Garner, R (on the application of) v Elmbridge Borough Council & Ors

In environmental judicial review proceedings governed by Article 10a of the Council Directive 85/337/EEC, the domestic principles for protective costs orders must be modified so far as necessary to ensure that proceedings are not prohibitively expensive. The conditions requiring issues of general public importance whose resolution is required by the public interest do not apply.

Whether proceedings are prohibitively expensive cannot be determined solely from the particular claimant’s means. The court must consider objectively whether the potential costs would deter an ordinary member of the public concerned. A reciprocal cap on recoverable costs remains permissible where it is fair, proportionate and consistent with effective access to environmental justice.

The appellant sought judicial review of planning permission for redevelopment near Hampton Court Palace. His challenge concerned the local authority’s reasons, the statutory protection of the Palace’s setting and flood-risk policy. Nicol J refused a protective costs order because the issues lacked the required general public importance and the evidence about the appellant’s financial resources was insufficient.

The appellant appealed against that refusal. Two proposed additional claimants also sought permission to appeal against the refusal of their applications for joinder and costs protection. The central questions were how the domestic principles governing protective costs orders should operate where Article 10a of the Council Directive 85/337/EEC applied, and whether the proposed proceedings would be prohibitively expensive.

1. Appeal and applications allowed. The Court of Appeal granted a protective costs order for the three appellants and permitted Keith Garner Limited and Mr Macaulay to be joined. The appellants’ combined adverse-costs liability was capped at £5,000, while the respondent’s liability for their costs was capped at £35,000. Lloyd and Richards LJJ agreed with Sullivan LJ.
2. The domestic principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 remained settled and generally applicable. Where Article 10a of the Council Directive 85/337/EEC applied, however, those judge-made principles had to be modified so far as necessary to conform with the Directive.
3. The Corner House conditions concerning general public importance and the public interest in resolving the issues had no separate role in an Article 10a case. The Directive proceeds on the basis that effective public participation in significant environmental decision-making is in the public interest. It therefore requires an effective review procedure through which members of the public concerned can challenge the legality of such decisions.
4. The appellant was a member of the public concerned. His sustained professional and personal involvement in protecting the setting of Hampton Court Palace gave him an interest in the relevant environmental decision-making process. Whether he had a sufficient interest under section 31(3) of the Senior Courts Act 1981 remained for determination at the rolled-up hearing. The procedure by which that question would be resolved nevertheless had itself to comply with Article 10a.
5. A purely subjective assessment of whether proceedings were prohibitively expensive was incompatible with the Directive. Even if a claimant’s financial position could be relevant, the court also had to consider whether the potential liability would deter an ordinary member of the public concerned. Intrusive public investigation of personal means could itself produce an impermissible chilling effect.
6. The potential liability exceeded £60,000 plus VAT, while almost £15,000 had already been claimed for preliminary work. Those figures would deter most people of ordinary means. A protective costs order was therefore necessary.
7. Article 10a did not preclude a reciprocal costs cap. Whether to impose one remained a case-specific question. The limits could reflect disparities in resources and need not be identical, but they had to be fair, proportionate and compatible with a procedure that was not prohibitively expensive.

• Court of Appeal (Civil Division): Allowed the appeal and the applications for joinder. It granted a protective costs order capped at £5,000 and imposed a reciprocal £35,000 cap on the respondent’s liability: [2010] EWCA Civ 1006.
• Administrative Court: Nicol J dismissed the appellant’s application for a protective costs order on 3 March 2010 and ordered him to pay £3,000 in costs. On 27 April 2010 he refused the proposed additional claimants’ applications for joinder and costs protection. No neutral citation is stated in the judgment.