Could a claimant find itself liable for the costs of more than one defendant in judicial review proceedings? Where the Aarhus cap of £10,000 applies , can this be used up at the permission stage? In this legal insight, we look at frequently asked questions on costs in judicial review proceedings.
Why could a claimant have to pay the costs of a defendant or interested party?
Under Part 54 of the Civil Procedure Rules (CPR), any person served with a claim form who wishes to take part in judicial review proceedings must file an acknowledgment of service. That acknowledgment of service must include a summary of the grounds for contesting the claim. The preparation of the acknowledgment of service will, therefore, take some work.
As Collins J put it in Leach , 'if a defendant incurs costs in submitting an acknowledgment of service, as required by the rules, then he ought to be able, if he succeeds, to recover his costs of so doing.'
Could a claimant have to pay the costs of more than one defendant?
The short answer is 'yes'.
The Court of Appeal recently looked at this question in CPRE (Kent) v Secretary of State for Communities and Local Government and another.
In that case, CPRE applied for statutory review of the decision by Maidstone Borough Council (the Council) to adopt the Maidstone Borough Local Plan. The Secretary of State for Communities and Local Government (SSCLG), whose inspector had found the plan to be 'sound', was named as the first respondent. The Council was named as the second respondent. Roxhill Developments Limited (Roxhill), the promoter of a local development site, was named as an interested party.
All three were served with claim forms. All three filed an acknowledgment of service with summary grounds setting out their reasons for disputing the claim for statutory review.
Permission to apply for statutory review was refused. CPRE was ordered to pay the costs of all three parties.
Lord Justice Coulson confirmed that the Court of Appeal in the Mount Cook case in 2003 'was setting out general guidance as to the entitlement of defendants and interested parties to their costs of the AoS and summary grounds of dispute, in circumstances where permission to bring judicial proceedings is then refused. The decision in Mount Cook was not…limited to single defendant cases only.'
Are judicial review and statutory review cases treated in the same way?
CPRE (Kent) v Secretary of State for Communities and Local Government and another concerned a statutory review, rather than a judicial review. The claimant argued that a more restrictive costs regime should apply in statutory review cases, but this argument was given short shrift by the court.
Can you summarise the principles that apply to costs in judicial review and statutory review cases?
The Court of Appeal in CPRE (Kent) v Secretary of State for Communities and Local Government and another summarised the principles as follows:
- When permission to seek review is refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their acknowledgment of service and summary grounds
- It is not necessary for the additional defendant(s) and/or interested party to show "exceptional" or "special" circumstances in order, in principle, to recover those costs.
- However, to be recoverable, those costs must be reasonable and proportionate. So, for example, if there is an obvious lead defendant and the court was not assisted by the acknowledgment of service or summary grounds of an additional defendant(s) and/or interested party, then the costs of that additional defendant(s) and/or interested party may not be proportionate and so will not be recoverable. That is an assessment which is case-specific and not susceptible to more general rules.
What happens if all of the defendants make the same points? Will they all get their costs?
This is the last point of the Court of Appeal's guidance (set out above). It will depend on the facts of the case.
What is the Aarhus cap?
The Aarhus Convention of 1998 provided, amongst other things, that environmental litigation should not be prohibitively expensive. In 2017 this was enacted in the UK via the Civil Procedure Rules.
The Aarhus cap limits the liability of a claimant to pay the costs of the other party (the defendant or an interested party) to £10,000 in the event that the claimant's claim is unsuccessful.
How quickly can the £10,000 Aarhus cap be used up?
The Court of Appeal, in CPRE (Kent) v Secretary of State for Communities and Local Government and another, considered this point.
CPRE was ordered to pay the costs of all three parties. Although the costs claimed exceeded £10,000, because the Aarhus cap applied, they were limited to £10,000.
CPRE claimed that, because the claim had failed at the permission stage, rather than at a subsequent hearing, the costs should be subject to a lower cap than the £10,000 set out in the CPR.
The Court of Appeal rejected this argument, making it clear that 'The £10,000 is an arbitrary cap…It has nothing to do with the average costs of civil litigation, much less the costs incurred in making an environmental claim, which can be notoriously high. It is therefore wrong in principle to assume that the £10,000 Aarhus cap must be referable to the costs of a claim that went all the way through to trial.'
Those embarking on applications for judicial or statutory review must not do so without considering the costs implications. Whilst they may benefit from the Aarhus cap, the £10,000 limit can quickly mount up.
Interested parties such as developers with the benefit of planning permission may find that they are last in the queue for their costs being paid unless they can demonstrate that the points they raised in the proceedings were those that succeeded over and above those made by the public bodies involved in the litigation.
If a full hearing is required following permission being granted, it is very unlikely that the £10,000 Aarhus cap will not have been exceeded prior to that full hearing. This may also have a bearing on the willingness of a public body to defend the proceedings especially if an interested party is prepared to fight the claim despite the chances of recouping its costs if successful being minimal due to the cap. It is essential that the defendants and the interested parties liaise in the litigation to ensure that an effective defence is put forward.