Austin & Ors v Miller Argent (South Wales)

The Aarhus Convention 1998 was not, without implementing legislation or an applicable EU Directive, directly binding in domestic private-nuisance proceedings. Its principles could nevertheless inform statutory ambiguity and the exercise of judicial discretion, alongside fairness to the defendant. A party relying on the Convention needed to raise the point and provide a factual basis for assessing whether the order would be prohibitively expensive. Permission was granted to consider whether a group litigation application should have been dismissed as premature because of uncertain funding and sparse evidence, or instead made subject to further information and case-management terms. Permission was also granted to challenge the costs order.

The claimants, residents near a land reclamation site, proposed private-nuisance claims concerning dust and noise. They applied under CPR 19.11 for a group litigation order. HHJ Milwyn Jarman QC, sitting in the High Court at Cardiff on 11 November 2010, dismissed the application and ordered the claimants to pay the defendant’s costs on the standard basis.

The claimants sought permission to appeal. They argued that the funding uncertainty should not prevent a group action, particularly in light of the Aarhus Convention, and that the costs order should have been reserved or reconsidered. By the permission hearing, ATE insurance had been declined and the defendant had submitted a costs bill exceeding £257,000. The central issues were whether the GLO application was prematurely dismissed and whether the costs order was open to reconsideration.

Permission granted on both grounds. The judgment determined permission only; it did not decide the merits of the appeal.

1. The High Court had accepted that a number of potential claims might arise from dust and noise, but treated uncertain funding, sparse information about individual effects and the absence of sufficiently demonstrated common issues as making the application premature. The Court of Appeal would not lightly interfere with a case-management decision. However, the proposed appeal raised important access-to-justice issues.
2. It was arguable that the court should have considered putting the claimants on terms to provide further information and then making consequential case-management orders, rather than dismissing the GLO application.
3. The Aarhus Convention 1998 was not directly applicable to the private-nuisance claims in the absence of domestic implementing legislation or an EU Directive applying its terms. Its principles could nevertheless inform statutory interpretation and the exercise of discretion. Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107 indicated that a party relying on those principles should make the submission and provide evidence enabling the court to assess whether the effect of an order would be prohibitively expensive. The later decision in Lesoochranarske zoskupenievlk v ‘Slovakia’ (C-240/09) arguably required domestic procedural rules to be interpreted, so far as possible, consistently with the Convention’s objectives. Whether the full court would entertain the argument remained open.
4. In light of R (Edwards & Another) v Environment Agency & Others (No 2) [2010] UK SC57, the claimants could not challenge the defendant’s bill on the basis that costs officers should disallow costs as prohibitively expensive. Any such discretion had to be exercised by the tribunal making the costs order. Nevertheless, reconsideration of the original costs order was arguable, even if the GLO appeal failed.

Time for issuing the notice of appeal was extended. The defendant was directed to provide a costs estimate, and the protective-costs-order issue was directed to be considered initially in writing. The costs of the permission hearing were costs in the appeal.

1. High Court at Cardiff — HHJ Milwyn Jarman QC dismissed the application for a group litigation order on 11 November 2010 and ordered the claimants to pay the defendant’s costs on the standard basis.
2. Court of Appeal (Civil Division) — Lord Justice Pitchford extended time and granted permission to appeal on both grounds. The merits of the appeal were not determined in this judgment.