The British Association for Shooting and Conservation Limited & Anor, R (on the application of) v Natural England

A successful party ordinarily recovers its costs, although the court may reduce them for unsuccessful issues where that is reasonable in light of the case as a whole. Permission to appeal requires a real prospect of success or another compelling reason. A prospect need only be realistic, not fanciful, and need not exceed 50 per cent. The normal rule is that an order is not stayed pending appeal. The court balances the risks of injustice and considers the evidence for the asserted harm, with the appeal’s apparent strength relevant where the justice of the usual approach is in doubt.

The British Association for Shooting and Conservation Limited brought judicial review proceedings against Natural England, the regulator, with the Secretary of State for the Environment, Food and Rural Affairs as an interested party. In his substantive judgment, Ritchie J held the disputed keeping conditions invalid. At this consequential hearing, Natural England and the Secretary of State sought permission to appeal. The court also had to decide costs and whether to stay its order pending any appeal.

1. Costs. The claimant was awarded 100 per cent of its standard costs, to be assessed if not agreed. A payment on account of 60 per cent of the disclosed statement of costs was agreed, payable within 28 days. Applying rule 44 of the Civil Procedure Rules, the judge adopted the general rule that the successful claimant recovers its costs. Although the court could reduce costs for issues on which the claimant had failed, a reduction was not reasonable given the totality of the documents, arguments and evidence.

2. Permission to appeal. Under rule 52.6(1) of the Civil Procedure Rules, permission could be granted only if the appeal had a real prospect of success or there was some other compelling reason. The judge applied the realistic-prospect approach in Swain v Hillman [2001] 1 All ER 91 and the guidance in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, including that a prospect need not exceed 50 per cent. He also noted that an appeal is ordinarily a review under rule 52.21.

   None of grounds 1 to 4 was reasonably arguable, even applying a relatively low threshold. They challenged the ruling on the keeping condition under section 16(5), the interpretation of “release into the wild” under section 14(1), the irrationality analysis, and comments on the science. Ground 5 had been withdrawn. The court also rejected the asserted wider regulatory consequences as a compelling reason, finding the evidence insufficient. Permission was refused.

3. Stay. Rule 52.16 of the Civil Procedure Rules provides that an appeal or permission to appeal does not itself stay an order. Applying the guidance in Leicester Circuits v Coates [2002] EWCA Civ. 474 and Hammond Studdard v Agrichem [2001] EWCA Civ. 2065, the judge considered the usual rule against a stay, the balance of injustice, and the evidence of harm. There was no adequate evidence of irremediable harm, an ecological disaster or a regulatory gap. A stay was refused, and the time for applying to the Court of Appeal for permission was not shortened. The judge noted that Natural England had imposed the same conditions in 2026 licences despite the substantive judgment and criticised threats to withhold licences.

not stated in the judgment.