Contempt proceedings, the Aarhus Convention and costs

Rachel Sullivan analyses a case where it was successfully argued that contempt proceedings, brought against the local authority in a dispute over the felling of trees, were an Aarhus Convention claim and thus the claimant was entitled to costs protection.

The case of White v Plymouth City Council [2024] EWHC concerned contempt proceedings brought by the Claimant against the local authority arising from the felling of trees in March 2023. The application for contempt of court (based on the Council’s conduct leading up to the decision to undertake works, and an alleged breach of an injunction restraining further works) was dismissed, but the High Court considered whether the proceedings was an ‘Aarhus Convention claim’ within the meaning of CPR r46.24.

CPR r46.24(2) defines an Aarhus Convention claim as “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3)” of the Convention.

The High Court held that the application for an injunction fell within the scope of Article 9(3) of the Convention, as the Claimant sought to challenge an alleged contravention of domestic law relating to the environment by the Council. Although chronologically the injunction had been granted and then judicial review proceedings issued, it was a condition of the order granting the injunction that proceedings were issued and the injunction was made in anticipation and contemplation of judicial review proceedings. Accordingly, “[w]hen CPR Rule 46.24 refers to an Aarhus Convention claim as being one that involves a claim for judicial review, that must sensibly be read to include interim injunction proceedings that are made in anticipation of and in contemplation of judicial review proceedings. To hold otherwise would mean that the United Kingdom Government, as a Party to the Aarhus Convention, was not giving proper effect to that Convention when setting out its cost protection rules” (at [74]).

This conclusion was bolstered by Articles 9(4) and (5) of the Convention itself, which require Parties to the Convention to “provide adequate and effective remedies, including injunctive relief as appropriate” and to “consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice”. The requirement to provide adequate and effective remedies must include injunctive relief that preceded, but is conditional on, the lodging of a claim for judicial review (at [75]). By the same token, contempt proceedings to enforce such an injunction fall within the scope of the Convention: ‘[i]f an order for an injunction made by the Courts in, or in anticipation of, judicial review proceedings alleging a contravention of environmental laws, cannot be enforced then the remedies available will not be “adequate” or “effective” as required by Article 9(4)” (at [75]). The application for contempt therefore fell within the scope of CPR r46.24 and the Claimant was entitled to Aarhus costs protection.

Rachel Sullivan is a barrister at 39 Essex Chambers. She acted for the claimant.