Howard & Anor v Wigan Council

In an Aarhus Convention judicial review claim, the fixed costs regime applies even where an unusual issue arises after permission has been granted. The court may consider the merits of a newly added ground, including whether it is frivolous or without foundation, when deciding whether the protective costs order should be varied. However, the applicable fixed-costs rules continue to limit the claimant’s liability. For individual claimants, the maximum recoverable amount is £5,000 for each claim.

The judgment concerned the Defendant’s application to vary a protective costs order after two judicial review claims had been dismissed. A new ground alleging that sampling evidence was materially false had been added to the second claim and required additional evidence and hearing time. The court later found that the ground was without foundation and had no proper basis after the Claimants had considered the evidence.

The central issues were whether the protective costs order should be varied and whether the fixed costs regime for Aarhus Convention claims limited the amount recoverable from the Claimants.

1. The Defendant’s application to vary the protective costs order was allowed. The additional ground in Claim 2 was found to be without foundation after the Claimants had the opportunity to consider the witness evidence. The court had previously held that the allegation was not arguable.
2. The principles identified by the European Court of Justice in R (Edwards and another) v Environment Agency and others (No.2) [2013] 1 WLR 2914, and followed by the Supreme Court in R (Edwards) v Environment Agency and another (No.2) [2014] 1 WLR 55, permitted consideration of the claimant’s financial resources and the merits of the claim. Those considerations included reasonable prospects of success and the potentially frivolous nature of the claim at its various stages.
3. Despite the unusual circumstances, the two claims remained Aarhus Convention claims. The fixed costs regime in CPR 45.41–44 therefore applied. For individual claimants, CPR 45.43(1) and Practice Direction 45, paragraph 5.1(a), prescribed a maximum liability of £5,000 in respect of each claim.
4. The Claimants were ordered to pay the Defendant £5,000 in respect of each claim, totalling £10,000. The court stated that, even if the fixed costs regime did not apply, the same additional £5,000 would have been appropriate having regard to the Claimants’ limited financial resources.