HS2 Action Alliance, R (on the application of) v London Borough of Hillingdon & Anor

For an Aarhus Convention judicial review claim, whether the special costs regime applies depends on the nature, or claimed nature, of the decision, act or omission challenged. Once the claim qualifies, Civil Procedure Rules 1998 Part 45 and Practice Direction 45 govern costs without any further gloss from the Convention.

The ordinary meaning of claimant includes a local authority and other legal persons. The rules contain no implied exclusion for public authorities. Whether a local authority may also be a member of the public for Convention purposes was left undecided.

HS2 Action Alliance and the London Borough of Hillingdon sought judicial review of safeguarding directions made for Phase 1 of the proposed High Speed Two railway. Lindblom J dismissed the claim and later capped each appellant’s liability for costs at £10,000 under Civil Procedure Rules 1998 Part 45 and Practice Direction 45. The merits appeal was dismissed: [2014] EWCA Civ 1578.

The Secretary of State’s cross-appeal concerned only the Borough’s entitlement to costs protection. The central issue was whether a local authority, as a public authority under the Aarhus Convention, was excluded from the meaning of claimant in the domestic costs rules.

The Court dismissed the respondent’s cross-appeal. The London Borough of Hillingdon was entitled to the costs protection provided by Section VII of Part 45 of the Civil Procedure Rules 1998 and paragraph 5.1 of Practice Direction 45.

1. Under Rule 45.41(2), whether a claim is an Aarhus Convention claim depends on the nature, or claimed nature, of the decision, act or omission challenged. Once that issue is answered affirmatively, the costs liability of a party is governed by Rule 45.43 and Practice Direction 45 without further reference to the Convention.
2. The domestic provisions are clear, complete and self-contained. The ordinary and natural meaning of claimant includes a local authority. Paragraph 5.1 divides claimants into individuals claiming only as individuals and all other cases. The latter category is not confined to non-governmental organisations or members of the public. Public authorities are not excluded.
3. Rule 45.43(2) expressly permits different costs caps according to the nature of the claimant. That flexibility meant there was no need to imply an exclusion for local authorities. Such an implication would undermine legal certainty and encourage satellite litigation.
4. The consultation response concerning environmental judicial review could confirm that the exclusion of statutory appeals was deliberate, but could not alter the clear wording of the rules. The Court explained the proper significance of the decision in The Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539 and Lang J’s judgment in that case.
5. The Court declined to decide whether the Convention’s definitions of public authority and member of the public were mutually exclusive, or whether a local authority challenging another authority could rely on Article 9(3). Lindblom J’s conclusion on that issue was obiter, and any conclusion by this Court would also have been obiter. The issue was left for the Aarhus Convention Compliance Committee.

1. Court of Appeal (Civil Division) dismissed the respondent’s cross-appeal against the costs orders and upheld the Borough’s entitlement to costs protection.
2. Court of Appeal (Civil Division) had previously dismissed the merits appeal against Lindblom J’s dismissal of the judicial review claim: [2014] EWCA Civ 1578.
3. High Court, Administrative Court, Planning Court dismissed the judicial review claim. Lindblom J subsequently held that the second appellant was entitled to costs protection and capped each appellant’s liability at £10,000.