Austin & Ors v Miller Argent (South Wales) Ltd

A group litigation order is discretionary and should not be made until a sufficient number of claimants seriously intend to proceed with claims raising common or related issues. Funding uncertainty and inadequate information about individual claims may justify refusing an application as premature.

A party relying on the Aarhus Convention to challenge a costs order must raise the point before the judge making that order and provide evidence showing that the potential liability would be prohibitively expensive. The Convention does not require environmental litigation to be cost free. A protective costs order is unnecessary where the potential liability is within the claimants’ means and is not prohibitive.

More than 500 residents proposed private nuisance claims alleging that dust and noise from the respondent’s open-cast mining operations interfered with their homes. They sought damages and an injunction but had not issued claim forms.

His Honour Judge Jarman QC refused their application for a group litigation order. He considered the application premature because funding remained uncertain and insufficient information had been supplied about the effects on individual claimants. He also ordered the claimants to pay the respondent’s costs.

The claimants appealed against both decisions and applied for a protective costs order for the appeal. The issues were whether the judge had wrongly refused the group litigation order, whether the Aarhus Convention affected the costs order, and whether the appeal costs would be prohibitively expensive.

1. The appeal and the application for a protective costs order were dismissed unanimously. Section III of Part 19 of the Civil Procedure Rules 1998 provides a means of managing group litigation efficiently and cost effectively. A group litigation order nevertheless commits substantial party and court resources and remains discretionary. The court should first be satisfied that sufficient claimants seriously intend to proceed and that their claims raise common or related issues of fact or law.

2. The judge reasonably treated the application as premature. No claimant had issued proceedings or supplied an individual witness statement. The required information about distinctions between smaller groups of claims was absent. Only two claimants had limited before-the-event insurance, after-the-event insurance had not been obtained, and it was uncertain whether enough claimants could proceed. As this was a reasonable case-management decision, the Court of Appeal had no basis to interfere. The judge also had no obligation to adjourn again on his own initiative.

3. The challenge to the first-instance costs order was precluded by Morgan and Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107. The claimants had neither invoked the Aarhus Convention before the judge nor supplied evidence enabling him to determine whether the costs would be prohibitive. A treaty obligation not directly incorporated into domestic law did not require the judge to raise the matter of his own motion.

4. The respondent’s assurances limited each adult claimant’s first-instance liability to £361.52. The order would not be enforced against children or against an adult who neither renewed the group litigation application nor commenced a related claim.

5. The possible appeal liability of £192.04 per adult claimant was within the claimants’ means and was not prohibitively expensive under article 9.4 of the Aarhus Convention. Environmental litigation need not be cost free. Litigants may properly bear some costs risk to encourage disciplined and reasonable conduct and to avoid unfairly burdening successful parties. Whether a protective costs order can ever be made in private nuisance litigation therefore remained undecided.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously, and the claimants’ application for a protective costs order was also dismissed: [2011] EWCA Civ 928.
2. Cardiff District Registry: His Honour Judge Jarman QC dismissed the application for a group litigation order as premature and ordered the prospective claimants to pay the respondent’s costs on the standard basis.