Costs in statutory review and judicial review claims

Kerry Underwood looks at an important Court of Appeal ruling on the application of the Aarhus cost cap in environmental claims.

In Campaign to Protect Rural England – Kent Branch v Secretary of State for Communities and Local Government and another [2019] EWCA Civ 1230 (15 July 2019) the Court of Appeal held that an unsuccessful claimant in a planning statutory review was required to pay the costs of two defendants and an interested party, and that the collective application of an Aarhus cap for protection of environmental costs to these was permissible.

Thus the court awarded costs against the claimant in relation to three sets of defence costs, but in relation to the costs of the interested party, reduced them to £1,875.50, so that the overall total did not exceed the Aarhus cap of £10,000.

It was accepted that this was an Aarhus claim. This is a reference to the Aarhus Convention of 1998 which provided that environmental litigation should not be “prohibitively expensive”.

The United Kingdom implemented this by providing in the Civil Procedure Rules, in 2017, that there should be a cap on the total costs liabilities of claimants to other parties.

At present that cap is £10,000.

The interested party did not appeal against the decision to cap only its costs so as to keep the total within the Aarhus cap, as compared with applying a pro rata reduction in respect of all three of the successful parties.

The claimant appealed, submitting that it was wrong to award more than one set of costs.

The claimant also submitted that it was wrong to absorb all of the Aarhus cap of £10,000 at the permission stage, as the cap applied to the whole costs of full proceedings.

The Court of Appeal held that there was no rule limiting the number of parties that could recover their reasonable and proportionate costs of preparing an Acknowledgement of Service if permission was refused to a claimant, and so the appeal on that point was dismissed.

The High Court held that the principles established in R (Mount Cook Land Ltd) v Westminster City Council [2004] C.P Rep. 12 applied to statutory review cases as well as judicial review claims:

“It is plain that the guidance given… about the recoverability of the costs of an Acknowledgement of Service and summary grounds when permission is refused, was and is equally applicable to both judicial review and statutory review claims.”

The Court of Appeal then reviewed the judgments in R (on the application of Mount Cook Land Limited) v Westminster City Council [2003] EWCA Civ 1346 and Bolton Metropolitan District Council and others v Secretary of State for the Environment [1995] 1 WLR 1176 and gave guidance on the extent to which the costs of multiple parties will be proportionate and therefore recoverable.

The Court of Appeal also rejected the argument that it was wrong to absorb all of the Aarhus cap at the permission stage.

The Court of Appeal also held that the position of interested parties was the same as that of actual defendants but observed that an interested party had greater freedom than a defendant to choose the extent to which they were involved in the proceedings.

The Court of Appeal also observed that it was wrong to introduce material surrounding the introduction of a new part of the Civil Procedure Rules:

“That is not good practice.The Rules say what they say and will be interpreted accordingly.”

That is an interesting, and potentially important, observation, as courts frequently quote various sections of reports, in particular the reports of Lord Justice Jackson, as background to the contents of Civil Procedure Rules.

That is now forbidden.

Kerry Underwood is senior partner of Underwoods Solicitors. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. Kerry offers consultancy services in relation to this and other matters - for more details click here.