Aarhus Convention Claims, Interested Parties And The Cost Of Legal Research

KENT, R (ON THE APPLICATION OF) V TEESSIDE MAGISTRATES COURT

In this short judgment following a determination by the court that the Aarhus Convention applied to the claim Mr Justice Freedman went on to determine costs as between the Claimant and Interested Party. The latter had actively sought to oppose the Claimant having Aarhus costs protection whilst the Defendant had maintained a neutral stance.

Following the reasoning of the Court of Appeal in Campaign for the Protection of the Rural Environment Kent Branch v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 the court rejected the notion that it had no jurisdiction to award costs against an Interested Party in such circumstances.

“The starting point is CPR 4[5].45(3)(b) … namely that if the court holds that the claim is an Aarhus Convention claim, the Claimant will normally recover its costs.  Further, CPR 44.2[(2)](a) applies in that “the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party” subject to the ability of the Court to make a different order.  In this case, the Interested Party has been the unsuccessful party in that whereas the Defendant has been neutral, the Interested Party has been the active party, and its case about the non-application of the Aarhus Convention has been rejected.”

The decision also addressed the oft-debated issue of costs related to legal research.

“Whilst it is usually the case that research cannot be claimed, each case had to be decided on its facts and fees for legal research were not excluded where a case was unusual: see Perry v The Lord Chancellor Times Law Reports (26 May 1994)… The case cited by the Interested Party, Crown and Legal Aid Board ex parte Bruce [1991] 1 WLR 1231 was about the cost incurred of a disbursement in respect of legal research carried out by a person other than a barrister or solicitor… [It] is not authority for the proposition that there can never be recovered on an assessment of costs, money spent on legal research by solicitors or barristers.  Indeed, it was acknowledged in Johnson v Vaulks [2000] 3 WLUK 410 at [18] that counsel could not be expected to be a “walking library”… I am satisfied that the instant case is unusual and that it required an unusual amount of legal research of national and international law and procedure, as is apparent from the substantive judgment itself.  The legal research is not disallowed in principle.”

KENT, R (ON THE APPLICATION OF) V TEESSIDE MAGISTRATES COURT [2020] EWHC 304 (ADMIN)