form of a resident to take judicial review proceedings and to adjourn the matter pending consideration by the European Court, in which event if the Article 8 challenge had succeeded the European Court could, and presumably would, have awarded costs. If it had failed, that applicant might have tried his luck here, but none of that occurred. No one is to blame for that because I accept the submission that the position in Europe was unclear at that time.

 

54. In fact however the position was that, as I have indicated, there is no evidence that any thought was given to the position under the Convention before the matter came before Laws J and, as already stated, the costs were incurred solely on the basis of a wrong approach as to the position at common law. In these circumstances, for my part I do not see that it would be just to hold that the order of costs should be set aside as a result of the decision in Hatton v United Kingdom even if, as the councils contend, that decision would have shown that the court should apply a different standard to the question whether there was a breach of Article 8 and that the case that there was a breach of Article 8 was arguable, even though the allegation of breach failed in Hatton v United Kingdom itself.

 

55. In these circumstances it is not necessary or appropriate for this court to consider what the position is or would have been at common law if the HRA had not been enacted or indeed before it was enacted, given the decisions in Queen v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 and in Re McKerr [2004] 1 WLR 807 and the subsequent decision of this court in Regina (Hurst) v London North District Coroner [2005] 1 WLR 3892. In all the circumstances, I do not think that the just course is to allow the councils to appeal the decisions on costs in Richmond 1 and 2 out of time. For all these reasons I would refuse the applications.

 

56. In Richmond 4 the council sought to challenge a decision made by the Secretary of State on 16 August 1995. In this case the court was referred to Power and Rayner v United Kingdom, to Brind and to ex parte Smith . Applying what Brooke LJ described at page 1481B as the approach now helpfully identified in ex parte Smith , this court rejected the councils' challenge, dismissing an appeal from a decision of Jowitt J. The House of Lords refused leave to appeal.

 

57. The councils seek to re-open the appeal to this court under the principle in Taylor v Lawrence [2003] QB 528. The key principles are to be found in paragraphs 54 to 56 of the decision in Taylor v Lawrence, which read so far as relevant as follows:

 

"54 … The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.

 

"55. One situation where this can occur is a situation where it is alleged, as here, that a decision is invalid because the court which made it was biased. If bias is established, there has been a breach of natural justice. The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of reopening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.

 

"56. Today, except in a few special cases, there is no right of appeal without permission. The residual jurisdiction which we have been considering, is one which should only be exercised with the permission of this court. (…) The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end."

 

58. The principles set out in Taylor v Lawrence have since been incorporated in CPR 52.17 (1), which provides as follows:

 

"The Court of Appeal or High Court will not re-open a final determination of any appeal unless

"(a) it is necessary to do so in order to avoid real injustice.

"(b) the circumstances are exceptional and make it appropriate to re-open the appeal and

"(c) there is no alternative remedy."

 

59. The position here is different from that in Richmond 1 and 2 because whereas in Richmond 1 and 2 the councils succeeded, here they lost. They do not seek to re-open the whole matter -- no doubt for sensible, pragmatic reasons -- but only the orders for costs. The councils' case may be summarised in this way.

(1) in the light of the Hatton judgment it cannot be said that the Secretary of State would have succeeded if the proceedings had been sufficiently broad in scope to comply with the United Kingdom's obligations under Article 13. Accordingly the award in favour to the Secretary of State should not stand in the light of the Hatton decision.

(2) Without reopening the whole matter, which would not comply with the overriding objective of the CPR, the councils cannot say with certainly that they would have won Richmond 4. However, they can say that those proceedings would not have proved necessary had the earlier proceedings afforded a remedy for violations of the Convention. On that basis the councils should receive their costs from the Secretary of State.

 

60. There was much argument as to the difference between the margin of appreciation afforded to national authorities, including their courts, by the European Court as discussed in detail in Hatton v United Kingdom and as to the different margin afforded by the English Court to the Secretary of State or other decision maker under the present Convention compliant principles of judicial review, which is discussed in some detail by Lester & Pannick in the second edition of their book Human Rights Law and Practice at paragraphs 3.19 to 3.21. I recognise that these two concepts are conceptually different but there is undoubtedly a considerable overlap between them. However, it is correctly conceded on behalf of the councils that they cannot say with certainly that they would have won Richmond 4. In my opinion they cannot show that they would probably have won. At its highest all they can say, to my mind, is that they might have won. In short they cannot establish, in the words of paragraph 55 of Taylor v Lawrence , that "a significant injustice has probably occurred."

 

61. In so far as it is suggested that they would not have proceeded with Richmond 4, if the principles of English Law relevant to judicial review were as laid down in Hatton v United Kingdom , I am far from persuaded that they would have succeeded in Richmond 1 and 2 on these issues and thus made, it is said, Richmond 4 unnecessary.

 

62. For the reasons I have already given, the councils cannot show that they would have succeeded in Richmond 1 and 2 on the Article 8 point. It is, to my mind, at least as likely as not that they would have pursued their case under Article 8 in Richmond 4. Since they cannot say that their case would probably have succeeded, they cannot say that they would probably have won Richmond 1, 2 or 4, and they cannot, in my judgment, satisfy the test in Taylor v Lawrence . In all the circumstances I would refuse this application, too.

 

63. LORD JUSTICE TUCKEY: I agree that these three applications should be refused for the detailed reasons given by the Master of the Rolls. I must add that if we had allowed the applications and the appeals which they presage, it would have sent out entirely the wrong message. Miss Mountfield was at pains to point out that these were truly exceptional cases and that no floodgates would be opened if the councils succeeded, but I do not accept this. It cannot be right that a litigant who has taken unarguable points in proceedings which have long since ended and been penalised in costs for doing so should be allowed to re-open the proceedings in order to attack the costs order, simply on the ground that a subsequent change in the law made or may have made those points arguable. This is what the applicants have tried to do here. If we had allowed these applications I do think we would be opening the floodgates to satellite litigation; not in current litigation which is much to be discouraged, but in litigation which everyone should be entitled to assume, and all parties to it should accept, is over.

 

64. Following the principles laid down in Greig Middleton and Taylor v Lawrence , I do not think the interests of justice demand that the cases before us should be re-opened.

 

65. LORD JUSTICE PARKER: I agree with both judgments.

 

Order : Application refused.