Kent, R (On the Application Of) v Teesside Magistrates Court

Under the Aarhus costs regime, the absence of an express reference to interested parties does not prevent the court from applying the costs cap or ordering an interested party to pay costs where it is otherwise liable. The court may depart from the usual costs position by considering the parties’ conduct and the substance of the dispute. An interested party that actively contests the application and is unsuccessful may be ordered to pay the claimant’s reasonable costs in full, while a neutral defendant may receive no order as to costs. Legal research is not invariably irrecoverable. In an unusual case, reasonable research undertaken by solicitors or barristers may be allowed, although duplication and excess remain subject to assessment.

The claimant sought costs protection under the Aarhus Convention regime. The court had previously held that the claim was an Aarhus Convention claim, leaving costs and quantum to be determined. The defendant remained neutral, whereas the interested party persistently opposed the claimant’s application and argued that costs should be awarded against the claimant.

The issues were whether the court had power to order costs against the interested party, whether costs should be awarded and against whom, and whether the claimant’s claimed costs were recoverable, including expenditure on legal research.

1. Power to order costs against an interested party. The reference to the defendant in CPR 45.45(3)(b) did not exclude an interested party. Following Campaign for the Protection of the Rural Environment Kent Branch v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230, the absence of an express reference to interested parties in CPR Part 45 was immaterial. The Aarhus cap limits the claimant’s exposure, regardless of whether the potential costs recipient is a defendant or an interested party.
2. Costs order. The general rule in CPR 44.2(a) was subject to the court’s discretion. The interested party had been the active and unsuccessful party on the Aarhus issue. Its opposition, including arguments concerning the merits and the claimant’s motivation and funding, materially caused the costs. The claimant was therefore entitled to its reasonable costs against the interested party in full. There was no order as to costs between the claimant and the neutral defendant.
3. Legal research. The court rejected the submission that legal research could never be recovered. Crown and Legal Aid Board, ex parte Bruce [1991] 1 WLR 1231 concerned a disbursement for advice obtained from a person who was neither solicitor nor barrister, and did not establish a universal rule excluding research costs. In an unusual case requiring substantial national and international research, reasonable research by solicitors or barristers could be recoverable. The court nevertheless made a modest reduction for possible duplication and excess.
4. The claimant’s costs were fixed at £24,000 inclusive of VAT, payable by the interested party in addition to the reciprocal cap amount.

The judgment determined costs following the court’s earlier oral judgment of 28 November 2019 that the claim was an Aarhus Convention claim. The defendant did not appear at the costs hearing and maintained a neutral position.