R (on the application of CATHERINE LEWIS) v THE WELSH MINISTERS

A claim is an Aarhus Convention claim under CPR Pt 45.41(2)(a) where it is brought by a member of the public by judicial review, challenges the legality of a public body’s decision, and falls within article 9(1), 9(2) or 9(3). For article 9(3), the relevant question is whether the claim alleges contravention of a provision of national law relating to the environment. The nature of the challenged decision is not determinative. A good-faith environmental ground brings the costs regime into operation for the whole judicial review claim, even where other grounds are non-environmental. A claimant acting as an individual, rather than for another legal person, is subject to the lower costs limit.

The claimant challenged the Welsh Ministers’ approval of an outline business case for a new Velindre Cancer Centre. Permission to apply for judicial review was refused on all three grounds. The remaining issue was whether the claim attracted Aarhus Convention costs protection and, if so, whether the applicable claimant liability limit was £5,000 or £10,000.

The claim included an alleged breach of sections 6 and 7 of the Environment (Wales) Act 2016. The claimant had also brought the proceedings after correspondence initially referred to a local campaign group, Save the Northern Meadows. The central questions were whether the environmental ground was advanced in good faith, whether the claimant was claiming only as an individual, and whether the costs limit applied to the whole claim.

1. Costs limit. The claimant was claiming only as an individual for the purposes of CPR Pt 45.43(2)(a). Save the Northern Meadows was an unincorporated group without legal personality, and the claim was not brought on behalf of other legal persons. The applicable limit was therefore £5,000.
2. The claimant’s financial information complied with CPR Pt 45.42(1)(b). The rule required a genuine assessment of anticipated financial support. The later possibility of additional funding, including through publicity, did not establish non-compliance, particularly where the alleged effect on the claimant’s own finances was speculative.
3. Under the current wording of CPR Pt 45.41(2)(a), the court must focus on the nature of the claim, not the nature of the decision challenged. Article 9(3) is engaged where the claim alleges that a public authority has contravened national law relating to the environment. The allegation need not ultimately succeed: “contravene” includes a challenge founded on the contention that a contravention occurred.
4. The claimant’s ground alleging breach of sections 6 and 7 of the Environment (Wales) Act 2016 was an environmental-law ground, advanced in good faith. It therefore brought the claim within article 9(3), notwithstanding that permission had been refused and notwithstanding that the challenged approval concerned an outline business case.
5. Where a good-faith ground brings a claim within the Aarhus costs regime, the limit applies to the claim as a whole. The court should not apportion costs between environmental and non-environmental grounds. A different approach might arise if the environmental ground were not advanced in good faith, but the court left that situation open.
6. The claimant’s costs liability was limited to £5,000, apportioned between the defendant and interested party by reference to their respective shares of the total costs. The unsuccessful contention that the claim was outside the Aarhus regime attracted a costs order in the claimant’s favour, with set-off against the costs payable by her.

First-instance judicial review costs decision. Permission to apply for judicial review had previously been refused by Sir Ross Cranston on 21 September 2021, and permission was refused again at the hearing before Mr Justice Eyre. The judgment determined the consequential Aarhus Convention costs issue.