The Queen on the application of Beevers & Ors v Environment Agency

An appellate court will rarely interfere with a first-instance judge’s discretionary costs order. Where the judge has adopted a broad-brush assessment of litigation involving competing positions, settlement undertakings and a common objective, the order may be challenged only if it falls outside the Wednesbury standard. The Court of Appeal will not reweigh matters such as correspondence, the practical benefit achieved, or the effect of after-the-event insurance where the judge has demonstrably considered the relevant circumstances.

Local applicants brought proceedings against the Environment Agency concerning the operation of the Barmby tidal barrage and whether it constituted a plan or project under the Conservation (Natural Habitats) Regulations 1994. Following an adjournment, the parties agreed undertakings concerning review of the barrage’s effects on hay meadows and possible amendment of the governing order. The remaining issue before Newman J in the Administrative Court was costs. He ordered that each party bear its own costs, adopting a broad-brush approach because the parties shared an environmental objective, the Agency had maintained its legal position, and the proceedings had nevertheless achieved a practical purpose.

The applicants sought permission to appeal against that costs order, arguing that the judge had failed to give sufficient weight to the parties’ correspondence and settlement offers.

1. Application dismissed. Permission to appeal was refused.
2. The costs order was a matter for the first-instance judge’s discretion. The judgment showed that the judge had considered the pre-action correspondence, the parties’ respective positions, the undertakings given, the practical purpose achieved by the proceedings and the fact that the parties shared a common environmental objective.
3. The judge was entitled to conclude that neither extreme position on costs was appropriate. Although the Agency had not accepted legal liability under Regulation 50, it had assumed obligations through undertakings to the court. The proceedings had therefore achieved some practical purpose, but the Agency had remained consistent in its legal stance.
4. The Court of Appeal would interfere only if the discretionary decision came within the Wednesbury formula. On the circumstances, it was not arguable that the judge’s order that each party pay its own costs met that threshold.
5. The applicants’ insurance premium did not justify interference. It would be wrong to give disproportionate weight to the small print of one party’s insurance policy in a broad-brush costs assessment.

• High Court of Justice, Queen’s Bench Division, Administrative Court: Newman J ordered that each party pay its own costs after the substantive matters had been addressed by agreement and undertakings.
• Court of Appeal (Civil Division): Lord Justice Henry dismissed the application for permission to appeal.