Morgan & Anor v Hinton Organics (Wessex) Ltd & Ors

On a renewed application for permission to appeal, failure to raise an issue before the lower court is a serious hurdle. It may nevertheless be overcome where the proposed appeal raises an issue of general importance and there is a sufficiently compelling reason for considering it. The Court may require prospective respondents to be heard before granting permission and may adjourn the application into open court. Where the issue concerns the relevance of the Aarhus Convention to the costs discretion, the Court may also invite submissions from the relevant Government Department on the Convention’s status in domestic proceedings.

This was a renewed application for permission to appeal from a decision of His Honour Judge Seymour QC in the Queen’s Bench Division. Permission had previously been refused on the papers by Pill LJ. The applicants relied on further evidence, including Mr Stookes’s seventh witness statement, and raised the relevance of the Aarhus Convention to the exercise of the costs discretion. The Court also considered the significance of the working party report under Sullivan J, which referred to the case. The central procedural question was whether the wider issue justified consideration despite its not having been raised before the judge, and what further steps were required before permission could be determined.

1. General importance and failure to raise the issue below. The Court regarded the applicants’ failure to raise the Aarhus issue before the judge as a serious hurdle. However, the issue appeared to have general importance, reinforced by the working party report on access to environmental justice. In the unusual circumstances, it was arguably a sufficiently compelling reason to justify granting permission in any event (paras 1–3).
2. Further hearing required. The Court considered that permission should not be granted without hearing from the prospective respondents. The application was therefore adjourned again for hearing in open court with notice to the respondents. The appeal was directed to follow at the same hearing if permission were granted (para 3).
3. Government submissions. The Court considered that it would be assisted by submissions from DEFRA on the status, if any, of the Aarhus Convention in domestic proceedings generally and in this case. The notice of appeal, skeleton argument, affidavit and seventh witness statement were to be served on DEFRA, which was invited to provide a written statement and could apply to be heard by counsel (para 4).
4. Constitution of the hearing. The adjourned application and any appeal were to be heard by three Lord Justices, including two Lord Justices and a judge from the Administrative Court, with environmental and administrative law expertise. Permission and the merits of the appeal were not determined at this hearing (para 5).

1. Court of Appeal (Civil Division): A renewed application for permission to appeal was heard after refusal on the papers by Pill LJ. The application was adjourned for an open-court hearing with notice to the respondents; the appeal was to follow if permission were granted. [2008] EWCA Civ 537
2. Queen’s Bench Division: The proposed appeal was from a decision of His Honour Judge Seymour QC. The judgment does not state the outcome below.