Morgan & Anor v Hinton Organics (Wessex) Ltd

The Aarhus Convention is not directly enforceable in domestic law. Its principles may inform the exercise of a costs discretion, but a party relying on them must raise the issue and provide evidence that the potential costs would be prohibitive.

The private-interest criterion governing protective costs orders must be applied flexibly. A personal interest is relevant but does not automatically prevent an order.

An expert’s actual or apparent interest does not automatically make the evidence inadmissible. The court should address potential conflicts through case management, considering the available alternatives and the overriding objective. Where concerns can be tested by cross-examination, they ordinarily affect weight rather than admissibility.

Two residents brought private nuisance proceedings concerning odours from a nearby composting site. The first appeal challenged an interlocutory order requiring them to pay the operator’s costs after an interim injunction was discharged. They contended that the order was contrary to the requirement in article 9(4) of the Aarhus Convention that environmental proceedings should not be prohibitively expensive.

The operator’s separate appeal challenged the exclusion of its odour expert. The trial judge had held that a reasonable observer might regard the expert as insufficiently independent because another employee of his consultancy had advised the local authority on planning matters involving the operator.

The central issues were the domestic relevance of the Aarhus Convention to costs in private nuisance proceedings, the proper disposition of the interlocutory costs, and the test governing the admissibility of expert evidence where independence is questioned.

1. Both appeals were allowed. The operator’s costs of the interim injunction proceedings were reserved to the trial judge. The ruling excluding its expert evidence was set aside, and the trial was to recommence before a different judge.

2. The Aarhus Convention, although ratified by the United Kingdom and the European Community, had not been incorporated into domestic law. Its provisions therefore created no rule directly binding an English court. At most, its principles could inform the resolution of ambiguity or the exercise of a discretion, together with other considerations including fairness to the opposing party.

   The court proceeded on the basis that the Convention was capable of applying to private nuisance proceedings. Its requirement that procedures should not be prohibitively expensive encompassed a claimant’s total potential liability, including adverse costs. A party wishing a judge to take that requirement into account had, however, to raise it and provide the factual material needed to assess whether the costs would be prohibitive. The residents had done neither before the judge.

3. The private-interest requirement in the protective costs order guidelines stated in R (Corner House) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 must be applied flexibly. Although Goodson v HM Coroner for Bedfordshire and Luton [2005] EWCA 1172 had treated a private interest as disqualifying, subsequent Court of Appeal authority had endorsed a flexible approach. The nature and weight of the applicant’s interest should therefore form part of the overall assessment rather than operate as an absolute bar.

4. On conventional costs principles, the authorities were entitled to their costs because they had been wrongly included in the injunction. The operator stood differently. The residents had initially obtained relief, the operator had not appealed, and the residents had been willing to explore an independent monitoring mechanism which the operator rejected. Since the merits of the interlocutory dispute were closely connected with the merits at trial, the costs between the principal parties should have been reserved.

5. The expert evidence had been excluded under an erroneous apparent-bias test derived from Liverpool Roman Catholic Archdiocesan Trustees v Goldberg (3) [2001] 1 WLR 2337. Under Regina (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] EWCA Civ 932, disinterest is desirable but is not an automatic condition of admissibility.

   The alleged relationship was between the consultancy and a non-party local authority, not between the expert and the operator. Any concern could have been explored in cross-examination and taken into account when assessing weight. Excluding the evidence after trial had begun caused adjournment, wasted costs and delay, contrary to proportionality and the overriding objective.

1. Court of Appeal (Civil Division): Both appeals were allowed. The operator’s interim costs were reserved to the trial judge, the exclusion of its expert evidence was set aside, and a retrial before a different judge was directed.
2. High Court, Queen’s Bench Division: HH Judge Seymour QC discharged the interim injunction and ordered the residents to pay the costs of the public authorities and the operator. The order concerning the operator’s costs was varied on appeal.
3. Queen’s Bench Division, Bristol District Registry: HH Judge Bursell QC excluded the operator’s odour expert for want of independence, adjourned the trial and awarded the residents their wasted costs. That ruling was set aside.